AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.181 OF 2005 IN COMPANY PETITION NO.166 OF 2002 N.R.Bearings Ltd. .. Applicants Vs. M/s.Modistone Ltd. & Ors. .. Respondents --- Ms.A.M.Bhambwani for applicants. Ms.Jaha Ara Sarkhot for respondent No.2. Mr.Sashipal Shankar for respondent Nos.4 and 5. Mr.S.Ramakanta, Dy.O.L. persent. Mr.Ashok Krishna Shelar and Smt Devki Krishna Shelar present in person. --- CORAM : S.C.DHARMADHIKARI, J. DATED : 04th July, 2008. ORAL JUDGMENT: . Leave to amend and insert Garage Number in prayer clause (a) of the Company Application. The applicant Company has moved this application seeking possession of the premises which is a garage in Shangrila Building, 27-A, Carmichael Rd, Mumbai 400 026. 2. The case of the applicant is that the 1st : 2 : 2 : 2 : respondent Company in liquidation was occupying the flat in Shangrila Building. The flat number is 10 and attached to that flat was a garage/parking area. 3. Respondent Nos.4 and 5 were occupying the flat. The applicants filed a suit for eviction in the Small Causes Court. In the meanwhile, the applicants became aware of the winding up proceedings and the order passed on 21st July, 2002. Once, monthly tenancy of the company in winding up was duly terminated on 26th September, 1984 and thereafter eviction suit was filed, then, the company could not have retained the possession of the flat. The proceedings that are initiated for possession of the garage are referred to in the affidavit in support. Finally, it is contended that the Company Application No.180 of 2005 was moved in this Court seeking possession of the flat No.10. That Company Application was allowed on 15th September, 2005 and this Court directed the person in occupation to handover vacant and peaceful possession of the flat to the OL. The OL was directed in turn to handover the possession of the flat to the applicant herein. That order was challenged by the persons in occupation by preferring an appeal Company Appeal No.939 of 2005 and : 3 : 3 : 3 : on 21st November, 2005 the same was dismissed. 4. Thereafter, the said persons approached the Hon’ble Supreme Court and even the Supreme Court did not interfere with the order passed by this Court. 5. It is in these circumstances that the liquidator took possession of the flat. However, the garage was in occupation of the heirs and legal representatives of one Krishna Shelar. They did not handover possession of the said garage. In their submission, the proceedings against them are pending. Therefore, they should be evicted only by due process of law. The Company Application is not the remedy of the applicants and it deserves to be dismissed. 6. By the present Company Application the possession of the garage is now sought. 7. This Company Application was placed before this Court and it was pointed out that Krishna Shelar has expired. His wife Devki Shelar and his son Ashok Shelar are presently occupying the garage. They are in possession with the other family members. Krishna : 4 : 4 : 4 : Shelar admittedly expired on 27th July, 2006. It is pointed out that the possession of the said garage is with the family for considerable length of time. They are coming from very poor strata of the society and therefore, have no means to immediately make arrangement for their residence. 8. In the 2nd affidavit which is filed on 02nd May, 2008 it is contended that the husband and wife were working in the flat. They were allowed to occupy the garage. They have also been proceeded against by the applicants in the Small Causes Court but the suit in that behalf was dismissed on 18/19th December, 2000. An appeal has been preferred by the applicants being Appeal No.533 of 2001 before the Appellate Bench which is pending. In the meanwhile, a suit was filed, being Suit No.6181 of 1992 in the City Civil Court which was also dismissed on 17th March, 2003. Since the appeal is pending in the Small Causes Court, they prayed that the present proceedings also should not be disposed of but must await the outcome of the appeal. 9. In my view, what has not been disputed before me is that the garage goes with the flat. The occupant of : 5 : 5 : 5 : the flat is entitled to the use of garage. The garage has no independent existence. It is part of and attached to the flat. In such circumstances and when the occupants of the flat have been directed to vacate and handover peaceful possession to the OL by this Court which order has been confirmed right up to the Supreme Court, then, the heirs and legal representatives of the deceased Krishna Shelar have no right to occupy the garage. They cannot claim any independent right to occupy the same. In such circumstances, on account of subsequent developments, the request of Ms.Sarkhot to adjourn the matter cannot be granted. For the reasons that are already set out in the order dated 15th September, 2005 and additionally finding that the garage cannot be said to be an independent premises regarding which any rights have been created, then, the heirs and legal representatives of the deceased must handover vacant and peaceful possession of these premises i.e the garage to the OL. The OL in turn should handover the same to the applicants. 10. At this stage, Ms.Sarkhot submits that the applicants are from poor section of the society. They have been residing in the premises for decades together. : 6 : 6 : 6 : If they are directed to be evicted forthwith, then, they will suffer serious loss and prejudice. In the alternative, she prays that one years time be granted to them to vacate the premises. 10. It is not possible to accede to the request of Ms.Sarkhot to grant one year time. Considering the totality of the facts and that the heirs are in occupation for some time, interest of justice would be subserved if the heirs and legal representatives are granted time till 31st December, 2008 to vacate the premises subject of course to their filing undertaking in this Court in the following terms:- (a) That Devki Krishna Shelar and Ashok Krishna Shelar so also family members of Ashok Krishna Shelar are in occupation of this garage. (b) That none other are in occupation and possession thereof. (c) That they will not alienate, encumber, create third party rights or induct any one in possession and that they will hand over vacant : 7 : 7 : 7 : and peaceful possession of the said garage to the OL on or before 31st December, 2008. (d) The undertaking be filed within a period of 15 days from today. (e) If the undertaking is not filed, the OL is at liberty to take possession of the garage and if necessary with police assistance. Similarly, if the undertaking is filed but the conditions are breached or that the heirs and legal representatives do not handover possession on 31st December, 2008, then, OL is at liberty to take the possession forcibly and evict the persons in occupation with police force. (f) Company Application disposed of in above terms. (g) The OL Report disposed of with liberty to the applicant to initiate appropriate proceedings to recover the damages/losses caused by respondent Nos.4 and 5 allegedly to the flat : 8 : 8 : 8 : in question. All contentions in that behalf are kept open. (S.C.Dharmadikari,J)