IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.655 OF 2007 IN COMPANY PETITION NO.466 OF 1995 Skypark Couriers Ltd. .. Petitioner And M/s.Gopaldas Estate & Housing Pvt. Ltd. .. Applicant V/s. The Official Liquidator, High Court, Bombay and Liquidator of M/s.Ross Murarka Finance Ltd. (In Liqn.) .. Respondent Mr.Saeed Akhtar for applicant. Mr.Ramakantha, Dy.O.L. present. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. DATE : 16th June, 2008 DATE : 16th June, 2008 DATE : 16th June, 2008 P.C. P.C. P.C. 1. The applicant has been before this Court from August 2004 praying that the liquidator be ordered and directed to handover quiet and vacant possession of Flat No.402, more particularly described in prayer clause (a) of the Company Application. 2. In the affidavit in support specific statements have been made with regard to the title of the applicant. It has been pointed out that ownership rights were acquired by the applicant from the builders M/s.Rawal Apartments Pvt. Ltd. A statement is made that there is an agreement entered into by said :2: M/s.Rawal Apartments Pvt. Ltd. The applicant has paid full consideration thereof. 3. In 1985 and to be precise on 11th November, 1985 the applicant executed a Lease Agreement in favour of the company in liquidation. From time to time the lease was renewed. The last renewal was made on 01st January, 1992. Thereafter the lease came to be terminated by Notice dated 21st February, 1998. The case of the applicant is that the company in liquidation refused to vacate the flat and contended that the lease is renewed till 30th November, 2000. All payments after 21st February, 1998 have been accepted without prejudice. Apart from the fact that about Rs.21 lakhs and odd are in arrears of rent, it is contended that in February 2000 the applicant’s employee paid a visit to the premises and discovered that the company in liquidation has not been occupying the premises. The flat was sealed by Official Liquidator, High Court, Bombay. Further enquiries reveal that the Official Liquidator was appointed as liquidator by virtue of the order dated 07th May, 1999. It is thereafter that the Company Application has been filed with the above mentioned prayers. 4. The Official Liquidator first filed a reply :3: stating therein that the possession was sought to be taken with the assistance of the liquidator attached to Delhi High Court and there has been correspondence and reminders sent but no steps could be taken. There is no denial of the fact that the premises have been sealed. 5. When these state of affairs were brought to the notice of this Court, Mr.Justice A.M.Khanwilkar passed an order directing that the notice be issued to the liquidator attached to Delhi High Court and he should show cause as to why no assistance has been offered to the liquidator attached to this Court to implement the direction and order of this Court so also enabling him to take possession. 6. On 17th April, 2008 the liquidator of Delhi High Court was present before me and he explained all circumstances. He gave an assurance that physical possession of the property would be taken. In the light of this assurance, the matter was adjourned so as to give a last chance to the liquidator. On 05th June, 2008 I was informed that the liquidator has taken possession of the flat. 7. Thereafter, he has filed a further report and in the same has stated that the original signed copies were :4: produced and xerox copies of the documents mentioned in the further affidavit in reply/report dated 12th June, 2008 were handed over. The xerox copies were communications from New Delhi Municipal Council recording the change of name, xerox copy of the Agreement of Lease, xerox copy of receipts and a letter dated 09th February, 1982 from Narender Anand and others to M/s.Rawal Apartments Pvt. Ltd. informing their intention to transfer the flat in the name of the applicant. Certain objections were raised and that is how Mr.Akhtar appearing for the applicant on last occasion sought time to satisfy the liquidator, with assistance of all original documents, about the title of the applicant. 8. Now, a further report is forwarded by the liquidator who has stated on oath that barring the Sale Deed a copy of which is produced, all original documents have been shown by Mr.Akhtar after he attended his office. It is stated that New Delhi Municipal Council has transferred the flat by mutating the entries in record. The taxes have been paid by the applicant and that is what the letter produced evidences. The original vendor M/s.Rawal Apartments Pvt. Ltd. have addressed a letter to New Delhi Municipal Council and copy thereof is also annexed to the affidavit/further :5: report of the Official Liquidator. Now, the only objection is that Lease Deed between the applicant and company in liquidation is not registered. 9. Mr.Akhtar has handed over to me the letter dated 14th June, 2008 from A.V.G Bhawan Maintenance Society which states as under: "This is to certify that Flat No.402, AVG Bhawan, M-3, Connaught Circus, New Delhi-110 001 (area 940 sq.ft.) stands in the name of M/s.Gopal Das Estates & Housing Pvt. Ltd., 28 Barakhamba Road, New Delhi, as per our records." 10. From a perusal of the entire materials, I am satisfied that the applicant has proved its right, title in the subject premises. I am also satisfied from a perusal of the Lease Deeds, copies of which are annexed to the said report and to the Company Application, that the company in liquidation was lessee and was paying rents as stipulated therein. I am also satisfied from a perusal of Notice dated 21st February, 1998 that the applicant could have made a claim against the company in liquidation, after terminating the lease. 11. The application is made on the basis that the :6: Supreme Court has held that once the company is in liquidation, its lease-hold properties, if taken possession by the liquidator can be retained by him provided he requires them for the business of the company in winding up and for effective and beneficial winding up operations. If the tests laid down in the said decision in the case of Ravindra Ishwardas Sethna and another Vs. Official Liquidator, High Court, Bombay and another (AIR 1983 Supreme Court Page 1061) are satisfied, then, the owner of the property can move the Company Court with the request that the liquidator be directed to hand over possession of the lease-hold premises. 12. It is applying these tests that earlier orders and directions have been issued by this Court. From 2004 till date various documents have been produced by the applicant to show that it is the owner of the premises in question. Considering the said material, I have no doubt in my mind that the applicant has proved the claim. Applying further test laid down in the aforesaid decision, I am satisfied that there is nothing on record to indicate that the liquidator requires the premises for the above operations/business. I enquired from the Deputy Official Liquidator who is personally present in the Court about this aspect and he states :7: that the premises are not so required. In such circumstances, I have no doubt in my mind that the applicant has made out a case for grant of relief in terms of prayer clause (a) of Company Application. It is accordingly made absolute. Company Application granted in terms of prayer clause (a). For other reliefs the applicant is at liberty to lodge its claim with Official Liquidator which shall be duly scrutinised in accordance with law. All concerned to act upon an authenticated copy of this order. (S.C.Dharmadhikari, J)