1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.109 OF 2009 Manoj Jaikishan Nogja ..Petitioner. Vs. Manas Hospitainment Pvt. Ltd. ..Respondent. .... Mr. Shailesh Shah with Ms. G. Bhagwat i/b Divekar & Co. for the Petitioner. Mr. Vishwajit P. Sawant with Ms. Sonali S. Pimpale for the Respondent. .... CORAM : DR. D.Y. CHANDRACHUD, J. 20th November, 2009. P.C. : 1. An agreement was entered into on 30th November, 2006 between the Petitioner and the Respondent by which a license was granted by the Petitioner of the premises of a shop, F/6-9 situated in a shopping mall at Thane for a period of thirty three months. The term of the license was to be from 5th December, 2006 until September, 2009. The license contemplated that an amount of Rs.2.52 lacs was to be paid towards security deposit. The Respondent as a licensee 2 was also required to pay the Common Area Maintenance (CAM) charges to the competent authority. The claim in the Company Petition is based on an alleged default on the part of the Respondent in paying the license fee. A statutory notice was addressed on 9th June, 2008 under Sections 433 and 434 of the Companies Act, 1956 to which there was no reply. 2. The defence to the Petition is that as a matter of fact possession was never handed over at the time of the execution of the agreement or thereafter and that consequently the license fee did not become payable. During the course of the hearing of the Petition at the stage of the admission, the Learned Company Judge by an order dated 3rd July, 2009 noted the case of the Respondent that the agreement did not contain a possession clause nor had any subsequent letter of possession been issued by the Petitioner. At that stage an adjournment was sought to take instruction as to whether any possession receipt was issued or for that matter whether there exists any document or circumstance to indicate that possession was 3 contemporaneously delivered to the Respondent when the agreement was executed. The Petitioner has filed an additional affidavit in order to establish that possession was handed over to the Respondent. This aspect of the case would be dealt with in the course of the judgment. 3. Counsel appearing on behalf of the Petitioner urged that under a leave and license agreement, the Petitioner always retained juridical possession of the premises. The agreement contemplated that possession of the premises would be handed over to the Petitioner upon the expiry of the term of the license; that during the term of the license the licensee would not sub-let the premises and that upon the expiry of the term or the sooner determination thereof, the licensee would remove itself from the premises. Moreover, the Petitioner retained the right to enter upon the licensed premises. It was urged that all these clauses would indicate that possession had been handed over in fact to the Respondent though as a matter of law juridical possession remained with the Petitioner. 2A. As already noted earlier, the principal defence is that possession of the 4 premises was not handed over. The circumstances which have been relied upon in support of the defence may now be set out. Firstly, it has been submitted on behalf of the Respondent that the agreement of license which was registered on 30th November, 2006 postulates that the license to use and occupy the licensed premises would commence at a future date viz. with effect from 5th December, 2006. Therefore, possession was not handed over at the time of the execution of the agreement. There is no documentary evidence to indicate that possession was handed over at a future date. Secondly, the agreement contemplated that the licensee would be required to pay the Common Area Maintenance charges to the competent authority. Admittedly, there was no demand for the payment of the maintenance charges by the competent authority. Thirdly, the first letter by the Petitioner demanding the payment of license fee was addressed only on 22nd November, 2007 nearly a year after the execution of the agreement. It is inconceivable that the licensor would wait for a period of one year, if the license fee was not paid to demand the payment of license fee. This again is a circumstance 5 which shows that possession was as a matter of fact not handed over. Fourthly, neither in the letter of the Petitioner dated 22nd November, 2007 nor in the letter terminating the license dated 24th May, 2008 did the Petitioner demand possession of the premises. There was only a claim for the payment of the license fee. This again establishes, prima facie, atleast that possession was never handed over to the company. Fifthly, there is no letter or any documentary evidence to indicate either handing over of possession to the Respondent at or about the time of the execution of the agreement or of the handing back of the possession by the Respondent to the Petitioner upon the termination of the agreement. 4. Counsel appearing on behalf of the Petitioner has relied upon a letter dated 15th January, 2007 issued by the Petitioner to the Manager of the shopping mall in which it has been stated that the shop had been given on license to the Respondent from 5th December, 2006 and that one set of keys had been handed over to the Respondent on 30th November, 2006. This, it may be noted, is not a 6 document inter partes but a letter addressed by the Petitioner to a third party. 5. Whether as a matter of fact possession was handed over to the Respondent or otherwise, raises a bonafide disputed question which it would not be appropriate to resolve on the basis of affidavits in a company petition for winding up. Rival circumstances have been placed before the Court by the parties. The Petitioner relies upon the agreement and upon the letter addressed to the Manager of the shopping mall to establish that possession was handed over. The Respondent relies upon the circumstance that the agreement itself contemplated that the term of the license would commence from a future date and upon the absence of any formal letter between the parties handing over possession to the Respondent or of the handing back of possession upon the termination of the agreement. The Respondent has relied upon the circumstance that since the date of the execution of the agreement, not even a demand for the payment of license fee was made for a period of nearly one year and neither in 7 the letter dated 22nd November, 2007 nor in the letter of termination dated 24th May, 2008 was there a demand for the recovery of possession. These issues of fact cannot be resolved in a company petition for winding up. There being a bonafide defence on the question as to whether possession was at all handed over it cannot be said that there is a debt due and payable. In these circumstances, it would be appropriate to relegate the Petitioner to the remedy ordinarily available in law for the recovery of its alleged dues. The Petitioner would be at liberty to do so. In that event it would be necessary to clarify that the observations contained in this order are confined to the disposal of the petition for winding up and shall not stand in the way of the trial of a suit. The Petition shall accordingly stand disposed of. *****