1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY APPLICATION NO. 520 OF 2010 IN COMPANY PETITION NO. 215 OF 1997. Mr. Yusuf Razak Dhanani & Ors. ..Applicants. v/s. The Official Liquidator of M/s. Divya Chemicals Limited & Anr. ..Respondents. .... Mr. Rohan Cama, i/b. Sanjay Udeshi & Co., for Applicants. Mr. Shailesh Shah, a/w. Mr. P.K. Vyas, for Respondent No.2. Deputy Official Liquidator, present. .... CORAM : S.J. KATHAWALLA, J. DATE : 29TH OCTOBER 2010. P.C. This Company Application is taken out by the Applicants for setting aside of the order dated 15th February 2009 passed by the Official Liquidator, High Court, Bombay and to raise and/or remove the attachment of the premises being tenanted premises No.165, Famous Cine Building, Mahalaxmi, Mumbai-400 011 (the said premises) of the Applicants and hand over quite, vacant and peaceful possession of the said premises to the Respondent No.2, who is the landlord of the said premises. 2. The relevant facts are as under : 3. The Applicants are the partners in Sana Business Service Centre which is a registered partnership firm, carrying on business 2 of running a business service centre at 161/165, Famous Cine Building, Mahalaxmi, Mumbai-400 011 which is a rented property consisting of five Galas. The said five Galas originally stood in the individual names of the Applicants. Gala No.165 is the subject matter of this Company Application. The said Gala No.165 earlier stood in the name of Mr. Mohd. Ismail Tai (Applicant No.5). The landlord of the Famous Cine Building in which the said five Galas are situated is Famous Studio Limited (the Respondent No.2 herein). 4. M/s. Divya Chemicals Limited (in liquidation) was in occupation of a cabin (i.e. one of the 5 Galas )being No.165, under an arrangement with the Applicant No.5. In or around June 1998, the said Divya Chemicals Limited shifted their registered office from the said premises to their factory premises at Roha, District-Raigad. Thereafter from 1999 to 2001 the Gala Nos. 161 to 165 were given under Business Service Agreement to Glenmark Pharmaceuticals Limited. Thereafter, the said Galas were occupied by the firms connected with the partners of the said Sana Business Service Centre. As Divya Chemicals Limited was connected with some partners of Sana Business Service Centre, as a matter of goodwill , the said Divya Chemicals Limited was allowed to keep some files in the said premises. 5. In the year 1999, the landlord i.e. Famous Studio 3 Limited filed five eviction Suits against all the Applicants for the recovery of the said five Galas including Gala No.165 which is attached by the Official Liquidator on the ground of breach of Tenancy Agreement. 6. On 30th May 2003, the representative of the Official Liquidator, High Court, Bombay, visited the premises and upon finding some records/files of Divya Chemicals Limited in Room/Gala No. 165, sealed the said room and displayed the board of the Official Liquidator. Thereafter, the Applicants took out Company Application being No.57 of 2004 in Company Petition No. 215 of 1997 inter alia seeking direction from this Court to direct the Official Liquidator to lift the attachment and remove his seal which Petition came to be dismissed in default by an order dated 18th March 2005. 7. In the eviction Suits filed by the landlord on 24th April 2008, the Applicants filed their Affidavits and their consent terms inter alia surrendering the tenancy rights in respect of the said premises in favour of the landlord i.e. Famous Studio Limited. Decrees were passed in all five eviction suits in terms of the consent terms. However, since Gala No.165 was sealed by the Official Liquidator, possession of the same could not be handed over to the landlord. 8. Thereafter, another Company Application being No. 897 4 of 2008 was taken out by the Applicant No.3 inter alia seeking directions from this Court against the Official Liquidator to raise the attachment and/or remove the seal from the tenanted premises No.165. The Official Liquidator filed his report stating that the Applicants be put to strict proof of proving the tenancy. The said Company Application was disposed of by an order of this Court dated 23rd October 2008 with liberty to the Applicant therein to apply to the Official Liquidator and produce documents in support of his claim that he is the real tenant in respect of the suit premises and entitled to enjoy possession in his own rights. Pursuant to the above liberty, the Applicant No.3 produced necessary documents before the Official Liquidator in support of his claim and sought release of the suit premises. The Official Liquidator by his order dated 19th February 2009 rejected the claim of the Applicant No.3 on the ground that even though Divya Chemicals Limited had shifted its registered Office from the said premises, there is no document on record showing surrender of the said premises and further in the application, an order is sought for removing of seal of the premises No.163 whereas the Official Liquidator has taken possession of premises 165 which belongs to Mr. Mohd. Ismail Tai, Applicant No.5. 9. The learned Advocate appearing for the Applicants has submitted that premises 161 to 165 are now owned by Sana Business 5 Service Centre which is a registered Partnership Firm and therefore, any Applicant could have made an application for release of Gala/Premise No. 165 in Famous Cine Building. He submits that the Liquidator has in his Affidavit himself stated that the Company in liquidation had shifted its registered office from Gala/Premise 165 to its factory at Raigad and has also filed Form 18 dated 8th July 1998 to this effect with the Registrar of Companies, Maharashtra. The Liquidator has also confirmed in his Affidavit that thereafter, the said premises was given to Glenmark Pharmaceuticals Limited under a Business Service Agreement executed by and between Sana Business Service Center and Glenmark Pharmaceuticals Limited which is annexed at Exhibit-U to the present Company Application. The Official Liquidator has taken posession of the said Gala No. 165 only on noticing certain files pertaining to Divya Chemicals Limited which were lying in the said premises. It is therefore, submitted that Divya Chemicals Limited (in liquidation) had no right of whatsoever nature in the said premises atleast since July 1998 and that the prayers sought in the Company Application be allowed. 10. In view of the above, it is clear that Divya Chemicals Limited had no rights in and over the said premises. The said Divya Chemicals had used the said premises as its registered office for some time and thereafter shifted the same to its factory premises at 6 Raigad. The Company has also filed Form No.18 with the Registrar of Companies which shows that the said Divya Chemicals Limited shifted their registered office from the said premises to their factory premises at Raigad. From the records it is further established that after Divya Chemicals shifted from the said premises the same were used and occupied for almost three years by Glenmark Pharmaceuticals Limited which is an independent entity. The Agreement with Glenmark Pharmaceuticals is also annexed as Exhibit-U to the Application. I am, therefore, satisfied that the Company in liquidation had no right over the said Gala No. 165 after July 1998. Even otherwise the Official Liquidator has informed the Court that the said premises is not required by him. The Company Application filed by the Applicants therefore deserves to be allowed. 10. The Company Application is therefore, allowed in terms of prayer clauses (a) and (b). The Company Application is accordingly, disposed of with no order as to costs. [ S.J. KATHAWALLA, J. ]