1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR COMPANY APPEAL NO.7/2008 IN CAL NO.27/1999 IN CMP 1/97 M/s Rahul & Company ..vs.. Official Liquidator =================================== Mr. Darda, Advocate for the appellant Mr. =================================== CORAM: A.M. KHANWILKAR & S.R. DONGAONKAR, JJ. DATE:26.6.2008 P.C. Heard counsel for the appellant and the representative of the Official Liquidator. Perused the relevant documents and pleadings on record. The order which is essentially impugned before us in this appeal is dated 4.4.2008 passed on Company Application no.27/1999. The said Company Application was taken out by the appellant – third party who asserted to be in possession of blocks no 4 & 8. During the pendency of the said application, the Official Liquidator appears to have submitted report, being O.L.R. No.28/2003. On 6.6.2003, an order came to be passed on the said report on the following terms: “Coram : J.N. Patel, J. Dated: 6.6.2003 Heard. 2 The impugned notice is received by the O.L. from the Society. In view of this the Court is prima facie satisfied that the company was in possession of the entire second floor, therefore, the O.L.R. is allowed in terms of prayer clause (A). In order to execute the order it will be open for the O.L. to seek police assistance from the Commissioner of Police, Mumbai. On such application being made by the O.L. the Commission of Police, Mumbai would given sufficient police assistance to the O.L. to execute the order by removing any person who is in possession of the premises.” (emphasis supplied) Significantly, it is not in dispute that the appellant was not party when the Official Liquidator's report no. 28/2003 came to be disposed of on 6.6.2003. When the Official Liquidator attempted to take possession of the block numbers 4 and 8, situated in Runwal Chambers, Mumbai and in view of the observations of the learned Company Judge, the appellant immediately rushed to this court and filed Company Appeal No.3/2003 challenging the order passed on the Official Liquidator's Report referred to above. Said appeal came to be disposed of by the Division Bench on following terms: “ Coram: D.D. Sinha & A.B. Chaudhari, JJ. Dated : February 5, 2007 Heard Shri Darda, learned Counsel for the appellant, and Shri Anjan De, learned counsel for the respondent. The Company appeal is directed against the order dated 6.6.2003. Learned Company Judge prima facie was satisfied that the company was in possession of entire second floor and, therefore, Official Liquidator's report was allowed in terms of prayer clause (A). However, Shri Darda, learned counsel for the appellant, disputes this aspect and 3 states that entire floor could not be ordered to be taken into possession since possession of block nos. 4 and 8 was already given. Be that as it may, all these issues can be considered by the learned Company Judge. In that view of the matter, we are not inclined to show any indulgence. The company appeal is disposed of.” (emphasis supplied) From the above order it is more than clear that the grievance of the appellant that the entire floor could not be ordered to be taken into possession as the appellant was already in possession of the block numbers 4 and 8, was taken note of and was left open to be considered at the appropriate stage. That obviously means that the said issue was to be examined in the context of reliefs claimed in the Company Application No.27/1999 filed by the appellant which was still pending on the file of the Company Judge. However, when the said Company Application No.27/1999 matured for hearing in April 2008, learned Company Judge has non-suited the appellant on the ground that the grievance of the appellant has already been addressed in order dated 6.6.2003 and it is not open to the appellant to agitate the same issue afresh, in the present application. Having regard to the order of the Division Bench dated 5.2.2007, with utmost respect, we disagree with the approach of the learned Company Judge. For, the issue relating to right, title and interest of the appellant, if any, in respect of the block no.4 and 8 purportedly in occupation of the appellant in its own rights, has been expressly kept open to be decided at the appropriate stage in terms of the order dated 5.2.2007. Having said so on the earlier 4 occasion, it is inappropriate to non suit the appellant by dismissing its Company Application No.27/1999, on the specious argument canvassed on behalf of the Official Liquidator that the said issue is already concluded. In our opinion, the learned Company Judge has committed manifest error which has caused serious miscarriage of justice. In these circumstances, we allow this appeal and set aside the order dated 4.4.2008 and restore the Company Application No.27/1999 to the file of the learned Company Judge to be considered afresh on its own merits and in accordance with law. All questions in the said application will have to be addressed on its own merits. While parting, we may place on record that although the appellant has assailed the order of the company Judge dated 6.6.2003 in this appeal, however, the counsel for the appellant has given up that prayer. Indeed, the counsel for the appellant contended that the said prayer was necessitated due to the view taken by the learned Company Judge in the impugned order dated 4.4.2008. We do not find any merit in that justification. Be that as it may, for the view that we have taken, the said prayer is not pressed by the appellant. No order as to cost. JUDGE JUDGE smp. 5