MC 2324/2005 BEFORE HON BLE MR. JUSTICE AMITAVA ROY This miscellaneous application has been registered on an application fil ed under section 456 of the Companies Act, 1956 ( for short, hereafter referred to as the ’Act’) seeking the following reliefs - (a) An order of injunction restraining the respondents from taking possessio n or interfering with the possession and rights of the applicant to run the fact ory of the Company-in-Liquidation in continuation of lease agreement dated 28/2 /2002. (b) An order directing the respondent not to disturb or interfere with the r ights and obligations of the applicant under the lease deed dated 28thg February , 2002(Annexure-A) and agreement dated 29th June,2002( Annexure-B. (c) An order directing the official liquidator to allow applicant M/S B & A Ltd. to continue to run the factory of Aidaupukhuri Tea Estate during the contin uance of winding up proceedings. (d) The official liquidator be directed to sale/auction the factory subject to the leasehold right of applicant in terms of the Lease Agreement dated 28th F ebruary,2002( Annexure-A). (e) The official liquidator be directed that if the applicant wants to remov e the machineries and other assets as detailed in Annexure-E installed by the ap plicant in the factory of Aidaupukhuri Tea Estate in such event official liquida tor should allow the applicant to remove the machineries and other assets. (f) Ad-interim order in terms of prayers above. The applicant, M/S B & A Ltd. claims itself to be a company registered under the Act with its registered office at Rukmini Nagar, GS Road, Guwahati and engaged in growing and manufacturing of tea. According to it, in return of fin ancial help rendered by it to M/s Aidaupukhuri Tea Estate (P) Ltd. ( for short, hereafter referred to as ’Company in Liquidation’), an agreement was entered int o between them on 28.2.2002 whereby, a lease for a period of 25 years of Aidaupu khuri Tea Estate owned by the latter (Company in Liquidation) was agreed upon. T he applicant has asserted that, pursuant to the lease deed, it had thereafter ma de huge investments for installing adequate equipments and machineries by spend ing about 90 lacs. According to the terms and conditions of the lease agreement , it also took over the possession of the tea estate and factory, the capacity whereof was subsequent thereto increased due to its initiatives. It claims to ha ve invested a further amount of Rs.94 lacs for the improvement of the field and factory of the aforementioned tea estate. While the applicant company was thus in possession of the tea estate an d administering the same, it came to learn that in Company Petition No.12/2002 t his court had passed an order on 5.5.2005 winding up Aidaupukhuri Tea company un der the relevant provisions of the Act. Apprehending that the respondent liquida tor in terms of the order of winding up passed by this Court may dispossess it from the factory as well as the premises of the tea estate, it has approached this Court seeking the above reliefs. It has appended along with the application the particulars of the additional machineries and equipments installed by it, the details of its investments otherwise made as well as the report of the Statu tory Auditor M/s PK Nandi & Associates, Chartered Accountant. It has asserted th at if the respondent liquidator takes over the entire property including its p lants, machineries and other assets lying in the premise of the Company in Liqui dation, it would suffer irreparable loss and prejudice. From the additional affidavit filed by the applicant, it appears that me anwhile, the United Bank of India, Sivasagar Branch has initiated a proceeding being OA No.62/2003 with the Debts Recovery Tribunal, Guwahati to recover an amo unt of Rs.3,20,62,967/29 with interest and cost from the Company in Liquidation and that the said claim has meanwhile been decreed. The affidavit further dis closes that following a settlement between the Company in Liquidation and the ap plicant Bank ascertaining the amount for a settlement on compromise, the applica nt herein had offered to get the Aidaupukhuri Tea Estate purchased by one M/s Barooahs & Associates Private Limited and that in response to the said offer, th e latter company has meanwhile deposited an amount of Rs.5,00,000/- in favour of the bank. According to the applicant, this development has also been meanwhile communicated to the official liquidator vide letter dated 16.3.2006 to the Chi ef Manager, Kolkata Branch of United Bank of India. In his counter, the respondent liquidator has in substance contended tha t the present application under section 446(2) of the Act is not maintainable a s the applicant is neither a creditor nor a contributor of the Company in Liquid ation as contemplated in Section 466. The answering respondent has pleaded as well that the application is an endeavour to nullify the winding up order and the consequential proceeding which needs to be administered in accordance with the provisions of the Act. Whereas, Mr Bharali has urged with reference to section 446(2) of the Ac t that having regard to the purport of the language contained therein, the inst ant application is maintainable in law and this court has the jurisdiction to gr ant the reliefs prayed for, Mr Dutta has insisted that a conjoint reading of se ctions 446 and 466 of the Act belies the contentions of the applicant. Mr Bhara li in support of his stand has placed reliance on the decisions of the Apex cour t in Sudarsan Chitsr (I) Ltd. Vs. O.Sukumaran Pillai and Others, (1994) 4 SCC 6 57 as well as in Smt. Nirmala R. Bafna v. Khandesh Spining and Weaving Mills Co. Ltd and another, (1992) 74 Company cases (I) as well as on those rendered by various High Courts. This court vide its order dated 30.1.2009 on a consideration of the note dated 5.1.2009 submitted by the Official Liquidator had entrusted Sri Das Purka yastha with the task of identification of the properties claimed by the applican t to be its own and presently located in the factory premises of Aidaupukhuri Tea Estate. The aforenamed surveyor and loss assessor by his identification re port dated 3.4.2009 has set out in Schedules-A,B and C the list of tools, plant s and machineries and investments made in fixed assets by the applicant in the A idaupukhuri Tea estate , existing plants and machineries of M/s Aidaupukhuri Tea Estate handed over to the applicant during the lease agreement and the new pla nt and machinery installed by the applicant during the lease agreement respect ively in details. Copy of the report has been furnished to the learned counsel f or the parties and in course of the arguments, no reservation has been expressed with regard to the existence thereof. This observation of this court however, should not be construed to be by way of acceptance of the report as such. . On being queried by this Court, Mr Bharali has submitted on instructions that as on date even after submission of the identification report , no claim h as yet been made by the applicant in connection therewith before the respondent liquidator who, following the winding up order in terms of section 456(2) is t he physical custodian of the property of the Company in Liquidation on behalf of this court. Noticeably, the applicant has neither figured in the winding up pr oceeding , nor as on date has preferred any appeal against the order dated 5.5. 2005 passed in Company petition No.12/2002. Its claim of leasehold right vis a vis Aidaupukhuri Tea Estate has not yet been adjudicated upon and established in any court of law. The reliefs prayed by it, in the instant application assu redly stem from such lease. Be that as it may, having regard to the stage of th e liquidation proceeding and the legal consequences in terms of the order dated 5.5.2005 passed by this court in Company petition No.12/2002 whereunder the Of ficial Liquidator has the authority to administer the liquidation proceeding u nder the Act, it is considered appropriate, having regard to the nature of the c laim made by the applicant, that it be required to submit an application befor e him at the first instance in connection therewith for the reliefs contemplated in law. Ordered accordingly. It is made clear that this court has not on the p resent application expressed its mind on the merits of the contention of the ap plicant and the respondent Liquidator. If an application as indicated hereinabov e is submitted, the Respondent liquidator would deal with the claim made therei n strictly in accordance with the provisions of the Act. In the above view of th e matter, this Court considers it inessential at this stage to delve into the r ival contentions on the maintainability or otherwise of the instant application. This miscellaneous application is disposed in the above terms. No costs.