1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3078 OF 2009 IN APPEAL NO. 219 OF 2004 IN COMPANY APPLICATION NO. 405 OF 2002 IN COMPANY PETITION NO. 1125 OF 2001 Bhartiya Kamgar Morcha .. Appellant Versus Patel Engineering Co. Ltd. and another .. Respondents Mr. Ram Apte, Senior counsel a/w Mr. M. S. Lagu for the appellant Mr. Mustafa Doctor a/w Nimay Dave i/w Bachubhai Munim and Co for Respondent No.1 Mrs. Aruna Pai for Official liquidator CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 18 th February, 2010 P.C.: 1. We have heard Mr. Apte, learned Senior Counsel alongwith Mr. Lagu for the appellant, Mr. Doctor for respondent no.1 in the Motion and Mrs Pai, appears for respondent no. 2. 2 2. Delay of 15 days caused in filing the Motion is hereby condoned. So far as the prayer for restoration of Appeal No. 219 of 2004 is concerned, we are not inclined to grant the same for the following reasons: i. When Appeal No.219 of 2004 was admitted by this Court on 29.3.2004, the only issue requiring consideration was stated to be as to whether the lease concerning the property of the Company was a long term lease and, therefore, fell into the hotchpotch of the Company in liquidation. The Company in liquidation was M/s HES Ltd. and the present respondent no.1 is the owner of the property on lease. ii. When the Appeal was admitted, the eviction proceedings taken out by respondent no.1 Company against the Company under liquidation were pending in RAE & R Suit No. 261/828 of 1992 before the Small Causes Court at Mumbai. The said Suit was decreed in favour of respondent no.1 on 19/23 rd August, 2004 and through the official liquidator, respondent no.1 received possession of the lease property on 4.2.2005. The official liquidator filed a report on 30 th January, 2006 before the learned Company 3 Judge pointing out that pursuant to the decree of Small Causes Court, the lease property was handed over to respondent no.1. This report was dealt with by the Company Judge in his order dated 10 th February 2006. It was stated that Miscellaneous Notice No.332 of 2005 was taken out by the respondent no.1 Company before the Small Causes Court and, therefore, the learned Company Judge observed that there will be no order on the report of the official liquidator submitted on 30 th January, 2006. iii. Contempt Petition No. 77 of 2007 came to be filed in Notice of Motion No. 927 of 2004 filed in this Appeal and by the reasoned order dated 25 th March, 2008, the contempt petition was dismissed and the show cause notice came to be discharged. It was held in the order dated 25 th March, 2008 by the learned Single Judge that respondent no.1 was not estopped by any legal bar to proceed with the eviction Suit during the pendancy of the Appeal and the order passed by the Division Bench did not stay the proceedings before the Small Causes Court. The landlord proceeded with that remedy and having obtained the decree for 4 eviction, executed that decree with notice to the official liquidator as well as to the appellant union and the pendancy of the liquidation proceeding could not be construed as a bar on the landlord seeking recourse to his better interest in accordance with law in a Suit for eviction before the Small Cause court, which Suit came to be decided in accordance with the Rent Control legislation. iv. This order dated 25 th March, 2008 came to be challenged in SLP (Civil) No. 14590 of 2008 and it was dismissed by the Supreme Court on 10.11.2008. It is thus clear that the lease property which was the subject matter in Appeal No. 219 of 2004 is no more a lease property as the eviction Suit filed by respondent no.1 has been allowed and it has been put in possession, as noted herein above. 3. Hence, we are not inclined to restore the Appeal and consequently the Motion for restoration of the Appeal stands dismissed. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)