IN THE HIGH COURT OF JUDICATURE AT PATNA COMP. APP. No.11 of 2009 1. BOARD OF TRUSTEES FOR THE PORT OF KOLKATA, A BODY CORPORATE CONSTITUTED UNDER MAJOR PORT TRUST ACT, 1963, HAVING ITS OFFICE AT 15, STRAND ROAD, KOLKATA, THROUGH SMT. NUPUR SARKAR, LEGAL ADVISOR AND CONSTITUTED ATTORNEY. 2. THE LAND MANAGER (I/C), KOLKATA PORT TRUST, 15 STRAND ROAD, KOLKATA – 700001. ………………………………..Petitioners-Appellants. Versus 1. M/S ROHTAS INDUSTRIES (IN WINDING UP) THROUGH THE OFFICIAL LIQUIDATOR, PATNA HIGH COURT, PATNA. MAURYA LOK COMPLEX BLOCK-‘A’ 4TH FLOOR, DAK BUNGLOW ROAD, PATNA-800001. 2. INLAND ROAD SERVICES THROUGH SRI SUBHASH KUMAR BASU, SON OF LATE KRISHNALAL BASU, P- 221/2, STRAND BANK ROAD, P.S. NORTH PORT- KOLKATA-700 001. .………………………………..Opposite Parties-Respondents. ----------- 3/ 09.11.2009 Heard learned Counsel for the appellant at the stage of admission itself. On going through the order passed by the learned Company Judge dated 20th March, 2009 in Company Petition No. 3/1984, particularly the discussions made in Paragraph 12 and 13 relating to Relief No. (IV)claimed by the applicant-trust/appellant through I.A. No. 1964/2008, it is found that the company under liquidation as represented by the official liquidator has taken a categorical stand noted by the Company Judge that it has no concern with the property involved in the Title Suit pending before the City Civil Court, 2 Kolkata because it is neither owned by the company nor it has any concern left therein since several decades. Further stand of the official liquidator is that Inland Road Services (IRS), the alleged sub-lessee, is not a sub-lessee of the company or permissive occupant and it appears to be in possession of the property in that suit on its own right and the company under liquidation cannot get IRS evicted from the suit premises nor it can give possession of the same to the applicant-trust. The Company Judge has further noticed that the trust has neither filed any suit so far for the aforesaid claim nor such an issue exists in the Title Suit pending before the City Civil Court, Kolkata in which the matter in dispute in between IRS and the trust. It has further noticed that the proceeding of a company case cannot be converted into an eviction suit at the instance of any person especially by one who has never raised any claim before an appropriate authority against the company in liquidation since more than two decades. It was noticed by the Company Judge that even according to applicant-trust the 3 company under liquidation is not in possession of the suit premises and is not paying any rent since more than two decades. On behalf of appellant, it was submitted that if the order of the Company Judge is allowed to stand then the appellant will have no forum available under law to claim the lease hold property which according to the applicant was at some point of time given by the appellant to the company under liquidation through a lease. Confronted with the query as to why this Court should force the company under liquidation to fight a litigation for property which is neither under its possession nor over which it has any interests for claim, it was replied by the learned Counsel for the appellant that it is the duty of a lessee to take all possible steps including proper litigation so that property may be handed back to the lessor. It was further submitted that since the lessee company is now under liquidation, the applicant-trust cannot even move the ordinary Civil Court without leave or permission of the Company Judge. We have given our anxious consideration 4 to the aforesaid submissions and the provisions of Section 446 as well as Section 535 of the Companies Act, 1956. Section 535 permits the official liquidator of the company to make a written disclaimer of such property of the company which the liquidator may find onerous. There are some pre-conditions for making such a disclaimer but foremost condition is that the property must unquestionably belong to the company under liquidation and the official liquidator must be of the view that because of its onerous nature, the property is fit to be disclaimed by the company under liquidation. From the discussions made by the Company Judge none of the two conditions are satisfied and hence it will not be proper for us to direct the official liquidator to make the disclaimer in writing in respect of alleged lease hold property, which the company through the official liquidator is not claiming at all. However, we do not want to leave the applicant-trust without any remedy in law and hence we clarify that the order passed by the Company Judge which is under appeal will include by implication the permission to the 5 applicant-trust to defend the suit pending in City Civil Court, Kolkata on all legal grounds available to the applicant/appellant as well as to institute a suit or legal proceeding for recovery of possession etc. of the lease-hold property in dispute against the person in occupation of the said property or even against the company under the liquidation, only for recovery of possession and other related reliefs but not for any pecuniary or monetary reliefs, in accordance with law and no objections shall be taken in such suit or proceeding that it does not have leave of the Company Judge dealing with winding up of the company under liquidation. With these clarifications which appeared necessary in the interest of justice, this appeal is dismissed because we find no merit in it for going deeper into several other issues raised by the appellant. kksinha/- (Shiva Kirti Singh, ACJ.) ( Shyam Kishore Sharma, J. )