Case: A. Talukdar &amp; Company (Fertilizer) Private Limited Vs. The Official Liquidator, High Court of Calcutta &amp; Others

ny was directed to be wound up by order dated 9th November, 1998 in Company Petition No. 12 of 1998 filed by one of its creditors M/s. Indian Potash Limited. The Official Liquidator attached to the High Court of Calcutta was appointed as Official Liquidator. He could not take possessions of the factory premises of the company at 8, Pagladanga Road, Kolkata as one M/s. Hindustan Bone Mills was in possession claiming to be a tenant. During pendency of the proceedings, the premises of the company were occupied by five entities namely, Royal Blue Accessories, M/s. Magnate Industries, M/s. Narmada EquipmentsSpares, M/s. Packtech and Premasish and Subhasish Chatterjee respectively.4. The shareholders of the company filed an application before the Company Judge for recalling the winding up order. The said application was allowed on 6th September, 2010. It was observed that the amount due was paid to the creditors and there was no objection to the winding up order being recalled. The official liquidator was directed to hand over the possession which was with him vide order dated 20th September, 2010.5. The Company preferred an appeal seeking direction that the Company Judge should have restored possession of entire premises of the company and not merely of that which was in possession of the official liquidator. Once the company was ordered to be wound up, the entire property of the company came in the custody of the Company Court under Section 456 of the Companies Act, 1956 and on winding up order being recalled, the company was entitled to restoration of its assets.6. The Division Bench had before it the above appeal of the company claiming that it was entitled to be restored the possession of the entire property of the company and not merely the property in possession of the official liquidator and three appeals filed up occupants of the premises belonging to the company, claiming the right to continue in possession. The Company Judge found that though M/s. Hindustan Bone Mills, a partnership firm claimed that it was in possession of the part 5 of the premises prior to the Company being sent to liquidation, none of the occupants was in possession prior to commencement of winding up. They entered in possession after the winding up order.7. The stand of the occupants was in two parts. One set of the occupants had given undertaking to vacate if directed by the Company Court but they submitted that their undertaking was conditional on permission to 15 participate in the sale and thus, the same could not be acted upon to require them to vacate. The other three occupants,submitted that they came in possession through M/s. Hindustan Bone Mills who was the tenant 20 of the Company and the official liquidator had accepted this position and could not go back upon this arrangement.

Court's reasoning:
9. We did not find any reason to interfere with the above finding and have dismissed the SLP (C) Nos.of 2012 and SLP (C) Nos.of 2012 filed by the said two occupants.10. As regards the other set of three occupants (Royal Blue, Magnet and Narmada) who had not given undertaking but who claimed to have come in possession under an arrangement with Hindustan Bone Mills who was in possession prior to the winding up, it was held:"Royal Blue, Magnet and Narmada:Let us now apply the law as understood by us as above, in case of Royal Blue Accessories, Magnet and Narmada.The provision of Section 446 is discretionary. It is an enabling power without any mandate to the Court. The question would thus remain, whether in the present factual matrix the Court should be bothered with such an adjudication particularly when there was no lis pending before the Company Court as the order of winding up had already been set aside.After careful consideration of the rival submissions, we are of the view that once the Company was ordered to be wound up, the assets of the Company came in the custody of the Company Court and no arrangement, after winding up order, without permission of the Company Court could be recognised in respect of assets of the Company. There was no legal handicap in the occupants, who came into picture during winding proceedings, being evicted by the Company Court so as to restore the possession of the assets of the Company, after the winding up order was recalled.