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The Companies Act, 1956

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Calcutta High Court
Thomas Duff & Co.(India) Limited vs The Official Liquidator Being The ... on 27 January, 2009
Author: Maharaj Sinha

CA 345 of 2007

Connected with

CP No. 485 of 1997

IN THE HIGH COURT AT CALCUTTA

ORIGINAL SIDE

THOMAS DUFF & CO.(INDIA) LIMITED

VERSUS

THE OFFICIAL LIQUIDATOR BEING THE LIQUIDATOR OF TITAGARH PLC (IN LIQUIDATION) BEFORE:

The Hon'ble JUSTICE MAHARAJ SINHA

Date : 27 January 2009.

Mr. Aniruddha Roy,advocate appears.

Mr. D.N.Sharma,advocate appears.

For the official liquidator :

Mrs. M. Sen,advocate

D.Dutta,advocate

The Court :- This is an application filed by the applicant under Section 535 of the Companies Act,1956, praying for disclaimer of a portion of the first floor comprising of an area of 3029 square feet along with all furniture, fixtures and/or movables lying thereat and a garage space at the ground floor comprising of an area of 87 square feet at premises nos. 2 and 3, Clive Row, Kolkata-700 001, which was let out by the applicant to The Titaghur Jute Factory Plc.(In Liquidation) [hereinafter referred to as the "said Company(in liquidation)"] under a Licence Agreement (hereinafter referred to as the "said Licence Agreement") dated 7 May 1986 at the rate and under the terms and conditions as more fully stated therein.

2

By an order dated 12 December 2006 the said Company(in liquidation) was wound up by this Hon'ble Court. From the application made by the applicant it appears that in October 2000 the name of the said Company was changed into Azmara Plc. and even prior to the order of winding up there was a Board Resolution of the said Azmara Plc. dated 18 September 2003 from which it appears that the said Company(in liquidation) was no more interested to keep the office space for any future use.

Pursuant to the order of the winding up passed by this Court the Official Liquidator on 5 March 2007 took possession of the said first floor portion and the said garage space. On 27 March 2007 the official liquidator caused a detailed inventory of the portion occupied by the said Company(in liquidation) and since then the said property in question is lying under the possession of the official liquidator.

From the affidavit-in-opposition affirmed on 6 June 2007 on behalf of the respondent official liquidator it appears that the official liquidator did not raise any objection as to the right, title and interest of the applicant in respect of the portion of the first floor and the garage space in question in respect whereof the applicant has filed the instant application and accordingly there has been no defence raised by the official liquidator for not disclaiming the subject properties in favour of the applicant.

3

In course of the argument the learned Counsel for the official liquidator has submitted that in so far as the fixtures and furniture of the said Company (in liquidation) are concerned, which are lying at the said first floor the applicant cannot claim any right or interest over the same. In reply to the aforesaid, the learned Counsel for the applicant has drawn my attention to the Licence Agreement dated 7 May 1986 being annexure 'A' to the said application and placed the portion of the said Licence Agreement wherefrom it appears that the said Company(in liquidation) was allowed to use the said 3029 square feet of the first floor of the premises, which was a furnished office accommodation, which shall include the office furniture, fittings, fixtures,electric light fittings, air-conditioners and fans. It is true that from the said Licence Agreement it appears that the said Company (in liquidation) was allowed to use the subject portion of the first floor premises along with all its furniture, fittings,fixtures etc. as mentioned in clause 2 of the said License Agreement. However, thee has been no schedule mentioned in the said License Agreement to show the particulars and details of such furniture, fittings,fixtures, etc. In such circumstances the learned Counsel for the official liquidator on instruction further submits that in the event the applicant is agreeable to pay a sum of Rs. 15,000/- towards the consideration of the fittings, furniture and fixtures lying at the 4

subject portion of the first floor premises the official liquidator will have no objection to disclaim the property and hand over the same to the duly authorised representative of the applicant.

The learned Counsel for the applicant on instruction submits that his client is agreeable to the aforesaid proposal of the official liquidator.

Accordingly, this application, C.A. No. 345 of 2007 is disposed of directing the official liquidator to hand over peaceful and vacant possession of 3029 square feet of the first floor and 87 square feet of the ground floor being the garage space of premises nos. 2 and 3, Clive Row, Kolkata - 700 001 along with furniture, fittings,fixtures etc. upon payment of a sum of Rs. 15,000/- by the applicant by way of a pay order or bank draft in favour of the official liquidator. It is further made clear that such payment of Rs. 15,000/- will be made by the applicant within a period of seven days from date and from the date of receipt of such payment within a period of two weeks the official liquidator shall hand over the peaceful and vacant possession of the said 3029 square feet of the first floor and the 87 square feet at the ground floor being the garage space of premises nos. 2 3, Clive Row, Kolkata - 700 001 along with all its furniture,fittings,fixtures etc. in favour of the applicant. The 5

official liquidator is at liberty to take possession of any records of the company(in liquidation) lying in the said premises. I further make it clear that in so far as the other portion of the premises is concerned under the said Licence Agreement this Court has not decided anything about it and in so far as the claim of the applicant in respect of the licence fee in arrears to the tune of Rs. 8,50,000/- are concerned as mentioned in annexure 'G' to the said application the same cannot be gone into in this proceeding and the applicant will be at liberty to take steps for recovery of the same in accordance with law.

There shall be,however, no order as to cost.

All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertakings. (MAHARAJ SINHA, J.)

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