[Cites 21, Cited by 0]
Bombay High Court
Shree Vishnu Holdings And Consultants ... vs Official Liquidator Bank Of Karad Ltd.( on 15 April, 2026
2026:BHC-OS:9742
5-CA-369-17
MEERA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MAHESH
JADHAV ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
MEERA MAHESH
JADHAV
Date: 2026.04.18
14:40:05 +0530
COMPANY APPLICATION NO. 369 OF 2017
IN
COMPANY PETITION NO. 229 OF 1992
Shree Vishnu Holdings & Consultants Pvt. Ltd. ...Applicant
In the matter between:
Reserve Bank of India ...Petitioner
Versus
Official Liquidator, Bank of Karad ...Respondent
-----
Mr. Ashish Kamat, Senior Advocate a/w. Mr. Aseem Naphade, Ms. Shreya
Bhagnari, Ms. Lulania and Ms. Reeuta Patil i/b. Negandhi Shah &
Himayatullah for Applicant.
Mr. Rohaan Cama a/w. Mr. Shakib Dhorajiwala and Mr. Indrajeet Deshmukh
i/b. Vidhi Partners for Respondent.
-----
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 5th MARCH 2026
PRONOUNCED ON : 15th APRIL 2026
P.C.
1. This is the second application filed by the Applicant under the provisions
of Section 457 of the Companies Act, 1956 ("Companies Act"), in which
the Applicant has sought the following relief, viz.
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"a) That this Hon'ble Court be pleased to direct the Respondent to vacate and hand
over quiet, vacant and peaceful possession of the premises belonging to the Applicant
(Landlord) namely the Office premises situated on the ground floor of the Applicant's
building known as Commonwealth Building situated at 82, Nagindas Master Road,
Fort, Mumbai - 400 023;
b) for costs of this Company Application and orders thereon; ".
2. However, before adverting to the rival contentions, it is useful for context
to set out the following facts:
i. The Applicant is the owner and landlord of a flat measuring 1,100 square
feet situated on the ground floor of a building known as Jayshree
Chambers, 82 Nagindas Master Road, Fort, Mumbai 400 023 ("the said
premises").
ii. It is not in dispute that the Bank of Karad ("the Bank") has been the
tenant of the said premises since 1962 and that in the year 1985, a Suit
for eviction was filed by the original owner of the said premises, i.e.,
one Smt Devi Narendra and others, against the Bank. The Applicant
subsequently acquired the right, title, and interest in the said premises
from Smt Devi Narendra in the year 1962 and is now admittedly the
Plaintiff in the said eviction Suit which is pending in the Small Cause
Court, Bombay.
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iii. Pursuant to the Orders dated 27th May 1992 and 20th July 1994 passed
by this Court, the Bank was directed to be wound up, and the
Respondent was appointed as Liquidator of the Bank. The Respondent
therefore took charge of the affairs and assets of the Bank in July 1994,
including the said premises.
iv. The Applicant thereafter, on 7th July 1999, filed Company Application
No. 429 of 1999 ("the First Application") seeking possession of the
said premises. The First Application was, however, dismissed by an
Order dated 23rd March 2001 ("the First Order") in which this Court
has, at page 9 thereof, inter alia, observed as follows:
"In these circumstances, I am of the view that no case for the return of the
premises is made out. The Learned Counsel appearing on behalf of the
applicant submitted that applicant would make efforts to make available
to the Liquidator alternative premises. It is always open to the applicant
to do so and the learned Counsel appearing behalf of the Liquidator has
not expressed any objection thereto, save and except, that it is for the
Liquidator, if any premises are forthcoming to determine their suitability
with reference to his requirements. In these circumstances, the Application
is rejected." (emphasis supplied)
v. The Applicant has filed the present Application citing changed
circumstances. The Applicant has also, during the course of arguments,
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made the following offer (i) to make available to the Respondent, an
alternate premises on a leave and licence basis for such area and for
such duration as this Court may deem fit; (ii) furnish an undertaking, if
necessary, to renew such leave and licence or provide suitable alternate
premises in the event the liquidation proceedings are not completed
despite bona fide efforts; and (iii) to digitise, at the Applicant's cost, the
records stored at the said premises to conserve space. For ease of
reference (i) to (iii) shall be referred to as "the Applicant's offer".
Submissions on behalf of the Applicant:
3. Mr. Kamat, Learned Senior Counsel appearing on behalf of the Applicant,
made the following submissions in support of his contention that the
Applicant was entitled to the return of the said premises.
I. Changed circumstances:
4. Mr. Kamat, at the outset, submitted that the present application has been
filed after a period of almost sixteen years from the date of dismissal of the
First Application. He, however, pointed out that the position as on the date
of hearing was that (i) the Bank does not have any ongoing business
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activity; (ii) the Respondent is not carrying out any other activity for the
benefit of the winding up of the Bank; and (iii) the premises were not
required for any other activity in connection with the Bank. He thus
submitted that the circumstances that exist today are materially different
from those that existed when the First Application was filed and when the
First Order was passed. He submitted that these changed circumstances
showed that the Respondent did not need the said premises or, at least, the
entirety of the said premises.
5. Mr. Kamat then pointed out that when the First Application was filed, there
were seventy-five pending cases concerning the Bank, however, the
Respondent had, in the Affidavit dated 18th July 2024, set out the current
status of the litigation, which was a list of only twenty cases. He pointed
out that, out of those twenty cases, only eleven were pending. He,
therefore, submitted that, on the Respondent's own showing, the number
of cases had considerably reduced and, therefore, even the need to store
the papers relating to those cases would have reduced. He then submitted
that over a year had elapsed since the Affidavit-in-Reply was filed by the
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Respondent, and if anything, the number of the pending cases would only
have reduced.
6. Mr. Kamat then pointed out that the Respondent, despite being obliged to
do so, had failed to place on record the present status of the liquidation
proceedings, which would enable this Court to assess the Respondent's
need for the said premises. He submitted that it was incumbent upon the
Respondent to have disclosed the steps taken for discarding the records of
the disposed-of cases; the records which were still required after the
disposal of the cases; and the details of the records stored in the said
premises, which were sensitive in nature and/or needed to be stored in a
safe as of date. He submitted that since the Respondent had not done so,
an adverse inference must be drawn against the Respondent. In support of
his contention, he placed reliance upon the decisions of the Hon'ble
Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif 1 and
Union of India v. Ibrahim Uddin & Anr.2
1968 SCC OnLine SC 63.
(2012) 8 SCC 148.
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7. Mr. Kamat additionally pointed out that the Bank had been wound up since
1992 and the affairs of the Bank, which had come to an end upon
liquidation, were all facts which were within the exclusive knowledge of
the Respondent. He, therefore, submitted that it was only the Respondent
who had exclusive knowledge and access to the documents pertaining to
the Bank's affairs and ought to have disclosed the status of the same. He
pointed out that though the Respondent had, in the Affidavits filed, stated
that there were other documents stored in the said premises apart from the
pending cases, no details of the same were given so as to demonstrate what
these documents were.
8. Mr. Kamat also pointed out from the response received by the Applicant
to the notice to admit dated 12th February 2026 that it was clear that only
copies of the sensitive documents were being stored at the said premises
and not the actual sensitive documents. He also pointed out that the only
documents in the said premises were the Term Deposit Receipts, files of
various claims of Bank and farmers, the Register of shareholders,
documents pertaining to matters which were disposed of with no details of
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the same and the papers pertaining to the ongoing proceedings of which no
originals were stored in the said premises, but only copies of such
proceedings were stored.
9. Mr. Kamat submitted that the response of the Respondent to the
Applicant's notice to admit was, to say the least, evasive and lacking in any
detail. He therefore submitted that the Reply was entirely self-serving, and
it was clear that the Respondent was treating the premises as a dumping
ground, having taken no steps to digitise or appropriately store stale, dead,
or disposed-of records. He reiterated that the Respondent was deliberately
not doing so only to create a false justification to perpetually retain
possession of the premises. He thus submitted that Respondent's
requirement of the premises was not genuine or bona fide.
10. He then placed reliance upon the decision of this Court in Jaikishan
Narang HUF v. Surendra Engineering Corporation Ltd. 3 to point out that
the Liquidator's need for the premises is to be strictly construed and the
[Bombay High Court] Order dated 12th March 2025 in Company Application No. 332 of 2015.
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genuineness of such a requirement must be examined by the Court. He
submitted that if on examination it was found that the said premises were
not needed by the Liquidator, the same would have to be surrendered or
returned, as the case may be.
11. Mr. Kamat also submitted that the Respondent was an officer of the Court
and therefore cannot act like an ordinary litigant, especially when it comes
to holding on to property. In support of this contention, he placed reliance
upon the decision of the Hon'ble Supreme Court in the case of Sudarshan
Chits (I) Ltd. v. O. Sukumaran Pillai4 to submit that the Respondent was
under an obligation to complete the liquidation process expeditiously and
cannot be permitted to drag on the liquidation process for decades with no
end in sight.
12. Mr. Kamat also pointed out that the Respondent had taken divergent stands
in the present Application. He pointed out that the Respondent had, in the
Affidavit dated 18th July 2024 and the Rejoinder, claimed that the said
(1984) 4 SCC 657.
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premises were needed for protecting the sensitive documents stored in the
fireproof safe, whereas no such contention was taken in the letter dated 12th
February 2026. He therefore pointed out that the sensitive documents
pertaining to the 1992 scam were seized by the CBI way back in 1992, and
hence, the need for the said premises could not be for storing any sensitive
documents. Moreover, he submitted that the original documents of most of
the proceedings were either submitted to the Court and formed a part of
the Court's record or were with the Reserve Bank of India ("RBI").
13. He thus submitted that the Respondent had not only failed to substantiate
its claim made in the Affidavit dated 18th July 2024 and the Rejoinder
Affidavit, but had also failed to truthfully disclose the true and material
facts before this Court, all of which had only come to light in the letter
dated 12th February 2026.
II. The Respondent is seeking to wrongly retain the said premises for
reasons not related to the requirement for winding up of the Bank:
14. Mr. Kamat further pointed out that the Respondent had, in the Rejoinder
Affidavit, sought to justify retention of the said premises on the grounds
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that (i) the premises constituted an asset of the Bank which could, upon
final liquidation, be sold either on a slump sale or standalone basis with the
proceeds forming part of the distributable fund for creditors and
shareholders; (ii) the Bank could not be relegated from the status of a tenant
to that of a mere licensee, nor could the Applicant, through the present
summary proceedings, sever the landlord-tenant relationship; and (iii) rent
had in fact been duly tendered, though not accepted, and therefore the legal
relationship between the parties remained unchanged. Mr. Kamat
submitted that this stand of the Respondent was clearly an attempt to
improve upon the case pleaded by the Respondent in the First Application
since the Respondent was now attempting to assert perpetual rights over
the said premises and monetise the same. He submitted that this stand now
taken by the Respondent was not only an afterthought but also wholly
untenable in law and unbecoming of a Liquidator.
15. Mr. Kamat submitted that the Respondent's contention that the said
premises could be retained and monetised for inclusion in the liquidation
process was contrary to, and in clear violation of, Sections 26 and 56 of the
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Maharashtra Rent Control Act, 1999 ("Rent Control Act"). He pointed
out that Section 26 expressly prohibits a tenant from assigning or
transferring its tenancy in the absence of a contract to the contrary, thereby
imposing a clear statutory bar. He then placed reliance upon Section 56(ii)
of the said Rent Control Act to point out that a transfer of tenancy was
permitted only with the prior consent of the landlord. In the present case,
he submitted that, admittedly, no such consent had been obtained from the
Applicant and hence the stand of the Respondent, which was premised on
retaining the said premises for eventual sale and/or monetisation, would
amount to a transfer of tenancy without consent, which was impermissible
in law. He thus submitted that the stand taken by the Respondent was not
only legally untenable but also in complete disregard of the relevant and
binding statutory provisions.
16. Mr. Kamat then placed reliance upon the decision of the Hon'ble Supreme
Court in Parasram Harnand Rao v. Shanti Parsad Narinder Kumar
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Jain,5 to point out that the Liquidator merely steps into the shoes of the
tenant, and sale by the tenant or the Liquidator of the tenanted premises
cannot be permitted without the consent of the landlord. He also placed
reliance upon the decision of the Division Bench of this Court in Saraswat
Co-operative Bank Ltd. v. Chandrakant Maganlal Shah 6 to point out that
tenancy rights are not capable of being attached and/or sold in liquidation.
He therefore submitted that the Respondent being a mere tenant, cannot
retain the said premises to either transfer or monetise the same.
17. Mr. Kamat then placed reliance upon the decision of the Hon'ble Supreme
Court in Ravindra Ishwardas Sethna v. Official Liquidator7, to point out
that if the premises of the company are not required for the business of the
company in liquidation, the Official Liquidator cannot use the premises for
any other purpose for deriving revenue. Mr. Kamat also submitted that the
Respondent cannot oppose the present application on the ground that the
Applicant has other remedies to terminate the landlord-tenant relationship.
(1980) 3 SCC 565.
2002(1) Mh. L. J. 581.
(1983) 4 SCC 269.
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In support of this contention, he placed reliance upon the decision in the
case of Patel Engineering Co. Ltd. v. Official Liquidator 8, to point out
that this Court had held that merely because a landlord had instituted a suit
for eviction would not disentitle a landlord from opting the remedy under
Section 457 of the Companies Act.
III. The Respondent's reliance on the principles of res judicata and/or issue
estoppel is misconceived:
18. Mr. Kamat submitted that neither the principles of res judicata nor issue
estoppel would apply in the present case, particularly as the earlier order
expressly granted liberty to the Applicant. He submitted that the present
application was filed pursuant to such liberty, especially in light of the
changed circumstances now prevailing as compared to those existing at the
time of the First Order. He also submitted that, during the hearing of the
First Application, the Respondent had led both this Court and the Applicant
to believe that the original and sensitive documents were stored at the said
premises to justify the Respondent's need to retain the same. He submitted
2004 SCC OnLine Bom 171.
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that given what had been disclosed in the letter dated 12 th February 2026,
it was now evident that the original documents relating to the 1992 scam,
as well as other sensitive records, had in fact been seized by the CBI as far
back as 1992 itself. He reiterated that the information had not been
disclosed to this Court during the earlier proceedings. In these
circumstances, Mr. Kamat submitted that the Respondent cannot be
permitted to invoke the doctrine of res judicata or issue estoppel,
particularly when the present application is founded on material facts that
were either suppressed or have subsequently come to light.
IV. This Court ought to balance the rights of the landlord, the company
under liquidation, and third parties:
19. Mr. Kamat then submitted that the case put up by the Respondent was
baseless, and it was clear that the Respondent was not forthcoming in
furnishing full particulars because the Respondent lacked a genuine need
for the said premises or at least the entirety of the said premises. He thus
submitted that the Applicant cannot be deprived of its property in
perpetuity. He submitted that this Court exercising its wide jurisdiction
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under Section 457 of the Companies Act, ought to balance the rights of
both the Bank and the Applicant and allow the present application.
20. Mr. Kamat submitted that in view of the Applicant's offer so as to
determine the Respondent's need for the said premises, this Court could
also exercise its powers under Order XXVI Rule 9 read with Section 151
of the Code of Civil Procedure, 1908, to direct an appropriate investigation
for identifying the records which were capable of digitisation and disposal
of physical copies. In support of his contention, he placed reliance upon
the following decisions, viz., Vasant Tukaram Prabhu v. Xalinibai
Borcar9, Sri Shadaksharappa v. Kumari Vijayalaxmi10, Mohd. Taher
Quershi v. Syed Abdul Saleem Pasha 11, and Sk. Sekharuddin
Mahammad v. Nuri Bibi & Ors.12.
21. Mr. Kamat therefore submitted that for the aforesaid reasons, the present
Application be allowed.
2014 SCC OnLine Bom 2883.
2023 SCC OnLine Kar 53.
2020 SCC OnLine TS 3378.
[Orissa High Court] Order dated 8th May 2025 in CMP 594 of 2025 of 2020.
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Submissions on behalf of the Respondent:
22. Mr. Cama, Learned Counsel appearing on behalf of the Respondent,
submitted that the present application was nothing but old wine in a new
bottle. He submitted that aside from the fact that the number of cases had
reduced, none of the other material facts which existed when the First
Application was filed and which weighed with the Court when the First
Order was passed had changed. He then tendered a tabular comparison of
the grounds taken in the First Application and the present Application to
point out that they were virtually the same with no material change.
23. Mr. Cama submitted that the Applicant, being conscious that the grounds
urged in the present Application were virtually identical to those raised in
the First Application, had therefore sought leave to file an Additional
Affidavit to demonstrate the alleged change in circumstances. He,
however, pointed out that the Additional Affidavit also merely reiterated
the same grounds taken in the First Application without any significant
addition. He then submitted that it was clear that there had been no
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substantive change in circumstances since the passing of the First Order,
save and except a reduction in the number of cases.
24. Mr. Cama then from the order dated 23rd March 2001, pointed out that this
Court had noted that (i) the premises were being used for the purposes of
liquidation; (ii) there existed a genuine need for storage of records and
material; (iii) the premises served as an official correspondence address
with statutory authorities; (iv) it was primarily for the Respondent to
determine the necessity of retaining the premises; and (v) the Court ought
not to substitute its own assessment so long as the reasons furnished by the
Respondent were reasonable. He submitted that since there had been no
change in any of these other material factors which weighed with this Court
when the First Order was passed the principles of res judicata and issue
estoppel would squarely apply. In support of his contention, he placed
reliance upon the following decisions. Satyendra Kumar and Ors v. Raj
Nath Dubey and Ors.13, Abdul Kuddus v. Union of India & Ors.14 and
(2016) 14 SCC 49.
(2019) 6 SCC 604.
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Faime Makers Pvt. Ltd. v. District Deputy Registrar, Co-operatives
Societies, Mumbai & Ors.15.
25. Mr. Cama then submitted that the issues which had arisen for consideration
in the present Application were also squarely covered by the decision of
the Hon'ble Supreme Court in the case of Nirmala R. Bafna v. Khandesh
Spinning and Weaving Mills Co. Ltd.16 which this Court had, infact,
placed reliance upon in the First Order dated 23rd March, 2001. He then
pointed out that the Hon'ble Supreme Court had, in the case of Nirmala R.
Bafna held as follows:
"24. The appellant-petitioner is a Trust which owns the flat in question. On
December 22, 1988, the appellant filed an application (Company Application
No. 48 of 1989) in Company Petition No. 59 of 1984 for a direction to the
official liquidator to surrender possession of the said flat to the appellant
including symbolic possession of the portion in possession of Smt Nirmala R.
Bafna. According to the appellant, the subtenancy in favour of Smt Nirmala
R. Bafna was created with their consent. The ground on which vacant
possession of the remaining portion was asked for was that the official
liquidator, or the company, does no more require the said portion for their
purpose. Reliance was placed upon the decision of this Court in 'Ravindra
Ishwardas Sethna v. Official Liquidator, High Court, Bombay'. The official
(2025) 5 SCC 722.
(1992) 2 SCC 322.
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liquidator opposed the application. The learned Single Judge dismissed the
application by his order dated August 9, 1989. The learned Judge was of the
opinion that the decision in Sethna has no application to the facts herein and
that moreover the liquidator requires the said portion (of the flat in his
possession) for storing the company records at Bombay. The appeal court,
while affirming the relevance of the reason given by the learned Single Judge,
gave an additional reason in support of their order, viz., that a proposal
received from the Rashtriya Girni Kamgar Sangh for revival of the said
company is under consideration. The order of the Division Bench is
challenged herein.
25. That the official liquidator requires the portion of the flat (now in his actual
possession) for storing the company books, is certainly a relevant
consideration. Mr Sanghi, learned counsel for the appellant, argued that the
official liquidator does not require the said premises for storing the books
and that he can store the books in his office or anywhere else. Maybe, the
liquidator can do so, but we cannot force him to do so, so long as the reason
given by him for continuing in possession is a relevant one. Secondly, the fact
of the proposal of the Rashtriya Girni Kamgar Sangh, who are said to have
formed an action committee of the Khandesh Mill Employees Industrial
Production Co-operative Society, for revival of the said company was an
equally relevant factor. Mr Sanghi states that the said proposal has come to
nought. We do not know. Suffice it to say that the reasons for which the
application filed by the appellant-landlord (and his appeal) have been
dismissed cannot said to be irrelevant. We cannot, therefore, interfere with
the said orders. The appeal is, accordingly dismissed. No costs."
(Emphasis Supplied)
26. Mr. Cama then took pains to point out that the judgements in the case of
Parasram Harnand Rao, Saraswat Co-operative Bank Ltd., Ravindra
Ishwardas Sethna and Patel Engineering Co. Ltd. upon which reliance
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was placed by the Applicant, were all cases in which the Liquidator had
either admitted that the Liquidator does not require the premises in
question or had conceded to the position that the premises may be returned.
He submitted that in the present case, the Respondent was very much using
the said premises and that the need of the Respondent for retaining the said
premises had already found favour with this Hon'ble Court in the Order
dated 23rd March 2001. He reiterated that the need subsisted even today.
He thus submitted that there being no change in circumstances, there was
no question of this Court entertaining the present Application.
The factual position as on date:
27. Mr. Cama submitted that even though the number of cases may have
reduced, there were still various litigations which were ongoing before this
Court, the Debt Recovery Tribunal, and the Hon'ble Supreme Court. He
submitted that the records of the various proceedings were stored at the
said premises, and the said premises were being utilised for the storage of
various sensitive data and material for the purpose of liquidation. He also
pointed out that the Respondent was using the premises for its
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correspondence address with various statutory authorities, including the
RBI, investigation authorities, banks, etc., and for completing the
liquidation process from the said premises.
28. Mr. Cama then, while denying the allegation that the Respondent was not
acting in an efficient manner, submitted that it was imperative to keep in
mind the fact that the Respondent had been appointed by this Court under
the provisions of the Banking Regulations Act, 1949, and was therefore
duty-bound to file a report before the RBI as well as various other
authorities.
Re: Use of the Premises:
29. Mr. Cama submitted that the Respondent's use and occupation of the said
premises was clearly established from the fact that the Respondent has been
paying the electricity bills in respect of the premises and continues to
occupy the same; the Respondent's postal address is the address of the said
premises; the premises are reflected as the Respondent's address in the
income tax returns filed by the Bank; the Respondent has its material,
computers, cupboards, storage and other office infrastructure at the
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premises and is actively using the same, as is evident from the photographs
placed on record; and the Respondent has been paying rent for the said
premises even after the First Application was dismissed in 2001.
The Respondent's position as a tenant:
30. Mr. Cama submitted that the Respondent is admittedly a tenant of the said
premises and was therefore entitled to protection as a tenant from eviction
and the other rights enuring to the benefit of a tenant, including the right
under Section 56 of the Maharashtra Rent Control Act, which included the
surrender of the tenancy or transfer the same for receipt of monetary
consideration. He thus submitted that there was a vested statutory right in
a tenant to potentially monetise the tenancy. In support of this contention,
he placed reliance upon the following decisions: M/s. Veertag Investments
and Finance Co. v. M/s. Premier Brass and Metal Works Ltd. 17,
Tangerine Electronics System Ltd. v. Indian Chemicals & Ors. 18, Re:
AIR 2003 Bom 217.
2004 (2) ALL MR 551.
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Kailash Financiers (Calcutta) Pvt. Ltd.19 and Kanubhai H. Prajapati v.
Official Liquidator & Ors.20.
31. Mr. Cama then submitted that the Respondent, being the Liquidator of the
Bank, had a bounden duty in law to distribute the assets of the Bank among
the various claimants/creditors subject to the final liquidation order. He
also submitted that the Respondent was under the supervision and control
of the RBI and therefore had a statutory duty to ensure that the assets of
the Bank were appropriately liquidated/monetised. He thus submitted that
there was no question of the Respondent being simply made to give up its
tenancy rights and to take alternate accommodation as a licensee.
32. Mr. Cama submitted that even otherwise, the question that arises for
consideration is whether the Respondent can simply be evicted from
tenanted premises by a summary procedure under Section 457 of the
Companies Act. He, however, did not dispute that the Company Court had
the power to direct eviction if the premises were not being used by the
(1982) 1 Comp LJ 100 (Cal).
(1999) 1 GLR 429.
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Liquidator but submitted that such a question did not arise in the facts of
the present case. Mr. Cama submitted that in the facts of the present case,
where the said premises are being actively used, the summary eviction
procedure ought not to be resorted to circumvent appropriate proceedings
under the Rent Control Act.
33. Mr. Cama then, without prejudice to the foregoing, submitted that if the
Court was inclined to grant the relief which was prayed for, it would only
be in the fitness of things if the Suit that was filed for eviction in the Small
Causes Courts was transferred to this Court. He submitted that before
granting the relief prayed for, it would be necessary for this Court to assess
whether, infact, the Applicant had made out a case of bona fide requirement
since there were various premises in the said building which were vacant
and could be used by the Applicant. He submitted that since the Applicant
was aware that it would be unable to fulfil this requirement, the Applicant
had resorted to the present summary procedure. He also submitted that the
question of equities ought not to come into play, as the Respondent in the
present case is not a private litigant who is seeking to squat on properties
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but is a statutory appointee who is required to carry out a statutory duty
under the provisions of the Banking Regulations Act, 1949.
34. Mr. Cama submitted that the Applicant's reliance upon the decision of this
Court in Jaikishan Narang was also entirely misplaced. He pointed out
that in the case of Jaikishan Narang, the Liquidator had not even
commenced using the flats in question and had taken possession of the flats
only two years before the said order was passed. He pointed out that in the
present case, the Bank had been the tenant of the said premises since 1962,
and the fact that the Respondent was using the said premises was clearly
noted in the First Order. He also took pains to point out that this Court had
in the case of Jaikishan Narang specifically referred to and distinguished
the First Order passed by this Court in the First Application. He thus
submitted that the decision in the case of Jaikishan Narang would
therefore not apply.
35. Mr. Cama thus summed up by reiterating that (i) the issue stands covered
by the judgment and order dated 23rd March 2001, and no new or changed
circumstances exist as would warrant taking a different view (ii) the
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premises are still being used by the Respondent and are very much required
inter alia for the reasons set out above and in the earlier proceedings, which
found favour with this Court when rejecting the First Application (iii) the
reasons taken in the present Application were identical to those taken in
the First Application and (iv) the Applicant had not been able to
demonstrate a single changed circumstance despite an opportunity being
given, as recorded in the order passed on 12th June 2018, to file an
Affidavit.
36. Mr Cama, therefore, prayed that the present Company Application be
dismissed, with costs.
Reasons and Conclusions:
37. Having heard Learned Counsel for the Parties and having considered the
rival contentions, the pleadings and the case law upon which reliance has
been placed, I have no hesitation in holding that the present Application
would have to be dismissed with costs. I say so for the following reasons,
viz.
A. Having carefully considered the grounds taken in the First
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Application and those taken in the present Application, I find that
there is much merit in the contention of the Respondent that the
present Application is barred by the principles of res judicata and
issue estoppel. A perusal of the grounds taken in the First
Application and the present Application leaves no manner of doubt
that the grounds taken in the present Application are virtually
identical to those taken in the First Application. Hence, the decisions
in Satyendra Kumar and Ors., Abdul Kuddus, and Faime Makers
Pvt. Ltd. upon which reliance was placed by the Respondent would
squarely apply.
B. Equally misconceived is the Applicant's contention that the First
Order granted liberty to the Applicant to file a fresh Application for
the same reliefs that were sought for in the First Application. A plain
reading of the First Order makes it clear that this Court, while
disposing of the First Application, only recorded that it would be
open for the Applicant to "make available to the Liquidator an
alternative premise". The First Order specifically clarified that "it is
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for the Liquidator, if any premises are forthcoming to determine
their suitability with reference to his requirements". The First Order,
therefore, did not in any manner reserve any liberty to the Applicant
to once again approach this Court on the same grounds as were taken
in the First Application and which were rejected by the First Order.
C. Furthermore, even accepting the Applicant's case of changed
circumstances, I find that the Applicant would still not be entitled to
the relief sought for in light of the decision of the Hon'ble Supreme
Court in the case of Nirmala Bafna. The Hon'ble Supreme Court
has in paragraph 25 of the decision in the case of Nirmala Bafna
specifically held that what is to be considered when considering an
application of the present nature is whether the reason furnished by
the Liquidator for continuing the possession is a relevant reason and
nothing more. Therefore, it is through this lens that the present
Application must be viewed.
D. In the present case, though the number of cases has undeniably
reduced, it is not even the Applicant's case that the liquidation
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proceedings have come to an end. The reasoning adopted by this
Court while dismissing the First Application was anchored in the
context of the ongoing liquidation proceedings, as is plain from a
reading of the First Order. Thus, the very circumstances that
weighed with this Court while passing the First Order, continue to
exist in material measure even today, despite the passage of
considerable time. Furthermore and crucially, the Applicant has
also, by making an offer to provide alternate premises to the
Respondent, conceded to the fact that the Respondent is in need of
and is making use of said premises. This in my view would itself
warrant dismissal of the present Application. I must note that it
would have been a different thing altogether if the liquidation
proceedings had, infact, come to an end. However, this is admittedly
not so.
E. The decision of the Hon'ble Supreme Court in the case of Ravindra
Ishwardas Sethna is wholly inapplicable to the facts of the present
case. Firstly, this decision was specifically dealt with in the First
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Order, which, as already noted above in (B) binds the Parties.
Secondly, the said decision is entirely distinguishable on facts since
the Liquidator in that case was attempting to give the subject
premises on leave and license and profit from the same, unlike the
present case, where the said premises are very much being used by
the Respondent.
F. Equally misplaced is the Applicant's reliance upon the decision of
this Court in the case of Jai Kisan Narang. A perusal of the said
decision makes clear that the Liquidator in that case had not even
commenced use of the flats in question, whereas in the facts of the
present case it is not in dispute that the Bank has been in occupation
of the said premises as a tenant since 1962 and that the said premises
have been being used by the Respondent since 1992. Secondly, and
crucially, this Court, in paragraph 19 of the decision in Jai Kisan
Narang has expressly taken note of the order passed in the First
Application and has distinguished the same on the ground that the
facts therein were materially different.
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G. Moreover, the Applicant's reliance upon the decisions in Parasram
Harnand Rao, Saraswat Co-operative Bank Ltd., and Patel
Engineering Co. Ltd. is misplaced since, in each of the said cases,
the question of whether the Liquidator required the premises for the
purposes of the liquidation, did not arise. A perusal of the said
decisions makes clear that the premises in question in each of those
cases were either unused or the Liquidator had conceded that they
were no longer required, and it was in that context that the said
orders were passed and the Court had exercised its summary
jurisdiction under Section 457 of the Companies Act. As already
noted in (D) above, it is not even the Applicant's case that the said
premises are lying unused or that the liquidation proceedings have
come to an end. Hence, clearly, none of these decisions would apply.
H. Furthermore, it is not in dispute that the Respondent is in occupation
of the said premises as a tenant. The proposal made by the Applicant
is to provide alternate premises on a leave and licence basis. This
would, in effect, require the Respondent to relinquish its vested
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tenancy rights and accept occupation under a materially different
and less secure legal arrangement. In my view, this Court cannot, in
the exercise of its summary jurisdiction, compel the Respondent to
do so. As already noted in (C) above, the test in these summary
proceedings, as held by the Hon'ble Supreme Court in the case of
Nirmala Bafna, is to assess whether the reason furnished by the
Liquidator for continuing in possession is a relevant reason and
nothing more. The scope of these summary proceedings cannot,
therefore, be enlarged beyond anything but that.
I. Also, for the reasons set out in (A), (D) & (G) above, I do not find
that this is a fit case for this Court to exercise its powers under Order
XXVI Rule 9 read with Section 151 of the Civil Procedure Code,
1908, for the purpose of directing an appropriate investigation to
identify bank records that are capable of being digitized. Hence, in
the facts of the present case, the decisions in the case of Vasant
Tukaram Prabhu, Sri Shadaksharappa, Mohd. Taher Quershi and
Sk. Sekharuddin Mahammad would be of no assistance to the
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Applicant.
J. Furthermore, it is not in dispute that the Respondent, as Liquidator,
is under the supervision and control of the RBI and has a statutory
obligation to act with due diligence in the discharge of its duties.
Though the main thrust of the contentions of the Applicant was that
the Respondent was not acting with the necessary diligence and
dispatch required, in my view, it would not be appropriate for this
Court in these summary proceedings to embark upon an inquiry into
whether the Respondent is discharging its functions in the manner
required. Any grievance in this regard must be pursued before the
appropriate forum in properly constituted proceedings and not in
these summary proceedings. Again, the position might have been
different if the liquidation proceedings had come to an end, which
they admittedly have not. Hence, the reliance placed by the
Applicant on the decision of the Hon'ble Supreme Court in the case
of Sudarshan Chits is entirely misconceived in the facts of the
present case.
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K. Hence, for the reasons set out in (A) and (B) above, I find that an
order of costs must follow since the Applicant has wasted precious
judicial time. Furthermore, it must be noted that the Applicant has
taken no steps to proceed with the Suit, which is pending before the
Small Causes Court.
38. Hence, for the aforesaid reasons, I pass the following order:
i. The captioned company application is dismissed.
ii. The Applicant shall pay a cost of Rs. 1,00,000/- (Rupees One Lakh only)
to the Respondent.
[ARIF S. DOCTOR, J.]
Meera Jadhav
