Alpha Stitch-Art Private Limited ... vs The West Bengal Small Industries ...
2022 Latest Caselaw 376 Cal/2

OD 3

                             WPO 764 of 2022

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                           ORIGINAL SIDE

            ALPHA STITCH-ART PRIVATE LIMITED & ANR.
                           VERSUS
        THE WEST BENGAL SMALL INDUSTRIES DEVELOPMENT
                   CORPORATION LTD. & ORS.

   BEFORE:
  The Hon'ble JUSTICE RAJASEKHAR MANTHA
  Date : 8th February, 2022.

                                                            APPEARANCE:
                                                      Mr. K.R.Thaker,Adv.
                                                Mr. Rathunath Ghose,Adv.
                                                    Ms. Pritha Ghose,Adv.


                                                   Mr. Joydip Kar,Sr. Adv.

       The Court:- Leave is granted to the petitioner to amend the name

of the respondent no. 7 as Company Secretary and SPIO instead of the

Chairman and SPIO. Let the amendment be carried out by advocate on

record for the petitioner in course of the day. The Registry shall make

appropriate changes in their records. Service afresh of the writ petition is

dispensed with since the amendment is extremely formal in nature.

The short question that arises for consideration is as to whether

the amalgamation that occurred between the original lessee one M/s.

Sona Promoters Pvt. Ltd. and four other companies into the writ

petitioner, would be binding on the WBSIDCL, the original lessor. The

brief facts of the case are that by an order dated 5 th March, 2020 passed

in CP (CAA) No. 2120/KB/2019 , CA (CAA) No. 1111/KB/2019 (In the

matter of Alpha Stitch Pvt. Ltd.), the NCLT, Kolkata had allowed

amalgamation of the original lessor, one M/s. Sona Promoters Pvt. Ltd.

and four other companies into the writ petitioner .

Since after the amalgamation the original lessor, M/s. Sona

Promoters Pvt. Ltd. and four other companies ceased to exist. The

petitioner then applied for change of the name of the lessee from M/s.

Sona Promoters Pvt. Ltd. to Alpha Stitch-Art Private Limited. The

petitioner relied upon a communication of the West Bengal Small

Industries Development Corporation Ltd. addressed to the petitioner

dated 29th July, 2021 stating that merger in amalgamation of a lessee

within its group company would not amount to a change in control of the

lessee and hence does not attract fees or require prior consent of the

lessor. The WBSIDCL did not accept the same and demanded fees and

levies.

Mr. Jaydip Kar, learned Senior Advocate appearing for the WBIDCL

submits that the communication dated 29 th July 2021 has been

misinterpreted by the petitioner and/or issued under a mistake of fact

and law. Reference in this regard is made to a decision of the Hon'ble

Supreme Court in the case of General Radio & Appliances Co. Ltd. vs.

M.A. Khader reported in (1986) 2 SC 656 by Mr. Kar.

Based on the judgment and the terms of the original lease, inter

alia, clauses 2J and K it is argued that such amalgamation would

normally be construed as subletting thereby avoiding the lease. The

petitioner was liable to be evicted. In lieu of eviction, however, WBSIDCL

has decided to impose levies and fees. It is also argued that the

communication dated 29th July, 2021 cannot bind the WBSIDCL in inter

alia that the communication is without authority and contrary to the

rules of the WBSIDCL. There is no estoppel against the law.

This Court is of the view that the matter is required to be dealt

with after receiving affidavits, since prima facie the stand taken by the

respondent no. 1 does not appear to be arbitrary.

Let affidavit-in-opposition be filed by the respondents within a

period of four weeks from date; reply thereto, if any, within a period of

one week thereafter.

Liberty to mention after completion of affidavits.

(RAJASEKHAR MANTHA,J.)

s.chandra