M/S. Bharat Brakes & Valves Ltd. ... vs The O/L
2023 Latest Caselaw 62 Cal/2

                       IN THE HIGH COURT AT CALCUTTA
                           ORIGINAL JURISDICTION
                               ORIGINAL SIDE

BEFORE:
The Hon'ble Justice Ravi Krishan Kapur


                              IA NO.CA/37/2022
                              In BIFR/526/1992

                              IN THE MATTER OF
                M/s. BHARAT BRAKES & VALVES LTD. (IN LIQN.)
                                     Vs
                                  THE O/L

For the Applicant              : Ms. Manju Bhuteria, Adv.
                                 Ms. Meenakshi Manot, Adv.
                                 Mr. Paritosh Sinha, Adv.
                                 Ms. Shrayashee Das, Adv.
                                 Mr. Jisnujit Roy, Adv.


For the Official Liquidator    : Mr. Ranajit Chowdhury, Adv.

Reserved on                    : 21.12.2022


Judgment on                    :06.01.2023


Ravi Krishan Kapur, J.:


   1.

This is an application filed under section 535 of the Companies Act,

1956 inter alia seeking disclaimer and handing over possession of an

area measuring 6 cottahs 15 chittaks and 15 sq.ft. being a portion of

premises no.7A, Dehi, Serampore Road, Kolkata-14 ("the premises").

2. Briefly, the applicant was incorporated on 29 January, 1959 under

the provisions of Companies Act, 1956. Prior to change of name, the

applicant was known as IRC Weldmish Private Ltd.

3. Bharat Brakes & Valves Ltd. was originally promoted by the Central

Government with the object of acquiring and taking over the assets

and properties of Grisham and Graven of India Pvt. Ltd. from

Braithwaite & Company Limited.

4. It is alleged that by a Deed of Conveyance dated 22 September 1959

executed between N. Guin and Co. (Pvt.) Ltd. and the applicant, the

applicant became the owner of the entirety of the land measuring

approximately 4 Bigahs 6 Cottahs 11 chittaks and 13 sq.ft. including

the eastern boundary wall and the buildings and structures situated

thereon at premises no.7A, Dehi, Serampore Road, Kolkata-14

(which includes the premises). The applicant has also relied on

property tax receipts issued by the Municipal Authorities in respect

of the premises.

5. Thereafter, pursuant to a lease agreement dated 15 August, 1960

entered into by and between the applicant and Grisham and Craven

India Pvt. Ltd. the premises was given on lease to the company (in

liquidation) for a term of 35 years. The lease expired in 1995. The

applicant also relies on cheques tendered by the company (in

liquidation) as rent in respect of the premises. Upon expiry of the

lease, the applicant issued a notice to quit to the company (in

liquidation). However, no steps had been taken since the company

had made a reference before the Board for Industrial and Financial

Reconstruction (BIFR).

6. By an order dated 17 June 2003, Bharat Brakes & Valves Ltd. was

directed to be wound up. Subsequently, the applicant made

enquiries and ascertained that the Official Liquidator was in

possession of the premises.

7. By a letter dated 8 November, 2010 the applicant requested the

Official Liquidator to deliver possession of the premises to the

applicant. Diverse correspondence ensued by and between the

applicant and the Official Liquidator. However, the Official Liquidator

failed to take any steps with regard to the premises. It is also alleged

that no occupational charges have been paid to the applicant by the

company (in liquidation) for the last 26 years.

8. The Official Liquidator has filed a Status Report in respect of the

company (in liquidation). There is nothing in the Status Report to

indicate that the company (in liquidation) is the owner of the

premises. In fact, at the hearing held on 26 August, 2022, the Official

Liquidator had submitted that save and except the premises all

assets of the company (in liquidation) have been sold.

9. Indisputably, the company (in liquidation) is not the owner of the

premises. On the other hand, there is no dispute to the right of the

applicant as owner of the premises. The premises is in the

possession of the Official Liquidator. I also find that the premises is

burdened with onerous covenants. No rent or occupational charges

whatsoever has been paid to the applicant for the last 26 years. The

Official Liquidator does not have any use of any portion of the

premises. The lease in favour of the company (in liquidation) has long

expired.

10. In this background, the continued possession of the company (in

liquidation) or the Official Liquidator in any portion of the premises

would be burdensome and against the interests of the company (in

liquidation). The premises is burdened with onerous covenants and

would attract a monetary claim which would not support in the

beneficial winding up of the company (in liquidation). There is no

rival claim in respect of the premises. (Wellman Wacoma Ltd. Vs.

Tivoli Park Apartments (P) Ltd. (2012) 116 SCL 46, Hongkong and

Shanghai Banking Corporation Ltd Vs Official Liquidator. AIR 2008 Cal

35, Ashoka Steel Corporation Pvt Ltd. vs Official Liquidator 1999 (2)

CLJ 491).

11. In view of the aforesaid, there shall be an order in terms of prayers

(a) and (b) of Judges Summons.

12. With the aforesaid directions, CA 37 of 2022 stands disposed of.

(Ravi Krishan Kapur, J.)