Ekanath A Irkal vs The Official Liquidator Of
2023 Latest Caselaw 1046 Kant

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   IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY, 2023

                       BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

                 CA NO.356 OF 2022
                         IN
                COP NO. 149 OF 1998

BETWEEN:

EKANATH A IRKAL,
S/O SHRI ARJUNASA IRKAL,
AGED ABOUT 65 YEARS,
RESIDING AT VITTALPETH,
OLD HUBLI -580 024.
                                          ...APPLICANT
(BY SRI.DEEPAK, ADVOCATE)

AND:

THE OFFICIAL LIQUIDATOR OF
KARNATAKA STATE TEXTILES MILLS LTD. (IN LIQN.)
ATTACHED TO HIGH COURT OF KARNATAKA,
12TH FLOOR, RAHEJA TOWERS,
BANGALORE-560 001.
                                        ... RESPONDENT
(BY SRI.K S MAHADEVAN, ADVOCATE FOR OL)

     THIS APPLICATION IS FILED UNDER RULE 6 & 9 OF THE
COMPANIES (COURT) RULES, 1959 PRAYING TO DIRECT THE
OFFICIAL LIQUIDATOR TO DELETE PROPERTY BEARING CTS
NO.98, WARD NO.III, C TENURE ABUTTING KARWAR ROAD
AND OLD UNKAL ROAD, MARIAN TIMMASAGAR VILLAGE,
HUBLI TALUKA, MORE FULLY DESCRIBED IN THE SCHEDULE,
FROM THE LIST OF PROPERTIES STATED TO BELONG TO THE
COMPANY IN LIQUIDATION & ETC.,
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     THIS APPLICATION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:-

                           ORDER

The essential grievance of the Applicant is against

the subject property being treated as belonging to the

ownership of Company in winding up. He seeks an order

for removal of the subject property from the List of

properties of the Company. He also seeks a direction to

the Official Liquidator and his men restraining them from

interfering with the peaceful possession & enjoyment of

the subject property.

2. After service of notice, the Official Liquidator

having entered appearance through his Panel Counsel

opposes the Application by filing the Statement of

Objections on 28.11.2022. Learned Panel Counsel resists

the case of Applicant contending that the subject

property rightly is enlisted as that of the Company in

winding up and therefore, no relief can be granted to the

Applicant.

3. Having heard the learned counsel for the

parties an having perused the case papers, this Court is

inclined to grant indulgence in the matter as under and

for the following reasons:

a) The predecessor in title of the Applicant had

bought the subject property vide registered Sale Deed

dated 21.12.1933 and the same came to the exclusive

ownership of the Applicant herein vide Judgment &

Decree founded on a compromise in RSA No.1089/1995.

The Applicant got back the subject property from the

Lessee State Government on the basis of a Judgment &

Decree dated 20.12.2003 in O.S.No.260/2002, challenge

to which came to be negatived in RA No.26/2007

disposed off on 20.04.2010. The Decree came to be

executed and the possession of the property has been

restored to the Applicant in Execution No.38/2011.

b) It is relevant to state that to the said Suit, the

Appeal and Execution Case, the Official Liquidator

representing the Company in winding up was a

Defendant/the Respondent/Judgment Debtor, is not

disputed. The lease in question was executed long

before the Petition for winding up of the Company was

presented. If the lease comes to an end by

determination or termination, the leasehold cannot be

treated as the property of lessee - Company at all.

c) The vehement submission of learned Panel

Counsel for the Official Liquidator that the continuation of

the Suit sand leave of the Official Liquidator was

impermissible and therefore, the Judgment & Decree

followed by the proceedings for their execution need to

be treated as null & void, is bit difficult to countenance

inasmuch as, the Official Liquidator of the Company in

question was the 2nd Defendant to the Suit in

O.S.260/2002 and 2nd JDr in Execution Case

No.38/2011. Even otherwise in the facts of the case, the

requirement of leave cannot be treated as a sine qua non

regardless of justice of the case. An argument to the

contrary would undermine the confidence of right

thinking people in the judicial process.

In the above circumstances, this Application is

allowed; a direction issues to delete the subject property

from the List of Company properties and further, a

restraint order issues against the Official Liquidator & his

men from interfering with Applicant's possession &

enjoyment of the subject property, exclusively. The

Official Liquidator without brooking any delay, shall

facilitate building up of necessary correspondence/file

accordingly in this regard, if request is made by the

Applicant in writing.

Sd/-

JUDGE

Bsv