Case Law Details

Case Name : Bangur Brothers Ltd. (In Liquidation) Vs Official Liquidator (High court Calcutta)
Appeal Number : C.A. NO. 325 OF 2010
Date of Judgement/Order : 22/01/2013
Related Assessment Year :

HIGH COURT OF CALCUTTA

Bangur Brothers Ltd. (In Liquidation)

Versus

Official Liquidator

C.A. NO. 325 OF 2010
C.P. NO. 151 OF 2003

Date of Pronouncement – 22.01.2013

ORDER

1. This disclaimer application filed by PDGD Investments & Trading (P) Ltd. (hereinafter referred to as “PDGD”) under Section 535 of the Companies Act has come up for consideration. The applicants prayed for a direction upon the Official Liquidator to make over possession of the concerned premises with knowledge that the Official Liquidator is not in actual possession. The applicant also asserted that the Official Liquidator has no use of the concerned premises for the beneficial winding up of the Company and the Official Liquidator is under a duty and obligation to disclaim the premises in favour of PDGD and the disclaimer will release the Official Liquidator and the Company in liquidation from performing onerous covenant. The applicant also prayed for a direction upon the Official Liquidator to remove the trespassers from the premises and to make over possession to them.

2. The applicant, PDGD acquired the ownership of the subject premises being demarcated portion of 2621 sq. ft. on eastern portion of 2nd floor of premises of 14, Netaji Subhas Road, Kolkata on the basis of one scheme of arrangement sanctioned by this Court on 1st February, 2006 under Sections 391 and 392 of the Companies Act, between M/s. Venkatesh Company Ltd., the erstwhile owners and PDGD Investments. In view of the scheme all ownership rights of M/s. Venkatesh Company Ltd. stood transferred and vested to PDGD. PDGD filed this application in the proceedings for winding up of the Company (in liquidation) i.e. Bangur Brothers Ltd. which was in occupation of the said premises as a tenant under M/s. Venkatesh Company Ltd., the erstwhile owners and thereafter under PDGD, present owners, on a monthly rental. However, there is no written tenancy agreement between the parties. Bangur Brothers Limited wound up by an order dated 6th December, 2006 by this Court. PDGD came to know about the order sometimes prior to 5th February, 2009. Coming to know about the aforementioned order PDGD issued a letter to the Official Liquidator on 5th February, 2009 to disclaim the said premises in respect of which the company (in liquidation) viz. Bangur Brothers Ltd. was a tenant PDGD also issued another letter on 13th February, 2009.

3. The Official Liquidator in reply informed PDGD that he did not obtain possession of the said premises and some third parties claiming to be tenants in respect of the said premises are in occupation. PDGD replied that it had no relation of landlord and tenant between the trespassers i.e. Adhunik Corporation Ltd. or Jugal Kishore Agarwal or Adhunik Metalic Ltd. and further they were never accepted as tenants by PDGD.

4. By a letter dated 17th February, 2009 PDGD through their learned Advocate informed the Official Liquidator that there was no landlord tenant relationship with any person or Company. The Company (in liquidation), Bangur Brothers Ltd. was only tenant and, therefore, the property should be disclaimed by the Official Liquidator. The Official Liquidator called upon PDGD to submit original claim and proper rent receipts with regard to the tenancy. By a letter dated 27th March, 2009 all relevant documents were submitted on behalf of the PDGD. In spite of receipt of all such documents the Official Liquidator did not disclaim the property. Thereafter several letter were issued to the Official Liquidator but the Official Liquidator replied PDGD that they should prove exclusive ownership rights of the premises by way of documents. The applicant PDGD replied to the said letter and contended that it is unreasonable and arbitrary on the part of the Official Liquidator to claim any further document for proving exclusive ownership specially when the Company (in liquidation) itself has admitted ownership of PDGD. They have also paid rents until May, 2007. However, the Official Liquidator did not take any step.

5. Mr. Mukherjee, learned Senior Counsel, appearing for the applicant PDGD submitted that Adhunik Corporation Ltd. or Jugal Kishore Agarwal or Adhunik Metalic Ltd. had no right, title and interest in respect of said premises and they are not entitled to be in possession or occupation. It was also submitted that the payment of lease rent is a onerous covenant that the Official Liquidator is unable to discharge.

6. Mr. Mukherjee submitted that PDGD served a notice under Section 20 of the West Bengal Premises Tenancy Act, 1997 to the Company (in liquidation) for payment of fair rent and other charges. The Company is liable to pay a sum of Rs.27,000/- as fair rent and other charges from August, 2007. No rent has been received from the Company by PDGD Investments after May, 2007. Mr. Mukherjee also made a prayer that this application be treated as an application under Section 446 of the Companies Act and since PDGD had no relation with the trespassers now in possession, the Official Liquidator should remove the trespassers from the concerned premises and make over possession to PDGD.

7. Mr. Mukherjee submitted that in course of hearing of this application the Official Liquidator through their Counsel has accepted the ownership of PDGD and also accepted that the premises is onerous property and should be disclaimed but on “as is where as basis”. Mr. Mukherjee submitted the objection to the disclaimer has come from Jugal Kishore Agarwal, Adhunik Metalic Ltd. and Adhunik Corporation Ltd. who are alleging that they are sub-tenants in the said premises. He submits that these three entities are in total occupancies of area 1645 sq. ft. out of total area of 2675 sq. ft. which was under the tenancy of the Company (in liquidation). He referred paragraph 3(i) and 3(iii) of affidavit of Jugal Kishore Agarwal. It was submitted that except those interveners, who have comeforward as alleged sub-tenants, no one else has objected to this disclaimer. Therefore, the balance area of 1030 sq. ft. could be vacated by removing the trespassers and vacant possession of 1030 sq. ft. could be given to the PDGD.

8. So far the claim of the aforementioned three entities he submitted that all of them are trespassers. They are not entitled to make any claim in respect of 1645 sq. ft. area which is possessed by them. He submits that they have no right, title and interest in respect of that portion. It was also contended that those three occupants failed to show any prior permission and/or consent in writing either by M/s. Venkatesh Company Ltd. or PDGD for induction of sub-tenancy under the Company (in liquidation). It was further submitted by him that from the alleged sub-tenancy agreements of different dates, it cannot be proved that any consent of the landlords in writing as required under Section 14 of the West Bengal Premises Tenancy Act, 1956 and subsequently under Section 5 of the West Bengal Tenancy Act, 1997 was ever obtained. Mr. Mukherjee submitted that no consent in writing has been produced by any of the alleged sub-tenants or by the Official Liquidator. He submitted that the interveners did not give any evidence or attempt to give any evidence or produce any prior consent given by the landlords. It was submitted that from those two written agreements it appears that the Company (in liquidation) had permission of the superior landlord to sub-let. He submits that the said documents are clearly self-serving and ex facie manufactured and contained inherent inconsistencies and as such no reliance can be placed on the same.

9. According to Mr. Mukherjee had their been any such prior permission from the superior landlords, there cannot be any situation to keep the stipulation in the alleged agreement to the effect that in case of eviction by the superior landlords, the Company (in liquidation) would indemnify the said interveners and provide alternative accommodation to them mutually acceptable as per terms of this agreement failing which compensation will be paid to tenant at the then prevailing market rates. He submitted that the said agreements are sham and it would be evident that Bangur Brothers Ltd. has been described to be a sub-tenant in such document and a right to sub-let was given to the objectors. It was further submitted that the alleged documents do not satisfy the requirements under the West Bengal Premises Tenancy Act, 1956 or of 1997. No document was ever produced from which it could be shown that the erstwhile landlord or PDGD gave written consent for such sub-letting. Mr. Mukherjee submitted that the alleged documents between the Company (in liquidation) and the interveners, who are both interested parties in continuing with their illegal sub-tenancy manufactured the impugned document to save their illegal occupancies. He pointed out that the admitted rent receipts which are on record issued by M/s. Venkatesh Company Ltd. as well as by the PDGD to the Company to Bangur Brothers Ltd., (in liquidation), clearly show one of the terms of tenancy between the landlord and the Company was that no sub-tenancy would be created. It was submits that the acceptance of such rent receipts make it clear that Bangur Brothers Ltd. had not created in sub-tenancy in favour of the interveners by two alleged written agreements more particularly as the rent receipts also relate to a period subsequent to the dates of alleged two written agreements. It was also submitted that no evidence has ever been given by the interveners that the same was not a term of tenancy and for that reason no reliance can be placed on those two written agreements referred by the interveners. Mr. Mukherjee submitted that at no point of time any objection was taken by the Company (in liquidation) for inclusion of such a term in the rent receipt.

10. Mr. Mukherjee submitted under the Companies Act where a winding up order has been passed, the Official Liquidator has to take into custody of the properties to which the Company is or appears to be entitled and is also deemed to be in possession of the Official Liquidator. Undisputedly the Company (in liquidation) was a tenant in respect of area of 2675 sq. ft. on the 2nd floor of premises of 14, Netaji Subhas Road, Kolkata and by reason of winding up order the Official Liquidator is in custody of the entire area. In case of disclaimer of tenancy position of entire area is to be handed over to PDGD who is the present landlord. The trespassers who are in occupation now and being the interveners have no right to occupy any part or portion thereof. They can be evicted by an order of this Court at the time of allowing disclaimer and by reason of Section 446 (2) and Section 535 eviction of the trespassers from the premises held by the Company (in liquidation) has been accepted to be due process of law. Mr. Mukherjee cited following decisions of this Hon’ble Court:-

(i)           Pushpa Devi Jhunjhunwala v. Official Liquidator [1993] 1 CLJ 447 (Cal.).

(ii)          Ravindra Ishwardas Sethna v. Official Liquidator [1983] 4 SCC 269 (Bom.).

(iii)         Vidyadhar Upadhyay v. Sree Sree Madan Gopal Jew [1990] 67 Comp. Cas. 394 (Cal.)

(iv)         Sakow Industries P. Ltd. (in liquidation), In re [1990] 67 Comp. Cas. 16 (Cal.)

(v)          Unreported decision of Sanjib Banerjee, J. in SCIL India Ltd. (in liquidation) And Tata Steel Ltd. v. Official Liquidator.

11. Mr. Mukherjee submitted the objection on the side of the interveners that Section 446 of the Act has not been mentioned in the cause title of the petition and, therefore, the provisions of the said section cannot be invoked is of no consequence. He submits that even in case where the section was not mentioned the Court would have jurisdiction to deal with the issue under Section 446 of the Companies Act.

12. Mr. Mukherjee cited a decision reported in Sulekha Works Ltd., In re AIR 1965 Cal 98. It was also submitted that the landlords have denied that there was any such written consent for induction of sub-tenancy and, therefore, the onus lies on the interveners to prove that there was permission and/or written consent on the side of the landlords. He submits that the plea taken on the side of the interveners that the onus lies on the landlords to prove sub-letting is of no substance. The owners cannot prove negative. Therefore, the onus is on the interveners to establish that such prior consent was given according to the provisions of the West Bengal Premises Tenancy Act 1956 or of 1997. According to Mr. Mukherjee the onus has not been discharged even prima facie by the interveners. In support of such contention he cited another decision reported in Shree Cement Ltd. v. Official Liquidator AIR 1994 90. (Cal.)

13. Mr. Mukherjee submits that the interveners in order to resist eviction by an order of Court in this proceedings would have to show that they are the lawful sub-tenants and it is also obligatory on their part to show that written consent as required under the aforementioned two Acts was obtained. Mr. Mukherjee submitted that the interveners have to show that they have discharged mandatory obligation under Section 16 of the West Bengal Premises Tenancy Act, 1956 or under Section 26 of the West Bengal Premises Tenancy Act, 1997 to the effect that they have given notice to the landlord in the prescribed manner of such creation of the sub-tenancy. Since this was not done admittedly by the interveners, the claim of the interveners as sub-tenants is without any basis. Unless such procedure is followed, the interveners continue to remain as trespassers and they cannot claim rights as lawful sub-tenants.

14. Mr. Mukherjee submitted that the claim of the interveners that they are not trespassers and unless notice is given under the West Bengal Premises Tenancy Act they cannot be evicted from the premises is also without any substance. He submitted the cases cited by the learned Counsel on behalf of the interveners are of no assistance. According to him no notice was required to be given to the interveners for eviction as the interveners are trespassers. Mr. Mukherjee submitted that trespassers can be removed under the provision of the Companies Act by the Company Court which is due process of law. He further submits that this Court has jurisdiction to deal with the matter by reason of Section 446 and Section 535 of the Companies Act. It was also asserted by Mr. Mukherjee that there is no admission by PDGD or Venkatesh that there was any such written agreement for induction of sub-tenant and, therefore, there is no question of producing any agreement. No presumption has arisen as no one has proved that there is any such agreement in writing between the superior landlord and the Company (in liquidation). Mr. Mukherjee submitted that various other judgments relied upon by the learned Counsel appearing for the interveners are not at all applicable in the facts and circumstances of this case and, therefore, this application should also be treated an application under Section 446(2) of the Companies Act 1956. A direction on the Official Liquidator be issued to remove the trespassers from the premises and make over possession to the obligation herein.

15. Learned Counsel for the Official Liquidator submits that PDGD is the owner of the property and they are not objecting to the disclaimer but the petitioner is not entitled to seek a direction upon the Official Liquidator to remove the occupants who are claiming to be the sub-tenants. However, it was submitted that the possession of the premises in question was not taken by the Official Liquidator as yet. He also admitted that the Official Liquidator had no use of the premises in question. It was submitted that some amount of money was deposited by the occupiers for few months as rent and the Official Liquidator is holding the same. Learned Counsel also submitted that from the available records there no such written consent in favour of granting subtenancy. The Official Liquidator requested the parties to produce the same but that was not made available to the Official Liquidator.

16. Mr. Bachawat learned Counsel appeared for interveners submitted that the three interveners were not impleaded as party respondent to the application. He submitted that the prayer for vacant possession are not maintainable. It was contended that various material facts were suppressed. It was also submitted that the interveners are sub-tenants in respect of various portion of the said premises since 1992 onwards. On Venkatesh Company Ltd. was the owner of the said premises which granted tenancy to Bangur Brothers Ltd. which subsequently gone into liquidation. Long prior to it’s liquidation the Company had sub-let different portions in terms of sub-tenancy agreement dated November 2, 1992 and September 19, 2002 to the interveners. The interveners have been carrying on business and making payment of rent to the Company since then. The interveners have their registered office at the said address and they are in lawful occupation and possession of the said premises as would appear from the registrar of Companies, trade license granted by KMC, bills of CESC, income tax certificates, telephone bills, bank statements, sales tax registration certificate, etc. It was submitted that the said Company, Bangur Brothers Ltd. gone into liquidation 6th December, 2006. Official Liquidator upon discovery of the names of the interveners, being debtors of the Company asked them to make payment of rent pursuant to which respondents have been duly depositing rent with Official Liquidator. It was submitted that the said premises together with tenancies subsequently came to be vested with the applicant PDGD pursuant to a scheme of arrangement sanctioned by this Hon’ble Court on 1st February, 2006.

17. Mr. Bachawat, learned Counsel appearing on behalf of the interveners submitted that the applicant has filed this application in an attempt to obtain eviction of sub-tenants bypassing the provisions of the West Bengal Premises Tenancy Act, 1997 and an attempt was made to obtain orders by suppressing all relevant materials.

18. Mr. Bachawat submitted that and the provision contained under Section 535 of the Companies Act, 1956, the Company Court has the power to order disclaimer of the property but does not have any power of evict the persons in possession and as such the application must fail.

19. Mr. Bachawat referred provision under Section 535 and Rules 263 to 269 of the Companies Court Rules and Form Nos.24, 135 and 136 to show that on a plain reading of those provisions do not show any such power is contemplated for eviction of tenants or even trespassers and there is no express power to evict and to give vacant possession to the applicant. He submits it is settled principle of law that exercise of powers under Section 535 are to be exercised cautiously, sparingly and only in respect of onerous property. He submitted that the cases cited on the side of applicant are of no help in view of the facts and circumstances of this case.

20. Mr. Bachawat also submitted that no eviction can be ordered since the provision under Section 446 do not authorise to seek such eviction of sub-tenants. He submits the power under Section 446 of the Companies Act is discretionary and it has been held that such power should be exercised sparingly, cautiously and only in extreme cases. According to Mr. Bachawat the present situation do not warrant exercise of the provisions under Section 446. He submitted that the applicant do not mention or plead Section 446 and there is no reflection in the cause title even which is required in the Court Rules. Mr. Bachawat in support of such contention cited two decisions one is Ashoka Ghosh v. Official Liquidator, Remington Rand of India Ltd. (In liquidation)] [2003] 3 CLT 608, West Bengal Small Industries Development Corpn. Ltd. v. Official Liquidator [2006] 72 SCL 301 (Cal.).

21. He also submits that question of eviction must be decided under the Rent Control Act by the Rent Controller who has exclusive jurisdiction to decide. Mr. Bachawat, in this regard, cited a decision (Dr. S. P. Bhargava v. Haryana Electric Steel Co. Ltd. [1994] 94 Comp. Cas. 867 (Punj. & Har.) Mr. Bachawat submits that the issue cannot be decided under the purview of Section 446 and in the aforementioned judgment it was held by this Hon’ble Court under the purview of Section 446 of the Companies Act the issue cannot be decided, since winding up Court could not convert itself into the Rent Controller. He further cited another decision in Dr. Avtar Chawla v. Sehgal Papers Ltd. [1985] 57 Comp. Cas. 765 (Punj. & Har.) in which it was held that eviction proceedings under the Rent Act can have no bearing on liquidation proceedings and, thus, the matter is sent to Rent Controller. He also cited another unreported decision on the Hon’ble Division Bench of this Court rendered in APOT No. 377 of 2010 wherein the Appellate Court upheld the decision of the learned Single Judge refusing the prayer for eviction and gave liberty to file in separate suit. He also cited one other decision reported in Pushpa Devi Jhunjhunwalla (supra) wherein it was held that the Company Court does not have the power or jurisdiction to decide the question of eviction if the tenant is governed by the Rent Act. Mr. Bachawat placed reliance on Paragraphs 27, 30 and 31 of the judgment. Mr. Bachawat submitted that the respondent objectors are not at all trespassers, in fact they were inducted as sub-tenants by the Company (in liquidation). He submitted that the Company (in liquidation) obtained prior permission of the previous landlord for sub-letting, therefore, they are fully covered under the Rent Control Act.

22. Mr. Bachawat submitted that there is no dispute, the Company (in liquidation) is the tenant of the predecessor-in-interest of the applicant i.e. Venkatesh Company Limited. It is also not in dispute that the concerned premises was sub-let to the interveners by under a written agreement of 1992. The Company (in liquidation) issued rent receipts all along. Clause 8 of the said agreement records that the Company (in liquidation) has the permission of superior landlords for sub-letting. The interveners in terms of such agreements are in occupation of the premises over 20 years without objection either by the superior landlord, Venkatesh Company Limited or by Bangur Brothers Limited. He submitted that the present applicant which has since become owner of the property cannot be permitted to deny the authority given by the erstwhile superior landlord to Bangur Brothers Limited (Company in liquidation) to create sub-tenancy. The tenancy was never terminated either by the previous landlord that is Venkatesh Company Limited nor by the tenant, Bangur Brother Limited (Company in liquidation). Accordingly he submits the relationship between the Company and the respondents and/or the interveners are established. He further submits that the premises in question are governed by the provisions of the West Bengal Premises Tenancy Act, 1997 and, therefore, the Company (in liquidation) and the interveners are protected under the provisions of the said Act and cannot be evicted unless the pre-condition of the said Rent Act are fulfilled.

23. Mr. Bachawat submits that the applicant itself invoked the provision of Rent Act in an attempt to get enhancements of rent under Section 17 of the West Bengal Premises Tenancy Act, 1997 and the applicant sought to enhancements the rent at a sum Rs.18,000/- per month which would have taken the tenancy out of the purview of the protection of Rent Act. He submits this was a mala fide attempt to take away the protection afforded by Rent Act if possible. Mr. Bachawat submitted it is Rent Controller only who can fix the fair rent but it is not a unilateral Act. He cited two decisions, one is AVO Engineers (P) Ltd. v. India Ice Aerated Water & Cold Storage Co. Ltd. 2006 (2) CHN 384 and the other decision is Sriram Rayons v. Ashok Nain 2005 (3) CHN 596 Mr. Bachawat has further submitted that no eviction is permissible unless notice under Section 6 of Rent Act was served. He also submitted since Rent Act is admittedly applicable, no order for eviction nor any proceedings for possession can be filed even if the premises has illegally sub-let. It was submitted that no notice terminating the tenancy has been issued as yet. Mr. Bachawat submits, creation of sub-tenancy without permission does not make tenant trespassers. He submits it is settled law that the possession of statutory tenant is protected and even on termination of such tenancy by issue of a valid notice such possession does not become wrongful until and unless a decree of eviction is made. He cited two decisions, one reported in Smt. Chander Kali Bail v. Jagdish Singh Thakur AIR 1977 SC 2262 and the other decision reported in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.. 2005 (1) SCC 705. According to Mr. Bachawat in view of Clause 8 of the sub-tenancy agreement the onus on the applicant to show that the sub-letting was without consent. The onus could have been discharged by the applicant by production of tenancy/lease document between Venkatesh Company Limited the erstwhile owners and Bangur Brothers Limited (the Company in liquidation) from which it would have been established whether sub-letting was permitted or prohibited. He submits that a negative inference has to be drawn against the applicant for non-production of such document which must be deemed to be in their possession. Mr. Bachawat submitted that the applicant deliberately refused to disclose the facts and he further submitted that the circumstantial evidence shows that sub-letting was permitted by the previous landlords. According to him the prayer of the applicant should not be allowed. Mr. Bachawat cited various other decision in support of his decisions.

24. Mr. Bachawat also submitted that the principles decided in the cases cited by the learned Counsel for the applicant are not at all applicable in the instant case, since those cases are based on different sets of facts.

25. After hearing the learned Counsel for the parties and after consideration of the entire matter it appears to this Court that the property in question were of no use to the Company nor it can be used or utilized for the purpose of winding up of the Company. The property in the tenancy right of the Company is an onerous one which was also admitted by the learned Counsel appearing for the Official Liquidator in Court.

26. It is also admitted that present applicant PDGD, is the owner of the property in question. Although, the Official Liquidator did not take possession of premises in question, it is in view of Section 446 of the Companies Act he would be deemed to have been in possession, as the property in the tenancy right were admittedly an asset of the Company. In my view the present owner the applicant herein is entitled to get the property released in their favour.

27. Accordingly I direct the Official Liquidator to release the property in favour of the applicant.

28. However, in the instant case it is undisputed that Bangur Brothers Limited, the Company (in liquidation) was a tenant in respect of property in question governed by the provisions of the West Bengal Premises Tenancy Act 1956. The said Bangur Brothers Limited inducted the interveners as alleged sub-tenants and realised rents from them. They are in occupation of an area of 1645 sq. ft. only.

29. According to the provisions contained under the Rent Act both old and new, creation of sub-tenancy without written consent of the landlord is a ground of eviction of the tenant. In the instant case two different agreements were disclosed by the interveners wherein it was stipulated that prior permission of landlord was obtained for induction of sub-tenant but no written permission was ever produced by any of the occupants being the interveners who are claiming to be lawful sub-tenants. Although it creates doubt in the mind of the Court but considering period of occupancy and making payment of rent to the Company (in liquidation), etc. this Court is of the view that the issue should be resolved by filing a suit before the Company Court. Accordingly liberty is granted to the applicant, admittedly the landlord, to institute a suit against the Company (in liquidation) as well as the interveners for the purpose of resolving issue and for getting back possession of the property in question, before the Company Court, which the Company Court is entitled to entertain under Section 446(2) of the Companies Act, 1956.

30. So far the balance area of 1030 sq. ft. is concerned no one intervened nor there is any objection by anyone. Therefore, the Official Liquidator is also directed to remove trespassers if any from the said area of 1030 sq. ft. and hand over vacant possession to the applicant. In the event, the Official Liquidator requires any police assistance for vacating the said 1030 sq. ft. area, he will seek police assistance from the concerned Police Station and the Officer-in-Charge of the concerned Police Station is directed to render all assistance to the Official Liquidator.

31. So far exercise of jurisdiction vested upon the Company Court under Section 446(2) of the Act is concerned, in my view and also in view of the decisions cited by the learned Counsel appearing for the applicant, it is already settled that this Court have ample power to adjudicate and determine all questions that arises in winding up. Such questions include eviction of trespassers from property of the Company (in liquidation) and the Company Court also by a summary order can direct eviction of a trespassers from the Company property. But Company Court must follow the law of the land in regard to such eviction. The process is summary but the law to be applied prior to ordering eviction of a trespassers is the same law as would have to be applied by any Civil Court ordinarily trying a suit against a trespassers. Further, a plain reading of the provisions of Section 446 make it clear that exercise of power and/or jurisdiction under the same is discretionary in nature. In my view, even if the section is not mentioned in the application, in appropriate case the Company Court can exercise it’s power and decide any question whether of law or fact which may relate to or rise in course of the proceedings. In case of Pushpa Devi Jhunjhunwalla (Supra) the learned Single Judge of this Court after considering various cases have concluded that in liquidation proceedings summary eviction can be ordered in appropriate case and no suit regularly filed is necessarily called for before such order is passed.

32. This application is thus allowed.

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