Sarbani Bhattacharya & Anr vs Official Liquidator

Ashis Kumar Chakraborty, J

The Court : This application under Section 535 of the Companies Act, 1956 (in short, "the Act of 1956") is at the instance of the petitioning creditors in CP No.65 of 2014 seeking for a direction upon the Official Liquidator to disclaim the property, being the entirety of a third floor of premises no.88A, Sarat Bose Road, Kolkata-700 026 (hereinafter referred to as "the said flat") which was let out to the company (in liquidation). The company (in liquidation) was using the said flat as its registered office.

The claim of the petitioning creditors in the winding up application arose on account of outstanding lease rentals payable by the company for the said flat. The winding up application of the petitioning creditors, CP No.65 of 2014 was admitted. Thereafter, by an order dated December 17, 2015 passed by a learned Single Judge the company was directed to be wound up and the Official Liquidator was directed to take possession of all the assets, properties and affairs of the company. Admittedly, the Official Liquidator has taken possession of the said flat. The Official Liquidator has not paid any rent of the said flat and the said flat has become onerous for the Official Liquidator. Accordingly, the petitioners have prayed for disclaimer of the said property by the Official Liquidator.

The Official Liquidator has filed an affidavit disclosing the relevant documents showing that the said flat is in his possession. The Official Liquidator is ready to disclaim the said flat and make over possession thereof to the petitioners, being the owners.

In the Judge's Summons the petitioners have only claimed for a direction upon the Official Liquidator to disclaim the said flat being the entire third floor of premises no. 88A, Sarat Bose Road, Kolkata-700 026 having an area of 2000 square feet. The Official Liquidator has also taken possession of the said flat as described by the petitioners in the prayer portion of the Judge's Summons.

However, an argument was sought to be advanced that along with the said flat the company (in liquidation) was also a tenant in respect of a car parking space situate on the ground floor of the said premises no.88A, Sarat Bose Road, Kolkata-700026. However, the petitioners have not been able to substantiate that the Official Liquidator has taken possession of any portion of the ground floor of the said premises no.88A, Sarat Bose Road, Kolkata-700026.

It is submitted by the Official Liquidator that the Company (in Liquidation) had no asset and he has no fund on account of the Company (in Liquidation). The petitioners are also agreeable not to claim the arrear rent in respect of the said property from the Official Liquidator.

In view of the above facts, the Official Liquidator is directed to disclaim and make over possession of the entire third floor of the said premises being 88A, Sarat Bose Road, Kolkata-700 026 comprising an area of 2000 square feet to the petitioners within two weeks from date.

With the above directions, CA No.476 of 2017 stands disposed of without any order as to costs.