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Judgment
The Court : This appeal is directed against an order dated 17th January, 2012 by which the application filed by the appellant for summary eviction of the illegal occupants has been denied.
The appeal does not question that the sale of the assets of the company (in liquidation) which was on "as is where is and whatever there is" basis. The terms of the sale are apparent from the recitals of the deed of conveyance relating to the immovable property executed by the Official Liquidator in favour of the applicant. The contention of the appellant before us is that by reason of Section 446(2) of the Companies Act, the Company Court has jurisdiction to pass appropriate orders for summary eviction of the unauthorized occupants. It is submitted that in the instant case the list of unauthorized occupants were furnished to the Official Liquidator and it was the duty of the Official Liquidator to hand over vacant possession of the land in question to the appellant. Relief was not granted by the learned Single Judge on the ground that the immovable property of the company (in liquidation) was sold to the appellant on "as is where is" basis and it is for the appellant, after it had acquired title to the immovable property to deal with the trespassers and encroachers on the immovable property in accordance with law. But, the Company Court did not retain any jurisdiction to deal with the matter as to such alleged illegal occupants and/or encorachers after the conclusion of the sale. The sale has long been concluded.
Mr. Dhruba Ghosh, Senior Advocate submits that the finding of the learned Single Judge that the Company Court did not retain jurisdiction to deal with such encorachers is not the correct interpretation of Section 446(2) of the Companies Act, 1956 and reliance has been placed on the Division Bench of our Court in Vidyadhar Upadhyay v. Sree Sree Madan Gopal Jew & Ors. reported in 67 Com. Cases 394. Mr. Ghosh has drawn our attention to the following paragraphs of the said judgment:
"The next question is whether this application made before the company court was maintainable or not. Before we deal with the same, we shall refer to the Division Bench judgment of this court in the case of Indramoni v. Shriram Jute Mills P. Ltd. (Appeal No. 154 of 1976 dated December 6, 1976). In that case, the Clive Mills Co. Ltd. went into liquidation and the official liquidator was appointed as the liquidator of the said company in liquidation. Pursuant to the order of the learned company judge, the official liquidator was directed to accept the offer for sale of the assets of the company. Delivery of possession was given to the purchaser. It appeared that certain persons were residing at certain quarters situated within the area of the same mills and they were claiming to be the tenants in respect of the said quarters. Under these circumstances, a judges' summons was taken out for an order directing the Superintendent of Police and other police officers to remove all trespassers as shown in the annexure to the said application who were in wrongful occupation of the premises in question. Some of the occupiers contended that they had their tenancy title to the quarters occupied by them. Thereafter, the learned judge passed an order and three persons who were found to be trespassers preferred an appeal. One of them was Indramoni who was claiming to have been in possession of one of such quarters.
It was contended on behalf of the appellant that no such application could be made or order be passed on the basis of section 446(2) of the said Act. In this connection, the Division Bench held as follows:
"In our opinion, the language of sub-section (2) is clear, it was the intention of learned judge that all questions which come within the scope of sub-section (2) of the said section should be dealt with by the company court in order to avoid unnecessary delay and multiplicity of proceedings. In an application being made to that effect, leave is given to the liquidator or appropriate party to institute or continue such proceedings in any other court or Tribunal. In this case, there was an application under section 446(2). It comes under clause (b) which relates to any claim made by or against the company and in any event it is certainly covered by clause (d) which includes any question whatsoever whether of law or fact which may relate to or arise in the course of the winding-up of the company. In the present case, admittedly, the winding-up proceedings have not come to an end. The company was not yet dissolved. It was still in the course of winding-up. Further, in our opinion, it was certainly a question relating to or arising in the course of such winding-up. In the course of the winding-up, the official liquidator was directed to sell the mill premises to the purchaser who was the applicant before the learned company judge. This provided for handing over possession of the immovable properties to the purchaser. The order specifically directed the police authorities referred to therein to render police help in evicting the trespassers. A list of tenants and licensees was prepared. The others in occupation were the trespassers. The liquidator prepared a list showing whether the tenants are licensees or trespassers. This was challenged by the appellants on the ground that the liquidator did not give them any opportunity. On that basis, they were given further liberty to file supplementary affidavits which they did. Now the question was whether these appellants were trespassers or not within the meaning of the order passed on August 8, 1972. In our opinion, it was certainly a claim or question coming within clause (b) and certainly within clause (d) of sub-section (2) of section 446 of the said Act. Accordingly, in our opinion, the learned judge was entitled to entertain this application owing to such a question in such a proceeding. Accordingly, we reject this contention of Dutta."
The interpretation of the said section has been given by the said Division Bench judgment. Applying the principles laid down therein, we are of the opinion that this application is certainly maintainable and the questions raised in this application come within the scope of section 446(2)."
The learned senior counsel, however, in all fairness, has produced before us an order dated 7th September 2015 passed earlier in this proceeding by a co-ordinate Bench wherein an order was passed by another co-ordinate Bench in APO No. 288 of 2012 on 22nd August 2012 which noted that the appeal was adjourned due to pendency of the Special Leave Petition against the said judgment. Mr. Ghosh has also produced the order of the Hon'ble Supreme Court dated 6th March 2018 dismissing the said special leave petition with the following observation:-
"Heard the learned counsel for the petitioner and perused the relevant material.
We find no merit in the present Special Leave Petition. The Special Leave Petition is accordingly dismissed. However, all other remedies as may be open to the petitioner in law may be availed of."
The facts in Vidyadhar Upadhyay (supra), do not appear to be same or similar to the facts in issue and the expression "as is where is and whatever there is" did not come up for consideration in the said decision, whereas in APO No.288 of 2012 decided on 22nd August, 2012 by another co-ordinate Bench, this issue came up for consideration and it was observed:
"If we strictly follow the law we would have no other option but to dismiss the appeal in limine. Official Liquidator put up the property for sale on "as is where is and whatever there is basis" meaning thereby, the intending purchaser would have to satisfy himself about the title, measurement, location of the assets including its nature, character, suitability as well as disability. Keeping their eyes wide open, the purchaser purchased this property. They took possession of the assets without any protest. The Official Liquidator executed and registered the conveyance as far back in 2005. They got the property mutated in the Municipal records upon payment of statutory outgoings. At this stage, they would not be entitled to approach either the Official Liquidator or the Company Court for further directions. The learned Judge rightly dismissed the application that would deserve no interference."
It is also apposite here to refer to the parent order dated 17th January, 2012 of the learned Single Judge giving rise to the said appeal. The company Court held:
"Since it is evident that the immovable property of the company in liquidation was sold to the applicant on "as is where is basis," the applicant became entitled to deal with the trespassers or encroachers on the immovable property in accordance with law after having acquired title to the immovable property, but the Company Court did not retain any jurisdiction to deal with the matter as to alleged illegal occupation of or encroachment on the immovable property after the conclusion of the sale. The sale has long been concluded. The consideration has been received by the Official Liquidator. The deed of conveyance has been executed by the Official Liquidator."
In view of the aforesaid and having regard to the fact that the purchaser with its eyes wide open had participated in the sale and had agreed to purchase the property on "as is where is and whatever there is" basis meaning thereby the purchaser would have to satisfy himself about the right, title, interest, measurement, location of the property including its nature, character, suitability as well as comparative advantages and disadvantages and disability, it cannot be contended at this stage that the proceedings under Section 446(2) of the Companies Act, 1956 would be available to the purchaser after conclusion of the sale and after the official liquidator having handed over possession of the property on the basis of the terms and conditions of the sale notice.
The appeal stands disposed of.
However, all other remedies as may be available to the appellant in law may be availed of by the appellant in accordance with law.