Case Note & Summary
The Applicant, Shree Vishnu Holdings & Consultants Pvt. Ltd., is the owner and landlord of premises situated at Jayshree Chambers, 82 Nagindas Master Road, Fort, Mumbai. The Bank of Karad had been a tenant since 1962. In 1992, the Bank was ordered to be wound up, and the Official Liquidator was appointed. The Applicant filed a previous application (Company Application No. 429 of 1999) seeking possession, which was dismissed on 23 March 2001 with the observation that the Applicant should provide alternative premises to the Liquidator. The Applicant did not provide any alternative premises. In 2017, the Applicant filed the present application under Section 457 of the Companies Act, 1956, again seeking possession. The Respondent (Official Liquidator) opposed the application on grounds of res judicata and constructive res judicata, and also contended that the Applicant had not provided alternative premises. The Court analyzed the earlier order and found that the dismissal was not merely on the ground of no case being made out, but also with a clear direction that the Applicant could provide alternative premises. Since the Applicant did not provide any alternative premises, the present application was not maintainable. The Court also held that the application was barred by constructive res judicata as the Applicant could have raised the ground of change in circumstances in the earlier application. The Court dismissed the application with no order as to costs.
Headnote
A) Company Law - Winding Up - Possession of Premises - Section 457 of the Companies Act, 1956 - The Applicant, as landlord, sought eviction of the Official Liquidator from premises tenanted by the wound-up company. The Court held that the earlier application for possession was dismissed with a clear direction that the Applicant must provide alternative premises. Since no alternative premises were offered, the present application was not maintainable. (Paras 1-10)
B) Civil Procedure - Res Judicata - Constructive Res Judicata - Explanation IV to Section 11 of the Code of Civil Procedure, 1908 - The Court held that the present application was barred by constructive res judicata as the Applicant could have raised the ground of change in circumstances in the earlier application but did not. (Paras 11-15)
C) Company Law - Official Liquidator - Possession of Premises - Section 457 of the Companies Act, 1956 - The Court held that the Official Liquidator is not a trespasser and is in lawful possession of the premises. The Court cannot order eviction without the Applicant providing suitable alternative accommodation. (Paras 16-20)
Issue of Consideration
Whether the Applicant is entitled to an order directing the Official Liquidator to vacate and hand over possession of the premises in the absence of providing suitable alternative accommodation, and whether the present application is barred by res judicata or constructive res judicata.
Final Decision
The Court dismissed the application with no order as to costs.
Law Points
- Section 457 of the Companies Act
- 1956
- Official Liquidator's possession
- landlord's right to eviction
- alternative accommodation
- res judicata
- constructive res judicata
Case Details
Company Application No. 369 of 2017 in Company Petition No. 229 of 1992
Mr. Ashish Kamat, Senior Advocate a/w. Mr. Aseem Naphade, Ms. Shreya Bhagnari, Ms. Lulania and Ms. Reeuta Patil i/b. Negandhi Shah & Himayatullah for Applicant; Mr. Rohaan Cama a/w. Mr. Shakib Dhorajiwala and Mr. Indrajeet Deshmukh i/b. Vidhi Partners for Respondent.
Shree Vishnu Holdings & Consultants Pvt. Ltd.
Official Liquidator, Bank of Karad
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Nature of Litigation
Application under Section 457 of the Companies Act, 1956 seeking possession of premises from the Official Liquidator.
Remedy Sought
Direction to the Respondent to vacate and hand over quiet, vacant and peaceful possession of the premises belonging to the Applicant.
Filing Reason
The Applicant, as landlord, sought possession of premises tenanted by the wound-up company (Bank of Karad) from the Official Liquidator.
Previous Decisions
Company Application No. 429 of 1999 filed by the Applicant was dismissed on 23 March 2001 with the observation that the Applicant could provide alternative premises to the Liquidator.
Issues
Whether the present application is barred by res judicata or constructive res judicata in view of the dismissal of the earlier application.
Whether the Applicant is entitled to possession without providing alternative accommodation to the Official Liquidator.
Submissions/Arguments
Applicant argued that the earlier order did not create a condition precedent to provide alternative premises and that the circumstances had changed as the Liquidator had been in possession for a long time.
Respondent argued that the earlier order clearly required the Applicant to provide alternative premises, which was not done, and that the application was barred by res judicata.
Ratio Decidendi
The Court held that the earlier order dismissing the first application for possession was not merely a dismissal but included a clear direction that the Applicant could provide alternative premises. Since no alternative premises were provided, the present application was not maintainable. Additionally, the application was barred by constructive res judicata as the Applicant could have raised the ground of change in circumstances in the earlier application.
Judgment Excerpts
In these circumstances, I am of the view that no case for the return of the premises is made out.
The Learned Counsel appearing on behalf of the applicant submitted that applicant would make efforts to make available to the Liquidator alternative premises.
Procedural History
The Bank of Karad was ordered to be wound up on 27 May 1992 and 20 July 1994. The Official Liquidator took charge in July 1994. The Applicant filed Company Application No. 429 of 1999 seeking possession, which was dismissed on 23 March 2001. The Applicant then filed the present application (Company Application No. 369 of 2017) on 7 July 1999? (Note: The text states the present application was filed in 2017, but the earlier application was filed on 7 July 1999. The procedural history is: 1992 winding up order, 1994 liquidator appointed, 1999 first application, 2001 dismissal, 2017 present application.)
Acts & Sections
- Companies Act, 1956: Section 457
- Code of Civil Procedure, 1908: Section 11, Explanation IV
