MARATHA MANDIR LTD Vs. OFFICIAL LIQUIDATOR GOLCHA PROPERTIES PVT LTD

JUDGEMENT

(1.) THIS is an application of Messrs. Maratha Mandir Ltd. under sec. 446 of Companies Act for leave to proceed with suit No. R. A. E. & R. 273/2271/1966 against the Golcha Properties Private Ltd. (hereinafter called "the Company") in the court of Small Causes, Bombay. The applicant claims to be the owner of the premises described in paragraph 2 of the application, which are admittedly in the possession of the Company. An order was made by this court on May 10, 1968 for the winding up of the Company and as the aforesaid suit was pending on the date of that order, the applicant has asked for leave to proceed with its trial.

(2.) A copy of the plaint (Ex. 1) has been appended to the application and it shows that the suit has been raised on these averments: The applicant gave the use of the suit building, which was then under construction, to the Company under "an agreement dated 31st October, 1955 on terms and conditions stated in the said agreement". The Company 'carried out part of the said agreement and committed breaches of the said agreement". Disputes arose between the parties and a suit was filed by the Company in the High Court of Judicature at Bombay in which it was agreed, inter alia, that the applicant "should grant a lease to the defendants. . . . . . . . . . . . . . for a period of 20 years commencing from the 16th day of October, 1958" on the terms stated in the plaint as regards the rent, payment of municipal and other taxes and charges, insurance of the building and equipment, preparation of an inventory of the moveable properties and making of repairs. The applicant has enclosed a copy of the consent decree (annexure B and it states the details of the lease at considerable length. It has been pleaded that the Company was guilty of breaking various terms and conditions of the proposed lease as stated in paragraphs 11 to 14 of the plaint. Then it has been stated in paragraph 15 that the lease was for consideration, and that payments were made by the Company in pursuance of the lease, for some time. No less deed was however executed or registered as required by the law. It has therefore been contended that the Company continued in law only as a monthly tenant and that the applicant terminated the tenancy by a letter of its advocate dated January 10, 1966 It has further been stated that the applicant became entitled to forfeit the lease and to re-enter the premises. Thus it has been stated (in paragraph 19) that the applicant "again and finally by their advocate's letter to the defendants dated the 18th March 1966 placed the above facts on record and determined the lease by forfeiting the same and plaintiffs again required the defendants, within the period specified in the said letter, to remedy the breaches committed by them", but to no avail so that the "tenancy of the defendants has been duly determined and or forfeited by the said notice dated 10th of January 1966". On the basis of these averments, the applicant has prayed for possession and recovery of arrears of rent and taxes etc.

(3.) IT will thus appear that there is every justification for the contention that the plaint does not disclose a cause of action and that there are no chances whatsoever of its success at the trial. IT will therefore cause harassment to the Company and put it to considerable unnecessary expenditure if the leave prayed for is granted. IT has to be remembered that the suit does not concern third parties, and the claim for the recovery of arrears of rent, taxes and other dues can be properly determined in the winding up. In fact, as has been stated, the Company has not only paid the earlier dues but has undertaken to pay them in future as well. There is therefore no reason whatsoever to grant the leave applied for. In the view I have taken, I do not think it necessary to refer to the other arguments of Mr. Joshi.