JUDGMENT - N.D. VYAS, J. :---The petitioners are the owners of the office premises bearing No.4 Atlanta Building, Nariman Point, Bombay-400 021. The petitioners are praying that the respondents be ordered and directed to forthwith hand over quiet, vacant and peaceful possession of the office premises to the petitioners and that the respondents be ordered and directed to pay to the petitioners a sum of Rs. 20,000/- per day as mesne profits from 24th November 1991 till the date of handing over the possession of the said premises along with interest and lastly that the respondents be restrained by an order of permanent injunction from selling, assigning, transferring the tenancy rights in the said premises or parting with possession thereof or inducting any third party therein. (a) Sometime in the year 1978, a lease was executed for a period of 5 years between the petitioners and the Bank of Credit and Commerce International (Overseas) Limited, for the said Banks office at Bombay. The said Bank was granted licence by the Reserve Bank of India for carrying on Banking business in Bombay. On 6th October, 1978, NOC was obtained from the Controller of Accommodation. The lease was extended in October, 1983 for further period of 5 years and lastly again it has been extended by a further period of 9 years i.e. upto October,1997. (b) On 5th July, 1991 an order was passed by the Governor of Cayman Islands who appointed Ian Wight to assume control of the said Bank with the power of a receiver appointed under section 18 of the Banking Low as applicable in the Cayman Islands and to assume control and custody of its affairs, premises, aspects, books and records wheresoever situated. (c) On 6th July, 1991, the Reserve Bank of India (hereinafter referred to as RBI) instructed the Bombay Branch of the said Bank to suspend its business and on 15th July, 1991 RBI filed a Company Petition No.389 of 1991 in this Court for winding up of the Bombay Branch of BCCI under section 38 of the Banking Regulation Act (hereinafter referred to as "the said Banking Act") and for appointment of State Bank of India (hereinafter referred to as "SBI"), the 1st respondent herein, as Provisional Liquidator of Bombay Branch of BCCI. On the same day, the RBI also moved an application being Company Application No. 203 of 1991 in the said Company Petition No.389 of 1991 for interim and ad-interim orders as prayed for therein. (d) On 15th July, 1991, this Court accepted the said Company Petition No.389 of 1991 and appointed SBI Central Office as Provisional Liquidator of the Bombay Branch of BCCI and directed the Provisional Liquidator so appointed to take custody, possession and control of the entire assets, properties and affairs of the Bombay Branch of BCCI. The Provisional Liquidator then took possession of inter alia the premises in question. (e) Pursuant to the said order dated 15th July, 1991, the Provisional Liquidator so appointed on the same day appointed S.H. Parande, the then Chief General Manager and now Deputy Managing Director of SBI, as the Authorised Officer to perform the functions of the Provisional Liquidator. (f) On 24th November, 1991 the petitioners terminated the lease. (g) On 14th January, 1992 an order was passed by the Grand Court of the Cayman Islands and certain persons were appointed as Official Liquidators of BCCI(O) with powers inter alia, to take possession, collect and get in all properties and assets to which BCCI(O) was or appeared to be entitled and to do all things as might be necessary or expedient for the protection of BCCI(O) assets and to do all things as might be necessary and expedient for the beneficial realisation of the properties and assets of BCCI(O). (h) A Memorandum of Understanding (hereinafter referred to as MOU) dated 16th January 1992 was entered into by and between the Official Liquidator and RBI for disposal of the Bombay Branch of BCCI and the same was agreed to be sold to one of the buyers to be approved by RBI on the terms and conditions mentioned therein. By the said MOU, the purchaser was, inter alia, required to assume full responsibility for meeting 100 percent dues of the depositors and other creditors of the Bombay Branch of BCCI including the liabilities of the staff of the Bombay Branch of BCCI and all liabilities of Bombay Branch of BCCI to BCCI(O) and other BCCI(O) group entities. By the said MOU, the purchaser was, inter alia, required to assume full responsibility for meeting 100 percent dues of the depositors and other creditors of the Bombay Branch of BCCI including the liabilities of the staff of the Bombay Branch of BCCI and all liabilities of Bombay Branch of BCCI to BCCI(O) and other BCCI(O) group entities. (i) On 22nd January, 1992, this Court admitted the said Company Petition No.389 of 1991 and confirmed the ad-interim order passed on 15th July, 1991 appointing SBI Central Office as Provisional Liquidator of the Bombay Branch of BCCI. (j) In February, 1992, the then Provisional Liquidator of the Bombay Branch of BCCI submitted its report No. 29 to this Court inter alia seeking directions from this Court for approval of the proposal contained in the said MOU. By its order dated 14th February, 1992, this Court gave directions to the then Provisional Liquidator of the Bombay Branch of BCCI approving the said MOU subject to certain conditions and safeguards stipulated therein. (k) On 20th July, 1992 the present petition was filed by the petitioners. (l) In pursuance of the said MOU as approved by this Court, the Official Liquidator of BCCI(O) invited offers for sale of the Bombay Branch of BCCI as a going concern on "as is where is" basis and for a slump consideration. On 26th December, 1992, the 1st respondent offered to purchase the business and undertaking of the Bombay Branch of BCCI as a going concern for a slump consideration and forwarded a draft agreement for sale containing terms and conditions on which the 1st respondent intended to purchase the same along therewith. (m) By an order passed on 12th February, 1993, the Grant Court of the Cayman Islands has approved the said offer of the 1st respondent and the said draft agreement and authorised the Official Liquidators of BCCI(O) to enter into the said agreement. The RBI had recommended to the then Provisional Liquidator of the Bombay branch of BCCI that subject to the permission and orders of this Court, the then Provisional Liquidator of the Bombay Branch of BCCI may sell the business and undertaking of the Bombay Branch of BCCI to the 1st respondent and/or its subsidiary to be formed in accordance with the terms of the said draft agreement. (n) On 1st March, 1993, the RBI filed Company Petition No.123 of 1993 praying that the offer of the SBI for purchase of the Bombay Branch of the BCCI on the terms and conditions as contained in the Draft Agreement Annexure G to that petition be approved and the then Provisional Liquidator be directed to sell the undertaking of the Bombay Branch of the BCCI to the State Bank of India and/or to its subsidiary to be formed as stated in the Draft Agreements on the terms and conditions contained therein. (o) On 3rd August, 1993, by an order passed on the said Company Petition No.123 of 1993 by my brother Jhunjhunuwala, J., the said Company Petition was allowed on certain conditions thereby approving the Draft Agreement being Exh. G to the said petition for purchase of the Bombay Branch of the BCCI as a going concern on "as is where is" basis on the conditions contained in the said Exh.G and the then Provisional Liquidator was directed to sell the undertaking of the Bombay Branch of BCCI to the 1st respondent and/or its subsidiary to be formed. Further the then Provisional Liquidator was authorised to execute the agreement is terms of the draft agreement Exh.G to that petition. As far as the present petition is concerned, the undertakings given by the RBI and the 1st respondent through their Counsel as recorded in the said order dated 1st March 1993 were accepted and it was ordered that the rights and claims of the present petitioners in the said premises being subject matter of the present Company Petition including those taken in the present Company petition and in the affidavit of Mario Vaz affirmed on 11th March, 1993 as also the question of the power of the then Provisional Liquidator of Bombay Branch of BCCI to assign the said premises and the validity of the assignment were not and will not be affected by the said order dated 3rd August, 1993 and the same would be determined in the present petition which was pending at that time. Lastly it was ordered that any new company to be formed by the 1st respondent as per the terms and conditions contained in the draft agreement Exh.G would also be bound by the undertakings given by the RBI to the 1st respondent through their Counsel as recorded in the said order. Lastly it was ordered that any new company to be formed by the 1st respondent as per the terms and conditions contained in the draft agreement Exh.G would also be bound by the undertakings given by the RBI to the 1st respondent through their Counsel as recorded in the said order. (p) On 7th October, 1993, the 4th respondent Company was incorporated and the certificate of commencement of business was given to the 4th respondent on 18th October, 1993 and the agreement as per Exh.G to the Petition No.123 of 1993 was signed by the 4th respondent on 24th October, 1993 to take over the business and undertaking of the Bombay Branch of the BCCI. On 12th November, 1993 the main petition viz., Company Petition No.389 of 1991, was made absolute by my brother Rane, J., granting prayers (a) and (b) of the main petition and ordering winding up of the BCCI(O), Bombay and the 1st respondents were appointed as Liquidator of BCCI(O) Ltd., Bombay, with all necessary powers under the provisions of the said Banking Act read with Companies Act, 1956. On 25th November, 1993 the present petition reached hearing before me and remained part heard. On that day it was pointed out by Mr. Thakkar appearing on behalf of the 1st respondent that the company having been ordered to be wound up necessary amendments have not been carried out. However, on behalf of the petitioners it was submitted that although the order was passed on 12th November, 1993, the same not having been signed, amendments were not applied for. However, on 10th December, 1993, an application for amendment of the present petition was made in view of the order viz., the order of winding up passed on 12th November, 1993 and the same was allowed. 2. Before I deal with the various contentions raised by the counsel appearing for the parties before me, it is necessary to deal with the submission raised on behalf of the respondents that the present petition is not maintainable and that this Court has no jurisdiction to entertain and try the present petition. As the said jurisdictional submission goes to the very root of the matter, the same is required to be considered at the outset. As the said jurisdictional submission goes to the very root of the matter, the same is required to be considered at the outset. On behalf of the respondents it was submitted that in effect, the petitioners being the landlords, were seeking possession of the premises and as the relationship being that of landlord and tenant, under the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"), the only Court which can have jurisdiction would be the Small Causes Court, Bombay. It was further contended that the present petition was filed prior to the winding up order of the BCCI(O) Ltd. Bombay and, therefore, the same was not maintainable. In support of the said contention, it was submitted that the said section 28 contains a non-obstante clause and, therefore, the said Court alone can have jurisdiction. Further it was submitted that the present Company Petition has been filed under the said Banking Act and the present application seems to have been made under section 45-B of Part III-A of the said Banking Act which in terms provides that the application can be made in respect of "a Banking Company which is being wound up". Thus admittedly the present petition having been filed before the winding up order, the same is not maintainable. However, on behalf of the petitioners it was contended, and in my opinion rightly, that despite the non-obstante clause contained in section 28 of the Rent Act, the Banking Act being a special Act, would apply and under section 45-B of the said Banking Act, this Court alone would have jurisdiction in the matter, and therefore, the petition is maintainable. Support was sought from various authorities cited on behalf of the petitioners. 3. The position to my mind seems to be clear. The phraseology "being wound up" cannot mean that such an application has to be made only after the winding up order is passed. The legislative intent is very clear from the words used. Otherwise it would have been easier to provide that only after a winding up order is passed that the powers given to the High Court could be exercised as is provided in section 45-C of the Banking Act where the section starts with such a specific prerequisite of a winding up order having been made. Otherwise it would have been easier to provide that only after a winding up order is passed that the powers given to the High Court could be exercised as is provided in section 45-C of the Banking Act where the section starts with such a specific prerequisite of a winding up order having been made. Section 446(2) of the Companies Act deals with a somewhat similar situation. In (Sudarsan Chits (I) Ltd. v. G. Sukumaran)1, reported in A.I.R. 1984 S.C. 1579, the Supreme Court, while dealing with the said provision inter alia held that if a winding up petition is pending, meaning thereby that an Official Liquidator is appointed as provisional liquidator which is a stage in the process of winding up, the Court before which such proceeding is pending can be styled as a Court winding up the Company and ipso facto it would have jurisdiction to entertain the proceedings enumerated in Clauses (a) to (d) of sub-section (2) of section 446 of the Companies Act. Chapter III-A of the said Banking Act has as its object speedy disposal of winding up proceedings, the same object as provisions of section 446(2) of the Companies Act. Section 458 clearly provides that the only Court which will have jurisdiction in respect of a Banking Company would be the High Court. Thus on a winding up petition in respect of a Banking Company being filed, the only Court sesin of the winding up proceedings is the High Court and questions and claims in respect of the banking company which is thus `being wound up can be entertained and disposed of by the High Court alone. One has to bear in mind the fact that the said Banking Act is a special Act dealing with Banking Companies and Part III-A thereof provides for special provision for speedy disposal of winding up proceeding. In view of this, I see no substance in the objection taken on behalf of the respondents. However, in any view of the matter since the amendments have been allowed and since the defect, if any, assuming there was one, has been now cured, this Court is certainly having jurisdiction and that too exclusive and the petition is maintainable. 4. Mr. However, in any view of the matter since the amendments have been allowed and since the defect, if any, assuming there was one, has been now cured, this Court is certainly having jurisdiction and that too exclusive and the petition is maintainable. 4. Mr. Doctor, the learned Counsel appearing for the petitioners, submitted that the lease having been terminated, lessee had thus become a statutory tenant and the tenancy rights cannot be assigned in view of the provisions of section 15 of the Rent Act. However, on behalf of the respondents it was submitted, firstly, that the lease has not been validly terminated and, therefore, the contractual tenancy was still subsisting and under the terms of the lease in question the lessee had power to assign. It was further submitted that assuming the termination of lease was valid, in law there was no distinction between contractual and statutory tenancies, their incidence being same, and, therefore, even as a statutory tenant lease hold rights can be assigned and prohibition contained in section 15 of the Rent Act against inter alia assignments would not be applicable as there is a contract to the contrary viz., covenant authorising lessee to assign. 5. Before embarking upon the consideration of authorities cited by both the sides, which may not even become necessary, the basic controversy has to be resolved by first determining whether there is a valid termination of lease or not. In (Smt.Gian Devi Anand v. Jeevan Kumar and others)2, reported in A.I.R. 1985 S.C. at page 796, the Supreme Court has inter alia held that a valid termination of the contractual tenancy puts an end to the contractual relationship. Let us see whether in fact the lease itself has been validly terminated or not. The petitioners have relied on the notice of termination dated 24th November, 1991. In the said termination notice the grounds which are taken are that the Bank has violated the terms of the agreement of lease dated 12th October, 1988 by conducting themselves in business contrary to the terms and the spirit of the lease agreement and the provisions of law and that the business has been suspended from 6th July, 1991 and the premises remained unused and vacant since 6th July, 1991. Further the petitioners, without prejudice to the earlier contentions contained in the termination notice, called upon the Bank also to pay rent and outgoings due till date within 30 days of receipt thereof by the Bank. Therefore, basically the main ground that emerges from the termination notice is that of business having been suspended and no banking business having been carried out. As far as rent and outgoings are concerned, no specific allegation is made in the notice of termination. Taking the first ground first, it is necessary to see what has been provided in the Indenture of lease. The Indenture of Lease in Clause 2(d) provides that demised premises are to be used by the Bank for the purpose of its business of banking and financial and other activities of itself and of affiliated and subsidiary companies only. It was sought to be argued that this would mean that it has to be used for banking and if banking activities came to a stand-still, it would amount to a breach of the said condition. The clause does not require any detailed scrutiny. It is unambiguously worded and it is clear from the clause that what is provided is that the premises are to be used for banking and financial and other activities of the bank and subsidiary companies only and not for any other purpose. By no stretch of imagination this can be read to mean that if the banking business came to a stand-still it would amount to a breach of the said condition. It that were the intention of the parties, a clear provision would have been made in the lease to the effect that on the banking business coming to a stand-still, the petitioners would be entitled to determine the lease and re-enter. 6. As far as the second condition viz., regarding arrears of rent and outgoings is concerned, Clause 2(a) of the Lease provides for payment of rent and Clause 2(b) provides for payment of outgoings. As far as the rent is concerned, the petitioners have given an authority in writing to the lessee authorising the Bank to adjust the recurring rent against the credit facilities enjoyed by the petitioners. Soon after the execution of the Lease on 10th October, 1988, the petitioners addressed a letter dated 11th October, 1988 enclosing therewith a stamped receipt for an amount of Rs. Soon after the execution of the Lease on 10th October, 1988, the petitioners addressed a letter dated 11th October, 1988 enclosing therewith a stamped receipt for an amount of Rs. 4,13,852.28 being the difference in deposit amount. The petitioners further requested the Bank to pay the rental for the period 12th October, 1988 to 31st October, 1988 and asked the Bank to credit the lease rentals that would become due from 1st November, 1988 to their current account with the Bank. The Bank, under cover of their letter dated 12th October, 1988 sent payment of Rs.66,274/- being rental for the period 12th October, 1988 to 31st October, 1988 and recorded that future lease rent would be paid by crediting petitioners account. The Official Liquidator, while acting as Provisional Liquidator, after seeking necessary directions from this Court on his Report No.3 dated 18th July, 1991, continued to pay rent by crediting petitioners account. As far as outgoings are concerned, Clause 2(b) of the Lease requires bills to be sent to the Bank on the same being received from the society. Under cover of its letter dated 29th July, 1991, the Bank sent its cheque for Rs. 37,018.60 being maintenance charges for the period July, 1991 to September, 1991 in response to societys bills sent by petitioners to the Bank. The petitioners could not show their having sent further bills. There is no substance in this grievance also. The petitioners have completely suppressed from this Court the arrangement regarding rent and being fully aware of the same have deliberately chosen to be vague not only in the termination notice, but also in the petition wherein in para 15 after averring that the Bank was in arrears of rent, in para 17 averred that they "believed" that the Bank had failed and neglected to pay the rents and outgoings. Regarding `outgoings also no particulars are given in the petition also. There is not any prayer for payment of any amount towards arrears of rent and/or outgoings. There is no material whatsoever pointing out that there are either arrears of rent or outgoings. In view of this, this ground also does not survive. Thus the petitioners fail to make out any ground for terminating the lease. Moreover, right of re-entry which is reserved is provided for in Clause 4(a) of the Indenture. There is no material whatsoever pointing out that there are either arrears of rent or outgoings. In view of this, this ground also does not survive. Thus the petitioners fail to make out any ground for terminating the lease. Moreover, right of re-entry which is reserved is provided for in Clause 4(a) of the Indenture. The same is not complied at all inasmuch as that the notice purporting to terminate the lease did not give the stipulated time to rectify the alleged breaches. Since no ground whatsoever for terminating the lease is made out, there is no question of the bank having committed any breach whereby the petitioners had become entitled to terminate the lease. In view of the above, I am of the opinion that there is no valid termination. 7. In these circumstances, the termination itself is not valid. With the result that the lease is subsisting. Now the lease itself provides for right of assignment in Clause 3(e) which specifically gives right to assign, sub-lease, transfer or part with possession of the demised premises or any part thereof to any third party to use, and occupy the demised premises or any part thereof on such terms and conditions as it may deem fit provided that the same shall not be inconsistent with or contrary to the terms and conditions of the other Clauses. In view of the fact that there is no valid termination and in view of the fact that the lease is still subsisting and would come to an end by efflux of time only in October, 1997, I see no reason why the Bank, now the Official Liquidator, cannot assign the same. Section 15 of the Rent Act although prohibits transfer, assignment, subletting and giving on licence the whole or part of the premises, however, provides that the prohibition is subject to any contract to the contrary. The said Clause 3(e) of the lease, specifically permits the Bank to assign and is to my mind, the contract to the contrary whereby the petitioners have given specific permission, and the lease being subsisting as not having been validly terminated, the Bank and now the Official Liquidator, would be within their right to assign in favour of the 4th respondent. Thus, I see no substance in the argument that the assignment is hit by the prohibition contained in section 15 of the Rent Act. 8. Thus, I see no substance in the argument that the assignment is hit by the prohibition contained in section 15 of the Rent Act. 8. It was also argued that the proviso to section 15 permits transfer of interest in the premises on certain conditions being that the transfer or assignment can be only of running business with goodwill and stock-in-trade where transfer of tenancy right is incidental. This was the contention which was taken by the respondents is their affidavit in the alternative to their submission of the prohibition contained in section 15(1) of the Rent Act would not affect assignment. In view of the fact that I am clearly of the opinion that it is not hit by section 15(1) of the Rent Act and that the assignment can be validly made in view of specific provision in the lease deed granting permission to the Bank to assign or transfer and the lease not having been validly terminated and, therefore, still subsisting, there is no necessity for dealing with alternative submission advanced on behalf of the respondents. Although it was vehemently argued on behalf of the petitioners that neither the Bank was a going concern, nor there was any goodwill nor there was any stock in trade, I see no reason why the same should be examined. 9. Next it was argued that the assignment is hit by the provisions of the Bombay Land Requisition Act, 1948 (hereinafter referred to as the Requisition Act) in view of the fact that the same would violate the provisions of section 6 of the Requisition Act. This is the contention advanced on behalf of the petitioners. Examining provisions of the said section 6 it is clear to my mind that in the event of the premises becoming vacant on the tenant ceasing to occupy the premises, an intimation has to be given to the Controller of Accommodation. Failure on the part of the landlord entails prosecution and punishment. Thus a statutory obligation is cast on the landlord. The landlord is also prohibited without a written permission of the State Government from letting, occupying or permitting to be occupied the premises which have become vacant. There is nothing in the provision to render the assignment invalid. The assignee would be occupying the premises at the risk of the same being requisitioned. In these circumstances, I see no substance in the submission. 10. There is nothing in the provision to render the assignment invalid. The assignee would be occupying the premises at the risk of the same being requisitioned. In these circumstances, I see no substance in the submission. 10. Lastly it was submitted that in any view of the matter as laid down in (Ravindra Ishwardas Sethna v. Official Liquidator)3, reported in A.I.R. 1983 S.C. 1061 as the Official Liquidator was not carrying on business of the Bank, and as the premises were not required for beneficial winding up of the Company, the same should be disclaimed by the Official Liquidator and returned to the petitioners. Reliance was placed on. (In Re. Kailash Financiers (CAL) P. Ltd. and others)4, reported in 1982(1) Company Law Journal page 100 on behalf of the respondents, and it was submitted that unlike Ravindra Sethnas case, in the present case the lease is not validly terminated, whereas in Ravindra Sethnas case, a suit for eviction was pending in the Small Causes Court and the Company which was being wound up was a statutory tenant; that in the present case the lease is still subsisting in view of the termination not being valid and is in operation till October 1997 and that in the present case as provided in section 39-A of the Banking Regulation Act, the Official Liquidator is having all powers as Official Liquidator would have under the Companies Act and in exercise of such powers the scheme to assign the running business was presented and approved by this Court. It was also further submitted, relying on In Re. Kailash Financiers (CAL) P. Ltd. others, reported in 1982(1) Company Law Journal page 100 that the Court has to look to the larger interests of the creditors and the depositors. 11. It is settled law that till the Company is dissolved, it retains its corporate existence though administration of the affairs of the Company passes to the Liquidator. All the properties of the Company in liquidation are deemed to be in the custody of the Court winding up the Company and the Official Liquidator becomes the custodian thereof. His act is that of the Company and, therefore, in the present case also he acts on behalf of the lessee Bank. All the properties of the Company in liquidation are deemed to be in the custody of the Court winding up the Company and the Official Liquidator becomes the custodian thereof. His act is that of the Company and, therefore, in the present case also he acts on behalf of the lessee Bank. It cannot be denied that the monthly tenancy rights or lease hold rights of a Company are valuable assets and if the Bank had not been subjected to winding up proceedings, the Bank, under the lease would have been free to assign. As discussed above, I see no legal impediment in the assignment qua the leasehold rights in the premises. Moreover, this Court has sanctioned the assignment, of course, without prejudice to petitioners contentions in the present petition, which contentions are rejected as discussed above. In view of this position ,I see no substance in the last contention. 12. In the result, Company petition is dismissed with costs. 13. At Mr. Doctors request status quo with regard to the premises in question to be maintained for a period of three weeks. Petition dismissed. *****