JUDGMENT This application has been made under Section 446 and 535 of the Companies Act, 1956, by Hariram Chamaria and Others, for a direction on the Official Liquidator to make over vacant possession of the portion of premises No. 46, Grand Trunk Road, Liluah, which had been allotted to the applicants by a registered Deed of Partition dated 25th October, 1996, or, in the alternative for a direction on the Official Liquidator to disclaim the said property. 2. On behalf of the applicants Mr. Saha submitted that one Kishan Devi Chamaria, Shew Prasad Chamaria and Hariram Chamaria were the owners of the land measuring 2 bighas 3 cottahs and 8 chittacks, together with the structures thereon, at premises No. 46, Grand Trunk Road, Liluah. By an indenture dated 26th September, 1960, Kishan Devi Chamaria, Shew Prasad Chamaria and Hariram Chamaria demised the said premises in favour of General Produce Co. Ltd. for a period of thirty years with an option to renew the same for a further period of five years. 3. Shew Prasad Chamaria expired on 11th January 1972, and his eldest son, Umashankar Chamaria became karta of a Hindu Undivided Family consisting of himself and his other bothers and as such karta he became entitled to the share of Shew Prasad Chamaria in the said premises. 4. General Produce Co. Ltd. granted sub-leases of different portions of the said premises to three different parties, namely, (1) Anil Kumar Sareen, Proprietor of M/s J.R. Forging & Allied to the extent of 1 bigha 2 cottahs 4 chittacks and 42 square feet and (3) Vijaypal Gambhir, Proprietor, M/s. S.K. Steel & Engineering Co. to the extent of 11 cottahs, 11 chittacks and 5 square feet. 5. Subsequently, by three Deeds of Assignment, all dated 29th October, 1973, the sub lessees assigned their sub-leases in favour of Ashoka Steel Corporation Pvt. Ltd. (in liquidation). 6. In 1975 a winding up petition, being Company Petition No. 343 of 1975, was filed by Kishan Devi Chamaria. Umashankar Chamaria and Hariram Chamaria against General Produce Co. Ltd. and the same was dispose of by a Terms of Settlement dated 21st January, 1976, whereby the said General Produce Co. 6. In 1975 a winding up petition, being Company Petition No. 343 of 1975, was filed by Kishan Devi Chamaria. Umashankar Chamaria and Hariram Chamaria against General Produce Co. Ltd. and the same was dispose of by a Terms of Settlement dated 21st January, 1976, whereby the said General Produce Co. Ltd. surrendered its leasehold interest in the demised premises and M/s. Ashoka Steel, Corporation Pvt. Ltd. became the direct lessee under the them owners in respect of 2 bighas 11 cottahs 11 chittaks and 6 squares feet forming part of premises No. 46 Grand Trunk Road, Liuah. 7. Kishan Devi Chamaria expired on 22nd February, 1981 and on 25th October 1996, by a Deed of Partition executed and registered between the co-owners the applicants in the application became the owners of the premises. 8. The lease granted initially in favour of M/s General Produce Co. Ltd. and, thereafter to M/s Ashoka Steel Corporation Pvt. Ltd. came to an end on 25th September, 1990 and no request was made by the lease for renewal of the same. The lessee had also defaulted in payments of the rents to the tune of Rs. 1,82,800/- as on 25th September, 1990. 9. Mr. Saha submitted that M/s. Ashoka Steel Corporation Pvt. Ltd. became sick and a reference was made to the Board for Industrial and Financial Reconstruction, being Case No. 28/91 under Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985, in the regard on the said Board came to the conclusion that the company should be wound up. On the basis of the recommendation of the Board for Industrial & Financial Reconstruction, this Court by an order dated 23rd November, 1992, directed the Company to be wound up. 10. Mr. Saha submitted that the Company (in liquidation) is wrongfully and illegally occupying the premises, and all the aforesaid facts have been brought to the knowledge of the Official Liquidator who is liable to make over vacant possession of the premises to the applicants. The Company (in liquidation) has no right over the said premises and the Official Liquidator is also not entitled to hold on to possession of the same. 11. In support of his submission Mr. The Company (in liquidation) has no right over the said premises and the Official Liquidator is also not entitled to hold on to possession of the same. 11. In support of his submission Mr. Saha firstly referred to and relied on a Bench decision of this Court in the case of (1) Sakow Industries Pvt. Ltd. (In liquidation), 67 Company Cases, page 16, wherein one of the questions which fell for determination was whether the Official Liquidator should disclaim a property taken on lease where the terms of the lease provided for determination of the lease on the rents remaining unpaid or upon the Company being wound up. The lease was effective for a period of twenty-one years upto 31st May, 1987, and did not enjoy the protection of the West Bengal Premises Tenancy Act, 1956. In June 1972, a winding up order was made against the Company and the Official Liquidator, on taking possession of the property, continued to pay the rents on behalf of the Company (in liquidation) up to June 1981. Thereafter, the learned Company Judge directed sale of the leasehold property. No bidders were, however, available and, in the meantime, the lessors issued a notice to the Official Liquidator to deliver possession of the property to them. Since the Official Liquidator refused to do so, the lessors moved the learned Company Judge for disclaimer of the property. Such prayer being refused, the lessors preferred an appeal, and the Appeal Could held that in the facts and circumstances of the case, the tenancy had come to an end since the rents remained unpaid since June 1981 and the Company had gone into liquidation. The Tenancy rights were, therefore no longer an asset of the Company and efforts to sell the leasehold rights in respect of the said property had also failed. In the said circumstances, it was observed that it was not necessary for the Official Liquidator to retain the property for the purpose of efficiently carrying on the process of winding up. The Division Bench, therefore, concluded that irrespective of the question of termination of the lease, the case in hand was a fit case where the Official Liquidator should disclaim the property. 12. A similar question was decided in (2) Vidyadhar Upadhyay v. Sree Sree Madan Gopal Jew & Ors. The Division Bench, therefore, concluded that irrespective of the question of termination of the lease, the case in hand was a fit case where the Official Liquidator should disclaim the property. 12. A similar question was decided in (2) Vidyadhar Upadhyay v. Sree Sree Madan Gopal Jew & Ors. Company Cases, page 394, wherein the Division Bench held that a trespasser could be evicted from the premises of a Company (in liquidation) by an order under Section 446 of the Companies Act, 1956. 13. Reference was also made to a Single Bench decision of this Court in (3) Sri Pushpa Devi Jhunjhunwala v. The Official Liquidator, High Court, Calcutta reported in 1993 (1) CLJ, page 447, wherein it was, inter alia, held that in winding up proceedings summary procedure could be adopted for eviction of trespassers from the property of the Company (in liquidation) and no regular suit was required to be filed for the said purpose. 14. Mr. Saha urged that since the lease had come to an end on 25th September, 1990 and the leasee had also defaulted in payment of the lease rents to the tune of Rs. 1,82,800/- as on that date, there could be no justification of the Official Liquidator to hold on the demised property for the proper completion of the winding up process, and, on the other hand, the Official Liquidator should be directed to disclaim such onerous property. 15. Appearing for the Vijaya Bank, Mr. Rajshekhar submitted that the claim of the application for a direction upon the Official Liquidator to disclaimed the leasehold property was liable to be rejected as the structures thereupon had been mortgaged to the Bank by the Company (in liquidation). 16. Mr. Rajshekhar submitted that on 21st September, 1992, the Vijaya Bank filed a suit, being No. 541 of 1992, in this Court against the Company (in liquidation) and its erstwhile Directors for a decree for a sum of Rs. 8,04,98,604.85p. A prayer for attachment before judgment was made in the suit in respect of the properties of the erstwhile Directors of the Company (in liquidation). 8,04,98,604.85p. A prayer for attachment before judgment was made in the suit in respect of the properties of the erstwhile Directors of the Company (in liquidation). Such application of Bank was allowed on 20th November, 1992, and in an appeal preferred by the said erstwhile Directors directions were given to the Official Liquidator to have the plant and machinery of the Company (in liquidation) valued and for publication of notice for sale of the assets of the said Company. 17. Mr. Rajshekhar submitted that subsequently the appeal was disposed of with directions to the learned Company Judge to decide, inter alia, as to whether the property in question could be disclaimed by the Official Liquidator or whether the land should be sold along with the plant and machinery. 18. Mr. Rajshekhar contended that no order could be passed under Sections 446 and 535 of the Companies Act for giving possession of the property in question to the applicants. It was urged that the Official Liquidator had charge over the land and structures erected thereupon and the same were liable to be sold or leased out for generating income meet the dues of the secure creditors of the Company (in liquidation). 19. In support of his submission Mr. Rajshekhar firstly referred to and replied on the decision of the Hon’ble Supreme Court in (4) United Bank of India v. Official Liquidator & Ors., 79 Company Cases, page 262, wherein the order passed by the High Court permitting disclaimer at the instance of the lessor was held to be improper and direction were given for sale of the Company with the land as a going concern and for payment of compensation to the lessor out of the sale proceeds. While giving the aforesaid directions, the Hon’ble Supreme Court observed that under Section 535 of the Companies Act, the High Court may give leave to the Official Liquidator to disclaim land of any tenure which is part of the property of the Company (in liquidation) if it is burdened with onerous covenants, since the intention of Section 535 in to protect the creditors of the Company (in liquidation). A note of caution was, however, sounded and it was observed further that the power under Section 535 is not to be lightly exercised and the Courts must be fully satisfied that there are onerous covenants which impose a heavy burden upon the Company (in liquidation), before giving leave to disclaim. 20. Reference was also made to a Single Bench decision of the Kerala High Court in (5) The Industrial Court and Investment Corporation of India Ltd. v. Vanjinad Leathers Ltd. AIR 1997 Kerala page 279. In the said case, a suit had been filed by I.C.I.C.I. and I.B.D.I. for recovery of loan advanced to a Company. Subsequently, winding up proceeding were started against the said company. I.C.I.C.I. thereupon filed an application under Section 446 of the Companies Act for leave to continue with the suit filed by it long before the winding up proceeding. An order was passed to withdraw the suit to the Kerala High Court which permitted the applicant to continue the suit outside the winding up proceedings. Certain other directions were also given for payments to be made to the Official Liquidator to meet the initial expenditure for winding up. The said orders were challenged in the Supreme Court which left the matter to the learned Company Court for a decision on the application under Section 446 of the Companies Act but keeping in mind the rationale behind the enactment of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993. In the said context, the Kerala High Court came to the conclusion that the Company Court Could not exercise power under Section 446 of the Companies Act as regards a suit for recovery of loan which stood transferred to the Debts Recovery Tribunal under the 1993 Act having regard to Section 34 thereof which would prevail over Section 446 of the Companies Act, 1956. 21. Mr. Rajshekhar lastly referred to the decision to the Hon’ble Supreme Court in (6) Babua Ram & Ors. State of U.P. & Anr., 1995 (2) SCC page 689, wherein it was, inter alia, observed that the Court was required to collect the meaning of a statues from the expression used therein rather than notions which the Court may entertain as to what is just or expedient. State of U.P. & Anr., 1995 (2) SCC page 689, wherein it was, inter alia, observed that the Court was required to collect the meaning of a statues from the expression used therein rather than notions which the Court may entertain as to what is just or expedient. When two interpretations are possible, the task of the Court would be to find which interpretation would promote the object of the statue, serve its purpose, preserve its smooth working and prefer the one which promotes the object to the other which introduce inconvenience or uncertainty in the working of its system. 22. Mr. Rajskekhar urged that the suit filed by the Vijaya Bank against the Company (in liquidation), being Suit No. 541 of 1992, for recovery of a sum of Rs. 8,04,98,604.85p. would have a prevailing effect over the application filed by the lessors for disclaimer and the same would not be considered in exercise of the powers under Section 446 and 535 of the Companies Act in respect of the subject-matter of the suit. 23. Appearing for the Official Liquidator, Mr. Ranajit Chowdhury echoed Mr. Rajshekhar’s submission and referred to the decision of the Hon’ble Supreme Court in (7) Industrial Credit and Investment Corporation of India Ltd. v. Srinivas Agencies & Ors. 1996 (4) SCC page 165, wherein it was observed that the Company Court should not transfer a suit of itself on the prayer of a secured credit under Sections 446, 529A of the Companies Act merely for its own convenience and that the object of the enactment of the Recovery of Debts Due to the Bank and Financial Institutions Act, 1993, should be kept in mind and the discretion to be exercised in this regard has to depend on the facts and circumstances of each case. 24. The legal proposition, as urged by Mr. Rajshekhar, have a good deal of force, but it has to be seen whether the same can be applied to the facts of this case. 25. In the instant application, the applicants have prayed for a direction on the Official Liquidator to make over vacant possession or to disclaim a property in respect of which the leasehold right had stood extinguished by efflux of time and the right of option of renewal for a period of five years had not been exercised. 25. In the instant application, the applicants have prayed for a direction on the Official Liquidator to make over vacant possession or to disclaim a property in respect of which the leasehold right had stood extinguished by efflux of time and the right of option of renewal for a period of five years had not been exercised. The original period of the lease for thirty years had expired on 25th September, 1990 and even if the right of option had been exercised, the extended period of the lease would have lasted for a further period of five years, that is, till 24th September, 1995. 26. In the said circumstances, the Official Liquidator could have no reason to hold on to the property, the leasehold right whereof could no longer be said to be part of the assets of the Company (in liquidation). In the case of United Bank of India (supra) cited by Mr. Rajshekhar, the Hon’ble Supreme Court was considering an application for disclaimer in respect of a large leasehold property where a lease for 99 years had been granted in 1931 with an option of renewal for another 99 years and where the lease rental was only Rs. 1,200/- per annum, but the Company had been in default of payment of the rents when the winding up proceeding had been filed. The learned Company Judge allowed the prayer of the lessor for disclaimer of the property such decision was upheld by the Appeal Court on the ground that by virtue of the notice given by the lassor, the lease of the land stood forfeited and the land ceased to be part of the assets of the Company (in liquidation) and could not, therefore, be sold by the Official Liquidator. The Hon’ble Supreme Court set aside the order passed by the learned Company Judge directing the Official Liquidator to disclaim the land and hand over possession thereof to the lessor and these passed by the Appeal Court refusing permission to the Bank to pay the arrear rents particularly having regard to the return of the lease which substantially depressed the value of the lessors, interest in the land and it was felt that a sum of Rs. 10 lakhs would be adequate compensation to the lessor for disposal of its rights in the land and for arrears of rent. 27. 10 lakhs would be adequate compensation to the lessor for disposal of its rights in the land and for arrears of rent. 27. The facts of this case are totally different and clearly distinguishable form the facts before the Hon’ble Supreme Court in the above case, inasmuch as, in the instant case both the original period of the lease as well as the period covered by the option of renewal had expired and the Company (in liquidation) as represented by the Official Liquidator, continue to remain in possession of the land as a trespasser. The views expressed by the Division Bench is the case of Sakow Industries Pvt. Ltd. (in liquidation) (supra), and also in the case of Vidyadhar Upadhyay (supra), referred to by Mr. Saha, appear to be more apposite to the facts of this case. 28. In the first of the two cases, the lease was to expire after a few months. In the second case, the lease stood cancelled by consent of the parties, including the Official Liquidator and the Company continued in possession of the property in question as a trespasser. It was held that a trespasser could be evicted in a proceeding under Section 446 of the Companies Act, 1956, which also amounted to due process of law. 29. Applying the ratio of the said two decisions and the principles explained therein, I am unable to accept Mr. Rajshekhar’s submissions that the Official Liquidator should remain in possession of the land in question, since it appears to me that the Official Liquidator can have no reason to remain in possession of the property in question for the proper completion of the winding up of the Company and his continued possession therein will, in fact, prove onerous to the said process. 30. The Official Liquidator is, therefore, directed to take steps to sell the plant and machinery and to remove the same, together with the structures, on the portion of premises No. 46, Grand Trunk Road, Liluah, Howrah, described in Annexure “G” to the application, and to make over vacant possession thereof to the applicants within three months from date. 31. In view of the aforesaid directions, no order is made on the prayer for payment of mesne profits. The question of transferring the suit of the Debts Recovery Tribunals is kept open for decision in appropriate proceedings. 32. The application is thus disposed of. 33. 31. In view of the aforesaid directions, no order is made on the prayer for payment of mesne profits. The question of transferring the suit of the Debts Recovery Tribunals is kept open for decision in appropriate proceedings. 32. The application is thus disposed of. 33. There will be no order as to costs. 34. The Official Liquidator and all parties and the prospective purchaser of the plant and machinery to act on a signed copy of the operative portion of this judgment on the usual undertakings. Stay as prayed for is considered and refused having regard to the observations made hereinabove.