Judgment ( 1. ) BY this order I. A. No. 16161/2006 is considered and decided. ( 2. ) THIS application is moved by the M/s Visvesvaraya Industrial research and Development Centre, Mumbai (for short the Centre) claiming possession of a shop situated at Unit No. 63 in Trade Centre, Arcade, Cuffe parade, Colaba, Mumbai. ( 3. ) THE order sheets dated 22-11-2002 passed by this Court shows that after winding up order was passed by this Court, the Official Liquidator submitted his report stating that the property in question was owned by the company and therefore the same should be auctioned and this Court has directed to sell all the movable properties of the Company including the present shop. ( 4. ) IN pursuance of this order, another order was passed by this Court on 22-11-2005 and 18-10-2006 for issuing advertisements, whereby this Court has directed to put the property of the Company to auction, therefore, the official Liquidator has issued advertisement and put the property in auction. ( 5. ) IT is contended that the said Research Centre is a Company registered under the provisions of Companies Act, 1956. The Company has entered into an agreement to lease out a shop admeasuring 750 sq. ft. , out of which 493 sq. ft. being ground area and 247 sq. ft. being mezzanine area for a period of 60 years to the company under winding up proceedings, ie. , M/s. Jiyaji rao Cotton Mills Ltd. on 29-8-1977. It is alleged that as per the agreement the company/lessee shall not transfer the benefit of and/or their right, title and interest to any party without the previous consent in writing of the Centre. It is contended that terms of the conditions are violated, then the Centre has right of re-entry. The copy of the agreement to lease is annexed with the application as annexure a. ( 6. ) CLAUSE 8 of the said agreement provides that before entering into possession of the said premises, the lessee shall execute with the Centre a deed of lease in duplicate containing the terms set out in the Annexure a. While clause 4 of the agreement provides that lessee shall not transfer the benefit and/or their right, title and interest under the agreement to any party without the previous consent in writing from the Centre. ( 7. ( 7. ) CLAUSE 24 of the agreement further provided that if the lessee shall commit a breach of any of the stipulations covenants and conditions contained in the agreement and lessee firm shall be dissolved or the lessee Company goes or is taken into liquidation or suffers and distress or execution to be levied on their goods, then it shall be lawful for the Centre at any time thereafter to re-enter upon the demised premises or any part thereof in the name of the centre. ( 8. ) CONTENTION of learned Counsel for the Centre is that this clause shows that in case of winding up of the company, it is lawful for the Centre to reenter into the possession of the land and therefore possession of the said shop be returned to the Centre. ( 9. ) IT is further contended that this Court has no jurisdiction to auction the property owned by the Centre. Such direction will amount to unlawful subtenancy or parting with possession which is prohibited by Section 14 of the m. P. Accommodation Control Act. The Official Liquidator being a custodial legis should not create third party rights in the property which is prohibited by law. Section 457 (b) of the Company Act empowers the liquidators to retain possession of the property of the company only to carry on business of the company so far as may be necessary for the beneficial winding up of the company. ( 10. ) THE learned Counsel for the Centre submitted that the property in question was leased for 60 years with a specific condition that in case winding up of the company the property in question shall be returned to the lessor and lessor shall have right of re-entry. He further contended that the property in question is now not required for the business of the Company for which it was taken on lease. ( 11. ) THIS fact is clear from the fact that after winding up order, the official Liquidator wrote a letter to the Electricity Board for disconnection of the electricity. It is further clear from the fact that shop in question is now put in auction at the instance of the Official Liquidator. As the property is not required for the purpose of the Company, it should be returned to him. It is further clear from the fact that shop in question is now put in auction at the instance of the Official Liquidator. As the property is not required for the purpose of the Company, it should be returned to him. Learned Counsel for the Centre for the purpose of this argument has relied on judgment of Apex court in the case of Ravindra Ishwardas Sathna and another Vs. Official liquidator, High Court of Bombay and another, AIR 1983 SC 1061 . ( 12. ) LEARNED Counsel for the Centre has contended that in the case of ravindra Ishwardas Sathna (supra), the Official Liquidator has entered into an agreement to let the property under some temporary arrangement so that the company can earn some money from the suit property during liquidation proceeding and this action was challenged before the Bombay High Court and an application was filed by the landlord for taking possession of the property, which was dismissed by the Single Bench and his order was affirmed in the appeal by the Division Bench, but the Apex Court reversed the said orders passed by the Single Bench as well as Division Bench. ( 13. ) IN reply to this argument, Shri K. N. Gupta, learned Senior Counsel for the Official Liquidator submitted that the order dated 22-11-2002 passed by this Court and order dated 22-11-2005 and 18-10-2006, whereby this Court has directed the Official Liquidator to put the property in auction operates as res judicata. According to him, principles of res judicata applies to the different stages in the same proceeding. For this purpose, he has relied on judgment of apex Court in the case of Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another, AIR 1960 SC 941 , wherein the Apex Court has held that principles of res judicata applies at different stages. There is no doubt about this proposition. ( 14. ) BUT the question is whether the issue, which is raised in the present application is decided by this Court also. The order dated 22-11-2002 was passed behind the back of the landlord. Said order was passed on the statement of officers filed by the directors of the company that the property in question is owned by the Company. Similarly, the order dated 22-11-2005 was passed when the landlord was not before this Court. The order dated 22-11-2002 was passed behind the back of the landlord. Said order was passed on the statement of officers filed by the directors of the company that the property in question is owned by the Company. Similarly, the order dated 22-11-2005 was passed when the landlord was not before this Court. The order dated 18-10-2006 shows that this order was passed till I. A. No. 16161/06 is not considered by this Court. Thus, that order is in the nature of interim order and will not operate as res judicata. ( 15. ) THE Official Liquidator has also raised a contention that the lease deed in the present case which was for 60 years is not registered document and therefore it is not admissible. Even if this argument is accepted, the tenancy in the present case is monthly tenancy and the fact that the company was in possession of the shop as a tenant is not disputed. ( 16. ) THE Apex Court in the case of Ravindra Ishwardas Sathna (supra)has held that the statutory tenancy confers the right to be in possession but if the tenant does not any more require use of the premises, the provisions of the Rent act and especially Sections 13 and 15 of the Bombay Rents, Hotel and Lodging house Rates Control Act, 1947 completely prohibit giving the possession of the premises on licence or on sub-lease. In such circumstances, creation of sub-lease is illegal. It is further held by the Apex Court that where the liquidator of the company, on its being wound up, took the possession of the premises of the company and subsequently by the order of the High Court entered into a caretakers agreement and gave possession of the premises to him on compensation and on terms and conditions set out in the agreement though the business of the Company came to a standstill, the moment it was ordered to be wound up, and it was not the liquidators case that he was carrying on business of the Company for beneficial winding up of the company under Section 457, the high Court could nod authorize the liquidator to enter into such an agreement and therefore the order of the High Court is liable to be set aside and thus set aside the order passed by the High Court. ( 17. ( 17. ) THE Apex Court in Para 6 of the judgment has held that Section 457 enables the Liquidator in a winding up by the Court, with the sanction of the court, amongst others, to carry on the business of the Company so far as may be necessary for the beneficial winding up of the company. If the floating of the schemes for prize chits came to a standstill, the moment the company was ordered to be wound up, there was no question of the business of the company to be carried on by the Liquidator and that too for the beneficial winding up of the company. Whether to carry on the business of the company which is ordered to be wound up is not a matter left to the uncontrolled discretion of the liquidator. The Liquidator undoubtedly has the power under Section 457 to carry on the business of the Company, if it is necessary for the beneficial winding up of the company. And this power can be exercised not at the discretion of the liquidator but with the sanction of the Court. The power to carry on the business can only be exercised for the purpose of the beneficial winding up of the company not because the creditors may think that the business will be a very profitable one. ( 18. ) THE Apex Court in Para 9 has held that the company was a tenant or a lessee of the premises of which the appellants in that case where the landlords. If so, the company was a statutory tenant under the Rent Act. The statutory tenancy confers the right to be in possession but if the tenant does not any more require use of the premises, the provisions of the Rent Act prohibit giving the possession of the premises on licence or on sublease. The learned Company judge therefore spelt out a third way of parting with the possession by the liquidator, namely, that he may give the premises to the second respondent under a caretakers agreement. This caretakers agreement appears to be an euphemism for collecting compensation which is nothing else but the charge for use and occupation of the premises exclusively by the respondent. This caretakers agreement appears to be an euphemism for collecting compensation which is nothing else but the charge for use and occupation of the premises exclusively by the respondent. It is further held by the Apex Court that the Liquidator does not need the use of the premises for carrying on the winding up activities of the company because he sought direction for parting with possession. It is further held that the Rent Act is no doubt enacted for protecting the tenants, and Undisputably its provisions must receive such interpretation as to advance the protection and thwart the action of the landlord in rendering tenants destitute. But this does not imply that the Court should lend its aid to flout the provisions of the Rent Act so as to earn money by unfair and impermissible use of the premises. And that is what the liquidator sought to do and the Court extended its help to the Liquidator. The apex Court has held that the learned Company Judge could not have authorised the Liquidator to enter into such an agreement and therefore, his order is liable to be set aside. The only course open to the Company Court is to direct the liquidator to surrender possession to landlords and save recurring liability to pay rent. Thus, the Apex Court has held that in such circumstances the Company judge should direct the Liquidator to surrender possession and it is not necessary for the landlords to avail remedy under the Rent Control Act. This view is followed by the Gujarat High Court in the case of Visvesvaraya Industrial research and Development Vs. O. L. of Rustom Mills Ltd. , 2004 (50) SEBI and corporate LAWS 594. The Gujarat High Court has also cancelled the effect of an unregistered lease deed and after relying on judgment of the Apex court in the case of Ramchandra Das Vs. Jagdish Chandra Rao, AIR 1952 SC 23 and Section 106 of the Transfer of Property Act the relationship between the parties is that of a landlord and tenant and is a monthly tenancy. Thus, in the present case also in absence of the registered lease deed the relationship between the Company and the Centre is that of landlord and tenant by the monthly tenancy and not for a period of 60 years. ( 19. Thus, in the present case also in absence of the registered lease deed the relationship between the Company and the Centre is that of landlord and tenant by the monthly tenancy and not for a period of 60 years. ( 19. ) IN Madhya Pradesh, Section 14 of the Madhya Pradesh accommodation Control Act prohibits creation of sub-tenancy. Section 14 of the Act prohibits a tenant either to sublet or transfer or assign any part of the premises held by him as tenant to anyone without obtaining a previous consent of the landlord in writing. ( 20. ) ADMITTEDLY, in the present case the company is a tenant of the centre. As per Section 457 of the Company Act the Company has to surrender the possession of the premises to the landlord in the event of winding up of the company particularly when the premises are also not required by the Official liquidator, therefore, in view of the judgment of the Apex Court in the case of ravindra Ishwardas Sathna (supra) and the judgment of Gujarat High Court in the case of Visvesvaraya Industrial (supra), the Official Liquidator being a custodial legis of the assets of the company has no right to auction the property and create third party rights, which is not permissible by law. ( 21. ) IN the result, LA No. 16161/06 is allowed and it is directed that possession of the shop in question be returned to the landlords without any delay by the Official Liquidator. The Official Liquidator is, therefore, directed to remove the all the furniture and movable articles lying in the premises within a period of one month from today and put said articles to sell and hand over vacant possession of the property to the landlords. The order of auction of property is recalled and the offers invited for such property is cancelled. The Official liquidator is directed to return earnest money deposited by the bidder.