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2010 DIGILAW 860 (GAU)

Board of Trustees for The Port of Kolkata v. Official Liquidator, Guwahati

2010-11-15

AMITAVA ROY, ASHOK POTSANGBAM

body2010
JUDGMENT Amitava Roy, J. 1. This appeal assails the judgment and order dated 13.4.2007, passed by the learned Company Judge in Company Petition No. 16/2006, Company Appeal No. 01/2006, M.C. No. 1256/2006, M.C. No. 2772/2006 and M.C. No. 2771/2006. The petitioner in Company Petition No. 16/2006, namely, the Board of Trustees for the Port of Kolkata also known as the Kolkata Port Trust, Calcutta is the appellant. 2. We have heard Mr. S.R. Chakraborty, senior advocate for the appellant, Mr. S. Datta, Advocate assisted by Mr. D. Chakraborty, Advocate for the Official Liquidator and Mr. S.K. Medhi, learned counsel for the petitioner in M.C. No. 1192/2010. Also heard Mr. J. Roy, advocate for M/s. Scrapt Traders, petitioner in M.C. No 1466/2010. 3. A prefatory recital of the facts in bare essential is an indispensable necessity impelled by the chequered backdrop of the lingering auction. A plot of land measuring approximately 40460.456 square meters owned by the appellant herein ('the Port Trust') and located within the Haldia Dock Complex was leased out to one M/s. Him Containers Ltd. ('the Lessee') for a period of 30 years w.e.f. 22.12.1982 by a lease deed dated 2.5.1983. The lease inter alia, stipulated the lease rent payable and the norms governing the same. In terms thereof in the event of any default in the payment of the agreed lease rent or the lessee slipping into liquidation, the lease would stand determined and the lessor, i.e., the Port Trust would have a right of reentry on the land. According to the Port Trust, the lessee was in continuous default in the payment of lease rent. Incidentally, by order dated 1.9.2000, passed by this court, the lessee company was ordered to be wound up and consequently the Official Liquidator took over the possession of its assets including the lease hold land on 16.7.2001. The arrear amount of lease rent at that point of time had accumulated to Rs. 1,76,003 as per the rates enumerated by the Notification dated 14.5.1992 issued under section 49 of the Major Port Trust Act, 1963 ('the Port Act'). In view of this persistent default, the lease was terminated by the lessor by serving a notice dated 25.9.2000. However, as the lessee did not deliver vacant possession of the lease hold land, the Port Trust initiated a proceeding under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In view of this persistent default, the lease was terminated by the lessor by serving a notice dated 25.9.2000. However, as the lessee did not deliver vacant possession of the lease hold land, the Port Trust initiated a proceeding under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. It was, thereafter, that the lessor became cognizant of the winding up of the lessee company by the aforementioned order of this court. 4. Being informed of the above development, the Port Trust filed Company Application No. 05/2002 before this court, seeking a direction to the Official Liquidator under section 535 of the Companies Act, 1956 ('the Act') for disclaimer of interest in the lease hold land and to handover possession thereof to it. A complaint for the outstanding lease rent was also registered. This application was disposed of by this court on 11.12.2002, adjudging that the retention of the lease hold land by the Official Liquidator was necessary to complete the liquidation proceeding and, thus, declined to accede to the prayer for disclaimer. The entitlement of the lessor to the lease rent for the period of possession of the lease hold land by the Official Liquidator was however, declared. In course of the liquidation proceeding, a sale notice dated 17.2.2004 was published for the disposal of the assets of the lessee, which included, inter alia, the lease hold land measuring 40460.456 square meters. The related report of the valuer referred to structures raised by the lessee on the land to house, its factory premises. The report also contained an observation that it would be the responsibility of the new purchaser to negotiate with the Port Trust regarding renewal or transfer of lease and that all payments to it was to be made by the former. In the sale proceedings that followed, M/s. Scrapt Traders was accepted to have offered the highest bid of Rs. 7.20 crores vide order dated 22.6.2004 passed in M.C. No. 1256/2006. The amount offered having been deposited in full with the Official Liquidator, the assets of the lessee including the lease hold land were handed over to the M/s. Scrapt Traders on 13.9.2004. 5. 7.20 crores vide order dated 22.6.2004 passed in M.C. No. 1256/2006. The amount offered having been deposited in full with the Official Liquidator, the assets of the lessee including the lease hold land were handed over to the M/s. Scrapt Traders on 13.9.2004. 5. The Port Trust in the above premise, filed Company Application No. 06/2004, claiming rent of the lease land for the period of possession thereof by the Official Liquidator, contending, inter alia, that the rent payable, must be deemed to be within the process of liquidation expenses to be accorded priority over other debts payable by the lessee on its liquidation. A direction for reversion of the lease hold land to it was also prayed for. The auction purchaser M/s. Scrap Traders as well, filed an interim application being M.C. No. 382/2005 for a direction to the Port Trust to effect renewal/transfer of the lease in its favour. Company Application No. 06/2004 and M.C. No. 382/2005 were disposed of on 21.3.2005 holding in essence the following : - (i) The rent payable by the Official Liquidator for his possession of the lease hold land must be construed to be a part of the expenses incurred in the winding up proceeding. (ii) The rent payable by the Official Liquidator for the possession of the lease hold land is, thus, a part of the cost and expenses of the winding up proceeding and the payment thereof must be made before application/apportionment of the sale receipts towards discharge of any other debt. (iii) In terms of section 456 of the Act, the property and the assets of the company in liquidation from the date of order of its winding up are to be deemed in the custody of the court through the Official Liquidator. (iv) The possession of the lease hold land amongst others, by the Official Liquidator w.e.f. 16.7.2001 is, thus, a legal consequence. (v) M/s. Scrap Traders, the auction purchaser having participated in the sale process being fully aware that if successful, it would be acquiring by virtue of the sale/purchase, only a right to negotiate for renewal/transfer of the lease, its claim that the balance period of the lease was one of the assets sold to it vesting in it a right to a transfer/renewal thereof, is unacceptable. (vi) The Official Liquidator was, thus, empowered not to hand over the possession of the leased hold land to M/s. Scrapt Traders and, thus, as its possession thereof cannot be construed as "legal possession", the same must be comprehended to have continued to remain with the Official Liquidator on behalf of the court. (vii) The Official Liquidator was directed to handover the legal possession of the lease hold land to the leaser, Port Trust. The Port Trust was required to prove the actual quantum of rent due for the period of possession by the Official Liquidator, whereupon, the latter was to disburse the said amount to the lesser out of the sale proceed treating it to be a part of the cost and expenses incurred in connection with the winding up of the lessee company. (viii) It was left open for the parties, namely, M/s. Scrap Traders and the Kolkata Port Trust to negotiate on the question of renewal/transfer of lease on mutual acceptable terms. 6. The Official Liquidator thereafter, on 12.4.2005 offered to handover symbolic possession of the leasehold land to the Port Trust as in his opinion, the direction of this court was to deliver legal possession and the same did not signify parting with the physical possession thereof. The Port Trust declined to accept the symbolic possession and registered its demand of Rs. 1,50,86,734, without prejudice to the above on account of rent and escalation charges at the enhanced rate fixed by the schedule to the Notification published in the Gazette of India dated 2.12.1999 under section 49 of the Major Port Trusts Act, 1963 for the period from 16.7.2001 to 31.3.2005. 7. Exchange of communications followed between the Official Liquidator and the Port Trust for a bid to work out the actual amount payable by way of lease rent in course of which it was pointed out by the latter that vide the Notification published in the Gazette of India dated 2.12.1999 in exercise of powers under section 49 of the Major Port Trusts Act, 1963 ('the Port Act') meanwhile, the rates have been revised. The Port Trust, amongst others, in its letter dated 21.7.2005, while asserting that the lessee had not paid rent for over five years before the determination of the lease in the year, 2000, mentioned that rent bills up to 31.3.2001 had been raised at the rate of Rs. The Port Trust, amongst others, in its letter dated 21.7.2005, while asserting that the lessee had not paid rent for over five years before the determination of the lease in the year, 2000, mentioned that rent bills up to 31.3.2001 had been raised at the rate of Rs. 435 per hundred square meter, i.e., Rs. 1,76,003 per month computed on the basis of rates as per the Notification to that effect prior to the one dated 2.12.1999. It further mentioned that as per the Notification dated 2.12.1999, the rate of rent had been raised to Rs. 733 per 100 square meters per month or Rs. 3,12,759.32 per month with escalation of 5% every year. The Port Trust thereafter, by its letters dated 11.8.2005 and 11.11.2005 to the Official Liquidator claimed rent as per the rates enumerated in the Notification dated 2.12.1999 for the period from April 2005 to July 2005 and August 2005 to October, 2005 respectively, which in addition to the earlier claims stood at Rs. 1,77,47,642.45. 8. The Official Liquidator by his communication dated 9.1.2006 rejected the claim of the Port Trust to the extent of Rs. 98,42,469.45 and by another letter of the even date accepted its claim to the extent of Rs. 79,05,373 as lease rent for the period from 16.7.2001 to 12.4.2005. Meanwhile, the Board of Trustees of the Port Trust following a negotiation with M/s. Scrapt Traders had expressed its inability to accede to the latter's request for renewal/grant of lease in its favour on account of the land policy that was operational. 9. Being aggrieved by the stand of the Official Liquidator vis-a-vis its claim for lease rent, the Port Trust filed Company Petition No. 16/2006 alleging that the former's failures to handover the physical possession of the lease hold land was in contemptuous disregard of the directions contained in the order dated 21.3.2005 of this court. In the alternative, a direction was sought for requiring the Official Liquidator to handover vacant physical possession of the leased hold land to it. A further direction for payment of the amount of Rs. 79,05,373 accepted by the Official Liquidator, was also sought for, subject to orders as would be passed on its claim for the higher amount based on the enhanced rates embodied in the Notification dated 2.12.1999 which was the subject-matter of the accompanying Company Appeal No. 01/2006. 10. A further direction for payment of the amount of Rs. 79,05,373 accepted by the Official Liquidator, was also sought for, subject to orders as would be passed on its claim for the higher amount based on the enhanced rates embodied in the Notification dated 2.12.1999 which was the subject-matter of the accompanying Company Appeal No. 01/2006. 10. Whereas, M/s. Scrapt Traders by interim application, being M.C. No. 1256/2006 sought for a direction from this court to the Port Trust to grant/renew/transfer of the lease in its favour, the Employees' Union of the erstwhile lessee, by applications being M.C. No. 2771/2006 and M.C. No. 2776/2006, sought intervention in Company Petition No. 16/2006 and Company Appeal No. 01/2006 with an endeavour to espouse the cause of M/s. Scrapt Traders as above. They endorsed the effort of M/s. Scrapt Traders to this effect to be a wholesome endeavour to restart the operation of the lessee company to facilitate employment and accommodation to its erstwhile employees. 11. The learned Single Judge on a scrutiny of the pleadings a and the documents on record, sustained the decision of the Official Liquidator to reject the Port Trust's claim for lease rent to the extent of Rs. 98,42,469.45 essentially on the ground that his possession of the lease hold land was not for a commercial purpose and, therefore, he enjoyed a discretion to fix the quantum of rent payable for the relevant period. 11. A The learned Single Judge concluded that the power envisaged in section 49 of the Port Act, equipped the Board of Trustees to frame scale/schedule of rates for the use of the property belonging to the Post Trust in situation where the same was let out for the use for different commercial/business purposes. Referring to sections 51, 52 and 53 of the Ports Act, it was observed that this statute did not attach any sacrosanctity to the rates fixed under section 49thereof. As the Official Liquidator was in possession of the lease hold property as custodia legis in terms of section 456(2) of the Act, his action of sanctioning a sum of Rs. 79,05,373 only as the lease rent payable on the basis of old schedule of rates was sustained. 12. As the Official Liquidator was in possession of the lease hold property as custodia legis in terms of section 456(2) of the Act, his action of sanctioning a sum of Rs. 79,05,373 only as the lease rent payable on the basis of old schedule of rates was sustained. 12. Qua the aspect of delivery of possession of the lease hold land, the learned Single Judge referred to the earlier order dated 21.3.2005 rendered in Company Application No. 06/2004 and reiterated that the handing over of the possession thereof to M/s. Scrapt Traders by the Official Liquidator was not authorized and that therefore the occupation thereof by the former was neither legal nor justified. The learned Single Judge clarified that the offer to hand over symbolic possession of the leasehold land to the Port Trust was not contemplated by the order dated 21.3.2005 and clarified that "legal possession" connoted "physical possession", so as to enable the beneficiary to be vested with all legal rights flowing there from. The Official Liquidator was, thus, directed to act accordingly and to handover vacant possession of the land to the Port Trust within a period of three months from the date of the order. Any adjudication vis-a-vis the entitlement of M/s. Scrapt Traders to the grant/renewal of the lease of the land was declined construing the same to be beyond the ambit of Chapter VII of the Act. 13. Mr. Roy Choudhury has argued with reference to sections 48, 49, 51, 53 and 54 of the Port Act that the appellant-Port Trust being entitled to the lease rent from the period 16.7.2001 in terms of the Notifications dated 14.5.1992 and 2.12.1999 issued under section 49 of the Act pertaining to Dock Zone, the learned Single Judge ought to have interfered with the ascertainment of the liquidator to the contrary and the partial rejection of its claim as conveyed by his letter dated 9.1.2006. Referring to section 49(1)(d) of the Act, in particular, the learned senior counsel has urged that as the said provision does not contemplate any relaxation of the rate of lease rent, the learned Single Judge ought to have upheld the claim of the appellant-Port Trust in full as laid by it before the Official Liquidator. According to Mr. Referring to section 49(1)(d) of the Act, in particular, the learned senior counsel has urged that as the said provision does not contemplate any relaxation of the rate of lease rent, the learned Single Judge ought to have upheld the claim of the appellant-Port Trust in full as laid by it before the Official Liquidator. According to Mr. Roy Choudhury, the observation of the learned Company Judge bearing on want of sacrosanctity of the rates fixed under section 49 being visibly belied thereby and the other cognate provisions of the Port Act under Chapter-VI thereof, the very foundation of the sustenance of the decision of the Official Liquidator being erroneous, the same ought to be interfered with, he insisted. The learned senior counsel, additionally, argued that the Official Liquidator having adopted the rates fixed by the appellant-Port Trust in the lease deed between it and M/s. HIM Containers Ltd.,.the winding up of the latter, notwithstanding, he had no discretion or authority to fix a lesser lease rent. 14. Not only, the Official Liquidator who admittedly had been in possession of the lease hold land with effect from 16.7.2001, in spite of the order dated 21.3.2005 of this court had committed a misconduct by not handing over vacant physical possession thereof to the appellant-Port Trust till date, he could by no means depart from the stipulations in the lease deed relatable to the rate of lease rent agreed to between the parties thereto, he urged. Referring to a chart detailing the particulars in support of the claim of lease rent made by the appellant-Port Trust till 31.7.2010, Mr. Roy Choudhury has pleaded that having regard to the priority of its claim over the other creditors as determined by the order dated 21.3.2005 of this court, an appropriate direction ought to be issued to the Official Liquidator to disburse the sum claimed and also the arrears thereafter at the rate claimed. This is, more so, as the Senior counsel has urged on instructions that an amount of Rs. 10 crores (approximately) is available with the Official Liquidator by way of sale proceeds of the wound up company to be applied amongst others for disbursement of the arrear lease rent payable to the appellant-Port Trust. Mr. This is, more so, as the Senior counsel has urged on instructions that an amount of Rs. 10 crores (approximately) is available with the Official Liquidator by way of sale proceeds of the wound up company to be applied amongst others for disbursement of the arrear lease rent payable to the appellant-Port Trust. Mr. Roy Choudhury, also insisted for stringent steps against all concerned so as to ensure immediate delivery of possession of the leasehold land in favour of the appellant-Port Trust. In support of his submission, he placed reliance on the decision of the Apex Court in Board of Trustees, of Port of Bombay v. Indian Goods Supplying Company, AIR 1977 SC 1622 ; Smt. Nirmala R. Bafna, etc. v. Khandesh Spinning and Winding Mills Company and Another, etc., AIR 1993 SC 1380 . 15. Mr. Chakraborty representing the Official Liquidator on the basis of the records has submitted that at present, an amount of Rs. 9,78,91,997.00 lies in deposit with him (Official Liquidator) by way of sale proceeds and interest thereon and that out thereof a sum of Rs. 5.5 crores is payable to the secured creditors. The learned counsel on instructions has extended assurance to this court that time bound steps to be taken by the Official Liquidator to deliver vacant possession of the leasehold land to the appellant-Port Trust. The learned counsel, however, sought to endorse view taken by the learned Company Judge on the aspect of the rate of rent and the rejection of the partial claim of lease rent of the appellant-Port Trust. 16. Mr. S.K. Medhi appearing for the three banks, namely-IFCI Ltd., State Bank of India and Kotak Mahindra Bank has argued that these as assignees of the ICICI and the IDBI are the three secured creditors whose claims are to be met from the amount at the disposal of the Official Liquidator. He, therefore, has sought for a vacation of the orders dated 27.8.2008 and 16.5.2009 restraining payments there from. 17. Mr. Roy for M/s. Scrapt Traders has argued with reference to MC No. 1466/2010 that as a pre-condition of the delivery of vacant possession of the leasehold land, the Official Liquidator be directed to take steps for the payment of arrear dues of the workers of the wound up company now employed by the purchaser. 18. We have extended our thoughtful consideration to the rival contentions. 18. We have extended our thoughtful consideration to the rival contentions. The aforecited facts evidencing the progression of the associated events is not in dispute. Following the liquidation of HIM Containers Ltd., the then lessee of the appellant-Port Trust, the leasehold land came to be possessed by the Official Liquidator on and from 16.7.2001. Prior thereto, the lease was terminated by the appellant-Port Trust vide notice dated 25.9.2000. By its order dated 11.12.2002, this court in Company Application No. 5/2002 preferred by the appellant-Port Trust recognized its entitlement for rent for the period of possession of the leasehold land by the Official Liquidator. Pursuant to a sale notice dated 17.2.2004, in the proceedings that followed the highest offer of M/s. Scrapt Traders was accepted and the assets of the Company-in-liquidation including the leasehold land were handed over to the auction purchaser on 13.9.2004. The state-of-affairs vis-a-vis the leasehold land continues to be so as on date and M/s. Scrapt Traders is in occupation thereof since then. 19. This court by its order dated 21.3.2005 in Company Application No. 6/2004 and Misc. Case No. 382/2005 had held that the rent payable by the Official Liquidator for his possession of the leasehold land must be necessarily construed to be a part of the expenses incurred in the winding up proceeding and that therefore the payment thereof must be made before the application/apportionment of the value of the assets towards discharge of any other debts of the company in liquidation. The Official Liquidator was thereby directed to hand over the legal possession of the leasehold land to the appellant-Port Trust. The latter was required to prove the actual quantum of rent due for the period of possession thereof by the Official Liquidator, whereupon the same was to be disbursed to it out of the sale proceeds by treating the amount due to be a part of the costs and expenses incurred in the winding up proceedings. 20. The Official Liquidator however, offered symbolic possession of the leasehold land to the appellant-Port Trust on 12.4.2005, which was declined by it. Following a host of communications on the aspect of its entitlement of rent, the Official Liquidator on 9.1.2006 sanctioned an amount of Rs. 79,05,373 against its demand of Rs. 1,77,47,842.45, thus, rejecting its claim to the extent of Rs. 98,42,469.45. The claim of the appellant-Port Trust of Rs. Following a host of communications on the aspect of its entitlement of rent, the Official Liquidator on 9.1.2006 sanctioned an amount of Rs. 79,05,373 against its demand of Rs. 1,77,47,842.45, thus, rejecting its claim to the extent of Rs. 98,42,469.45. The claim of the appellant-Port Trust of Rs. 1,77,47,842.45 was however, quantified till October 2005. 21. Noticeably, the determination in the order dated 21.3.2005 to the effect that the rent payable by the Official Liquidator ought to be construed to be a part of the expenses incurred for the purpose of winding up of the company in liquidation and that the payment thereof was to be made before the application/apportionment of the value of the assets of the wound up company towards the discharge of any of its other debts has remained uninterfered with and therefore is binding on all concerned. 22. The learned Company Judge in his order dated 21.3.2005 referred to above had held as well that the delivery of the possession of the leasehold land to M/s. Scrapt Traders by the Official Liquidator was not sanctioned in law as the latter was not empowered to do so sans express orders of the court. It was, thus, held that the legal possession of the land ought to be understood to have continued to remain with the Official Liquidator on behalf of the court. The Official Liquidator was, thus, directed to hand over the legal possession of the land to the appellant-Port Trust. 23. In the impugned judgment and order, in response to the grievance of the appellant-Port Trust qua offer of symbolic possession of the land, the learned Company Judge reiterated the direction to the Official Liquidator to hand over vacant physical possession of the leasehold land to it within a period of three months. Admittedly, as on date, the possession has not yet been handed over to the appellant-Port Trust and M/s. Scrapt Traders is in unauthorized occupation of the land. This is in the face of an unambiguous rejection by the learned Company Judge of the claim of M/s. Scrapt Traders made in Misc. Case No. 382/2005 that the balance period of the lease was one of the assets sold to it, thus, vesting it with the right to transfer/renewal of the lease. This is in the face of an unambiguous rejection by the learned Company Judge of the claim of M/s. Scrapt Traders made in Misc. Case No. 382/2005 that the balance period of the lease was one of the assets sold to it, thus, vesting it with the right to transfer/renewal of the lease. The conclusion of the learned Company Judge in the said order that the possession of the leasehold land of M/s. Scrapt Traders is illegal and the rejection of its request for renewal/grant of lease in its favour by the Board of Trustees renders its possession of the leasehold land wholly unauthorized on and from the date of handing over the possession thereof to it by the Official Liquidator. For intents and purposes, therefore though the actual physical possession of the land is with M/s. Scrapt Traders, conceptually it continues to be in the custody of the Official Liquidator on behalf of the court. 24. The developments when viewed sequentially clearly demonstrate the inexplicable failure of the Official Liquidator to retrieve the physical possession of the leasehold land from M/s. Scrapt Traders to be delivered the appellant-Port Trust in spite of the orders dated 21.3.2005 and 13.4.2007 of this court. The offer of symbolic possession thereof by him to the appellant-Port Trust has been unequivocally and emphatically disapproved by this court. In the above factual premise, though notionally the custody of the leasehold land in the face of the consistent determinations of this court, the lies with the Official Liquidator, since after the expiry of three months from the date of the impugned judgment and order it ought not to be construed to be so in connection with the liquidation proceedings. For the omission and lapse of the Official Liquidator, the appellant-Port Trust has been clearly denied the benefit of its otherwise legally due possession of the leasehold land ought not to be deprived of its claim for rent as due in law. Not only, the Official Liquidator had wrongly handed over the possession of the leasehold land to M/s. Scrapt Traders, in spite of repeated directions of this court, he has failed to hand over vacant physical possession thereof to appellant-Port Trust till date in spite of a clear direction by this court to do so within three months vide its order dated 13.4.2007. In our view, therefore, the appellant-Port Trust is in the singular facts and circumstances of the case entitled to the rent for the land involved at the enhanced rate of Rs. 773 per hundred square meters per month (as introduced by the Notification dated 2.12.1999 under section 49 of the Ports Act) on and from 13.7.2007 till actual delivery of possession thereof by the Official Liquidator to it. 25. On an analysis of the scheme of imposition and recovery of rates at Ports under Chapter-VI of the Act, in our estimate the scale of rates is apparently relatable to the services enumerated in the various sub-clauses of section 48(1) to be performed either by the Board or any other person authorized by it at or in relation to the Port or the Port approaches. The possession of the leasehold land by the Official Liquidator, in our comprehension, is beyond the ken of the eventualities for which the scales of rates are envisaged. Having regard to the nature of the possession of the land by the Official Liquidator and the legally ordained objectives to be secured by him, the overall enterprise can by no means be. equated with the services envisioned in section48(1) of the Act. The observation of the learned Company Judge regarding the sanctity of such rates having regard to the exemptions contemplated in sections 51, 53 and 54 of the Act, however, appear to be omnibus in nature. This, notwithstanding, the finding distinguishing the nature of the possession of the Official Liquidator from the one contemplated in section 48(1) of the Act for the applicability of the scale of rates commends for acceptance. 26. The decision in the Board of Trustees of the Port of Bombay (supra) has been pressed into service to emphasis that the scale of rates prescribed by the Board under section 48 of the Ports Act read with section 52 thereof has the force of law. The authority cited however, is in respect of such scale of rate etc. framed under section 43B of the Bombay Port Trust Act, 1879 which Mr. Roy Choudhury contended was in pari materia with section 48 of the Ports Act. The authority cited however, is in respect of such scale of rate etc. framed under section 43B of the Bombay Port Trust Act, 1879 which Mr. Roy Choudhury contended was in pari materia with section 48 of the Ports Act. While on a comparison of the respective schemes of the legislations such a proposition is visibly demonstrable, this decision is not an authority on the point that the occupation of any land/property of the Board contemplated under section 48 of the Ports Act by an Official Liquidator in connection with a liquidation proceeding under the Act would amount to any service specified therein where for the scales of rates had been framed by the Board of Trustees. 27. M/s. Scrapt Traders being aggrieved by the decisions dated 21.3.2005 and 13.4.2007 alluded hereinabove also preferred belated appeals before this court with separate applications for condonation of delay in connection therewith being registered as M.C. No. 3625/2007 and M.C. No. 3590/2007. Vide order dated 24.9.2007, a Division Bench of this court, in the interim, directed maintenance of status-quo with regard to its possession of the land involved, until further order(s) subject to the condition of its paying an amount of Rs. 50 lakhs to the appellant-Port Trust within a period of six weeks there from and monthly rent as per the prevailing rate stipulated by the statute every month on or before 7th of each succeeding month. Thereby, liberty was also granted to M/s. Scrapt Traders to undertake the activities of manufacturing containers with the rider that the land would not be put to any other use. 28. In Misc. Case No. 3483/2007 filed by the appellant-Port Trust in Company Appeal No. 1/2007 this court initially passed an order dated 24.9.2007 debarring the Official Liquidator from making any disbursement out of the sale proceeds of the assets of the wound up company. In Misc. Case No. 4382/2007 in Company Appeal No. 1/2007 by order dated 21.1.2008 this court reiterated the above interim restraint for a limited period. This, however, was extended until further order(s) on 22.2.2008. 29. M/s. IFCI Ltd. one of the secured creditors, filed an interim application seeking a modification of the aforementioned interim order(s), which was registered as M.C. No. 2340/2008. Case No. 4382/2007 in Company Appeal No. 1/2007 by order dated 21.1.2008 this court reiterated the above interim restraint for a limited period. This, however, was extended until further order(s) on 22.2.2008. 29. M/s. IFCI Ltd. one of the secured creditors, filed an interim application seeking a modification of the aforementioned interim order(s), which was registered as M.C. No. 2340/2008. This court by order dated 27.08.2008 after hearing the parties allowed the Official Liquidator to disburse the amount of sale proceeds of the company in liquidation, less the sum of Rs. 1.5 crores as claimed by the appellant-Port Trust. The appellant-Port Trust however, by its interim application, M.C. No. 629/2009 having sought for restoration of the interim interdiction of the Official Liquidator on disbursement, this court by-order dated 16.5.2009 directed the Official Liquidator not to make any further disbursement of money lying with him. The appellant-Port Trust returned with M.C. No. 3080/2009 complaining persistent default on the part of M/s. Scrapt Traders in complying with the prescribed preconditions contained in the order dated 24.9.2007 passed in Misc. Case No. 3629/2007 directing maintenance of status quo of its possession on stipulations of making payments therefore. A division Bench of this court vide order dated 26.3.2010, being convinced about the repeated and inexplicable defaults of M/s. Scrapt Traders to comply with the orders dated 24.9.2007 and 27.8.2008 passed in Misc. Case No. 2177/2.008 in the same lines, held that the interim protection stood vacated by its repeated failings and left it open to the Official Liquidator to take appropriate steps, in accordance with law. 30. While the matter rested at that, M/s. IFCI Ltd., State Bank of India and Kotak Mahindra Bank Ltd. by separate interim applications registered as Misc. Case No. 1192/2010, 1200/2010 and 1240/2010 respectively sought for a modification of an interim order dated 16.5.2009 restraining the Official Liquidator to effect disbursement to the sale proceeds of the company-in-liquidation. 31. In course of the arguments references have also been made on behalf of the M/s. Scrapt Traders to its interim application being Misc. Case No. 1466/2010 filed in Company Petition No. 3/2000, in substance, contending that in compliance of the order dated 24.9.2007 passed in Misc. Case No. 3590/2007 and 3625/2007, it had meanwhile paid in all, an amount of Rs. 1,18,80,478.44 by way of rent. Case No. 1466/2010 filed in Company Petition No. 3/2000, in substance, contending that in compliance of the order dated 24.9.2007 passed in Misc. Case No. 3590/2007 and 3625/2007, it had meanwhile paid in all, an amount of Rs. 1,18,80,478.44 by way of rent. Further, it had made huge investments towards renovation of the plants and machineries as well as installation of electric connection for rendering the plants functional. Ad hoc appointment to 72 workmen has also been claimed. It mentioned therein of its request to the Official Liquidator to make payment to the workmen of M/s. HIM Containers Ltd. in liquidation of their entitlements out of the sale proceeds and to grant it six months time to deliver vacant possession of the land after removing its properties. It also indicated the possibility of resistance being offered by the workmen in case their arrear dues were not liquidated. It, thus, insisted for payment thereof under section 529A of the Act. 32. In the teeth of the decision of the learned Company Judge as recorded hereinabove disapproving the action of the Official Liquidator in handing over the physical possession of the leasehold land in favour of M/s. Scrapt Traders and determining the latter's possession thereof to be illegal, its occupation thereof cannot be construed to be on the basis of the renewal of the erstwhile lease or any fresh transaction of the type by and between it and the appellant-Port Trust legalizing its (M/s. Scrapt Traders) continuance thereon. The payments made by it in the interregnum were in terms of the interim order(s) of this court as a pre-requisite for the arrangement of keeping in abeyance the directions contained in the impugned judgment and order, ordering delivery of possession of the land to appellant-Port Trust. 33. The cause shown in the interim applications for condonation of delay, i.e., M.C. No. 3625/2007 and 3590/2007 on a scrutiny of the rival pleadings is construed as wholly inadequate and unconvincing. The delay as such is not condoned. The connected appeals are accordingly dismissed. 34. In this view of the matter, there is, therefore no legal impedimenta in handing over of the actual vacant possession of the land by the Official Liquidator to appellant-Port Trust as, to reiterate, M/s. Scrapt Traders, as on date, has no right in law to hold on to the said land. The connected appeals are accordingly dismissed. 34. In this view of the matter, there is, therefore no legal impedimenta in handing over of the actual vacant possession of the land by the Official Liquidator to appellant-Port Trust as, to reiterate, M/s. Scrapt Traders, as on date, has no right in law to hold on to the said land. In the face of the categorical finding of the court that the rent payable by the Official Liquidator must be disbursed before discharging any debts of the company in liquidation, the plea based on section 529A by M/s. Scrapt Traders is also of no avail. The Official Liquidator would forthwith deliver vacant physical possession of the land to the appellant-Port Trust and would simultaneously quantify and defray the rent payable to it in terms of the present adjudication. While computing the amount payable to the Appellant, the Official Liquidator would apply the rate upheld by this court by the impugned judgment and order dated 13.4.2007 till 12.9.2007 and thereafter @ Rs. 773 per 100 square meters per month on and from 13.7.2007 till actual delivery of possession of the leasehold land to it (appellant). The payments already made to and received by the appellant from the deposits of M/s. Scrapt Traders in compliance of the interim order(s) of this court shall stand adjusted against the dues quantified. 35. The Official Liquidator thereafter would compute apportion and disburse the dues towards other debts of the wound up company. As it is, in terms of the chart referred to in course of the arguments depicting the amount in deposit with the Official Liquidator by way of sale receipts with interest thereon, it is adequate enough to execute the directions in the instant appeal without prejudicing as well the dues of the secured debtors and others. The Official Liquidator is hereby ordered to meticulously comply with the directions contained herein without fail within the timeframe fixed. In the backdrop of his lapses recorded hereinabove, it is made clear that any non-compliance would be viewed very seriously and would entail penal consequences. 36. The appeal is, thus, partially allowed in the above terms. The Miscellaneous cases are answered accordingly. No costs. Appeal allowed.