Judgment : The Court: In terms of the order of the Division Bench dated 13 March 2008, the trial on evidence was held primarily for deciding or answering the issues framed by the Bench and the respective witnesses of Tivoli Park Apartments Private Limited (Tivoli, in short) and Wellman Wacoma Limited (Wacoma, in short) gave evidence in Court before me. The witnesses of Wacoma gave evidence as Wacoma was permitted to do though on earlier occasion Wacoma did not, in fact, want to give or lead any evidence after the proceedings or rather Section 446 proceedings initiated by Wacoma and the suit instituted by it were dismissed by me for non-prosecution on the invitation of Wacoma. Thus before proceeding further it would, I find, be convenient to set out the above issues as framed by the Division Bench. “1. (a) whether the tenancy of Wellman Incandescent (India) Ltd. (Now in Liquidation) under Tivoli Park Apartment Pvt. Ltd. Was terminated by surrender or otherwise? (b) if so, i) How was the tenancy terminated? ii ) When was such tenancy terminated? 2. (a) Whether there was any creation of a new tenancy by Tivoli Park Apartment Pvt. Ltd. in favour of Wellman Wacoma Ltd.? (b) if so, i) How was such tenancy created? ii) When was such tenancy created? It should, however, be pointed out at this stage that the above issues were framed by the Division Bench on the basis of the pleadings of the parties in their respective proceedings, namely Tivoli’s disclaimer application, C.A. No. 302 of 2006, Wacoma’s inter alia Section 446 application of the Companies Act and the affidavits used by the parties including the Official Liquidator. Although Wacoma wanted me to frame an additional issue, the prayer of Wacoma was refused on 15 January 2010 and the appeal against the said refusal by Wacoma was also dismissed by the Division Bench of this Court by its order dated 9 February 2010. Before, however, I deal with the respective cases of Tivoli, Wacoma and the Official Liquidator as made out in their respective pleadings and as sought to be established by Tivoli and Wacoma on evidence, I need to say a word or two on the above issues as the Division Bench by its said order made it very clear that the trial on evidence was to be held for deciding the above issues. The said order of the Division Bench as known to all concerned became final as the proceedings initiated thereafter by Wacoma for adding further issues or rather an additional issue eventually failed, as aforesaid, and consequently trial took place to decide the above issues and no other issue or issues. On a plain reading of the first issue it is clear that the parties to the proceedings, namely Tivoli, Wacoma and the Official Liquidator recognized that Wellman Incandescent (India) Limited (Incandescent, in short) (now in liquidation) was in fact the tenant of Tivoli but as Wacoma claimed that Wacoma became the tenant, or rather a new tenancy was created in Wacoma’s favour by Tivoli before Incandescent had gone into liquidation, the Division Bench was pleased to frame the first issue for a decision whether such tenancy of Incandescent under Tivoli was terminated by surrender or otherwise. And, if this issue is answered in the affirmative, namely that such tenancy was, in fact, terminated before Incan descent’s liquidation, then it is to be decided how such tenancy was terminated, namely in what manner and the time as to its termination. It is for a decision on the above claim of Wacoma, the tenancy in question which admittedly stood in favour of Incandescent, no matter when such tenancy was first created in favour of Incandescent, the manner and the time of such termination of the tenancy in question become extremely important. It is extremely important as Wacoma has said that Wacoma became a tenant of Tivoli before Incandescent had gone into liquidation. Equally, on a plain reading of the second issue it is clear that since Wacoma has claimed that it became a tenant of Tivoli before Incandescent had gone into liquidation, it is necessary to decide whether a new tenancy was created by Tivoli in favour of Wacoma, naturally before the Incandescent’s liquidation and if it is found that such tenancy was, in fact, created in favour of Wacoma then a decision was thought to be necessary by the Division Bench on the issue as to how such tenancy was created and the time of creation of such tenancy. This is because Wacoma has claimed throughout that Wacoma became a tenant of Tivoli before Incandescent had gone into liquidation and such tenancy, in fact, had commenced in favour of Wacoma from the month of April 2002 whereas Incandescent had gone into liquidation in the month of September, to be precise on 24 September 2002 by the order of this Court. It should, however, be mentioned that in my judgment dated 15 January 2010 on the application of Wacoma, C.A. No. 461 of 2009 I said that the above issues “were framed by the Appeal Court on the basis of the pleadings of the parties before it, namely Tivoli, Wacoma and the Official Liquidator” [See the first Paragraph at Page 6 of the judgment]. This judgment, as aforesaid, was affirmed by the Division Bench by its order dated 9 February 2010 when the Division Bench also refused to frame an additional issue as suggested by Wacoma, namely “was Wellman Incandescent (I) Limited a tenant under Tivoli Park Apartments Private Limited since 1970 until its liquidation in respect of the disputed premises as alleged?” I made it clear in my above judgment that I did not think that the above issue as suggested by Wacoma with or without any amendment was at all necessary or relevant for an effective adjudication of the proceedings before me and for the purpose of reaching a right decision thereon. The Division Bench, in fact, quoted the above finding of mine in dismissing the appeal against the said judgment. It would, at this stage, be worthwhile to mention once more that Tivoli in its application for disclaimer in Paragraph 2 has said “at all material times since 1970 Wellman Incandescent (I) Limited until its liquidation was a tenant” of Tivoli “in respect of the premises” in question. The exact words used in Paragraph 2 are not repeated herein. In the affidavit of Wacoma used in opposition to Tivoli’s application for disclaimer affirmed on 11 September 2007, Wacoma has said that Incandescent was not a tenant “in respect of the tenanted premises on the date of the order of winding up. The application is, therefore, not maintainable”. (Sub-paragraph C of Paragraph 3 at page 4 of Affidavit-in-Opposition). In the affidavit of Wacoma used in opposition to Tivoli’s application for disclaimer affirmed on 11 September 2007, Wacoma has said that Incandescent was not a tenant “in respect of the tenanted premises on the date of the order of winding up. The application is, therefore, not maintainable”. (Sub-paragraph C of Paragraph 3 at page 4 of Affidavit-in-Opposition). In Sub-paragraph (f) Wacoma has said that Wacoma became a tenant of Bungalow No.5 of the premises in question “at and for a monthly rent of Rs.825/- under the applicant (Tivoli) on and from the month of April 2002”. Wacoma has also taken the stand in its Affidavit-in-Opposition that Incandescent “in any cost ceased to be a tenant in respect of the tenanted premises on and from the month of March 2002……Since April 2002 Wacoma was recognized by Tivoli as the tenant of the Bungalow No. 5”. [See Paragraph 6 at Page 12 of the Affidavit-in- Opposition]. In its earlier pleadings, namely the Affidavit-in-Reply used by Wacoma to the Affidavit-in-Opposition used by Tivoli in opposing the application of Wacoma under Section 446 of the Companies Act, Wacoma took even a more positive stand when it said “I further state that the said company in liquidation was a tenant in respect of the said premises prior to induction of the applicant herein as tenant of the said premises”. [See the last three lines of Sub-paragraph (d) of Paragraph 3 at Page 7 of the Affidavit-in-Reply affirmed by Suman Basu on behalf of Wacoma on 17 March 2007]. Although the above proceedings of Wacoma, inter alia under Section 446 was thereafter dismissed for non-prosecution on the invitation of Wacoma, the positive stand taken by Wacoma in its earlier pleadings though subsequently withdrawn does not as it cannot possibly alter the position of Wacoma, nor Wacoma can resile from its earlier stand as far as the tenancy of Incandescent is concerned. It should, however, be pointed out that Wacoma has not, however, taken an inconsistent stand in its affidavit in opposing the disclaimer proceedings initiated by Tivoli as Wacoma has made its position clear by saying that Wacoma became a tenant of Tivoli in respect of the Bungalow in question from April 2002 and that Tivoli had accepted rent from Wacoma in respect of the said Bungalow till May 2004. I am dealing with this aspect a little elaborately only to say that since Wacoma has come before this Court with a plea that Wacoma became a tenant of Tivoli of the Bungalow in question since April 2002 it is for Wacoma to discharge its onus that Wacoma became such tenant as claimed by Wacoma and this position is abundantly clear on a plain reading of the issues framed by the Division Bench for a decision on such issues by a trial on evidence. It is indeed true that in my earlier judgment dated 15 January 2010 on Wacoma’s application for framing an additional issue, C.A. No. 461 of 2009 I said that Wacoma, in fact, admitted that Incandescent was a tenant of the Bungalow in question before Wacoma became a tenant of the said Bungalow under Tivoli and such tenancy of Wacoma, in fact, was created from the month of April 2002. On the basis of this stand it is clear that Wacoma has not only denied that on the date of the order of winding up, namely 24 September 2009 Incandescent was the tenant of the Bungalow, Wacoma has asserted further that Wacoma became the tenant of the Bungalow in question by virtue of the grant of tenancy in favour of Wacoma by Tivoli and the said tenancy had commenced or was created from the month of April 2002. On this, I repeat, my statement in my earlier judgment that it is wholly irrelevant whether Incandescent became a tenant under Tivoli since 1970 or after 1970. What, however, becomes relevant is that whether on the date of the order of winding up of Incandescent, Incandescent was the tenant of the Bungalow in question or to be precise whether the tenancy of Incandescent under Tivoli was terminated and a new tenancy created before Incandescent went into liquidation or before the order of winding up of Incandescent. In this case, however, Wacoma, I repeat, has asserted that Wacoma became the tenant from the month of April 2002. In this case, however, Wacoma, I repeat, has asserted that Wacoma became the tenant from the month of April 2002. In dealing with the question whether an additional issue was to be framed as suggested by Wacoma in its said application, C.A. No. 461 of 2009, I observed that it was for Tivoli to discharge its initial onus to establish that Incandescent was, in fact, a tenant of the premises in question and such tenancy, in fact, existed on the date of the winding up order of Incandescent. Indeed, Tivoli I said had this initial onus to discharge in order to obtain relief as claimed by Tivoli in its present application for disclaimer. I also said that if Wacoma was unable to discharge its burden of proving that it became a tenant under Tivoli before the order of winding up or that Wacoma was the tenant of the disputed premises on the date of the order of winding up of Incandescent then what consequence would follow - “I am not called upon to decide now on this application”. By that expression I meant the application of Wacoma for framing an additional issue. However, that Tivoli in order to obtain relief in its application has to prove its case is based on the fundamental principle that a plaintiff in order to obtain relief has to prove his or its own case as made out by the plaintiff before a Court of Law. In this connection I also pointed out in the earlier judgment that even in an undefended or uncontested suit though the plaintiff has a right to obtain a decree on the basis of the provisions contained in Rule 5 under Order 8 of the Code of Civil Procedure, the plaintiff in order to obtain a decree has to prove his or its case even where the suit remains uncontested and in such a situation the Court also has a discretion and can ask the plaintiff to prove a particular fact even though such fact or facts are otherwise deemed to be admitted in an undefended or uncontested suit by virtue of the provisions in Sub-Rule (1) of Rule 5 of Order 8 of the Code of Civil Procedure. At this stage, having regard to the framed issues, it is extremely important to bear in mind that the general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof: that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. In civil cases like the present one, while the burden of proof of a fact generally remains on the person asserting that fact, the Court makes its decision on “the balance of probabilities”, this is known as the “standard of proof” as far as civil cases in general are concerned. With the above rule in mind, I need to consider the proved facts or rather the evidence on record for answering the framed issues for proper adjudication of the proceedings before me. In this particular case the Division bench framed the above issues for trial as Wacoma was on the scene and it claimed that on the date of the winding up order Incandescent was not the tenant and that Wacoma was, in fact, the tenant and such new tenancy was created in favour of Wacoma by Tivoli a few months before the order of winding up of Incandescent. If Wacoma had not been on the scene and since the Official Liquidator did not take possession of the Bungalow in question it would not have been necessary for Tivoli to initiate any proceedings at all as without any proceedings of any nature Tivoli would have got back its property namely, the Bungalow in question as none else had claimed any right to or over the property i.e. the Bungalow. If, however, the Official Liquidator had claimed that it took possession of the Bungalow in question and none else had claimed any right in respect of the bungalow, then as the owner of the Bungalow or the premises in question Tivoli had to discharge its initial onus as the applicant for obtaining relief on its application for disclaimer but in such a situation it would have been practically an admitted case as far as the existence of tenancy in favour of the Incandescent on the date of its winding up order was concerned. Although, Wacoma took a stand after it invited me to dismiss the said proceedings for non-prosecution that Wacoma did not wish to lead any evidence either, I observed that Wacoma would still be allowed to cross-examine the witness or witnesses of Tivoli, if Wacoma so wished, and added further that if Tivoli wanted to present any witness or witnesses for giving evidence in this proceedings, Wacoma would be at liberty to do so to adduce or give evidence at the trial. As far as Tivoli is concerned, Tivoli has tried to establish that it came to know on 25 May 2004 for the first time that this Court passed an order of winding up of Incandescent who was the tenant of Tivoli “in respect of Bungalow No. 5 measuring about 1500 square feet at 225, A.J.C. Bose Road, Calcutta - 700 020”. After this knowledge and after obtaining some information of the winding up proceedings and the order of winding up from the Official Liquidator of this Court and after failing to obtain possession of the Bungalow in question from the Official Liquidator, Tivoli on 28 April 2006 made this disclaimer application essentially claiming for a direction upon the Official Liquidator to hand over possession of the above Bungalow to Tivoli. Immediately after the said application was made Wacoma arrived on the scene and made an application, inter alia, under Section 446 of the Companies Act for an injunction restraining the Official Liquidator and other respondents from interfering with the possession of Wacoma in respect of the Bungalow and for leave to initiate appropriate proceedings against the respondents. Thereafter, affidavits were used by the parties, namely Tivoli, Wacoma and the Official Liquidator for hearing of the above proceedings. Wacoma thereafter sometime in August, to be precise on 11 August 2006 instituted a suit in the district Court of Alipore claiming for a declaration that Tivoli had no right to obstruct ingress and egress of Wacoma to and from the premises in question and for injunction and other relief. Since the past of the present proceedings is well-known it is not necessary to repeat the past once again. Since the past of the present proceedings is well-known it is not necessary to repeat the past once again. Suffice it to mention that though the Company Court by its judgment dated 19 September 2007 was pleased to dismiss both the proceedings of Tivoli and Wacoma, on appeal the Appeal Court was pleased to set aside the said judgment and frame the above issues and directed that the trial on evidence should be held to decide the issues framed by the Appeal Court. Since Wacoma thereafter decided to withdraw the above proceedings and the proceedings as such were dismissed for no prosecution by me, Wacoma is now merely opposing the application of Tivoli for disclaimer. However, Tivoli in its evidence has tried to show that Incandescent was the tenant of the Bungalow in question and in support of such tenancy some old rent receipts were tendered and marked as exhibits. The old receipts have been termed as ancient documents. Tivoli has also given evidence to the effect that the rents for the months of August and September 2002 were paid by Incandescent to Tivoli for its said tenancy. Tivoli has also tried to establish that Wacoma has utterly failed to discharge its onus that the tenancy in question was, in fact, terminated before the order of winding up or at any time thereafter. Since the termination of tenancy has not been established or rather Wacoma has miserably failed to establish that such termination of tenancy ever took place, the first issue, namely 1(a) should be answered in favour of Tivoli and against Wacoma and if the answer to this issue is in the negative, namely that no such termination or surrender of tenancy took place before the winding up of the company as claimed by Wacoma, the question of creation of a new tenancy in favour of Wacoma could not or cannot arise and, therefore, the second issue need not be answered or if answered it should be answered in favour of Tivoli automatically or as a matter of course. Before I deal with this most crucial question I must point out that Tivoli has said that the rents which Wacoma claims that it had paid, such rents were paid, if at all, on behalf of Incandescent and accepted by Tivoli as such. Before I deal with this most crucial question I must point out that Tivoli has said that the rents which Wacoma claims that it had paid, such rents were paid, if at all, on behalf of Incandescent and accepted by Tivoli as such. The rents might have been accepted because Tivoli was wholly unaware of the order of winding up of Incandescent and it came to know of such order much later from an advertisement in the newspaper as mentioned in its application for disclaimer. I have mentioned more than once that since Wacoma has asserted that it became a tenant of Tivoli from the month of April 2002 and that the tenancy of Incandescent, in fact, continued only till March 2002 or rather it was terminated in the month of March 2002, it is for Wacoma to prove that such termination of tenancy, in fact, took place as claimed by Wacoma and that a new tenancy was, in fact, created in its favour by Tivoli. In other words, the burden of proof lies squarely on Wacoma since Wacoma asserts the affirmative of the issue or question in dispute. This, as aforesaid, is the general rule. Although, witnesses gave evidence on behalf of both Tivoli and Wacoma, I find that it is the evidence of Indra Mohan Khosla, (Khosla, in short) who is now an executive director of Wacoma and was a director of Incandescent at the relevant point of time and, in fact, became a director of Wacoma immediately after Incandescent’s liquidation in September 2002, which only throws some light on the question of termination of tenancy and creation of a new tenancy in favour of Wacoma by Tivoli. [See Khosla’s answer to question 24 on 23 June 2011]. It is an admitted position, however, that Khosla said that there was nothing in writing to show that the tenancy in favour of Incandescent was, in fact, terminated and a new tenancy was created in favour of Wacoma. He also said that there was no Board resolution regarding either termination or surrender of the tenancy or creation of a new tenancy in favour of Wacoma. Khosla stated from the witness box that in a meeting Mr. He also said that there was no Board resolution regarding either termination or surrender of the tenancy or creation of a new tenancy in favour of Wacoma. Khosla stated from the witness box that in a meeting Mr. Sutodia of Tivoli though was reluctant initially to transfer the tenancy to Wacoma on the existing terms and conditions and on the same rent that Incandescent was paying, he eventually agreed to transfer the same to Wacoma. He also said that no minutes were prepared of the above meeting where Sutodia agreed to transfer the tenancy. Khosla said no minutes were prepared but it was a “verbal one” but from “April onwards Wacoma started paying the rent”, perhaps he meant to say regularly. When I asked (Khosla) that it was not necessary for him to prepare the minutes of such meeting he said no, that was not necessary. When he was asked why it was not necessary, he answered that since they (Tivoli) “started accepting rent” from Wacoma he “took it as a final thing” [See questions 8, 12, 13, 14, 15 & 16 of Khosla’s evidence on 23 June 2010]. Since, I find, some more evidence of Khosla on the question of termination and creation of the new tenancy in respect of the Bungalow in question need be considered to determine the issues, the following answers to the questions are set out below:- “To Court:- Q. 17. – The three companies thought that no minutes should be prepared of the meeting?/ In Wellman Incandescent India Limited and Wellman Wacoma Limited the majority shareholders were the same people. Q. 21. – They all represented the companies and Mr. Sutodia from Tivoli Park – the three top officials of the companies met in a meeting but it was not necessary to prepare any minutes of the meeting?/ As far as I know and remember My Lord, no minutes were prepared. Q. 48. – The Bungalow No. 5 was never tenanted? / It was tenanted in the beginning after that Wellman Wacoma Limited paying rent. Q. 49. – What do you mean by the expression ‘beginning’? / From 2002 it started to pay rent. Q. 50. – Before that what happened? / Wellman Incandescent India Limited was paying rent earlier. Q. 51. – Was Wellman Incandescent, according to you, a tenant of Bungalow No. 5? / Originally, yes. Q. 52. Q. 49. – What do you mean by the expression ‘beginning’? / From 2002 it started to pay rent. Q. 50. – Before that what happened? / Wellman Incandescent India Limited was paying rent earlier. Q. 51. – Was Wellman Incandescent, according to you, a tenant of Bungalow No. 5? / Originally, yes. Q. 52. – Can you tell when that tenancy was over ?/ From April, 2002 Wellman Wacoma started to pay rent and Wellman Incandescent India ceased to pay rent except for some arrears dues which were paid by Wellman Incandescent India. Q. 53. – When Wellman Incandescent India ceased to be a tenant of Bungalow No. 5 – do you know the exact time? / In the end of March, 2002. Q. 54. – Did Wellman Incandescent India hand over the possession in your favour? / Yes. Q. 55. – Wellman Incandescent India went into liquidation? / Yes. Q. 56. – So Wellman Incandescent India was a tenant. When Wellman Wacoma became the tenant, who handed over the possession of Bungalow No. 5 to Wellman Wacoma ?/ I did. At that time I was in Wellman Incandescent. Q. 57. – You were a director of that company? / Yes. Q. 58. – So you handed over the possession? / Yes. Q. 59. – Was there anything in writing? / No. Q. 60. – No writing was necessary although you handed it over? / I do not remember. May be there but I am not certain. Q. 365. – I am suggesting it to you that no such delegation of power was ever conferred by the company to you regarding transfer of this tenancy? / I was the only one who was operating that company’s office. I was the one who was taking decision as to what was to be paid at that time. To Court: Q. 366. – Before the company had gone into liquidation you were the only director left? / There were other directors but nobody took any interest over there. Q. 367. – They gave you the authority in the matter of transfer of tenancy? / Yes, because I was dealing in other big matters also. Q. 368. To Court: Q. 366. – Before the company had gone into liquidation you were the only director left? / There were other directors but nobody took any interest over there. Q. 367. – They gave you the authority in the matter of transfer of tenancy? / Yes, because I was dealing in other big matters also. Q. 368. – Because when the company went into liquidation the other directors were not interested or taking part in the management of the company that by itself gave you the authority to transfer the tenancy ?/ As I was left alone, I took the decision. Q. 369. – You assumed that you had the authority in the matter of transfer of tenancy? / Yes. Q. 370. – Did you ever consult with the other directors? / No. Q. 371. – Have they left the Company? / Nobody left the company. Q.372. - Why did you not approach them? / I do not feel. Q.373. - You are all in all in the company? / Yes. Q.379. - On that basis you automatically had the authority to take the decision of your own without talking to the other directors? / Yes. Q.403. - I am suggesting it to you that there was no creation of any tenancy by Tivoli in favour of Wellman Wacoma? / It was correct. On the assessment of the above evidence of Khosla who as I have said before was perhaps the only person who could throw some light on the question of termination of the tenancy of Incandescent and creation of a new tenancy in favour of Wacoma has said nothing on the termination or surrender of tenancy in question anywhere in his evidence. What he has said, however, and for this matter I have read an considered the entire evidence of Khosla on this aspect very carefully, is that the said Sutodia, namely a (the then) director of Tivoli agreed to transfer the existing tenancy of Incandescent to Tivoli on the same terms and conditions and at the same rent of Rs.825/- per month for the Bungalow even after 32 years from the date of commencement of tenancy in favour of Incandescent. I only wonder why Sutodia was so magnanimous and benevolent in his approach to transfer the tenancy to Wacoma ! Was he really? I only wonder why Sutodia was so magnanimous and benevolent in his approach to transfer the tenancy to Wacoma ! Was he really? Khosla, however, has not thrown any light or said anything in his evidence as to why Sutodia showed this generosity to Incandescent in transferring the tenancy, why Sutodia as a director of Tivoli did not think it necessary to protect the interest of the company, namely Tivoli by increasing the rent substantially when he got such opportunity to increase the rent of a tenanted premises located in one of the most posh quarters in the metropolis after all these years as he agreed to transfer the tenancy to Wacoma and as Wacoma agreed to accept such transfer or rather as Wacoma persuaded Sutodia to transfer that tenancy in its favour. The most striking contrast between the stand taken by Wacoma in its affidavit to oppose the disclaimer proceedings and in its earlier proceedings that a new tenancy was, in fact, created in its favour by Tivoli after Tivoli terminated the tenancy of Incandescent and the evidence of Wacoma’s witness, Khosla is that Tivoli, in fact, transferred the “existing tenancy” of Incandescent to Wacoma on the same terms and conditions and at the same rent as that of Incandescent. Khosla also said in his evidence that he was at that time all in all of both Wacoma and Incandescent and he did not think it necessary to obtain consent of the other directors of the companies concerned in entering into this arrangement with Tivoli regarding so called transfer of the said tenancy in respect of the Bungalow in question to Wacoma. He also did not think it necessary to keep on record anything in writing regarding transfer of tenancy, let alone obtaining the written consent of the landlord (Tivoli) which was (and is) mandatory under the provisions of the Statute in order to constitute a valid transfer of tenancy. [See Section 5(6) of the West Bengal Premises Tenancy Act 1997, also Section 14 of the West Bengal Premises Tenancy Act 1956]. The evidence of all the witnesses given on the trial is voluminous but I do not think it necessary to deal with the evidence of the other witnesses in any detail because the only person who, as I have said before, could throw any light on the question of termination and creation of new tenancy was Mr. The evidence of all the witnesses given on the trial is voluminous but I do not think it necessary to deal with the evidence of the other witnesses in any detail because the only person who, as I have said before, could throw any light on the question of termination and creation of new tenancy was Mr. Khosla of Wacoma and as far as the first issue is concerned, it was for Wacoma and Wacoma alone to prove termination of the existing tenancy of Incandescent and creation of a new tenancy in favour of Wacoma, it was also equally the onus of Wacoma to prove that after the existing tenancy of Incandescent was terminated, a new tenancy, in fact, was created in favour of Wacoma by Tivoli before Incandescent had gone into liquidation. On reading the entire evidence of Khosla, I am of the opinion that Wacoma has miserably failed to establish any termination of the existing tenancy of Incandescent in any form either by surrender or otherwise before Incandescent was wound up by the order of this Court as claimed by Wacoma or at any point of time at all. Witness of Wacoma, namely Khosla, though made a pathetic attempt, also has failed utterly to establish any form of transfer of the existing tenancy of Incandescent to Wacoma from the witness box. I do not believe the evidence of Khosla as true and honest evidence in the first place. Khosla has tried to suggest that it was for him and him alone to transfer the tenancy to Wacoma as far as Wacoma and Incandescent were concerned. As far as Tivoli was concerned, the said Sutodia, according to Khosla, did not in fact terminate the tenancy in question but he later agreed to transfer the tenancy of Incandescent to Wacoma. In this particular case, Wacoma, I repeat, did not come with a case of transfer of the tenancy at all but such case was sought to be made out from the witness box by Khosla, the chief witness of Wacoma for the first time. The case of Wacoma has always been that the tenancy of Incandescent was terminated and a new tenancy was created in favour of Wacoma by Tivoli before Incandescent had gone into liquidation. Thus the said two issues were framed by the Division Bench for adjudication of the dispute between Wacoma and Tivoli. The case of Wacoma has always been that the tenancy of Incandescent was terminated and a new tenancy was created in favour of Wacoma by Tivoli before Incandescent had gone into liquidation. Thus the said two issues were framed by the Division Bench for adjudication of the dispute between Wacoma and Tivoli. The expressions “termination” and “creation of a new tenancy” in the two issues are of vital importance. The desperate attempt on the part of the Wacoma’s witness, Khosla to make out a case of transfer of the existing tenancy of Incandescent to Wacoma has in its turn revealed the truth that there was no termination of the existing tenancy of Incandescent by Tivoli as claimed by Wacoma at all. Further, the evidence of Khosla on transfer has, in fact, falsified the claim of Wacoma of both termination of Incandescent’s tenancy and creation of a new tenancy in its favour by Tivoli at any time. What is the position then when Wacoma in its pleadings has taken the stand that the existing tenancy of Incandescent was terminated and a new tenancy was created and from the witness box Wacoma’s chief witness, Khosla has made a desperate attempt to make out a case that the tenancy in question was, in fact, transferred to Wacoma by Sutodia on behalf of Tivoli though Tivoli being the owner and/or the landlord of the Bungalow in question did not give any consent in writing to do so at any point of time, nor Sutodia, such a generous person otherwise, ever gave his consent in writing to effect a valid transfer of such tenancy to Wacoma on behalf of Tivoli. The utter inconsistent stand of Wacoma in its pleadings and in the witness box regarding termination of the existing tenancy and creation of a new tenancy compels me to disbelieve the story of Wacoma regarding the termination and creation of a new tenancy especially when I find no other evidence in support of such termination and creation of the tenancy or even in support of such transfer of tenancy to Wacoma at any time. The mandatory statutory requirement of written consent of the landlord for effecting a valid transfer is thoroughly absent in this proceedings. On the above basis, therefore, the first issue regarding termination of tenancy in question by surrender or otherwise is answered in favour of Tivoli and against Wacoma. The mandatory statutory requirement of written consent of the landlord for effecting a valid transfer is thoroughly absent in this proceedings. On the above basis, therefore, the first issue regarding termination of tenancy in question by surrender or otherwise is answered in favour of Tivoli and against Wacoma. In view of the above answer, answer to the second issue though not necessary as the first issue is answered against Wacoma, the second issue is also answered against Wacoma as well as I have found no evidence far from any acceptable evidence that the tenancy in question was ever terminated and a new tenancy created in favour of Wacoma by Tivoli at any time. The desperate attempt on the part of Khosla to somehow make out a case of transfer of tenancy should be and is rejected as I thoroughly disbelieve the genuineness of his evidence. I reject the evidence of Khosla on transfer of tenancy without, however, being influenced by the fact that such transfer is, in any event, invalid in the absence of written consent of the landlord (Tivoli) for such transfer. Since, I have answered the framed issues, I only need to consider as to whether Tivoli is entitled to the relief that it has claimed in its application. In this regard, I will not again go into the question of maintainability of Tivoli’s application as raised on behalf of Wacoma once again as the question of maintainability was answered in favour of Tivoli in my earlier Judgment, namely dated 20 July 2009. By the said Judgment, as aforesaid, I dismissed the application of Tivoli questioning the maintainability of Tivoli’s disclaimer proceedings with costs. As I have said above, the stand of Wacoma in contesting the disclaimer proceedings of Tivoli is that it became a tenant or a tenancy was created in its favour by Tivoli since April 2002, that was definitely after termination of the tenancy of Incandescent and before Incandescent had gone into liquidation. Wacoma, as I find, has not been able to prove its case on or by evidence at all. Relying on the observations of mine in my above Judgment that it is imperative for Tivoli to discharge its initial onus of proving Tivoli’s own case as made out in the application for disclaimer, according to Wacoma, Tivoli has hopelessly failed to prove its own case. Relying on the observations of mine in my above Judgment that it is imperative for Tivoli to discharge its initial onus of proving Tivoli’s own case as made out in the application for disclaimer, according to Wacoma, Tivoli has hopelessly failed to prove its own case. In other words, Tivoli has failed to prove that Incandescent continued to be the tenant on the day of its winding up. Admittedly, tenancy in favour of Incandescent has not been questioned by Wacoma at any point of time. Wacoma initiated the proceedings in this Court, namely 446 proceedings and decided to contest the disclaimer proceedings taking the stand that though Incandescent was a tenant of Tivoli, such tenancy existed only up to March 2002 and from April 2002 Wacoma became Tivoli’s tenant as Tivoli created a new tenancy in favour of Wacoma after terminating the tenancy of Incandescent. Although, Wacoma later decided not to prosecute the 446 proceedings and the suit instituted by it against Tivoli and on that basis both the proceedings were dismissed for non-prosecution on the invitation of Wacoma, that did not, as I held earlier, [See the judgment dated 15 January 2010] change the position, as Wacoma in order to successfully contest the disclaimer proceedings has to show that a new tenancy in favour of Wacoma was created by Tivoli after a valid termination of the tenancy of Incandescent before Incandescent was ordered to be wound up on 24 September 2002. In a situation like this, Tivoli, in my opinion, has only to show that the tenancy in question, in fact, existed in favour of Incandescent on the date of the order of winding up of Incandescent and definitely, therefore, the said tenancy of Incandescent was not terminated before the order of winding up by Tivoli at any time. Tivoli has also taken the stand that since Incandescent was the tenant of Tivoli on the date of the order of winding up of Incandescent, Tivoli continued to accept rents for sometime, up to the year 2004 as Tivoli did not know that the order of winding up was made against Incandescent. Tivoli, in fact, accepted the rents as if the said rents were paid by or on behalf of Incandescent. Tivoli, in fact, accepted the rents as if the said rents were paid by or on behalf of Incandescent. However, since I do not find any evidence which can even remotely suggest the termination of Incan descent’s tenancy and formation of a new tenancy in favour of Wacoma as asserted by Wacoma before the order of winding up at any point of time, I should and do accept that the tenancy of Incandescent whether the said tenancy had commenced in the year 1970 or thereafter continued to exist on the date of the order of winding up. Further, since I find on the other hand that the rents were paid either by Incandescent or on its behalf and accepted by Tivoli as such, I do not think Tivoli has any greater onus to discharge for proving its case. It is true, however, that Tivoli is not entitled to obtain judgment on the disclaimer proceedings as a matter of course, but since Tivoli has shown that the rents were paid up to the date of the winding up order by Incandescent or on its behalf even subsequently as rent in arrears and that because of lack of knowledge of the winding up order of Incandescent Tivoli accepted the rents even after the order of winding up as payment of rents by, or, for and on behalf of Incandescent, it cannot be said Tivoli has not been able to discharge its initial onus or rather onus of proving Tivoli’s case for obtaining judgment in this proceedings. Wacoma’s stand that Tivoli’s main witness, namely Danveer Singhi was not a good witness to prove Tivoli’s case as the witness was nowhere on the scene at the relevant point of time and as such his evidence should be ignored does not at all make the case of Wacoma any better. On the one hand, Wacoma has said that Singhi’s evidence should be ignored as he was nowhere on the scene at the relevant point of time, namely in the year of 2002 or more particularly in the months of March and April of 2002 and thereafter and on the other hand, according to Wacoma, Singhi’s evidence is good enough to prove that Tivoli accepted the rent from Wacoma knowingly that Incandescent had gone into liquidation or rather long thereafter. The stand of Wacoma is, therefore, that the evidence of Singhi, namely Tivoli’s witness should be regarded as bad and good at the same time. Singhi as witness should be held to be incompetent to prove Tivoli’s case but should be held to be quite competent to prove or support Wacoma’s case at the same time. On the basis of my analysis of Singhi’s evidence, however, I do not find anything wrong in the evidence of Singhi and, in my opinion, he has been honest in giving his evidence according to his ability and his involvement with the case of Tivoli. At this stage, I cannot help saying that calling Singhi incompetent as witness does not automatically make the main witness of Wacoma, namely Indra Mohan Khosla competent or his evidence worthy of reliance. Again, on a plain reading of the issues in question and keeping in mind the above general rule of proof, I do not think Tivoli was under any obligation to bring any particular witness or witnesses or its past director or directors to prove the case of Wacoma that the tenancy of Incandescent was terminated and a new tenancy was created in favour of Wacoma by Tivoli before Incandescent had gone into liquidation. It is for Wacoma and Wacoma alone to prove its own case as Wacoma has made out in its pleadings and I repeat that the position did not change even though Waocma decided later not to prosecute the said proceedings initiated and instituted by it. In a situation like this, I do not think the decision mentioned in Wacoma’s note, Vidhyadhar –V- Manikrao reported in (1999) 3 SCC 573 , is at all relevant and that is why perhaps apart from mentioning it in the note, learned Counsel of Wacoma did not think it necessary to formally cite the decision. As far as Wacoma’s evidence is concerned I have already said that I thoroughly disbelieve the evidence of Khosla, the chief witness of Wacoma by whom Wacoma has tried to prove its case of termination of the existing tenancy and creation of a new tenancy in its favour and I do not intend to repeat what I have already said in this judgment. The evidence of Khosla is utterly inconsistent, besides being devoid of truth, with the case of Wacoma or rather runs contrary to such case and should be and is rejected as such. However, as contended on behalf of Wacoma, it cannot also be held that the application of Tivoli should fail since the cause title of the application only mentions Section 535 of the Companies Act and no other Sections. It is well-settled principle of law that mentioning of a provision or non-mentioning of a provision in the cause title or elsewhere does not make the proceedings bad if it is found that the proceedings can be maintained on the basis of the other provisions applicable to such proceedings. Similarly an order made on such proceedings should also be a valid order if the Court has otherwise jurisdiction to pass such order on the basis of the relevant provisions applicable to such proceedings even though such provisions are not mentioned in the pleadings or in the cause title of such proceedings. In this connection I accept the submissions of Mr. S. B. Mukherjee, learned Senior Counsel appearing on behalf of Tivoli that the Court has to see the pith and substance of the petition and not rely merely on technicalities. The submissions are also supported by the decisions relied on by Mr. Mukherjee, namely P. K. Palanisamy – V- N. Arumugham & Anr., (2009) 9 SCC 173 and in re Sulekha Works Ltd. (B. C. Mitra, J.), AIR 1965 Cal 98 . However, this question has really become irrelevant or became redundant in view of the fact hat the Division Bench framed the above issues for proper adjudication of the proceedings of Tivoli and the only thing with which I am now concerned is the adjudication of the proceedings on the basis of such issues and in doing so I have enough jurisdiction to take into account all the relevant provisions of law, be it statutory or otherwise applicable to such proceedings. It has also been contended on behalf of Wacoma that in view of the pleadings, in particular Paragraph 8 of the disclaimer application of Tivoli, since Tivoli has said that the property in question is not the property of the company in liquidation, the disclaimer application should be dismissed. It has also been contended on behalf of Wacoma that in view of the pleadings, in particular Paragraph 8 of the disclaimer application of Tivoli, since Tivoli has said that the property in question is not the property of the company in liquidation, the disclaimer application should be dismissed. The tenancy in question, however, is admittedly a tenancy now governed by the new rent restrictions Act, i.e. West Bengal Premises Tenancy Act 1997, and such tenancy, I have found, was not terminated before or after the order of winding up at all. Thus I do not see why the application of Tivoli should be held to be bad at all. Incandescent as a tenant had the tenanted interest in the property and as such the immediate title to the property resided with the Incandescent as tenant, whereas Tivoli as landlord had and has the paramount title to the property. Since, after analysis of the entire evidence on record of both Tivoli and Wacoma I fail to find that the tenancy in question was ever terminated either by surrender or otherwise and since I do not find that a new tenancy was created in favour of Wacoma by Tivoli at any point of time, I proceed on the basis that the tenancy in question of Incandescent, in fact, continued after the order of winding up of Incandescent as claimed and shown by Tivoli. The mere fact that the Official Liquidator did not take the actual physical possession of the tenanted premises in question as alleged by the Official Liquidator cannot make any difference and I accept the submission made on behalf of Tivoli by Mr. Mukherjee that by virtue of Sub-section (2) of Section 456 of the Companies Act, the Official Liquidator should be deemed to have been in possession of the tenanted premises as admittedly the said tenancy was and is an asset of the company in liquidation, namely Incandescent. The decision of the Division Bench of this Court in Bidyadhar Upadhyay –V- Sree Sree Madan Gopal Jew & Ors., Vol. 67 Company Cases 394 also fully supports Mr. Mukherjee’s submission. I also accept the submission of Mr. The decision of the Division Bench of this Court in Bidyadhar Upadhyay –V- Sree Sree Madan Gopal Jew & Ors., Vol. 67 Company Cases 394 also fully supports Mr. Mukherjee’s submission. I also accept the submission of Mr. Mukherjee that since the tenancy in question is a monthly tenancy governed by the rent restrictions legislation, the tenancy cannot be regarded as a saleable property and as such or otherwise the same cannot be said to be required for the purpose of winding up, but at the same time the Official Liquidator has the burden to make payment of rent every month, the Official Liquidator, therefore, as has been rightly contended by Mr. Mukherjee, was and is liable to disclaim the tenancy in question. In this connection, the contention of Mr. P.C. Sen, learned Senior Counsel on behalf of Wacoma is that since in the second paragraph of the disclaimer application it is stated that the premises in question did not and could not belong to the company in liquidation, the application of Tivoli under Section 535 of the Companies Act is not maintainable as the said section can only apply to a property belonging to the company in liquidation and since Tivoli itself has claimed that the property, namely the tenanted premises does not belong to the company in liquidation the disclaimer application should be dismissed. On my part, however, on a plain reading of Section 535 of the Companies Act and for this purpose the section itself has to be read as a whole, it cannot be said that merely because Tivoli has made such statement in its application for disclaimer the application should be dismissed. I have already said above that by virtue of grant of tenancy in respect of the bungalow in question in favour of Incandescent the immediate title to the property, namely the tenanted interest in the property resided with Incandescent though at the same time Tivoli being the landlord had and has the paramount title to the property, namely the tenanted premises. In the application of Tivoli the tenancy right of Incandescent has not been denied at all. According to Tivoli, once Tivoli came to know that Incandescent had gone into liquidation, it first approached the Official Liquidator for obtaining possession of the tenanted premises and since the Official Liquidator failed to give possession of the Bungalow Tivoli made the disclaimer application. In the application of Tivoli the tenancy right of Incandescent has not been denied at all. According to Tivoli, once Tivoli came to know that Incandescent had gone into liquidation, it first approached the Official Liquidator for obtaining possession of the tenanted premises and since the Official Liquidator failed to give possession of the Bungalow Tivoli made the disclaimer application. However, the above statement of Tivoli in its application cannot disentitle the tenant of its tenancy right to the tenanted premises in the absence of a valid termination and/or transfer of such tenancy to anybody other than Incandescent. In this case, however, the tenancy in question was neither terminated nor the same was transferred to Wacoma or anybody else either before or after the order of winding up by Tivoli. The application of Tivoli cannot fail merely because the Official Liquidator failed to obtain possession of the Bungalow (the tenanted property) in question. In view of the above, or rather the view that I have taken, the claim of Wacoma that it has been and is in possession of the Bungalow in question does not trouble or worry me at all as in the absence of a valid tenancy in favour of Wacoma the claimed possession of Wacoma is utterly illegal and Wacoma as such can only be and is treated as rank trespasser who had and has no right to possess the property or be in occupation thereof at all. The Official Liquidator ought to have approached the Court for obtaining possession of the Bungalow in question as Incandescent was the tenant of the Bungalow on the day of its liquidation or rather on the date of the order of winding up which the Official Liquidator failed to do and Wacoma since then has taken the fullest advantage of such failure and perpetuated its illegal possession and occupation of the Bungalow, assuming, however, that Wacoma in fact was and/or is in possession or occupation of the Bungalow in question. It is not for me to enquire as how Wacoma came to be in possession of the Bungalow (tenanted property), as I have held that the claimed possession of Wacoma is any event utterly illegal as Wacoma had and has no right and was and is not authorized to be in possession of the tenanted premises. Khosla has said in his evidence that he gave possession to Wacoma. Khosla has said in his evidence that he gave possession to Wacoma. But then Khosla was not the landlord of the tenanted premises. However, as claimed by Khosla, he was the supreme authority of both Incandescent and Wacoma at the same time when he gave Wacoma the possession. In a situation like this, it would not be difficult even for an ordinary human being to appreciate as to how Wacoma, one time subsidiary of Incandescent, obtained possession of the property, if at all. Thus this Court has enough power to grant relief as sought by Tivoli in this proceedings. The two decisions in Sakow Industries Private Limited (in liquidation), Vol. 67, Company Cases 16 and Sri Vidyadhar Upadhyay (supra), I agree with Mr. Mukherjee also fully support this view. However, I have considered all the judgments relied on by or on behalf of Wacoma including in Vidyadhar Upadhyay (supra) (though not formally cited) and on repeated readings of those judgments, namely Janki Vashdeo Bhojwani & Anr. –V- Indusind Bank Ltd. & Ors., 2005(2) SCC 217 , United Bank of India –V_ Official Liquidator & Ors., 79 Comp. Cases 262 Pg.270E, Cycle Corporation of India Ltd. (In liquidation) & Anr. –V- West Bengal Small Industries Development Corporation Ltd. & Anr., (2008) 142 Comp. Cases 73 (Cal), Ram Kumar –V- Jagdish Chandra, AIR 1952 SC 23 , Pr.13, General Manager, Telecom –V- M. Krishnan & Anr., (2009) 8 SCC 481 , I have not been able to appreciate the applicability of the above decisions to the present proceedings before me in any way at all and as such, I do not think it necessary on my part to deal with them separately. However, the Single Bench Judgment in United Bank of India (supra) was decided on its own facts where the learned Judge did not have any occasion to consider the above two Division Bench decisions of this Court in 67 Company Cases at pages 60 and 394 respectively. Before I conclude, the Official Liquidator, I find, has taken an utterly passive stand and left everything for the Court to decide. Before I conclude, the Official Liquidator, I find, has taken an utterly passive stand and left everything for the Court to decide. Having read his Affidavit-in-Opposition and considered the submissions made on his behalf by his learned Counsel I have no hesitation to say that the Official Liquidator suffered from “general slackness”, if not total inaction after the order of winding up of Incandescent way back in the month of September 2002, to be precise on 24 September 2002. The Official Liquidator, I find, had and has done nothing so far the tenanted property in question is concerned and as such he cannot possibly take an acceptable stand in this proceedings. I do not think it would be worthwhile to consider his affidavit or the submissions made on his behalf more than what I have done for deciding the issues in question. However, on the basis of my satisfaction that Tivoli has been able to discharge its onus of proving that the tenancy in question existed in favour of Incandescent on the day of its winding up and that such tenancy was never terminated and/or transferred to anybody and that the case made out by Tivoli comes squarely within the provision of Section 535 of the Companies Act and that this Court has ample jurisdiction to decide the issues under the relevant provisions of the Act in particular Section 446 thereof, I think Tivoli is entitled to an order as prayed for in this proceedings. Thus, there will be an order in terms of prayer (a) of the Judges’ Summons. Needless to mention, for the purpose of executing this order, the Official Liquidator will be at liberty to take the necessary police help and if such help is sought by the Official Liquidator, the concerned police authority will render all possible assistance to the Official Liquidator to ensure that the order passed herein is effectively carried out. Mr. Utpal Bose, learned Counsel appearing on behalf of Wacoma prays for stay of operation of the order and the prayer is unhesitatingly refused. However, having regard to the facts of this case, there will be no order as to costs.