VAZ FORWARDING LIMITED Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THE petitioners are the owners of the office premises bearing No. 4 Atlanta Building, Nariman Point, Bombay-400 021. The petitioners are praying that the respondents be ordered and directed to forthwith hand over quiet, vacant and peaceful possession of the office premises to the petitioners and that the respondents be ordered and directed to pay to the petitioners a sum of Rs. 20,000/- per day as mesne profits from 24th November 1991 till the date of handing over the possession of the said premises along with interest and lastly that the respondents be restrained by an order of permanent injunction from selling, assigning, transferring the tenancy rights in the said premises or parting with possession thereof or inducting any third party therein.

(2.) BEFORE I deal with the various contentions raised by the counsel appearing for the parties before me, it is necessary to deal with the submission raised on behalf of the respondents that the present petition is not maintainable and that this Court has no jurisdiction to entertain and try the present petition. As the said jurisdictional submission goes to the very root of the matter, the same is required to be considered at the outset. On behalf of the respondents it was submitted that in effect, the petitioners being the landlords, were seeking possession of the premises and as the relationship being that of landlord and tenant, under the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"), the only Court which can have jurisdiction would be the Small Causes Court, Bombay. It was further contended that the present petition was filed prior to the winding up order of the BCCI (O) Ltd. Bombay and, therefore, the same was not maintainable. In support of the said contention, it was submitted that the said section 28 contains a non-obstante clause and, therefore, the said Court alone can have jurisdiction. Further it was submitted that the present Company Petition has been filed under the said Banking Act and the present application seems to have been made under section 45-B of Part III-A of the said Banking Act which in terms provides that the application can be made in respect of "a Banking Company which is being wound up". Thus admittedly the present petition having been filed before the winding up order, the same is not maintainable. However, on behalf of the petitioners it was contended, and in my opinion rightly, that despite the non-obstante clause contained in section 28 of the Rent Act, the Banking Act being a special Act, would apply and under section 45-B of the said Banking Act, this Court alone would have jurisdiction in the matter, and therefore, the petition is maintainable. Support was sought from various authorities cited on behalf of the petitioners.

(3.) THE position to my mind seems to be clear. The phraseology "being wound up" cannot mean that such an application has to be made only after the winding up order is passed. The legislative intent is very clear from the words used. Otherwise it would have been easier to provide that only after a winding up order is passed that the powers given to the High Court could be exercised as is provided in section 45-C of the Banking Act where the section starts with such a specific prerequisite of a winding up order having been made. Section 446 (2) of the Companies Act deals with a somewhat similar situation. In (Sudarsan Chits (I) Ltd. v. G. Sukumaran) reported in A. I. R. 1984 S. C. 1579, the Supreme Court, while dealing with the said provision inter alia held that if a winding up petition is pending, meaning thereby that an Official Liquidator is appointed as provisional liquidator which is a stage in the process of winding up, the Court before which such proceeding is pending can be styled as a Court winding up the Company and ipso facto it would have jurisdiction to entertain the proceedings enumerated in Clauses (a) to (d) of sub-section (2) of section 446 of the Companies Act. Chapter III-A of the said Banking Act has as its object speedy disposal of winding up proceedings, the same object as provisions of section 446 (2) of the Companies Act. Section 458 clearly provides that the only Court which will have jurisdiction in respect of a Banking Company would be the High Court. Thus on a winding up petition in respect of a Banking Company being filed, the only Court sesin of the winding up proceedings is the High Court and questions and claims in respect of the banking company which is thus `being wound up can be entertained and disposed of by the High Court alone. One has to bear in mind the fact that the said Banking Act is a special Act dealing with Banking Companies and Part III-A thereof provides for special provision for speedy disposal of winding up proceeding. In view of this, I see no substance in the objection taken on behalf of the respondents. However, in any view of the matter since the amendments have been allowed and since the defect, if any, assuming there was one, has been now cured, this Court is certainly having jurisdiction and that too exclusive and the petition is maintainable.