@JUDGMENTTAG-ORDER
Sanjeev Sachdeva, J.@mdashThe present petition has been filed by the petitioner contending that the respondent has failed to pay the admitted dues of Rs.80,00,000/- to the petitioner.
2. The case of the petitioner is that the petitioner was a tenant in the property under the respondent. The tenancy was created by a registered lease deed dated 04.04.2012. The possession of the premises was handed over by the respondent to the petitioner on 04.04.2012 for the purpose of fitment etc. and the monthly rent was to commence w.e.f. 01.06.2012.
3. The petitioner had paid a sum of Rs.24,00,000/- as interest free security deposit and Rs.56,00,000/- as advance rental being rental @ Rs.8,00,000/- per month for six months.
4. The case of the petitioner is that the property was mortgaged with Karur Vysya Bank and the petitioner was not informed of the same by the respondent. As per the petitioner, the petitioner received a letter dated 18.06.2012 from the said bank contending that the respondent had defaulted in repayment of the credit facilities and, accordingly, the bank had issued a demand notice dated 23.02.2012 and had taken symbolic possession on 25.04.2012.
5. The petitioner thereafter sought clarification from the respondent. Thereafter, the petitioner by notice dated 08.11.2012 terminated the lease deed and called upon the respondent to refund the sum of Rs.80,00,000/- paid as stated hereinabove, besides a sum of Rs.42,54,523/- towards expenses incurred by the petitioner on the premises.
6. The respondent Company was called upon to take possession of the premises on 15.11.2012 and to handover the demand draft for the amount claimed to be due by the petitioner.
7. The present petition has been filed contending that the respondent has failed to pay the admitted amount of Rs.80,00,000/- i.e. the amount paid towards the security deposit and the advance rental which was an admitted debt and was not paid by the respondent despite service of notice of demand dated 26.09.2013.
8. The respondent has contested the petition. The defence of the respondent is that the petitioner was always aware of the mortgage and the availing of the credit facilities by the Respondent. It is submitted that the petitioner accepting all the terms and conditions and satisfying itself had entered into the lease with the respondent.
9. The contention of the respondent is that there was a lock-in- period of 36 months and the petitioner could not have vacated the premises prior to the expiry of the said 36 months.
10. It is contended by the Respondent that the petitioner violated the terms of the lease deed and having no intention to pay the monthly rent created a false plea of the action by the bank.
11. It is contended by the respondent, that the respondent had assured the petitioner that the possession of the premises would not be disturbed. It is submitted that in fact the possession of the petitioner was neither disturbed by the respondent nor by the bank and the petitioner continued to remain in possession of the property without any hindrance.
12. It is further contended that the petitioner had not vacated the premises in November 2012 but the possession of the premises was handed over in November 2013.
13. It is submitted by the respondent that even if the contentions of the petitioner were to be accepted, the petitioner would still be liable to pay the rent for the period that the petitioner had occupied the premises, as such, the respondent would not be liable to refund the security deposit or the advance rental. On the contrary, it is contended that the petitioner would be liable to pay a further amount to the respondent. It is submitted that the respondent has also filed a petition seeking winding up of the petitioner for failure to pay the amounts in terms of the lease deed to the respondent.
14. It is contended by the respondent that the petition involves substantial disputed question of fact which cannot be settled in the summary proceedings under Sections 433-434 of the Companies Act, 1956 and the petitioner should be relegated to availing of his remedies before a civil forum.
15. Learned counsel for the petitioner has contended that the lock- in-period was terminable under certain circumstances and since the circumstances had arisen, the lease was terminated by the petitioner. This fact is disputed by the learned senior counsel for the respondent.
16. Learned counsel for the petitioner has relied on the decision of the High Court of Madras in
17. The submission made by the learned counsel for the petitioner is not sustainable as Section 13(13) of the SARFAESI Act is a protection to the bank and for all actions taken by the bank. The said judgment protects the interest of the bank and does not permit the subsequent transferee to raise a defence contrary to the rights of the bank.
18. Once the petitioner/tenant had come into the possession of the property, the petitioner/tenant cannot refuse the payment of rent/mesne profits for the use and occupation. The issue that may arise is that whether the amount is payable to the lessor or the bank but that would be between the bank and the mortgagor. The tenant/petitioner cannot claim to enjoy the property completely free of any charge. The said judgment is not applicable in the facts of the present case.
19. Learned counsel for the petitioner has further relied on the decision in the case of
20. This judgment is also not applicable in the facts of the present case. The Judgment is not arising out of a winding up petition but is arising out of an action in civil law. In the present case, there are disputed questions of fact involved. The petitioner has contended that the possession was offered to the respondent and, as such, the liability of the petitioner has ceased towards the payment of rent. The respondent has disputed that the possession was handed over in November 2012. There is a dispute whether the petitioner had actually vacated the premises and offered peaceful vacant possession and whether the possession was actually delivered to the respondent in November, 2012 or in November, 2013. This dispute would require a deeper examination and parties may be required to lead oral and other evidence in support of their respective contentions.
21. The proceedings of winding up are summary proceedings under Sections 433-434 of the Companies Act. The court in a petition seeking winding up of a company would not go into disputed questions of fact which may require the parties to lead evidence.
22. In my view, since the petition involves the disputed questions of fact, the parties would be required to settle the same through the process of a civil forum.
23. There is a dispute whether the Petitioner is liable to pay any rental or pay rental till November 2012 or till November 2013 or for the 36 month lock in period. The position that emerges is that the security deposit and advance rental already paid do not cover the entire period upto November, 2013 and, as such, there is no admitted amount that can be held to be admittedly due as payable by the respondent to the Petitioner.
24. Since the petition involves disputed questions of fact and the defence raised by the Respondent is not moonshine, the parties would have to have them settled before the appropriate civil forum. The petition seeking winding up of the respondent company is thus held not to maintainable.
25. The petition is accordingly dismissed, relegating the parties to the appropriate civil forum.
26. Nothing stated hereinabove, shall come in the way of the petitioner initiating appropriate proceedings before a civil forum and the said civil proceedings would be decided on merits without being influenced by anything stated hereinabove. This is without prejudice to the rights and contentions and claims and counter claims of both the parties.
