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REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.5886           OF     2012   (Arising out of SLP(C)No.10362 of 2007)

Raju Jhurani    … Appellant   

Vs.

M/s Germinda Pvt. Ltd.    … Respondent

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     J.   

1. Leave granted.

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2. An interesting point has been raised in this  

Appeal as to whether the provisions of Order 2 Rule  

2 of the Code of Civil Procedure (CPC) would have  

any impact on a proceeding under Sections 433, 434  

and 439 of the Companies Act, 1956.   

3. This Appeal is directed against the judgment  

and order dated 14th August, 2006, passed by the  

Calcutta High Court in A.C. No.54 of 2005  

dismissing the Appeal on the ground that in the  

absence of any specific finding whatsoever as to  

the rate of rent and the period of default  

committed by the respondent-tenant, the proceedings  

under the Companies Act, 1956, for winding-up was  

not maintainable.    

4. The Appellant herein as landlord filed a suit  

for eviction against the respondent company on the  

ground of default in making payment of the rents  

and also on grounds of reasonable requirement, in  

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the City Civil Court at Calcutta, under the  

provisions of the West Bengal Premises Tenancy Act,  

1956.  The same was registered as Ejectment Suit  

No.201 of 1999.  The said suit was decreed only on  

the ground of default, but only upon recording that  

notice under Section 13(6) of the aforesaid Act had  

been duly served and that the ground of default had  

been proved, the Trial Court decreed the suit.  

There was no finding whatsoever as to the period of  

default in the said judgment.  

5. After the passing of the decree, as the  

Respondent did not hand over vacant possession of  

the suit premises, the Appellant put the decree  

into execution and pursuant thereto vacant  

possession of Flat No.10-D in the 10th Floor and car  

parking space No.4 in the ground floor of the  

premises No.28-B, Shakespeare Sarani, Calcutta, was  

made over to the Appellant through Court Bailiff on  

22nd February, 2002.  Having obtained vacant  

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possession of the suit premises, the Appellant  

issued notice to the Respondent Company demanding  

payment of arrears of rent, Corporation taxes, etc.  

but without yielding any result.  Consequently, the  

Appellant had no other option, but to file a  

winding-up petition before the concerned Company  

Court for payment of arrears of rent amounting to  

Rs.7,22,381/- from the month of June, 1998, till  

August, 2004 at the rate of Rs.12,650/- per month,  

together with interest amount of Rs.8,92,211/- at  

the rate of 18% per annum. The learned Single Judge  

(Company Affairs) dismissed the winding-up petition  

on the ground of the alleged bar of Order 2 Rule 2  

CPC as well as the observations made that the  

Appellant could approach any other appropriate  

forum with regard to the claim raised by him in the  

winding-up petition and that no summary order could  

be passed since the relationship between the  

parties had already been terminated.  

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6. The Division Bench dismissed the Appeal filed  

by the Appellant herein on the ground that the  

winding-up petition was not maintainable as there  

was no admitted arrears of rent for any particular  

period and there was no ascertained amount due in  

respect of which a winding-up order could be  

passed. The Appellate Court, however, also observed  

that the Appellant as the petitioning creditor  

would be entitled to claim the amount of arrears  

claimed by him in an appropriate proceeding before  

the appropriate forum.   

7. Questioning the said order of the Division  

Bench dismissing the appeal, learned Advocate, Ms.  

Shobha, urged that both the learned Single Judge,  

as well as the Division Bench, proceeded on an  

erroneous interpretation of the provisions of Order  

2 Rule 2 CPC and Sections 433, 434 and 439 of the  

Companies Act, 1956.  Ms. Shobha contended that the  

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eviction suit had been decreed only on the ground  

of default, since under the West Bengal Premises  

Tenancy Act, 1956, there is no provision for a  

decree for recovery of rents.  In fact, in the  

absence of any provision in the Act, the Court  

could not have made any decree towards the rents  

payable by the Respondent-tenant to the Appellant-

landlord. However, although, the default period or  

the rate of rent had not been computed by the Trial  

Court, the Trial Court had found that the  

Respondents had defaulted in payment of rent from  

the month of June, 1998.  It was submitted that in  

order to ascertain the dues on the basis of the  

aforesaid finding, was only a matter of calculation  

and mathematics and could be easily ascertained.  A  

proceeding for winding-up would, therefore, be  

maintainable in respect of the debts, which the  

Company was unable to pay.  

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8. On the question of the bar under Order 2 Rule 2  

CPC, Ms. Shobha submitted that the same relates to  

suits which were required to include the whole of  

the claim which the Plaintiff was entitled to make  

in respect of the cause of action, with liberty to  

relinquish any portion of his claim to bring the  

suit within the jurisdiction of any Court, but  

having so relinquished such claim or portion  

thereof, the Plaintiff would no longer be entitled  

to sue in respect of the portion so omitted or  

relinquished.  Ms. Shobha also pointed out that  

Clause (3) of Rule 2 of Order 2 also prohibits a  

person from suing for any relief which may have  

been omitted by the Plaintiff, except with the  

leave of the Court.  In contradistinction to the  

above, the provisions of Section 439 of the  

Companies Act, 1956, provide for an application to  

be made to the Court for the winding-up of the  

Company to be presented by a petition, subject to  

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the provisions indicated in the Section. Ms. Shobha  

pointed out that the proceedings under Section 439  

not being a suit, but a Petition, the provisions of  

Order 2 Rule 2 CPC would not be attracted since the  

bar indicated therein is with regard to suits. On  

the basis of such distinction, Ms. Shobha submitted  

that the learned Single Judge had wrongly  

interpreted the provisions of Order 2 Rule 2 CPC in  

holding that the winding-up petition filed by the  

Appellant for recovery of its arrear rents/dues was  

not maintainable in law.  

9. On the question of the findings of the Division  

Bench that in the absence of any finding regarding  

the rate of rent and the arrears due, a procedure  

under Section 439 of the Companies Act was not  

maintainable, Ms. Shobha urged that such an  

interpretation was erroneous and based on an  

incorrect understanding of the provisions of  

Section 439 of the Companies Act, 1956, in relation  

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to Order 2 Rule 2 CPC.  Ms. Shobha reiterated that  

once it had been held by the Court that the  

Respondent-tenant had defaulted in payment of rent  

for a particular month, viz. June 1998, it was only  

a matter of calculation and mathematics to  

ascertain the dues which were payable by the  

Respondent-tenant to the Appellant-landlord.  The  

relief in the winding-up petition being  

ascertainable, the Division Bench of the High Court  

erred in law in holding otherwise.   

10. Ms. Shobha further submitted that recognizing  

the fact that the Respondent-tenant was in default  

of payment of rent since the month of June, 1998,  

the Division Bench had observed that the Appellant  

would be at liberty to enforce his rights to the  

arrear rentals before the appropriate forum.  In  

other words, according to Ms. Shobha, the Division  

Bench recognized the right of the Appellant to  

recover its dues from the Respondent-tenant, though  

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not by means of a winding-up petition under Section  

439 of the Companies Act, 1956.  

11. On the other hand, Mr. Gaurav Mitra, learned  

Advocate, appearing for the Respondent Company,  

reiterated the submissions which had found favour  

both with the learned Single Judge as also the  

Division Bench of the High Court.  It was  

reiterated that the Appellant-landlord ought to  

have included all the reliefs in the eviction suit  

and having omitted to sue for the arrear rents, he  

was no longer entitled to claim the same on account  

of the bar imposed under Order 2 Rule 2 CPC.  Mr.  

Mitra also supported the view expressed by the  

Division Bench of the High Court holding that a  

winding-up proceeding was not a proper remedy for  

the recovery of undetermined dues, particularly  

when so many different criteria were involved in  

ascertaining the amount due and/or payable by the  

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Respondent-tenant to the Appellant-landlord.  

Learned counsel submitted that the judgment and  

order of the learned Single Judge and the Division  

Bench of the Calcutta High Court did not require  

any interference and the Appeal was, therefore,  

liable to be dismissed.  

12. Having considered the submissions made on  

behalf of the respective parties, we are inclined  

to accept Ms. Shobha’s submissions as far as the  

provisions of Order 2 Rule 2 CPC are concerned.  

Order 2 CPC deals with the frame of suits and the  

various rules contained therein also refer to suits  

for obtaining the reliefs of a civil nature.  On  

the other hand, a proceeding under Sections 433,  

434 and 439 of the Companies Act, 1956, is not a  

suit, but a Petition which does not attract the  

provisions of Order 2 Rule 2 CPC, which deals with  

suits. Ms. Shobha has submitted that the West  

Bengal Premises Tenancy Act, 1956, does not make  

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any provision for recovery of arrear rents and  

provision has only been made under the provisions  

of Section 17 for deposit of the arrear rents which  

are admitted by the tenant at the time of entering  

appearance and filing Written Statement in the suit  

for eviction.  Provision has also been made for  

payment of such arrears in instalments, but there  

is no provision for recovery of the arrear rents  

for which a separate suit has to be filed, as has  

been indicated by the Division Bench of the  

Calcutta High Court.  

13. Viewed in the context of what has been stated  

hereinabove, we are unable to accept the second  

limb of Ms. Shobha’s submissions.  There are  

various stages involved in deciding the amount of  

rents payable and the periods of default and also  

the amount to be ultimately calculated on account  

of such default and the same cannot be tried in a  

summary way, without adducing proper evidence.  It  

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is, therefore, necessary that such issues be heard  

and tried in a properly constituted suit for  

recovery of such dues, in which the issue relating  

to the actual dues payable by the Respondent-tenant  

to the Appellant-landlord can be decided.  

14. We, therefore, set aside the findings of the  

learned Single Judge, as also the Division Bench,  

in regard to the application of the provisions of  

Order 2 Rule 2 CPC to a winding-up proceeding under  

the Companies Act that may be filed for recovery of  

the dues payable by the Respondent-tenant to the  

Appellant-landlord.  We are, however, ad idem with  

the Division Bench that the relief of the  

Appellant-landlord, if any, in this case, will not  

lie in a winding-up petition, but in a suit filed  

for the said purpose, particularly when the said  

relief is not available under the rent laws which  

only deal with protection of tenants from eviction  

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and the right of the landlords to recover the  

tenanted premises on the grounds specified therein.  

15. The Appeal is, therefore, allowed in part to  

the aforesaid extent.  

16. Having regard to the facts of the case, the  

parties shall bear their own costs throughout.

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.    (J. CHELAMESWAR)

New Delhi Dated:16.8.2012

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