RAJU JHURANIversusM/S GERMINDA PVT. LTD.

                     [2012] 7 S.C.R. 279


                        RAJU JHURANI                                 A
                               v.
                 M/S GERMINDA PVT. LTD.
               (Civii Appeal No. 5886 of 2012)

                      AUGUST 16, 2012
                                                                     B
    [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]

     COMPANIES ACT, 1956:

     ss. 433, 434 and 439 - Petition for winding-up of the           c
tenant company filed by land-lord for non-payment of arrears
of rent due - Rejected by High Court as barred by provisions
of 0.2, r.2 CPC - Held: Order 2, CPC deals with the frame of
suits, and the various rules contained therein also refer to
suits for obtaining the relief of a civil nature - On the other      0
hand, proceeding ulss 433, 434 and 439 of the Companies
Act, 1956, is not a suit, but a petition which does not attract
the provisions of 0. 2, r.2 CPC - Therefore, the findings of the
Single Judge, as also the Division Bench of the High Court,
in regard to the application of the provisions of 0. 2, r. 2 CPC     E
are set aside - However, the Division Bench has rightly held
that the relief of arrears of rent claimed by appellant-landlord,
in the instant 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 - Code of Civil
Procedure, 1"908 - 0.2, r.2 - West Bengal Premises Tenancy           F
Act, 1956.

    Consequent upon the decree of the suit of the
appellant-landlord for ejectment of the respondent-tenant
on the ground of default in making payment of rents                  G
under the West Bengal Premises Tenancy Act, 1956 and
the latter's vacating the premises, the landlord filed a
winding-up petition before the Company Court for
payment of arrears of rent amounting to Rs.7,22,3811-
                            279                                      H
    280       SUPREME COURT REPORTS           [2012] 7 S.C.R.

A from the month of June, 1998, till August, 2004 with
  interest amounting to Rs. 8,92,211/. The Single Judge of
  the High Court dismissed the said petition as barred by
  0.2 r.2 CPC. The appeal of the landlord having been
  dismissed by the Division Bench of the High Court, he
B filed the appeal.

          Allowing the appeal in part, the Court

         HELD: 1.1. Order 2, CPC deals with the frame of suits,
    and the various rules contained therein also refer to suits
C   for obtaining the reliefs of a civil nature. On the other
    hand, proceeding u/ss 433, 434 and 439 of the Companies
    Act, 1956, is not a suit, but a petition which does not
    attract the provisions of 0. 2, r.2 CPC, which deals with
    suits. It has been pointed out that the West Bengal
D   Premises Tenancy Act, 1956, does not make any
    provision for recovery of arrears of rent and provision has
    only. been made u/s17 thereof for deposit of the arrears
    of rent which are admitted by the tenant at the time of
    entering appearance and filing written statement in the
E   suit for eviction. Provision has also been made for
    payment of such arrears in instalments, but there is no
    provision for recovery of the arrears of rent for which a
    separate suit has to be filed, as has been indicated by the
    Division Bench of the High Court. Therefore, the findings
F   of the Single Judge, as also the Division Bench of the
    High Court, in regard to the application of the provisions
    of 0. 2, r. 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-
G   landlord, are set aside. [para 12 and 14] [285-F-H; 286-A-
    B, E]
      1.2 However, the Division Bench has rightly held that
  the relief of arrears of rent claimed by the appellant-
  landlord, in the instant case, will not lie in a winding-up
H petition, but in a suit filed for the said purpose,
      RAJU JHURANI v. GERMINDA PVT. LTD.                   281


particularly, when the said relief is not available under the      A
rent laws which only deal with protection of tenants from
eviction and the right of the landlords to recover the
tenanted premises on the grounds specified therein.
There are various stages involved in deciding the amount
of rents payable and the periods of default and also the           B
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 is, therefore,
necessary that such issues be heard and tried in a
properly constituted suit for recovery of such dues, in            c
which the issue relating to the actual dues payable by the
respondent-tenant to the appellant-landlord can be
decided. [para 13, 14] (286-C-D, F]
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5886 of 2012.                                                      D
    From the Judgment & Order dated 14.08.2006 of the High
Court at Calcutta in A.C. No. 54 of 2005.
    Shobha for the Appellant.
                                                                   E
    Gaurav Mitra, S. Udaya Kumar Sagar, Bina Madhavan,
Karan Kanwal, Lawyer's Knit & Co. for the Respondent.
    The Judgment of the Court was delivered by
    ALTAMAS KABIR, J. 1. Leave granted.
                                                                   F
     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     G
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         H
    282       SUPREME COURT REPORTS                [2012] 7 S.C.R.

A 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
B reasonable requirement, in 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
C 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
0    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
E   obtained vacant 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
F   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
G   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
H   already been terminated.
       RAJU JHURANI v. GERMINDA PVT. LTD.                     283
               [ALTAMAS KABIR, J.]
     6. The Division Bench dismissed the Appeal filed by the          A
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         B
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            C
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 Secticns 433, 434 and
439 of the Companies Act, 1956. Ms. Shobha contended that
the eviction suit had been decreed only on the ground of default,     D
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,                 E
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         F
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.
      8. On the question of the bar under Order 2 Rule 2 CPC,         G
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      H
    284      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A 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.
B 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 the provisions indicated in
  the Section. Ms. Shobha pointed out that the proceedings under
C 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 S[ngle Judge
  had wrongly interpreted the provisions of Order 2 Rule 2 CPC
D 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
E 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 to Order 2 Rule 2 CPC. Ms.
  Shobha reiterated that once it had been held by the Court that
F 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
G Division Bench of tlie 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
H that the Appellant would be at liberty to enforce his rights to the
       RAJU JHURANI v. GERMINDA PVT. LTD.                    285
               [ALTAMAS KABIR, J.]

arrear rentals before the appropriate forum. In other words,         A
according to Ms. Shobha, the Division Bench recognized the
right of the Appellant to recover its dues from the Respondent-
tenant, though 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,     B
-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   C
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,               D
particularly when so many different criteria were involved in
ascertaining the amount due and/or payable by the
 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          E
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 F
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 G
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 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 H
    286       SUPREME COURT REPORTS                [2012] 7 S.C.R.


A 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
B 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
C 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 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
D actual dues payabl~ 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
E 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
F 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 and the right of the landlords to recover
  the tenanted premises on the grounds specified therein.
G        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.

H R.P.                                       Appeal Partly allowed.