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In Re: Jambad Coal Syndicate, Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal628
AppellantIn Re: Jambad Coal Syndicate, Ltd.
Excerpt:
- .....is apprehended, and that as the lease has not been registered the petitioners are not entitled to claim rent or royalties. as far as the first ground is concerned an alleged apprehension, that their possession may be disturbed, or ended by a party said to have a title paramount to that of their landlords, is no excuse for tenants to withhold their rent. the other point is more difficult. it appears that by a consent decree in 1927 the syndicate, as the company is called, agreed to take a new lease and surrender their old one. this lease has been executed by all the parties and as the affidavit states:the lease was registered by the company and the syndicate and various parties. registration has not been completed by four persons who executed the document, and summonses have been issued.....
Judgment:

Remfry, J.

1. This is a petition for winding up a public company with limited liability. The ground in the petition is that after the statutory notice the company has failed to pay a debt of some Rs. 72,000 due for royalties and rent. For the company it is stated in the affidavit that a claim by a third party who is alleged to have a title paramount to that of the petitioning company is apprehended, and that as the lease has not been registered the petitioners are not entitled to claim rent or royalties. As far as the first ground is concerned an alleged apprehension, that their possession may be disturbed, or ended by a party said to have a title paramount to that of their landlords, is no excuse for tenants to withhold their rent. The other point is more difficult. It appears that by a consent decree in 1927 the Syndicate, as the company is called, agreed to take a new lease and surrender their old one. This lease has been executed by all the parties and as the affidavit states:

The lease was registered by the company and the Syndicate and various parties. Registration has not been completed by four persons who executed the document, and summonses have been issued to compel registration.

2. These four persons appear to be interested in the Syndicate. It may be that under Section 35, Registration Act, the company could have completed the registration as regards the parties admitting oxecution, but that has not been done. The delay in preparing the lease has been caused by difficulties in the company's title. For a winding up order the debt must he presently payable and the title of the petitioner complete. Clearly it is insufficient to show that some other debt is due or even that there is something over Rs. 500 due in respect of the claim made, if that was not the sum claimed. The law requires that a demand must be made for a debt that is due, and it is not permissible to support a petition by alleging that something else is due. The company therefore cannot rely on any admission that Rs. 13,000 and not Rupees 72,000 is due under the former lease if it is in force, nor is it sufficient to allege that Rs. 60,000 is due under the old lease. The demand was not made for rent or royalties under the old lease.

3. In my opinion it is clear that neither under Section 53-A, T. P. Act, nor the amended Section 47, Registration Act, can a landlord claim rent under an unregistered lease. If the lease required registration I cannot accept the argument that under Section 47, Registration Act, a claim for rent is permissible when the lease is not registered, for that would be to repeal part of the Act. It may be that the Syndicate would have no defence in a suit for specific performance of the agreement, and in fact it is not suggested that the Syndicate has ever refused to execute that lease, but the petitioning company is in the unfortunate position, that without completing the registration of the lease it can only sue for specific performance as a preliminary to a decree for the rent, though doubtless both claims can be made in one suit. It was argued that the rent was due under the consent decree and that a consent decree does not require registration. That is so, but only in so far as it relates to the subject matter of the suit. But the consent decree was not put in nor the pleadings.

4. It may be that the term as to a fresh lease was the subject-matter of the suit, but it is rather difficult to imagine how it could be. Further it does not appear that any demand was made for payment under the consent decree, and to adopt the classical illustration the petitioner cannot demand payment for beans and then in a petition for winding up the company prove a debt for the same amount due for peas. In my opinion the petitioning company were not in a legal position to make a demand for the rent. The petition is therefore dismissed with costs.


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