ERACH BOMAN KHAVAR versus TUKARAM SHRIDHAR BHAT AND ANOTHER

Citation: [2013] 17 S.C.R. 1055 · Decided: 12-12-2013 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

(2013) 17 S.C.R. 1055 
ERACH BOMAN KHAVAR 
v. 
TUKARAM SHRIDHAR BHAT AND ANOTHER 
(Civil Appeal f'!o. 11005 of 2013) 
DECEMBER 12, 2013 
[ANIL R. DAVE AND DIPAK MISRA, JJ.) 
COMPANIES ACT, 1956: 
A 
B 
s.446 - Application by landlord for leave to file eviction c 
suit against company in liquidation - Held: Grant of leave of 
the court u/s 446 is not a condition precedent for initiation of 
a civil action or the legal proceedings - Leave of the winding 
up court can be obtained even after initiation of the 
proceeding - Court may grant leave if it felt that the company· D 
should not enter into unnecessary litigation and incur 
avoidable expenditure - In the case at hand, offiCial liquidator 
had clearly stated that the suit property was not the property 
of the company and, therefore, company should not eRter into 
that kind of litigation - Company Judge,granting all protection 
E 
to official liquidator, has rightly allowed the application for 
seeking leave - Maharashtra Rent Control Act, 199.9 - Costs. 
Res judicata - Company in liquidation - Application by 
landlord uls 446 of Companies Act - Permission granted to 
file amendment in suit - Liberty granted to file application, if 
F 
necessary - Subsequent application for leave to file eviction 
suit under Maharashtra Rent Control Act - Allowed by 
Company Judge - Division Bench setting aside the order on 
the ground of res judicata - Held: Fa attract the doctrine of 
res judicata it must be manifest that there has been conscious 
G 
adjudication of an issue - A plea of res judicata cannot be 
taken aid of unless there is an expression of an opinion on 
the merits - Company Judge had not dealt with the earlier 
application for grant of ieave on merits and it was disposed 
1055 
H 
1056 
SUPREME COURT REPORTS 
[2013) 17 S.C.R. 
A of on the basis of a submission made by third respondent that 
if an application for amendment is filed in the pending suit, 
he would not oppose the same - Division Bench, has 
erroneously opined that Company Judge in the main part of 
the order having rejected the application could not have 
B granted liberty to apply for filing of another application - It 
could not have been treated to have operated as res judicata 
- Therefore, Division Bench has fallen into serious error in· 
dislodging the order granting leave by Company Judge to file 
a fresh suit - Order passed by Division Bench is set aside 
c and that of Company Judge restored - Companies Act, 1956 · 
- s.446 - !vfaharashtra Rent Control Act, 1999. 
' 
The father of the appellant entered into an agreement 
of leave and licence with respondent No. 2- Company, in 
respect of a flat owned by him. He filed an eviction suit 
D against respondent No. 2. While the suit was in progress, 
on 9.1.1998 in a separate proceeding the Company Judge 
·,passed a winding up order against respondent No. 2-
Company. The appellant filed CA No. 45 of 2006 uls 446 
of the Companies Act, 1956 in Company Petition No. 201 
E of 1994 seeking permission -to file eviction suit in the 
Small Causes Court. The Company Judge on 23.2.2006, 
granted permission to file amendment and also granted 
liberty to file application, if necessary. The appellant filed 
CA No. 720 of 2006 for grant of leave to file an eviction 
F suit under the Maharashtra Rent Control Act, 1999. The 
Company Judge, ultimately, by order dated 5.3.2007, 
granted leave. The said order was challenged in appeal 
and the Division Bench held that in the absence of any 
changed circumstances, the second application for leave 
G was not maintainable as it was barred by principles of res 
judicata being a successive application in the same court 
on self-same facts. It was further opined that it was open 
to the appellant to file an application for review or to file 
an appeal against the order dated 23.2.2006; and as long 
H as the said order remained alive, a fresh application could 
ERACH BOMAN KHAVAR v. TUKARAM SHRIDHAR 1057 
BHAT 
not have been entertained by the Company Judge and 
A 
on the basis of the grant of liberty, the case could not 
have been reopened. 
Allowing the appeal, the Court 
B 
HELD: 1.1. Grant of leave of the court u/s 446 of the 
Companies Act, 1956 is not a condition precedent for 
initiation of a civil action or the legal proceedings. It is 
because the Section does not expressly provide for 
annulment of a proceeding that is undertaken without the 
leave of the court. Leave of the winding up court can be 
C 
obtained eve
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