RAJU JHURANI versus M/S GERMINDA PVT. LTD.

Citation: [2012] 7 S.C.R. 279 · Decided: 16-08-2012 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Case Partly allowed
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Judgment (excerpt)

[2012] 7 S.C.R. 279 
RAJU JHURANI 
v. 
M/S GERMINDA PVT. LTD. 
(Civii Appeal No. 5886 of 2012) 
AUGUST 16, 2012 
[ALTAMAS KABIR AND J. CHELAMESWAR, JJ.] 
COMPANIES ACT, 1956: 
A 
B 
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 
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