Calcutta High Court
Narendra Kumar Berlia & Ors vs Om Prakash Berlia & Ors on 18 February, 2010
Author: Patherya
Bench: Patherya
CC No. 15 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
NARENDRA KUMAR BERLIA & ORS.
Versus
OM PRAKASH BERLIA & ORS.
For Petitioners : MR.A. MITRA, MR. S. MUKHERJEE, ADVOCATES.
For Respondents : MR. S. TALUKDAR, SENIOR ADVOCATE WITH
MR. S.R. KAKRANIA, ADVOCAE. BEFORE:
The Hon'ble JUSTICE PATHERYA Date : 18th February, 2010.
The Court : This contempt application has been filed for alleged violation of order dated 21.1.2009. By the said order, Special Officer was appointed to make inventory of the books and records including share registers of the respondent nos.15, 16 and 18 and respondent nos.13 and 20. Pursuant to such order Special Officer visited the office premises of the respondent nos.15, 16 and 18 at Mumbai and also at Chennai office. At the Mumbai office, one Mr. Kamal Verma met the Special Officer and represented himself as the General Manager. Mr. Verma informed the Special Officer that respondent no.1 was out of Mumbai and in Tirupati. A copy of the order dated 21.1.2009 was shown to Mr. 2 Verma, who expressed his inability to show the documents whose inventory was to be made unless he got authority from respondent no.1, and for such purposes the respondent no.1 would be contacted at Tirupati. As Mr. Verma, alleged contemnor/respondent no.5 was unable to contact the respondent no.1, therefore, contacted Ms. Fernandes, the alleged contemnor/respondent no.12. On the filing of such application the alleged contemnor/respondents were directed to show cause why a Rule ought not to be issued. Affidavits have been filed by the alleged contemnor nos.1, 2, 5 and 12. Explanations sought to be given by the alleged contemnor/respondent nos.1 and 2 cannot be ignored as from the evidence disclosed, namely, air tickets from Mumbai to Tirupati via Hyderabad, in the affidavit filed by the respondent no.1. So also in the affidavit filed by the respondent no.2, the stamp of the immigration department and the stamp of the customs authority at Hambarg and Zurich have been disclosed. Therefore, no knowledge of the order dated 21.1.2009 can be imputed to the respondent nos.1 and 2 and in view of sufficient cause evidenced no Rule need be issued against the alleged contemnor/respondent nos.1 and 2.
As regards the explanation sought to be given by the respondent nos.5 and 12, the same cannot be accepted as it is in variance with the recordings in the minutes of the meeting of the Special Officer held on 24.1.2009 at 212/216, Samuel Street, Mumbai. A copy of the Special Officer's report was not only signed by the alleged contemnor/respondent no.5 but also received by him on behalf of the respondent no.1. Therefore, the said minutes is within the knowledge of the respondent no.5 and no exception has been taken to the recordings therein. In 3 the affidavit affirmed by the alleged contemnor/respondent no.5 on 7.2.2009 it has been stated that one Mr. N.G. R. Menon was In-charge of the share registers, documents and records of the respondent no.16 and the same were kept in his custody and keys retained by him. The said is not found in the minutes of the Special Officer. In fact, the alleged contemnor/respondent no.5 at the meeting of the Special Officer expressed his inability to show the records without authority from respondent no.1. He has not mentioned the name of Mr. Menon, instead he had informed one Ms. Anne Fernandes, the alleged contemnor/respondent no.12. Although the alleged contemnor/respondent no.5 insisted on production of the certified copy of the order dated 21.1.2009. The said is ignored and is not a ground for not accepting the cause sought to be shown. It is the different stand taken by the alleged contemnor/respondent no.5, which warrants that a Rule be issued against the alleged contemnor/respondent no.5 in view of insufficiency of the explanation sought to be given.
Adverting to the explanation of the alleged contemnor/respondent no.12 who was present at the meeting on 24.1.2009 as not only an Advocate but also a Director of the respondent no.15. The explanation sought to be given in the affidavit filed is that the Special Officer was informed that the registered office of the respondent no.15 was at Thane and in case inventory of the documents and records of respondent no.15 was intended, the same could be taken at its registered office. This explanation cannot be found in the minutes of the meeting of 24.1.2009. In fact, the alleged contemnor/respondent no.12 informed the Special Officer that she was not there as a Director but was representing as an 4 Advocate. The alleged contemnor/respondent no.12 is the signatory to the minutes of the meeting of 24.1.2009 and in the event recordings was incorrect an objection ought to have been raised either by letter of a wrong recording or by filing an application taking exception to the report filed. No such step has been taken by the alleged contemnor/respondent no.12. Similarly, in case the alleged contemnor/respondent no.12 had offered inspection of the books of the respondent no.15 and the same not being recorded in the minutes, ought to have been pointed out at a subsequent stage. No communication has been produced to show that such offer or suggestion was made by the alleged contemnor/respondent no.12 to the Special Officer.
On a reading of the affidavit filed it appears that what transpired at the meeting of the Special Officer on 24.1.2009 has not been stated and vice-versa. Therefore, the explanation sought to be given cannot be accepted and warrants issuance of Rule against the alleged contemnor/respondent no.12.
Accordingly, let Rule be issued against the alleged contemnor/respondent nos.5 and 12. Such Rule is made returnable four weeks hence.
Department and all parties concerned are to act on a photostat signed copy of this order on the usual undertakings.
(PATHERYA, J.) sb/ Assistant Registrar(C.R.)