Delhi District Court
Regard Is Placed Upon The Case Of Lalita ... vs . Bombay on 26 June, 2010
1
IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE (SPL. ACTS): CENTRAL: TIS HAZARI COURTS, DELHI
In re:
CASE NO.1631/3
UNIQUE ID NO.02401R00422012003
TEXMACO LIMITED
BELGHARIA, CALCUTTA,
PROP. OF M/S BIRLA
P.O. BIRLA LINES,
DELHI110007 .....COMPLAINANT
VS.
SURAJ KANTA
W/O. LATE SH. NIRANJAN LAL MATHUR
QTR. NO.183, NEW BIRLA LINES,
KAMLA NAGAR, DELHI110007 ........ACCUSED
DATE OF INSTITUTION OF CASE: 28.11.1995
DATE OF RESERVATION OF JUDGMENT: 26.6.2010
DATE OF PRONOUNCEMENT OF JUDGMENT: 26.6.2010
U/S. 630 OF THE COMPANIES ACT, 1956
CC no.1631/3
Page
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22 k
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JUDGEMENT
(a) The serial no. of the case: 02401R00422012003.
(b) The date of commission of offence: On and after 30.11.1996 continuously.
(c) The name of complainant: TEXMACO LIMITED
BELGHARIA, CALCUTTA,
PROP. OF M/S BIRLA
P.O. BIRLA LINES,
DELHI110007
(d) The name, parentage, residence: Suraj Kanta w/o. Late Sh. Niranjan
of accused. Lal Mathur r/o. 183, New Birla
Lines, Kamla Nagar, Delhi110007.
(e) The offence complained of/ proved :
U/s.630 of Companies Act,
1956
(f) The plea of accused : Pleaded not guilty.
(g) The final order : Convicted.
(h) The date of such order : 26.6.2010
Brief statement of the reasons for the decision:
1. The complainant M/s. Texmaco Ltd., filed the present complaint u/s. 630 of the Companies Act, 1956, as also for other offences under Indian Penal Code. The complaint was filed against the four accused namely Suraj Kanta, Sunita, Ravi Mathur and Vijay Mathur. However, besides the accused Suraj Kanta, the other three accused were dropped from the array of accused, by the complainant, on 31.10.1996 and, on 24.8.1996, therefore, the present judgment is directed against the accused Suraj Kanta only.
2. It would also be relevant to mention that although, the complaint was filed for various offences besides section 630 of Companies Act, 1956, but since the CC no.1631/3 Page 2 of 22 k 3 accused were summoned and notice was framed for the offence u/s.630 of the Companies Act, 1956 only, therefore, we confine the discussion in the present judgment to the said section only.
3. The complaint is filed on the allegations that husband of accused Suraj Kanta, namely, Niranjan Lal Mathur joined M/s. Birla Cotton Spinning and Weaving Mills Ltd., as an employee on 26.9.1952. By virtue of his employment and co terminus to his employment, he was allotted one quarter no.183, New Birla Lines, PO Birla Lines, Kamla Nagar, Delhi110007, on 04.4.1960. He was allotted the quarter as a licensee only, which he was to vacate upon cessation of services. Thereafter, the present complainant company took over the concerned Birla Mill Unit from M/s. Birla Cotton Spinning and Weaving Mills Ltd. alongwith all the properties and employees, including the present accused and the present property in question, by virtue of a scheme of arrangement dated 03.1.1983, between the companies, passed by Hon'ble Delhi High Court. The husband of the accused ceased to be in the services of the company from 06.6.1989, when he expired but despite cessation of services, the accused failed to vacate the quarter. Therefore, the present complaint.
4. Law is well settled that in case the LRs of a deceased employee continues to withhold the property of the company, wrongfully, the proceedings of the Companies Act, 1956 are maintainable against such LR.Reliance in this regard is placed upon the case of Lalita Jalan and another, vs. Bombay Gas Co. Ltd. and others, AIR 2003 SUPREME COURT 3157 = 2003AIR SCW 2175 wherein it is held that, CC no.1631/3 Page 3 of 22 k 4 " If an erstwhile or former employee is prosecuted under S. 630 of the Act on account of the fact that he has not vacated the premises and continues to remain in occupation of the same even after termination of his employment, in normal circumstances it may not be very proper to prosecute his wife and dependent children also as they are bound to stay with him in the same premises. The position will be different where the erstwhile or former employee is himself not in occupation of the premises either on account of the fact that he is dead or he is living elsewhere. In such cases all those who have come in possession of the premises with the express or implied consent of the employee and have not vacated the premises would be withholding the delivery of the property to the company and, therefore, they are liable to be prosecuted under S. 630 of the Act. This will include anyone else who has been inducted in possession of the property by such persons who continue to withhold the possession of the premises as such person is equally responsible for withholding and nondelivery of the property of the company."
(Para 23) It is also held that, "The object of the Act is to the effect of recovering the possession of the property belonging to the company. If it is held that other members of the family of the employee or officer or any person not connected with the family who came into possession through such employee would not be covered by S. 630 of the Act, such a view will defeat the quick and expeditious remedy provided therein........................" .
5. Accordingly, a notice u/s.251 of Cr.P.C. was framed against the accused, to CC no.1631/3 Page 4 of 22 k 5 which the accused claimed trial.
6. In support of its case, prosecution examined three witnesses namely PW1 R.L. Goyal, PW2 Pradeep Sharma and PW3 Radhey Shyam Sharma.
7. PW1 R.L. Goyal was not tendered for cross examination by the accused, after his examination in chief, therefore, his testimony has to be excluded.
8. PW2 Pradeep Sharma deposed that the husband of the accused was allotted the quarter in question vide allotment letter Ex. PW2/1 and he was to vacate the quarter upon cessation of services, but he failed to do so.
9. PW3 R.S. Sharma deposed that he was the attorney of the complainant company by virtue of resolution and power of attorney Exs. PW3/1 and PW3/2 respectively. He proved the certificate of incorporation of the company as Ex. PW3/3. He also proved the scheme of arrangement between the companies passed by Hon'ble Delhi High Court as Ex. PW3/4.
10. Nothing material could be brought out on record from the cross examination of these two witnesses in order to impeach or controvert the evidence.
11. In the statement of accused u/s.311 Cr.P.C, the accused admitted that her husband joined the company. She claimed that the quarter was although allotted by the company, but it was on tenancy and not on license. She admitted that her husband expired on 06.6.1989. There is no denial of fact that the accused is still withholding the quarter.
12. In her favour, the accused examined DW1 Vinod Kumar, who claimed that accused was a tenant, but admittedly he never saw any rent agreement or rent receipt between the complainant and employee, in support of his claim. CC no.1631/3
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13. It is settled law that the scope of inquiry in a proceedings u/s 630 is extremely restricted in law and the case is to be confined within those narrow ambit's without permitting any delay. The provision contained in Section 630 has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company. It is the duty of the Court to place a broad and liberal construction on the provision in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy. In Atul Mathur v. Atul Kalra and another, 1989 (4) SCC 514, it was held that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or an exemployee. n, 1993 CRI. L. J.
I 2791"K. G. K. Nair v. P. C. Juneja", also it is held that, the provisions of S. 630 are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld and that the scope of the enquiry in a proceeding under Section 630 is extremely restricted in law and, consequently, the parties be confined within those narrow ambits without being permitted to dilate or protract the proceeding through extraneous avenues.
In the case of S. K. Sarma v. Mahesh Kumar Verma AIR 2002 SUPREME COURT 3294 = 2002 AIR SCW 3827 the case pertained to Section 138 of the Railways Act which is somewhat similar to section 630 of the Companies Act and which provides a procedure for summary delivery of property, detained by a railway servant, to the railway administration,. It was observed as follows:
CC no.1631/3
Page 6 of 22 k 7 "The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also books, papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant............................... The word 'discharge' used in context is of widest amplitude and would include cessation of relationship of employer and employee, may be by retirement, resignation, dismissal or removal. This Court in Union of India v. B.N. Prasad [(1978) 2 SCC 462] considered Section 138 and held that a close perusal of the section clearly reveals that the provision has widest amplitude and takes within its fold not only a railway servant but even a contractor who is engaged for performing services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in Section 138. The Court also observed that the said provision is in public interest and must be construed liberally, broadly and meaningfully so as to advance the object sought to be achieved by the Railways Act..............".
14. Turning to the facts of the present case, signature of the employee on Ex.
PW2/1 are not denied by the accused particularly when this document was put to her in her statement. She had no explanation to offer regarding this. No evidence has been led by the accused to prove that this is a forged document. No documentary proof, such as rent agreement, has been filed on record by the accused to show that the quarter was on rent, independent to the employment of deceased. Thereby, this court has no reason to give a CC no.1631/3 Page 7 of 22 k 8 finding that the allotment letter Ex PW 2/1 is forged. Documentary evidence is always a better piece of evidence then the oral testimonies. This document does prove that that quarter was allotted to the employee by the company. Even otherwise, after the date of termination of the services of deceased employee, admittedly, no amount has been paid by the accused to the company till date. It is nobody's case that the accused deposited the rent with the company after that day or, in case the company did not accept the same, she deposited the rent with the Rent Controller. This fact also belies the contention of accused that she was a tenant. Merely because deceased employee or the accused was maintaining the quarter in question will not make it a lease, independent of services. Intention of parties is to be gathered from the document's terms and conditions and not from nomenclature of the document or use of words, 'lease' or 'licence', in the document. Now perusal of this document reveals that the quarter was allotted to the employee, by M/S Birla Cottons Spinning and Weaving Mills Ltd, and it is specifically mentioned in it, that upon termination of the services of the employee, the employee will have to immediately vacate the quarter. This condition shows that the allotment of quarter was only by virtue of employment of employee with the company and he was to retain this quarter only till his services continued. This condition as well as other conditions mentioned in the document such as that the employee cannot allow stay of any other person, besides his family, makes it a licence.
15. The complainant company is registered under the Companies Act. It is so proved by the certificate of incorporation exhibit PW 3/3. Birla Textile Mills CC no.1631/3 Page 8 of 22 k 9 was nothing but a unit of M/s Birla Cottons Spinning and Weaving Mills Ltd. which was taken over by the complainant company pursuant to the scheme of arrangement of Hon'ble Delhi High Court which is proved as Ex. PW 3/4. There is no denial by the accused that she is still withholding the quarter till date.
16. It is argued that the complainant company has no locus standi to file the present complaint and that it was M/S Birla Cotton Spinning and Weaving Mills Ltd. only which could have filed the present proceedings against the accused.
This argument is absolutely without any force. As mentioned above the present complainant company acquired all the property rights, interests etc. in the mill unit of the said M/S Birla Cotton Spinning and Weaving Mills Ltd., vide a scheme of arrangement passed by the Hon'ble Delhi High Court and proved as Exhibit PW3/4. Perusal of the said document reveals that on page 5 in the order of petition, it is specifically written as follows.
" a) That all the property, rights, and powers of the said transferor company specified in the first , second and third parts of the Schedule II hereto and all the other property, rights and powers of the said transferor company be transferred without further act or deed to the said transferee company and accordingly the same shall, pursuant to section 394 (2) of the Companies Act, 1956, be transferred to and vest in the said transferee company for all the estate and interest of the said transferor company therein but subject nevertheless to all charges now affecting the same, and CC no.1631/3 Page 9 of 22 k 10
b) That all the liabilities and duties of the said transferor company by transferred without further act or deed to the said transferee company and accordingly the same shall , pursuant to section 394(2) of the Companies Act , 1956, be transferred to and become the liabilities and duties of the said transferee company: and c ) That all proceedings now pending by or against the said transferor company be continued by or against the said transferee company; and
d) All contracts, deeds, bonds, agreements and instruments of whatever kind or nature relating to the said units of Birla Cotton shall continue to be in full force and effect against or in favour of Texmaco as the case may be and enforced as fully and effectively as if Texmaco instead of Birla Cotton had been a party thereto.
Accordingly it is very clear that the complainant company became the owner of all the property, rights and powers in the mill unit of the transferee company without any further act or deed and the same stood transferred and vested with the complainant company for all the estate and interest. By virtue of the said scheme of arrangement, the complainant company became owner of the property in question and therefore the complainant company has every right to prosecute this complaint.
17. The next contention raised by the accused is that the power of attorney in favour of the complainant is not proved in accordance with law and the power of Attorney in favour of the complainant is defective as it does not comply with the provisions of Statutes.
Again all these contentions are without any force. Section 85 of the CC no.1631/3 Page 10 of 22 k 11 Indian Evidence Act clearly provides that once there is a duly notarized power of attorney, than it shall be presumed to be true, unless the contrary is proved. The expression used is 'shall presume' which shows that the section is mandatory and the Court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. It is noticed that the power of attorney on record is legally and properly notarized and it fulfills all the ingredients of section 85 of the Indian Evidence Act. The accused has not produced any evidence to disprove the power of attorney of the company. No objection was raised at the time when these documents were being exhibited in evidence as to its mode of proof.
In the case of Jugraj Singh v. Jaswant Singh AIR 1971 SUPREME COURT 761 before a three judge bench of Hon'ble Supreme court it was argued, that to invoke S. 85 of the Indian Evidence Act, which provides that a Court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public was duly executed and authenticated, that authentication of the power of attorney had to be in a particular form, and that it was not sufficient that a witness should have signed the document, be he a Notary Public or any other. It was argued that, it ought to have been signed by the persons named in S. 85 and should have been authenticated properly. It was argued that the authentication should have shown on its face that the Notary Public had satisfied himself that executor was the real person who had signed the power of attorney before him and, the power of attorney was invalid because it did not show on its face that the Notary Public had satisfied himself that it was Mr. CC no.1631/3 Page 11 of 22 k 12 X who executed the document. Negating the contention that the Notary Public did not say in his endorsement that Mr. X had been identified to his satisfaction, it was held as follows;
"But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person."
In the case of M/s. Northland Traders and others v. Bank of Baroda, AIR 1994 Allahabad 381 it is observed as follows:
" 11. ...... it would also be presumed that the person executing the power of attorney on behalf of a corporate body was competent to do so. In the present case Sri M.K. Bose had executed the power of attorney in favour of K.N. Pandey which was duly authenticated by a notary public as mentioned in Section 85. The Court is, therefore, bound to presume that the power of attorney was duly executed and authenticated. This presumption, however, is a rebuttable presumption and it was open to the defendants to challenge the authority of the attorney or to prove that the power of attorney was invalid or that the person acting on the basis of such power of attorney was not duly authorised. No such evidence has come from the side of the defendants. On the contrary PW. 1 K.N. Pandey had deposed that (sic) the Senior Branch Manager and was authorised to sign and verify the plaint and to file the suit. There being no evidence in rebuttal the court below was, therefore, justified in holding that K.N. Pandey was authorised to sign and CC no.1631/3 Page 12 of 22 k 13 verify the plaint."
In the case of Citibank N.A., New Delhi, Plaintiff v. Juggilal Kamlapat Jute Mills Co. Ltd., Kanpur, Defendant. AIR 1982 DELHI 487 it was held that execution of power of attorney by a Bank's Executive Officer and Cashier delegating certain powers to one employee of that Bank and Document bearing Bank's seal and attested by Notary Public raises a presumption that power of attorney is executed by the Bank. Presumption that the officers executing the document had authority to execute it on behalf of the Bank also arises. Word "person" in Section 85 includes legal person. (Paras 17, 18, 19, 20, 22, 28).
Similarly in the case of Smt. Kulsumunnisa, Appellant v. Smt. Ahmadi Begum and others, Respondents. AIR 1972 ALLAHABAD 219 (V. 59 C 58) (Division Bench): and in the case of Yogesh Singh Sahota, Petitioner v. Niranjan Lal Gupta, Respondent. AIR 1981 DELHI 222. It is held, that a Power of attorney along with verifications are to be presumed to be true u/S.85.
In the case of Kamla Rani and Ors. v. M/s. Texmaco Ltd. AIR 2007 DELHI 147, which was a case of this very complainant on the same facts, it was one of the contentions, of the employee, before High Court that the eviction petitions were not filed under a proper authorisation. It was held as follows;
" 33. Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is CC no.1631/3 Page 13 of 22 k 14 authenticated by a notary public, it will be presumed that the document was duly executed and was in order. The use of the expression 'shall presume' shows that the section is mandatory and the Court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. As observed in AIR 1984 (363) (sic) M/s. E. C. and E.Co. Ltd. v. M/s. J. E. Works, if two conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under Section 85 about the executant of the power of attorney.
34. Onus would thus lie on the opposite party to prove to the contrary.
35. It is well settled that authentication would mean more than mere execution. Where proof of authentication surfaces, benefit of Section 85 has to be granted.
36. No negative evidence has been brought on record, none has been shown to me by the petitioners.
37. The purpose of Section 85 of the Evidence Act appears to be that a duly executed and authenticated power of attorney can be proved under Section 85 without undue expenses to be incurred by producing the executant thereof or the original board resolution.
38. The reason is obvious. Banks, insurance companies and multinational companies empower officers to institute and file suits on their behalf. Large number of suits are filed by these organisations. If the original board resolution or the executant of the power of attorney has to submit CC no.1631/3 Page 14 of 22 k 15 itself/himself before the Court as a sine qua non to prove the power of attorney, practical difficulties would arise and unnecessary expenses would be incurred by the organizations to prove the document in the aforenoted manner.
39. I am in full agreement with the view taken by the learned Rent Control Tribunal that the authority of the person who had signed and verified the petition as also instituted the eviction petition stood duly proved by means of production of the authenticated and notarised power of attorney bearing the seal of the notary public.
40. Decision of the Supreme Court reported as AIR 1997 SC 3 Union Bank of India v. Naresh Kumar is additionally relied upon by me. The said decision states that where a suit has been filed on behalf of a corporate body and is duly prosecuted by the person who had filed the suit, a presumption would arise that the person concerned was authorised to do so."
18. The argument that the order of honorable Delhi High Court dated 3rd January 1983 regarding the scheme of arrangement is not complete and not binding on the accused since they were not party to it and accused did not give his consent in the said proceedings; that the mandatory directions mentioned in the order dated 3rd January 1983 by honorable Delhi High Court has not been complied with by the complainant as the necessary proceedings before Calcutta High Court has not been conducted; that the scheme of arrangement of Delhi High Court dated 03.1.1983 was not complete as the approval of Calcutta high Court was not obtained nor the copies were delivered to the Registrar of Company, are all without force. Whether the CC no.1631/3 Page 15 of 22 k 16 accused was a party to the said proceedings or not is immaterial. The judgment of honorable Delhi High Court is indeed binding and it was also relied upon in the case of Kamla Rani's case as mentioned above.
19. It is next argued that the certificate of incorporation has not been produced in original and the certificate of incorporation consequent upon change of name of company cannot be taken as admissible evidence. This contention is against section 35 of The Companies Act 1956, which clearly provides that a certificate of incorporation given by the registrar in respect of any association shall be conclusive evidence that all the requirements of this Act have been complied with in respect of registration and matters precedent and incidental thereto and that the association is a company authorised to be registered and duly registered under this Act.
20. It is next argued that even if the employee is taken to be a licensee still no notice of termination has been given to her and therefore she cannot be prosecuted.
Again this contention is misfounded. Under section 630 of The Companies Act 1956 there is no requirement of law to give any notice of termination of licence or even any notice separately regarding termination of the services. The fact that the property is given to an employee by virtue of his being in employment of a company which he wrongfully withholds is sufficient to bring the case within the ambit of section 630 of The Companies Act 1956.
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21. It is argued that the complainant is not the owner of the premises and thus cannot maintain these proceedings.
Section 116 of the Evidence Act provides, No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
In the case of Bilas Kunwar v. Desraj Ranjit Singh, (AIR 1915 Privy Council at p. 98), the Privy Council observed as follows:
"A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord." (Emphasis supplied).
In the case of Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SUPREME COURT 3569 = 2006 AIR SCW 1073 it is observed that a person, who comes upon any immovable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given. An equitable principle of estoppel has been incorporated by the legislature in the said section. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be CC no.1631/3 Page 17 of
22 k 18 allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted. To the same effect is judgment in Sheikh Noor and another v. Sheikh G. S. Ibrahim (dead) by LRs AIR 2003 SUPREME COURT 4163= 2003 AIR SCW 3784.
In Krishna Prasad Lal v. Barabani Coal Concern (AIR 1937 P.C. 251) , "It (Sec. 116) deals with one cardinal and simple Ltd.
estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation".
In the case of S. K. Sarma v. Mahesh Kumar Verma (supra) the case pertained to Section 138 of the Railways Act which is somewhat similar to section 630 of the Companies Act and which provides a procedure for summary delivery of property, detained by a railway servant, to the railway administration,. It was observed as follows:
"13. Further, the contention of the learned senior counsel for the respondent that the railway administration has to prove that the property in question was belonging to it before invoking Section 138 is totally misconceived because once it is admitted that respondent was given possession of the premises in question by order dated 1711967 as he was entitled for the same while working as CPRO of the Department, he could not CC no.1631/3 Page 18 of 22 k 19 be permitted to deny the title of the railway administration. Admittedly, respondent was inducted because he was in railway service. Now, he is estopped from challenging the title of the appellant over the premises in question. For this purpose, we would refer to Section 116 of the Evidence Act....."
"14. Second part of the aforesaid section clearly provides that no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny the title to such person to such possession of the property. He cannot deny the same during the pendency of such license or sublease. Such estoppel continues to operate so long as licensee or subtenant has not openly restored possession by surrender to such person. This rule of estoppel would cease to operate only after such licensee or subtenant has been evicted......"
It was also held that "16. In this view of the matter, respondent cannot be permitted to contend that property was not belonging to the railway administration. Whether the railway administration is owner, mortgagee, lessee or licensee is not required to be decided in such proceedings at the instances of sublessee or licensee of railway administration."
22. In the case of Kamla Rani and Ors. v. M/s. Texmaco Ltd.
(Supra), which was a case of this very complainant on the same facts, the contention raised that the complainant is not the owner, and all other contentions raised before this court, were also answered in favour of the complainant, and for the sake of brevity it would be relevant to quote the CC no.1631/3 Page 19 of 22 k 20 observations which are as follows:
"25. Ownership is not relevant for the reason a person may be a landlord without being an owner.
26. A company may take premises on a 30 year lease from the owner with a permission to induct its employee as a tenant/subtenant. Such an employee to whom the said permission is allotted would be a tenant under his company and the allotment would be pursuant to his employment. Such an allottee cannot resist the eviction, if otherwise grounds are made out.
27. Even otherwise, under the directions of the Supreme Court, 68% land had to be handed over to DDA for being maintained as open area. DDA has not become the owner of the said land. Ownership would vest in DDA when possession is handed over.
28. It would be the obligation of the company to evict its tenants including heirs of the tenants and hand over possession to DDA.
29. But, I rest my decision on firmer grounds. A tenant who accepts a person as his landlord is estopped from questioning the title of his landlord.
30. The petitioners are therefore estopped from questioning the title of M/s. Texmaco Ltd. for the reason either they or their predecessorin interest were inducted as a tenant by the predecessorininterest of M/s. Texmaco Ltd."
23. It is next argued that M/s Birla Cottons Spinning and Weaving Mills is still in existence and Birla Textile Mills shifted to Baddi and no officer of M/s Birla Cottons Spinning and Weaving Mills asked the accused to vacate the CC no.1631/3 Page 20 of 22 k 21 quarter. By virtue of the scheme of arrangement, what was acquired by the complainant was a unit of said company i.e. M/s Birla Cottons Spinning and Weaving Mills and not the company M/s Birla Cottons Spinning and Weaving Mills, itself. Therefore even if the company M/s Birla Cottons Spinning and Weaving Mills still exits, the rights of the complainant does not get effected in the unit so taken over by virtue of the scheme of arrangement by orders of Delhi high court.
24. It is next argued that necessary stamp duty was not paid by the company regarding transfer of assets and therefore the scheme of arrangement is not admissible u/s 35 of the Indian Stamp Act.
Again this argument is without any force, so far as he present proceedings u/s 630 of the companies Act are concerned which has very restricted scope of inquiry and as discussed above. The scheme of arrangement proved as ExPW3/4 clearly mention that it shall be effective without any act or deed by the parties and as quoted above. For the same reason the contention, that the scheme of arrangement passed by Hon'ble Delhi High Court Ex. PW3/4 was not registered under the Indian Registration Act and, therefore, it is inadmissible u/s 49 of the Registration Act, is without force.
25. It is next argued that there is no privity of contract between the accused and the complainant. There is no requirement of it also as the property vested with the company due to the scheme of arrangement Ex. PW3/4 and the accused also became its employee. CC no.1631/3
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26. Ld. counsel for the accused lastly contended that resolution in this case has not been proved, against which the complainant relied upon the case of Bank of India Vs. Ajaib Singh Pritam Singh, AIR 1979 NOC 199. In the said case, Hon'ble Delhi High Court observed as follows :
"A Power of Attorney duly authenticated by a notary public raises legal presumption that the same had been duly executed and the person who had executed, had the authority to do so. The presumption is, however, rebuttable. Held that requiring the plaintiff to produce a resolution of the Board of Directors of the plaintiff bank authorising the Director or Deputy General Manager to execute the General power of attorney was not necessary and mere production of the power of attorney duly executed before and authenticated by a Notary Public was sufficient to raise the presumption of the due execution and authentication of the power of attorney within the meaning of section 85."
27. In view of the judgment of the Hon'ble High Court, as mentioned above, once the power of attorney is proved, the resolution is not required to be proved. It was very specifically so held by the Hon'ble High Court in the abovementioned judgment.
28. Accordingly the complainant has succeeded in proving its case against the accused beyond reasonable doubt and the accused is found guilty and thus convicted for the offence u/s 630 of The Companies Act 1956. ANNOUNCED IN OPEN COURT th ON 26 of June, 2010 (DIGVINAY SINGH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SPECIAL ACTS, CENTRAL, TIS HAZARI COURTS DELHI CC no.1631/3 Page 22 of 22 k