Delhi District Court
Deepika Gupta vs . Aneesh Gupta & Ors. on 17 November, 2016
Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15
IN THE COURT OF SH. ANIL KUMAR:
SPECIAL JUDGE (THE COMPANIES ACT)
ADDITIONAL SESSIONS JUDGE03 : DWARKA COURTS : DELHI
In the matter of:
Criminal Appeal No. 139/15
Deepika Gupta
W/o Aneesh Gupta
D/o Shri Kamal Krishan Gupta
R/o B1102, Gold Croft Apartment,
Plot No.4, Sector11,
Dwarka, New Delhi110075 ...Appellant
Versus
1) Aneesh Gupta
S/o Shri Pradeep Kumar Gupta
R/o House No.09083, ATS Advantage,
Ahinsa Khand1, Indirapuram,
Ghaziabad, U.P.201014
2) Pradeep Kumar Gupta
R/o House No.09083, ATS Advantage,
Ahinsa Khand1, Indirapuram,
Ghaziabad, U.P.201014
3) Vipul Gupta
W/o Shri Pradeep Kumar Gupta
R/o House No.09083, ATS Advantage,
Ahinsa Khand1, Indirapuram,
Ghaziabad, U.P.201014
Page no. 1 /19 17.11.2016
Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15
4) Aditi Maheshwary
W/o Shri Rahul Maheshwary
D/o Shri Pradeep Kumar Gupta
R/o House No.09083, ATS Advantage,
Ahinsa Khand1, Indirapuram,
Ghaziabad, U.P.201014
Currently living at:
Block7, #0403, The Esparis,
Pasir Ris Drive4, Singapore519459
5) Rahul Maheshwary
R/o House No.09083, ATS Advantage,
Ahinsa Khand1, Indirapuram,
Ghaziabad, U.P.201014
Currently living at:
Block7, #0403, The Esparis,
Pasir Ris Drive4, Singapore519459
...Respondents
Date of Filing of Appeal : 18.09.2015
Date of Advancing Arguments : 21.10.2016
Date of Judgment
:
17.11.2016
:J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005, filed by the appellant against the impugned order dated 26.08.2015, passed by the Ld. Metropolitan Magistrate, Dwarka Courts, New Delhi vide which Ld. Trial Court directed to issue summons only Page no. 2 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15to respondent No.1 and observed that there is no need to summon respondent Nos. 2 to 5.
2. Brief facts necessary for disposal of the present appeal, as per the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 filed by the appellant/ complainant before the Ld. Trial Court, are that the appellant/ complainant got married to respondent No.1 Aneesh Gupta on 29.11.2008 according to Hindu Rites and Ceremonies at Delhi and from the said wedlock, a male child namely Master Advik was born on 08.10.2012 who is presently in the care and custody of the appellant/mother. Respondent No.4/sisterin law, though being a married daughter, resided in the matrimonial home of the appellant alongwith all other respondents at Kamla Nagar, Delhi and appellant lived with all the respondents under the same roof and shared a common kitchen. Since, the very first day of marriage, the appellant was harassed and tortured mentally and physically by all the respondents on account of dowry demand. The respondents asked the parents of appellant to give a car in marriage, as a new car was required for respondent No.5. The appellant was repeatedly sexually molested by respondent No.2 and 5 on various occasions. The mother inlaw of appellant would tell the appellant to go and sit with respondent No.5 to entertain him and appellant was also forced to serve whiskey and snacks to respondent No.2 and respondent No.1/husband kept silent when she was tortured and molested and the respondents humiliated the appellant in connivance with each other to Page no. 3 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15get rid of the appellant so that respondent No.1 could marry another girl who would bring in more dowry. On the night of 29.08.2010, the appellant was thrown out of her matrimonial home and only after interference of relatives from both sides, the matter could be resolved and the appellant came back to the matrimonial house on 25.10.2010. Thereafter, appellant and respondent No.1 were made to take a flat on rent in Dwarka. Even though the complainant and respondent no.1 shifted to a separate accommodation, they would stay at the matrimonial house at Kamla Nagar. After shifting to Dwarka, respondent no.1 started consuming alcohol at home on a daily and would also call his friends over at home who would pass lewd comments on the complaint and would take cheap thrills. After shifting to Dwarka, whenever complainant touched feet of Respondent no.2, he would touch the complainant inappropriately and would deliberately hug her and feel her all over the body and molest the complainant. On 08.10.2012, complainant gave birth to a son and complainant stayed in the matrimonial house at Kamla Nagar after the delivery. Respondent no. 4 & 5 came to stay at the matrimonial house on 14.11.2012 and thereafter, respondent no.4 started giving highly spicy and 5 days stale food to complainant which was unpalatable by all means. When parents of the complainant visited her matrimonial house to see the new born child, respondents told them that they had spent a sum of Rs. 3 Lacs on the treatment of the complainant, hence they should pay them back a sum of Rs. 8 Lacs plus car which is already pending. Parents of complainant showed their inability to fulfull the Page no. 4 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15demand of respondents but respondents remained adamant and therefore, parents of complainant gave a sum of Rs.3 Lacs in the form of cash and gifts to the respondents, baby boy and to the complainant on the day of ceremonies of the new born child. In December 2012, complainant and respondent no.1 decided to buy a flat in their joint name and make their son, namely Master Advik, as a nominee. For this, respondent no.1 sought financial help from the father of complainant and father of complainant arranged a sum of Rs. 3 lacs and complainant arranged a sum of Rs.2 lacs and they gave the said amount to respondent by way of cheques but respondent no.1 never showed any paper of booking of flat to them. In June 2013, respondent no.1 packed all the belongings of complainant and their son and he took them to his parents house at Indirapuram and all the furnitures remained in the flat of uncle of respondent no.1. On 04.11.2013, complainant and her son were suffering from fever and respondent no.1, on the instigation of his parents, left them at the house of parents of complainant. Complainant wanted to give another chance to the marriage for the sake of child, therefore, in July 2014, complainant went back to the flat of uncle of respondent no.1 to live there with her child. Respondent no.1 came to the flat after one month and started fighting with the complainant over money matters and he further threatened the complainant to either give him divorce or else, he would kill her. In the month of August 2014, respondent no.1 forcibly took a flat on rent on the 10 th floor (top floor) in Gold Croft Society, Sector11, Dwarka and made the complainant shift there Page no. 5 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15alongwith the child so that when respondent no.1 fights and tortures the complainant, nobody else is able to hear it. In the month of September 2014, Respondent no.1 pressurized the complainant to ask her parents to give her cash for XUV 500 car and on refusal of complainant, respondent no.1 harassed her by giving beatings to her badly. Respondent no.4 & 5 would humiliate the complainant and would keep pressurizing her to get gold chain and gold set from her parents' place. Complainant alleged that parents of respondent no.1 would often come to Dwarka and would humiliate her. On 15.04.2015, on the first day of school of minor child, respondent no.1 went to office and respondent No.2 & 3 came to their house and respondent no. 1 tried to molest the complainant. On 15.05.2015, respondent No. 2 and 3 came to the accommodation at Dwarka where complainant was temporarily residing with respondent no.1 and they took away all the belongings and other valuables of respondent No.1. On 16.05.2015, respondent No.1 packed all his belongings which were left in the house and moved away from the house on the pretext of going to Australia. Complainant alleged that during her stay at matrimonial house, she was met with utmost atrocities and mental torture by all the respondents.
3. On the abvoesaid application of complainant, Ld. Trial Court only summoned the respondent No.1 and relying upon the judgement Inderjit Singh Grewal Vs. State of Punjab & Anr., decided on 23.08.2011, observed that there is no need to summon respondent Nos. 2 to 5.
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CA No. 139/154. Feeling aggrieved by the impugned order, the appellant has assailed the same on the grounds that the Ld. Trial Court grossly erred in relying upon the judgment "Inderjit Singh Grewal Vs. State of Punjab"
which does not deal with the present controversy and is based on completely different set of facts and circumstances which does not apply to the present matter. It is alleged that Ld. Trial Court has failed to appreciate that the intent of Protection of Women from Domestic Violence Act is to protect the woman from being victims of domestic violence and to prevent occurrence of domestic violence in the society. It is further alleged that Ld. Trial Court has failed to appreciate the definitions of 'aggrieved person', 'domestic violence' and 'shared household' as defined under Section 2(a), 2 (f) and 2 (s) of the POWDV Act respectively as the appellant is an aggrieved person who has been in a domestic relationship with all respondents and has been residing in the same house with respondents since her marriage. It is further alleged the Ld. Trial Court has failed to appreciate that appellant has specifically stated in the complaint that respondent No.4 though, being a married daughter lived in the same house alongwith her family with appellant and was a part of joint family and the Ld. Trial Court also failed to consider that the appellant has leveled serious allegations of sexual molestation against her fatherinlaw/respondent No.2 and brotherinlaw/respondent No.5 and by not issuing summons to them, the abusers have been let off scot free and the appellant has been left with no other remedy as the acts of molestation have been done within Page no. 7 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.CA No. 139/15
the four walls of the house. It is further alleged that the Ld. Trial Court has failed to appreciate that the appellant has stated incidents of abuse by the motherinlaw and sisterinlaw who went to the extent of throwing hot food on the appellant and the Ld. Trial Court has committed grave error by not keeping check of such acts. It is further alleged that the Ld. Trial Court has failed to appreciate that all the respondents have been working in connivance with each other to oust the appellant from the matrimonial house and to force her to ask for a separation so that respondent No.1 may marry another girl who could bring in more dowry and that the appellant was shifted to rented accommodation in the year 2014 as an eyewash for the reason that in case any proceedings under the POWDV Act are initiated by the appellant, it would be pleaded that the respondent No. 2 to 5 do not share a common household with the appellant.
5. In reply to the appeal filed by respondents, allegations of the complainant levelled in her complaint and grounds taken by the appellant in her appeal have been opposed and denied by the respondents stating that appellant/complainant has not been in domestic relationship with respondent no.2 to 5. It is stated that respondent no. 4 is the sister of respondent no.1 and she was married prior to the marriage of appellant with respondent no.1. It is further stated that respondent no.4 alongwith her husband/respondent no.5, who was working as Programme Manager, I.T. in Noida, at the time of their marriage and now working as Vice President, DBS Bank, Page no. 8 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15Singapore was residing in the house of her husband (respondent no.5) at Gurgaon from where they shifted to Mayur Vihar in Delhi and then to the campus of IIM Ahmedabad in Gujarat on 26.03.2009 and since May 2010, both Respondents no. 4 & 5 are residing in Singapore. It is stated that respondent no.4 & 5 have their own family responsibilities including two children who were born prior to the marriage of appellant with respondent no.1 and they have nothing to do with the domestic relationship of appellant and respondent no.1. It is further stated that respondent no.2 & 3 both are senior citizens and are residing separately from their son and daughterinlaw for the past five years in order to save their institution of marriage. It is stated that it is incorrect to say that judgment passed by Hon'ble Supreme Court in Inderjit Singh Grewal Vs. State of Punjab does not deal with the facts of present case as the said judgement interprets the concept of shared household and gave benefit to the appellant by observing the fact that no share household existed. It is stated that in the present case also there does not exist the domestic relationship between respondent no.2 to 5 with the appellant as she was living separately and not in a share household. It is stated that Ld. Trial Court has passed a well reasoned order by taking into consideration the domestic relationship existed between appellant and respondent no.1 only. With the abovesaid submissions it is prayed that the present appeal being totally fictitious, frivolous, vexatious, misconceived and filed with misrepresentation on facts and law, be dismissed.
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CA No. 139/156. I have heard Ld. Counsels for the parties and perused the entire record including TCR. I have given my thoughtful consideration to submissions made by Ld. Counsel for appellant as well as Ld. Counsel for the respondents.
7. Ld. Counsel for the appellant has argued on the lines of contents of appeal. It is argued by Ld. Counsel that appellant was sharing the same household with the respondents since her marriage with respondent no.1 and she has been in the domestic relationship with all the respondents. It is further argued that there are serious allegations by appellant, of sexual molestation, against her fatherin law and brotherinlaw and the appellant has stated the incidents of abuse by her motherinlaw and sisterinlaw and by not issuing summons to the respondent no.2 to 5, the abusers have been let off scot free and the appellant has been left with no remedy as the acts of molestation have been done within the four walls of the house. In support of her arguments, Ld. Counsel for the appellant has relied upon the following judgements:
1. Juveria Abul Majid Patni Vs. Atif Iqbal Mansoori & Anr. (10) SCC 736;
2. Geeta Kapoor & Anr. Vs. State of Haryana & Anr., 2013 Law Suit (P&H) 6732;
3. Clilaram Vs. State [Gujrat High Court], Crl. Appln. No. 1263/2013;
4. Arun Kumar Vs. Ritu Kashyap, CRM M. No. 21175/2013;
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CA No. 139/155. Savita Bhanot Vs. Lt. Col. V.D. Bhanot, Crl. M.C. No. 3959/2009 [Delhi High Court];
6. V.D. Bhanot Vs. Savita Bhanot, (2012) 3 Supreme Court Cases 183;
7. Preetam Singh & Anr. Vs. State of UP & Anr., Crl. Rev. No. 2355/2012;
8. Bharati Naik Vs. Ravi Ramnath Halarnkar & Anr, (4) AIR (BomR) 335.
8. On the other hand Ld. Counsels for respondents have submitted that Ld. Trial Court has committed no irregularities while passing the impugned order. It is argued that Ld. Trial Court, considering the submissions of appellant herein by way of impugned order found that the joint shared household of appellant herein with respondent no.2 & 3 ceased about one year prior to filing of the application and respondent no. 4 & 5 , whose marriage was solemnized prior to the marriage of appellant herein with respondent no.1, not sharing the same household with the appellant herein and accordingly ordered that there is no need to summon respondent no.2 to 5. It is further argued that plea of appellant that she shifted to rented accommodation in Dwarka in August 2014 is false as the bare perusal of appellant's own application shows that respondent no.1 and appellant had shifted to rented premises in Dwarka way back in December 2010. In support of their arguments, Ld. Counsels for respondents have relied upon the following judgements: Page no. 11 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/151. Vijaya Baskar Vs. Suganya Devi, Crl. O.P.(MD) no. 10280 of 2010, Madras High Court, Dated 28.10.2010;
2. Inderjeet Singh Grewal Vs. State of Punjab & Anr., Crl. Appeal No. 1635 of 2011, SC, Dated 23.08.2011;
3. Harbans Lal Malik Vs. Payal Malik, Crl. Rev. P. No. 253/10, DHC, DOO: 29.07.2010;
4. S.R. Batra & Anr. Vs. Smt. Taruna Batra, Civil Appeal No. 5837 of 2006, SC. Dated 15.12.2006; and
5. Vijay Verma Vs. State NCT of Delhi & Anr., Crl. M.C. No. 3878/2009, DHC. Dated 13.08.2010
9. I have gone through the judgements relied upon by Ld. Counsels for both the parties.
10. In S.R.Batra and Anr. Vs. Taruna Batra, dated 15.12.2006, passed in Crl. Appeal (civil) No.5837/2006 by the Hon'ble Supreme Court of India, it has been held as under:
"Learned counsel for the respondent Smt. Taruna Batra stated that "the definition of shared household includes a household where the persons aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence, the said property is her shared household.
We cannot agree with this submission.
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If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's inlaws or other relatives.
As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the Page no. 13 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.CA No. 139/15
joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No.2, mother of Amit Batra. Hence it cannot be called a 'shared household'".
11. In Vijay Verma Vs. State NCT of Delhi & Anr., Crl. M.C. No. 3878/2009, Dated 13.08.2010 of Hon'ble High Court of Delhi, it has been held as under:
"6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, 'at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughterinlaw living in a house and ultimately sons, one by one or together, decide that they should live separate with Page no. 14 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.CA No. 139/15
their own families and they establish separate household and start living with their respective families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of fatherinlaw because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpse of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section
12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughterinlaw, soninlaw, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has Page no. 15 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughterinlaw etc. survives but the domestic relationship of living in a joint household would not survive & comes to an end.
7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different Page no. 16 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living mile away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence."
12. Perusal of trial court record shows that complaint under Section 12 of D.V. Act was filed by the appellant/complainant on 25.08.2015 not only against the husband but also against fatherinlaw, motherinlaw, sisterinlaw (nanad) and brotherinlaw (nandoi). Ld. Trial Court has pleased to issue summon of the complaint filed by the appellant only to husband and not other persons. As per affidavit filed by appellant before Ld. Trial Court she is staying in matrimonial home which is a rented accommodation and lease of this matrimonial home is in the name of her husband Aneesh Gupta. In her affidavit she has further stated that till 16.05.2015, her husband was staying with her in Page no. 17 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15rented accommodation. After this, he is staying with his parents at Ghaziabad. Appellant/complainant has further stated in her affidavit and complaint that her child is studying in Mother's Pride School, Sector6, Dwarka, New Delhi since 15.04.2015. If, facts stated in the complaint by the complainant are taken in totality then it appears that complainant is residing alongwith her husband and separately from respondent no.2 to 5 in present case since 2010.
Keeping in view observation and finding of the Higher Courts in S.R. Batra (Supra) and Vijay Verma (Supra) and facts of the present case as set up by appellant in her complaint under Section 12 of Domestic Violence Act, I find that there is no domestic relationship between the complainant and respondent no. 2 to 5. Complainant has set up her matrimonial home alongwith her husband separately from respondent no. 2 to 5 who are fatherinlaw, motherinlaw, sisterin law (nanad)and brotherinlaw (nandoi). Appellant's temporarily stay with motherinlaw and fatherinlaw in their home does not establish domestic relationship. I find that judgment relied upon by Ld. Counsel for appellant are not of any help to appellant in the facts and circumstances of the present case. Since there is no domestic relationship as prescribed under D.V. Act between the appellant and respondent no.2 to 5, hence, no question of limitation for filing complaint under Section 12 of D.V.Act arises.
13. In view of above observations, I find that in the absence of Page no. 18 /19 17.11.2016 Deepika Gupta Vs. Aneesh Gupta & Ors.
CA No. 139/15any domestic relationship, as prescribed under D.V. Act, between appellant and respondent no.2 to 5, no complaint under D.V. Act can be filed against them. Hence, Ld. Trial Court has committed no illegality or irregularity in refusing to issue summons to respondent no. 2 to 5. Hence, present appeal is dismissed.
14. File be consigned to record room after due compliance.
Announced in the Open Court on the 17th Day of November 2016 (Anil Kumar) Special Judge (The Companies Act) ASJ03 : Dwarka Courts Delhi/17.11.2016 Page no. 19 /19 17.11.2016