Delhi District Court
Janki Vasdev Bhojwani And Another vs . Indusind Bank Ltd. on 30 July, 2010
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IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SPL. ACTS):
CENTRAL: TIS HAZARI COURTS, DELHI
CC NO. 170/3
UNIQUE ID NO. 02401R0004281988
In re:
TEXMACO LIMITED
BELGHARIA, CALCUTTA,
PROPRIETOR OF M/S. BIRLA TEXTILES,
P.O. BIRLA LINES,
DELHI110007 .....COMPLAINANT
VS.
BENI MADHO S/O. LAKSHMI CHAND
R/O. 28, SHIVAJEE LANE,
SHAKTI NAGAR, DELHI110007 ........ACCUSED
DATE OF INSTITUTION OF COMPLAINT: 05.11.1988
DATE OF RESERVATION OF JUDGMENT: 30.7.2010
DATE OF PRONOUNCEMENT OF JUDGMENT: 30.7.2010
U/S. 630 OF THE COMPANIES ACT, 1956
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JUDGEMENT
(a) The serial no. of the case : 02401R0004281988.
(b) The date of commission of offence: On and after 05.8.1985 continuously.
(c) The name of complainant : M/s Texmaco. Ltd.
Balgheria Calcutta.
Proprietor of M/s. Birla Textiles, P.O. Birla Lines, Delhi110007
(d)The name, parentage, residence: Beni Madho S/o. Sh.
of accused. Lakhmi Chand R/o Q. No.
28, Shivajee Lane,
Shakti Nagar, Delhi7
(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 : 30.07.2010 CC no.170/3 Page no. 2 to 30 k 3
Brief statement of the reasons for the decision:
1. The complainant company filed the present complaint against the accused for offence U/s. 630 of the Companies Act. It is alleged in the complaint that accused was an employee of M/s Birla Cotton Spinning & Weaving Mills Ltd. and he was allotted quarter bearing no. 28B, Shivajee Lines, Shakti Nagar, Delhi. The quarter was allotted on 01.11.1973 as a licensee, which the accused was to retain till continuation of his services only. Subsequently, on 03.01.1983, the concerned Birla Mill Unit, where the accused was working, alongwith its properties and employees, including quarter in question and the accused, was acquired by the present complaint company from M/s. Birla Cotton Spinning & Weaving Mills Ltd., by virtue of a scheme of arrangement passed by Hon'ble High Court. Subsequently, the accused ceased in the services of the company w.e.f. 05.8.1985. Despite cessation of services, the accused failed to vacate the quarter and was thus wrongfully withholding it.
2. On being summoned for the said offence, a notice for the said offence of u/s.630 of the Companies Act, 1956, was served upon the accused in terms of Section 251 Cr.P.C to which the CC no.170/3 Page no.
3 to 30 k 4 accused claimed trial.
3. In support of his case, the complainant examined only one witness i.e. R. S. Sharma. It may be mentioned here that this witness R.S. Sharma was examined by the complainant on 28.5.2005 and thereafter he was cross examined on 07.6.2005. This witness has been given PW no.3. It appears to be an inadvertent error since after the notice was framed, the complainant examined only one witness and no one else. It is so clear from the order sheets for the relevant period and it is also admitted by both the parties during final arguments.
4. PW R.S. Sharma deposed that he is power of attorney holder of the complainant company and duly authorised to sign, verify the complaint and to depose in the present case vide resolution Ex. PW 3/1 and power of attorney Ex. PW3/2. He also proved the certificate of incorporation Ex. PW3/3 and also deposed that the accused was allotted the said quarter vide allotment letter Ex. PW3/5. He also proved order of Hon'ble Delhi High Court in Company Petition No.59/1982 dated 03.1.1983, Ex PW3/4; vide which scheme of arrangement, all the rights, titles, interest, properties, assets and liabilities as well as the employees of the said mill unit of M/s. Birla Cotton CC no.170/3 Page no.
4 to 30 k 5 Spinning and Weaving Mills Ltd., became that of the complainant company. He further deposed that the accused ceased to be the employee of complainant company. He also deposed that the accused was liable to vacate the quarter but he failed to do so even after request made. Despite cross examination of this witness nothing material could be brought on record from the cross examination in order to impeach the creditworthiness or trust worthiness of the witness or the case of the complainant Nothing material could be brought out on record from the cross examination of this witness in order to impeach or controvert the evidence. PW3 R.S. Sharma, specifically deposed that the accused signed the allotment letter Ex PW3/5.
5. When entire incriminating evidence was put to the accused, in his examination U/s. 313 r/w. 281 of Cr.P.C, the accused admitted that he joined M/s Birla Cotton Spinning & Weaving Mills Ltd. and also admitted that the quarter was allotted to him. The accused claimed that earlier he was let out quarter bearing no.63B, Roshanara Building, Shakti Nagar, Delhi, in the year 1969, and the subsequently the company asked him to shift in Quarter No.28B in the year 1972. The accused CC no.170/3 Page no.
5 to 30 k 6 claimed that he is a lawful tenant of the property and the alleged allotment letter is forged. Accused admitted that he ceased to be in the services of the company. He, however claimed that neither the present complainant company nor M/s. Birla Cotton Spinning and Weaving Mills Ltd. are owners of the property in question. The scheme of arrangement was termed as collusive one. The accused claimed that in the original passes issued by the mill, monthly rent was mentioned. But those documents were not proved in the Court in accordance with Law and mere tendering of those documents in the statement of accused cannot be proper mode of proof of document, since the opposite party does not even get a chance to cross examine the witness on those documents. Accused claimed that he is protected under Delhi Rent Control Act, 1958.
6. In the entire cross examination of PW3, except for bare suggestion that Ex PW3/5 was a forged document, no positive evidence is led by the accused to show that this document is forged. It is not even suggested by the accused in the cross examination of PW3 that Ex. PW3/5 does not bear his signatures. Ld. Counsel for the accused has argued that this CC no.170/3 Page no.
6 to 30 k 7 document was not proved in accordance with Law. When this document was exhibited in the testimony of PW3, no objection whatsoever was raised as to the mode of proof of this document. Once, no such objection was raised as to the mode of proof of a document at the time of examination in chief of PW3, subsequent objection cannot be raised. This is because had the objections been raised at the time of its exhibition, the complainant would have been within its right to prove this document through other modes. By not raising objection, the complainant was within its right to presume that this document is admitted by the accused. Now, the accused cannot be permitted to go back and say that the document was not exhibited/proved in accordance with Law. Reliance in this regard is placed upon the case of _______.
7. Now, besides alleging the document Ex. PW3/5 to be a forged one, no evidence whatsoever has been led by the accused to show that this document does not bear signatures of accused or that it is forged. Perusal of Ex. PW3/5 would reveal that it bears signatures of Beni Madho/accused at point A. It is admitted by the accused in his statement that earlier he was alloted Quarter No.63B and he subsequently, he was alloted CC no.170/3 Page no.
7 to 30 k 8 the present Quarter No.28B. In this view of the matter, the document Ex. PW3/5 clinches the issue. It be mentioned here that on record there are two allotment letter one pertaining to 63B and another pertaining to 28B. In the testimony of PW3 R.S. Sharma, he specifically deposed that about document Ex. PW3/5, but it appears that instead of putting exhibiting mark PW3/5 on the allotment letter of Quarter No.28B, it was by mistake put on the Quarter No.63B. Anyhow, in the present matter, since it is an admitted position that subsequently Quarter No.28B was alloted to the accused, therefore, this mistake is not of much consequence.
8. Now perusal of this document reveals that the quarter was allotted to the employee as a licensee only. The terms and conditions of this document clearly spell out the license conditions. Accused has not proved any rent agreement or rent receipt to show that he was a tenant of the quarter independent to his employment. It is nobody's case that the accused paid rent to the company even after cessation of services, nor it is the case of the accused that he deposited rent with the Rent Controller, when the company refused to accept the rent. In such circumstances, the defence of the accused CC no.170/3 Page no.
8 to 30 k 9 that he was a tenant, is nothing but farce.
9. I have heard Ld. Counsel Sh. Kailash Bindal for the accused and Sh. J.V. Rana, counsel for the complainant. I have also perused their written arguments.
10. Ld. Counsel for the accused argued that the present case is not maintainable on the ground that in the complaint, property number is mentioned as 28 only and not 28B. Perusal of the complaint reveals that the property described therein is Quarter No.28 only. It is correct that Quarter No.28B is not mentioned there, but the question which arises is, whether the accused has been prejudiced in his defence because of this typographical error. The answer to this quarter has to be in negative. A perusal of cross examination of PW3 R.S. Sharma as also the statement of accused would clearly reveal that the accused clearly knew that the present complaint is regarding his Quarter No.28B, Shivaji Lines, Shakti Nagar, Delhi. It is not the case of accused that he is in possession of two quarters i.e. 28 & 28B and, therefore, there is no question of any kind of confusion to crop up in the mind of accused as to he has to deal with which of the two quarters. Therefore, this defence is without any force.
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11. It is an admitted position in this case that the accused employee is no more in the services of the company. It is also an admitted position that the employee accused is still withholding the quarter of the company. It is not denied that the quarter was alloted by the company. The defence of tenancy taken up by the accused has been held against him as mentioned above. Therefore, all the necessary ingredients of Section 630 of the Companies Act, 1956 are fulfilled in the present case.
12. Ld. counsel for the accused argued that PW3 R.S. Sharma could not have deposed the facts of the case as he was not personally aware of the facts. The present case is instituted by a company, which is a juristic person. A company is not a natural person, therefore, being a separate legal entity, whenever any case is instituted by a company, it has to be through some natural person. The said natural person would be its attorney/authorised representative, who is so authorised by the company by virtue of a resolution passed by the company. In the present case, R.S. Sharma has deposed and proved the resolution in his favour and the attorney in his favour. The said attorney of PW3 R.S. Sharma is duly proved CC no.170/3 Page no.
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to 30 k 11 in accordance with Law u/s.85 of Indian Evidence Act. Therefore, whenever such a complaint is filed by a company, the facts pertaining to the case has to be deposed by the attorney only. The said attorney may depose those facts either on the basis of personal knowledge or it can be also depose based on the records maintained by the company. Both kind of testimony would be admissible in law. It may happen in a case that the employees of a company in whose presence, the transaction took place may or may not be subsequently available because of their leaving the company or their death and in those cases, it can't be said that the company cannot institute a legal proceeding, since there would be no one who can depose on personal knowledge. In those cases, deposition of an attorney based on records would indeed be admissible. The judgments relied upon by the accused in the case titled as Janki Vasdev Bhojwani and another Vs. Indusind Bank Ltd. and others, 2005 SAR(Civil)103, which was a case of individual accused, whereas in the present case, one of the party is juristic person being unnatural person and, therefore, testimony of attorney is indeed admissible. The judgment in the case of Kamla Rani & others vs. Texmaco Ltd., relied CC no.170/3 Page no.
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to 30 k 12 upon by the accused rather goes against the accused and in favour of the complainant. The judgment relied upon by the accused in the case of Escorts Ltd. Vs. Sai Autos and others reported as 1991 vol.72, Company Cases, page 483, is again not applicable in the facts of the present case in view of the discussions in the present judgment that the power of attorney in favour of R.S. Sharma was proved in accordance with Law. Also no objection was raised by the accused when this document was exhibited in evidence. Similarly, the case of K. Radhakrishnan Vs. Thirumani Asphalts and Felts Pvt. Ltd., 2000 CLJ 264 Madras, is not applicable on the facts of this case. Even the judgment relied upon in I.A. No.36 in W.P. (C) no.4677 of 1985, titled as M.C. Mehta Vs. Union of India, is again of no help to the accused, since the period for which the employee was allowed to retain the quarter is already over.
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13. Similarly the contention that no written notice was served on the accused for vacating the quarter is useless as the law does not require that the company should give a written notice asking the accused to return the property before initiating any such proceedings. Whenever the property of the company is given to its employee, it is always subject to the condition that as soon as the company demands the property, the employee is bound to return it. Law does not require that before the property is sought to be returned by the company, services should be terminated or written notice should be given.
14. 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 CC no.170/3 Page no.
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to 30 k 14 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. I n, 1993 CRI. L. J. 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 Union of India v. B.N. Prasad and, in [(1978) 2 SCC 462] the cases 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 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 CC no.170/3 Page no.
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to 30 k 15 Act..............".
15. The complainant company is registered under the Companies Act. It is so proved by the certificate of incorporation exhibit PW 1/3. Birla Textile Mills 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 1/4. There is no denial by the accused that he is still withholding the said quarter till date.
16. 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 PW1/4. 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 CC no.170/3 Page no.15
to 30 k 16 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
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 CC no.170/3 Page no.
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to 30 k 17 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. Accused has challenged the attorney and competence of representative of complainant, to have prosecuted this case. Section 85 of the 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 CC no.170/3 Page no.
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to 30 k 18 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. X who executed the CC no.170/3 Page no.
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to 30 k 19 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 CC no.170/3 Page no.19
to 30 k 20 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 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, CC no.170/3 Page no.
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to 30 k 21 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 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 CC no.170/3 Page no.21
to 30 k 22 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 CC no.170/3 Page no.22
to 30 k 23 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 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."
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18. Ownership of company is challenged by the accused. 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 landlord's 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 CC no.170/3 Page no.24
to 30 k 25 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 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 Ltd. (AIR 1937 P.C. 251) , it is observed as follows ; "It (Sec. 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and CC no.170/3 Page no.
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to 30 k 26 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 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 CC no.170/3 Page no.26
to 30 k 27 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 sub tenant 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."
19. 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 CC no.170/3 Page no.
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to 30 k 28 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 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.
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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 predecessorininterest were inducted as a tenant by the predecessorininterest of M/s. Texmaco Ltd."
20. 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.
21. 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.
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