Criminal Appeal No 549 of 1987
From the Judgment and Order dated 23287 of the Bombay High Court in Crl
WP No 96 of 1986
753 Anil B Divan VP Vashi Ms Naina Kapur and KJ John for the Appellant
HM Jagtiani section Mullik AS Bhasme Ms Kamini Jais wal and AM Khanwilkar for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
What falls for consideration in this appeal by special leave is whether the High Court has erred in law in setting aside the judgments of the courts below in a matter arising under Section 630 of the Companies Act in exercise of its powers under Sec 482 Cr
PC The facts are as under Messers Jenson and Nicholson India Ltd appellant company had secured a flat in Bombay No 84 Mehr Dad Cuffe Parade belonging to one Mehdi Mandil on leave and licence basis for the residential occupation of the flat by its officersemployees
The leave and licence agreement was entered into on behalf of the company by the Ist respondent who was then the Divisional Sales Manager of the company at Bombay the registered office of the company being at Calcutta
It is common ground the Ist respondent acted on behalf of the company under a Power of Attorney executed in his favour by the company
The leave and licence was for an initial period of 11 months but subject to renewal for a total period of 66 months
The agreement provided for payment of advance compensation of Rs 16500 for 11 months and a monthly compensation of Rs 1500 and a deposit of Rs350000 free of interest to be returned at the end of the licence period
The company paid the deposit and the advance compensation and was paying the monthly compensation of Rs 1500 thereafter
On taking possession of the flat on 1111980 the company allowed the 1st respondent to occupy it as an employee of the company
More than three years later ie on 2331984 the Ist respondent filed a suit Suit No 136084 in the Court of Small Causes Bombay against the company and the owner of the flat for a declaration that he is the actual licencee of the flat and for permanent injunction to restrain the de fendants from interfering with his possession of the flat
The Ist respondent claimed to be the licencee of the flat on the basis of two letters dated 2511984 and 121984 writ ten to him by a junior employee of the company viz one Mr Jain who was the Officer Manager of the company at Bombay and working under the Ist respondent
In those letters Mr Jain has made it appear that the Ist respondent was the tenant of the flat
Besides the reliefs of declaration and injunction certain other reliefs such as fixation of stand ard rent etc were also asked for in the suit against the owner of the flat
Three days after the 754 filing of the suit ie on 2631984 the Ist respondent tendered a letter of resignation to the company and his resignation was accepted by the Management on 27384
In accordance with his claim to be the licencee of the flat the Ist respondent offered to reimburse the company the deposit amount of Rs350000 but the company declined the offer and asserted that it was the licencee of the flat and not the Ist respondent
As the Ist respondent failed to vacate the flat after resigning his post the company filed a complaint against him under Section 630 of the Companies Act in the Court of the Additional Chief Metropolitan Magistrate Bombay
The complaint was filed on behalf of the company by its power of attorney Mr Atul Mathur who had been appointed as Division al Sales Manager Bombay in place of the Ist respondent after his resignation
The Additional Chief Metropolitan Magistrate took the complaint on file and after trial found the Ist respondent guilty under Section 630 of the Companies Act and sentenced him to pay a fine of Rs 1000 and also directed him to deliver possession of the flat to the compa ny on or before 15687 in default to suffer SI for three months
Against the said judgment the Ist respondent pre ferred an appeal to the Sessions Court but by judgment dated 22101986 the Addl
Sessions Judge Greater Bombay dis missed the appeal
The Trial Magistrate as well as the Appellate Court concurrently  held that the company was the licencee of the flat that the Ist respondent had acted only as the power of attorney of the company in entering into the agreement that his occupation of the fiat was only as an employee of the company and consequently the Ist respondent was in unlawful occupation of the flat after he ceased to be an employee of the company
The Ist respondent was therefore directed to deliver possession of the flat to the company
Despite the concurring judgments rendered against him the Ist respondent filed a petition before the High Court under Article 227 of the Constitution but at the time of arguments he was permitted to convert the petition into one under Section 482 Code of Criminal Procedure
Three conten tions as under were urged before the High Court to assail the judgments of the Courts below 1
The complaint had been filed by a person without due authority to act on behalf of the company and this irregularity vitiated the entire proceedings 2
The Additional Session Judge had wrongly cast the burden of proof on the accused and he wrong approach has vitiated the judgment of the First Appellate Court
755 3
Since complicated questions of title were involved the Additional Chief Metropolitan Magistrate had no jurisdiction or competence to adjudicate the matter in summary proceed ings under Section 630 of the Companies Act
The first two contentions did not find favour with the High Court
On the first contention the High Court held that though the power of attorney conferred only special powers on Mr Atul Mathur to act on behalf of the company only in civil suits sales tax proceedings and excise mat ters
Mr Atul Mathur could still validly file the complaint as he was an officer of the company in the rank of Manager and could therefore validly act on behalf of the company
The High Court further held that even if Mr Atul Mathur did not have the requisite competence to file the complaint the irregularity was a curable one under Section 465 of the Code of Criminal Procedure
As regards the second contention the High Court held that the Addl
Sessions Judge hag nowhere cast the burden of proof on the accused in dealing with the appeal and hence the appellate judgment did not suffer from any perversity or illegality
The High Court however sustained the third contention of the 1st respondent and set aside the sentence of fine and the direction to the Ist respondent to deliver possession of the flat to the company
In giving its acceptance to the third contention the High Court felt influenced by the two letters Exs
3  4 written by Mr Jain and felt that the letters afforded basis for the Ist respondent to bona fide dispute the company s claim for possession of the flat
The High Court was also of the view that since the Ist respondent had filed a suit even before the complaint was filed the Civil Court was in seisin of the matter and therefore the Criminal Court ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue
 In support of its view the High Court invoked the ratio in Damodar Das Jain vs Krishna Charan Ckakraborti 1985 57 Com
Cases 115
The aggrieved company is now before us
Mr Anil Divan learned senior counsel appearing for the company argued that the High Court after having held t hat there were no reasons to interfere with the concurrent findings of the Courts below ought not to have gone back on its view and rendered a finding that a bona fide dispute was involved in the proceedings and the dispute could only be adjudicated upon by a civil court and not by a criminal court in summary proceedings under Section 630 of the Companies Act
Mr Anil Divan referred to the acceptance of the findings of the first two Courts by the High Court in its judgment in the following terms I do not think that there is any scope for re appreciating 756 or re appraising the evidence
Two Courts below have come to concurrent findings of fact and I see no reason for interfering with the conclusions arrived at by the Courts below
 It was therefore urged by the counsel that once the concur rent findings of the Courts below found acceptance with the High Court there was no justification for the High Court to set aside the judgments of the two Courts
The learned counsel further submitted that Section 630 of the Companies Act has been provided with an intent and purpose and its scope and ambit have been set out by this Court in reported decisions but the High Court has failed to notice them and construed Section 630 in an unrealistic manner and this had led to mis carriage of justice Mr Divan also invited our attention to the leave and licence agreement entered into by the company with the owner of the flat as well as an affida vit and letter given by the first respondent at the time of the agreement and submitted that in the face of these clinching documents there was absolutely no room for the first respondent to contend that he was the licencee and not the company of the fiat in question
He also commented upon the conduct of the Ist respondent in getting two letters exhibit Nos 3 and 4 written by a junior employee of the company without the knowledge of the Directors of the company and filing a suit on the basis of those letters and resigning his post three days later and refusing to vacate the flat
It was finally urged by Mr Divan that the High Court went wrong in applying the ratio in Damodar Das Jain supra because there was no bona fide dispute between the Ist respondent and the company regarding the flat occupied by the Ist respondent
Mr Jagtiani learned counsel for the first respondent who had appeared for him before the High Court also contend on the other hand that the High Court has acted rightly in exercising its power under Section 482 Cr
PC and in setting aside the judgments of the lower courts and the High Court s judgment does not suffer from any error of law which needs correction by this Court
The arguments of Mr Jagtia ni may briefly be summarised as under 1
Proceedings under Section 630 of the Compa nies Act are in the nature of criminal pro ceedings and consequently the burden of proof is upon the complainant
Besides the accused is entitled to the benefit of doubt on all matters not proved beyond reasonable doubt
Moreover any weakness in the accused s case set up by way of defence cannot be relied upon to fill up the lacuna in the prosecution case
757 2
The letters Exs 3 and 4 written by Mr Jain on behalf of the company have not been convincingly disproved by the company and as such a bona fide doubt exists as to who is the actual licencee of the flat and the said dispute can be resolved only by a Civil Court and not by a Criminal Court
A civil suit had already been filed by the first respondent and it was pending in the Civil Court and as such the Criminal Court should not have adjudicated upon the rights of the parties but should have directed them to seek their remedies before the Civil Court
The explanation offered by Mr Jain that he had written the letters under duress and coercion has been falsified by his admissions in cross examination and hence the Criminal Court should have accepted the first respond ent s plea that a bona fide dispute existed between the parties regarding the licence rights over the flat and refrained from adju dicating upon the rights of the parties in the complaint filed under Section 630
Damodar Das Jain s case sets out the cor rect ratio and the High Court was fully justi fied in applying the said ratio to this case
Before we deal with the contentions of the parties we may refer to Section 630 of the Companies Act and the deci sions of this Court on the scope and ambit of the Section
Section 630 reads as under section 630
Penalty for wrongful withholding of Property1 If any officer or employee of a company a wrongfully obtains possession of any property of a company or b having any such property in his possession wrongfully withholds it or know ingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act he shall on the complaint of the company or any creditor or contributory thereof be punishable with fine which may extend to one thousand rupees
2 The Court trying the offence may also order such 758 officer or employee to deliver up or refund within a time to be fixed by the Court any such property wrongfully obtained or wrongful ly withheld or knowingly misapplied or in default to suffer imprisonment for a term which may extend to two years
 There was a divergence of opinion between the Bombay High Court and the Calcutta High Court regarding the interpreta tion of the words any officer or employee of a company the Bombay High Court giving a broader interpretation to the words and the Calcutta High Court giving a narrow interpre tation
The controversy was set at rest by this Court in Baldev Krishna Sahi vs Shipping Corpn
of India Ltd 1987 IV SCC 361 by holding that the term officer or employee of a company applies not only to existing officers or em ployees but also to past officers or employees if such officer or employee either a wrongfully obtains possession of any property or b having obtained possession of such property during his employment wrongfully withholds the same after the termination of his employment
It was pointed out that wrongful obtainment of possession would attract Section 6301a and wrongful withholding of possession of company s property would attract Section 6301b of the Act
It is therefore clear 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 ex employee
In a later case Amritlal Chum vs Devo Prasad Dutta Roy  which arose directly from the decision of the Calcutta High Court in Amritlal Chum vs Devi Ranjan Jha the view taken in Baldev Krishan Sahi supra was affirmed and the High Court s judgment was reversed
Coming now to the question whether the licence for occupation of the flat was obtained by the company or the first respondent we may refer to three crucial documents
The first one is the leaveand licence agreement dated 111
The deed specifically states that the licencee is Messrs Jenson and Nicholson India Ltd having its regis tered office at Calcutta and Executive office at Bombay and that the company shall have the flat for the use and occu pation as residence by its bona fide employeeemployees andor histheir families and shall not be transferred to anyone else vide clauses 11  12
The agreement was en tered into by the first respondent as the power of attorney agent of the company and he has contemporaneously executed an affidavit on 111
1980 wherein he has affirmed as fol lows 759 I say that for the purpose of secur ing a flat on leave and licence basis for providing residence for the employees of the company I have entered into negotiations on behalf of the company with Shri Mehdi Mandil the owner of flat No 84 on the 8th floor of the building known as Mehr Dad  at Cuffe Parade Bombay to allow the company the use and occupation of the said flat under a leave and licence to be executed between the said Mehdi Mandil and the said company Emphasis supplied
In para 3 of the affidavit the first respondent has given an assurance that the flat would be made use of for the purpose of residence only by the bona fide employees of the company andor theirfamilies
 In para 4 the first re spondent has affirmed that neither the company nor any employee of the company who may be in occupation of the flat would claim any rightstitle or interests or any rights of tenancy other than the right to use and occupy the said flat purely as a licencee under and in accordance with the terms and conditions of the leave and licence agreement On 511
1980 the Ist respondent acting for the company has writ ten a letter to the licenser Mr Mehdi Mandil stating inter alia as under The flat being given to the company it would be occupied by only the bona fide official employee of the company Yours faithfully Jenson  Nicholson India Ltd Sd Atul Kalra Divisional Sales Manag er Bombay
 These documents clinch the issue and prove beyond a shadow of doubt that the flat was taken on leave and licence basis by the company only for providing accommodation to its employee or employees during their term of employment in the company
It was purely on that basis the first respondent who was the Divisional Sales Manager was allowed to occupy the flat and he was allowed to occupy the flat till he resigned his post on 263
It is pertinent to mention here that it was the company which had given the deposit of Rs350000 to the licenser and had been paying the licence fees advance and monthly all through
Notwithstanding this incontrovertible position the first respon 760 dent developed ideas to cling to his possession of the flat even after ceasing to be an employee of the company
Conse quently he contrived to obtain two letters dated 2511984 and 12
1984 from Mr Jain who was only working as Office Manager at Bombay
In the first letter Mr Jain has formal ly written to say though he and the Ist respondent were working in the same office that the company has received a letter from the Municipal Corporation regarding the rateable value of the flat and that the first respondent may deal with the matter
Instead of stopping with that Mr Jain has gone on to say as follows We are forwarding the said letter to you to deal with the same as you are the tenant of the flat and you are in possession of the same
The flat was taken by you from the landlord but the landlord had insisted to have the agreement in the name of the company merely
The company will not be liable if the rateable value of the flat is increased and if there is any consequential increase in the property taxes
All the matters will be be tween you and the landlord
Please therefore deal with the letter as you deem fit Emphasis supplied
Yours faithfully Jenson  Nichol son India Ltd Sd AS 
JAIN Office Manager Bombay
On 301
1984 the appellant has acknowledged the letter and agreed to deal with the corporation authorities and has in addition stated that he will also take steps for fixation of standard rent by the Court as the landlord was charging exorbitant rent
Digressing for a moment it has to be noticed that the Ist respondent had come to realise the rent to be exorbitant only after 3 years and 2 months and just before he wanted to claim tenancy rights for himself
Re verting back to the correspondence Mr Jain has sent a reply on 121984 to state that the company will have no objection to legal proceedings being taken for fixation of standard rent of your flat at 84 Mehr Dad Cuffe Parade Bombay but however he 1st respondent alone will have to bear the expenses including the court fees and advocate s fees and the company will not be liable to re imbuse him
It is on the footing of these two 761 letters the first respondent sought to build up a case that he was the actual licensee of the flat and not the company
Before considering the explanation given by Mr Jain as to his writing the letters it will be worthwhile to notice certain factors
In the first place Mr Jain was only a junior employee of the company viz Office Manager Bombay and could not therefore have directed the Ist respondent to attend to the matter of furnishing information to the corpo ration authorities about the rateable value of the flat
Secondly Mr Jain and the first respondent were both work ing in the same office and as such it is inconceivable that Mr Jain would have carried on a correspondence with the 1st respondent instead of merely placing the alleged letter of the corporation before the first respondent for suitable action by him
Thirdly Mr Jain joined the services of the company only in July 1983 ie long after the company had taken the flat on licence and as such he could not have known what were the terms of the leave and licence agreement and who was the actual licensee of the flat
Fourthly even if Mr Jain had purported
to act on behalf of the company he would have sent copies of the letters to the Head Office at Calcutta but he had not done any such thing and on the other hand he had suppressed information from the Head Office about the correspondence
The Ist respondent too had not brought the matter to the notice of the Head Office at Calcutta
The Ist respondent resigned his post on 26384 and in order to forestall the company from seeking his eviction he had filed a suit on 23384 to seek the reliefs of declaration and injunction
All these factors lead to the unmistakable conclusion that the first respondent had some how prevailed upon Mr Jain to give the letters Exs
3  4 with the ulterior motive of filing a suit and then tendering his resignation
Now coming to the explanation offered by Mr Jain for writing the two letters he has sworn to an affidavit that he was pressurised and threatened by the 1st respondent to sign the letters without knowing the implications
He has also given evidence to the same effect in the trial of the case before the Additional Chief Metropolitan Magistrate
Mr Jagtiani strenuously contended that Mr Jain s statement that he gave the letters under coercion has been disproved by the answers elicited from Mr Jain in his cross examina tion viz that the 1st respondent did not actually threaten him but he construed the commanding manner in which he made the demand as containing a threat
Mr Jagtiani s argument was that once Mr Jain s explanation for giving the letters stood falsified then the letters must be treated as genuine documents binding on the company and affording material to the 1st 762 respondent to contend that he was the real licensee of the flat
We are unable to find any merit in this contention
Even assuming for arguments sake that Mr Jain had not written the letters under threat the Ist respondent s case will not stand advanced in any manner
A junior employee of the company cannot relinquish the rights of the company in favour of the 1st respondent especially when the Ist re spondent himself had categorically stated in the leave and licence agreement as well as in his affidavit and letter that the company was the licencee of the flat and the em ployees are not entitled to claim any tenancy rights for themselves
Fully realising the weakness in his case the Ist respondent has made an attempt to authenticate the letters Exs 3 and 4 by contending that Mr Roy Director of the Company had instructed Mr Jain from Calcutta to write the letters and hence the letters were fully binding upon the company
The story invented by the Ist respondent was right ly disbelieved by the Trial Court and the Appellate Court because it is inconceivable that Mr Roy would have asked a junior officer like Mr Jain to write the letters instead of asking some one from the Head Office itself to write the letters
No suggestion was put to Mr Jain in the witness box that he wrote the letters under the instructions of Mr Roy
There is also no mention in the letters that they were being written as per the instructions received from the Head Office
Another strange feature is that a copy of the let ters has not been sent to the Head Office
Such would not have been the case if the letters had really been written by Mr Jain under directions from the Head Office
Mr Jagtiani sought to discredit the affidavit and the evidence of Mr Jain on the ground that Mr Jain had given his affidavit after consulting the company s lawyer and secondly he had not been punished by the company for his misconduct
The arguments of the counsel in this behalf have no merit in them because Mr Jain was duty bound to explain to the company the circumstances in which he had arrogated powers to himself and written the letters Exs 3 and 4 to the Ist respondent
Naturally therefore he would have sought the guidance of the company s counsel as to how the affida vit is to be formally worded
As regards the company not awarding any punishment to Mr Jain it was open to the company to pardon him for the folly of his action when it came to know that he had been unwittingly made use of by the Ist respondent to write the letters in question
All these factors have unfortunately escaped the notice of the 763 High Court and the omission has led the High Court to accept the first respondent s contention that there was a bona fide dispute between him and the company as to who was the actual licencee of the flat
We have already referred to the rele vant portions of the leave and licence agreement and the affidavit and letter of the Ist respondent wherein he has categorically accepted that the company was the licencee of the flat
Secondly the evidence projected by the Ist re spondent to lay claim to licence rights over the flat is his own creation without the knowledge of the company
The two letters in question had been obtained from a junior employee who had joined the company long after the flat was taken on rent and who knew nothing of the agreement between the company and the owner of the flat
The author of the letters has himself confessed that he had signed the letters at the behest of the Ist respondent without knowing the implica tions of his act
Leaving aside these factors even if we are to take that Mr Jain had of his own accord written the letters can it ever be said that the letters afford scope for the Ist respondent to contend that he is bona fide entitled to dispute the company s claim to possession of the flat
The sequence of events also go to show that the Ist respondent had formulated a plan for clinging to his posses sion of the flat even after resigning his post and in ac cordance with that plan he had obtained the letters Exs 3 and 4 and then filed a suit in order to forestall the compa ny from proceeding against him under Section 630 of the Companies Act
Merely because the Ist respondent had schem ingly filed a suit before tendering his resignation it can never be said that the Civil Court was in seisin of a bona fide dispute between the paries and as such the Criminal Court should have stayed its hands when the company filed a complaint under Sec 630
If a view is mechanically taken that whenever a suit has been filed before a complaint is laid under Section 630 the Criminal Court should not pro ceed with the complaint it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630
So much for the bona fides of the alleged dispute pro jected by the Ist respondent regarding the company s claim to possession of the flat
Coming now to the question of law the High Court has invoked the ratio in Damodar Das Jain supra
The facts therein were very different and it was with reference to those facts the High Court held that a bona fide dispute existed between the parties therein
This may be seen from the question posed for consideration by the High Court viz whether on the facts and circum stances of the case the Magistrate could himself under Section 630 determine the dispute as to the title to the property On the evidence before it the High Court held 764 and rightly so that there was a genuine dispute between the parties and the said dispute required adjudication by a Civil Court in the suit filed by the ex employee
While rendering its judgment the High Court had construed Section 630 properly and observed that the magistrate s jurisdic tion thereunder under Section 630 would extend only to those cases where there was no dispute or in any event no bona fide dispute that the property involved was the property of the company emphasis supplied
Mr Jagtiani pointed out that the decision of the High Court in Damodardas Jain supra was affirmed by this Court in Damodardos vs Krishna Charan Chakraborti  Anr 1988 4 Judgment Today page 7 14
He fails to notice that the ac ceptance of the High Court s view was with reference to the facts of the case
This may be seen from the following observation in the judgment of this Court
The High Court felt that the disputes raised by the respOndent herein were bona fide disputes
Before us it has not been disputed that this view of the High Court was correct as far as the ques tion whether the Company could be held to be a tenant of the flat is concerned
 Therefore what has to be seen in a complaint under Section 630 is whether there is no dispute or no bona fide dispute regarding a property claimed by the company between the company and its employee or ex employee
It is needless to say that every dispute would not become a bona fide dispute merely because the company s claim to possession is refuted by an employee or ex employee of the company
As to when a dispute would amount to a bona fide dispute would depend upOn the facts of each case
In the present case the High Court has realised this position and observed that while considering whether the plea of tenancy is a bona fide plea it is always necessary to examine and consider the transaction on the basis of which the plea is based vide para 39
While stating the position correctly the High Court went wrong in holding that the serf serving documents produced by the 1st respondent gave a touch of bona fides to his defence
The High Court was therefore not fight in thinking that the ratio in Damodar Das Jain supra was attracted to the case in as much as the defence put forward by the Ist respOndent was patently an incredible story
Another contention of the 1st respOndent to thwart the proceedings under Section 630 which has been repelled by all the Courts including the High Court is regarding the competence of PW 1 Mr Atul Mathur the present Divisional Sales Manager of the company to 765 file the complaint on behalf of the company
Belatedly the Ist respondent has filed a memorandum of cross objections against the finding of the High Court on this question
The appellant s counsel objected to the memorandum of cross objections being entertained as it has been filed belatedly and furthermore the appellant has not been given notice or furnished copies of the cross objections
Leaving aside the technical pleas we find the cross objections to be worth less even on merit
The Ist respondent would say that the power of attorney in favour of Mr Atul Mathur empowers him to act on behalf of the company only in civil suits sales tax proceedings and excise matters and does not empower him to file criminal complaints on behalf of the company
The Ist respondent s contentions suffer from a misconstruction of the terms of the power of attorney executed by the compa ny
The power of attorney read as a whole is seen to confer general powers on Mr Atul Mathur and not merely special powers
It has been engrossed on stamp papers of the value of Rs50 and it is indicative of the nature of the deed
Though specific reference is made in the power of attorney only to the filing of suits and to matters relating to sales tax and Central Excise there is a general clause which reads as follows AND THE COMPANY HEREBY agrees that all acts deeds and things lawfully done by the Attorney shall be construed as acts deeds and things done by it and the company undertakes to ratify  confirm all and whatsoever that its said Attorney shall do or cause to be done by virtue of Powers hereby given
 The power of attorney has been executed just before the complaint was filed and it is stated in the complaint that Mr Atul Mathur was filing the complaint on behalf of the company and he was duly authorise to do so
The High Court was therefore not right in construing the power of attorney as conferring only special powers and not general powers on Mr Atul Mathur
Be that as it may the High Court has held and very rightly that as Mr Atul Mathur was the Divisional Sales Manager of the company at Bombay he was certainly competent to file the complaint on behalf of the company as per instructions given to him from the Head Officer of the Company We do not therefore find any substance in the contention of the Ist respondent that the complaint suffered from a material irregularity not curable under Section 465 Cr
PC Incidentally we may observe that in spite of con tending that the complaint suffered from an irregularity the Ist respondent has neither pleaded nor proved that a failure of justice has been occasioned on account of the alleged irregularity
766 Learned counsel for the Ist respondent relied upon Ballavdas Agarwala vs Shri JC Chakravarty  in support of his contention that the company s com plaint suffered from an irregularity not curable under Section 465 Cr
In the view we have taken of the matter viz that Mr Atul Mathur had the requisite authority to file the complaint on behalf of the company the question does not survive for consideration
The cross objections must therefore fails even if entertained
For the aforesaid reasons the judgment of the High Court is not sustainable
We therefore allow the appeal set aside the judgment of the High Court and restore the judgments of the Additional Chief Metropolitan Magistrate and the Additional Sessions Judge
However the first respondent is given time till 30989 to deliver possession of the flat to the company failing which the sentence of imprisonment awarded to him would be enforced
YLal Appeal allowed


Summary:
The respondent was awarded a contract for construction of Earth Dam by the appellant State of Orissa
His dispute relating to the remaining Claim for payment was referred to an arbitrator for adjudication
Before the arbitrator the respondent claimed i the balance amount due to him ii his security deposit with the appellant and iii interest on the balance amount due and security deposit upto the date of award
On 2121980 the arbitrator gave a lump sum award in favour of the respondent inclusive of interest upto the date of award
The Trial Court made the award a rule of the Court and accordingly passed a decree in favour of the respondent for the amount awarded together with interest at the rate of six per cent from the date of decree
The appeal filed by the State was dismissed by the High Court
In this appeal it was contended on behalf of the State that the award was invalid because i the arbitrator gave no reasons ii no interest could be awarded by the arbi trator upto the date of award and the award being inclusive of interest was not severable
it was also contended that the High Court was wrong in assuming that the Trial Court was correct in refusing to call the arbitrator for being examined
Allowing the appeal partly HELD 1
The absence of reasons in the award does not by itself result in its invalidity except where the giving of reasons by the 822 arbitrator for the award is the requirement of the arbitra tion agreement or the deed of submission or an order made by the Court or statute governing the arbitration
823G H Raipur Development Authority  Ors
vs Ms Chokhamal Contractors and Ors 1989 2 SCC 721 applied
Even though an arbitrator is a competent witness the Court must exercise the power of calling him as a witness cautiously and sparingly and not in a routine manner
When the Court is requested to call the arbitrator for examina tion as a witness it must be shown that there is some cogent ground for his examination within the permissible limits
826D In the instant case nothing has been shown to indicate that it was at all necessary to call the arbitrator as a witness to depose on any matter which could legitimately be examined by the Court in the proceedings
The High Court was therefore justified in refusing to call the arbitrator for examination
826E State of Orissa vs DC Routray AIR 1983 Orissa 163 approved
In cases wherein the reference to arbitrator was made prior to the commencement of the  on August 19 1981 the arbitrator is not empowered to grant interest for the period either before the commencement of the proceedings or during the pendency of the arbitration
In the instant case the reference to arbitrator was made and even the award was given prior to the commencement of the 
Therefore the arbitrator had no jurisdiction to grant any amount as interest for any period either upto the date of submission of the claim before him or pendente lite upto the date of the award
827F G Executive Engineer Irrigation Balimela  Ors
vs Abhaduta Jena  Ors 1988 1 SCC 418 applied
Gujarat Water Supply and Sewerage Board vs Unique Erec tors Gujarat P Ltd  Anr
   held inapplicable
In the instant case the inclusion of the amount of interest in the lumpsam award by the arbitrator does not render the whole award 823 invalid since it is possible to sever the invalid part relating to interest
The balance amount of award remaining after deduction of interest would not be tainted with any invalidity and it would be just and proper to sustain the award to this extent only
The decree is therefore modi fied to this extent
828E F 829C