IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE(SPL. ACTS):CENTRAL:TIS HAZARI COURTS, DELHI In re: TE[ENTITY]MACO LIMITED BELGHARIA, CALCUTTA, PROP. OF M/S BIRLA TE[ENTITY]TILES COMPLAINANT VS. BHURA MAL ACCUSED CASE NO. 469/3 U/[SECTION] OF THE COMPANIES ACT, 1956 DATE OF RESERVATION OF JUDGMENT: 14.12.2009 DATE OF PRONOUNCEMENT OF JUDGMENT: 14.12.2009 JUDGEMENT
(a) The serial no. of the case : [CASE NUMBER].
(b) The date of commission of offence : On and after 30.11.1996 continuously.
(c) The name of complainant : M/s [ENTITY]. Ltd. Registered office at : Balgheria Calcutta. Prop of M/s Birla Textiles, P.O. Birla Lines, Delhi110007. Through Sh. [ENTITY], Chief Estate Officer (d) The name, parentage, residence: [ENTITY] s/o. Sh. [ENTITY] r/o. Tin Shed No.3, Khilonawala Bagh,
JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 1 of 38/ e Pambari Road, Delhi
(e) The offence complained of/ proved : U/[SECTION] of [ACT],
(f) The plea of accused : Pleaded not guilty.
(g) The final order : Convicted. (h) The date of such order : 14.12.2009.
(i) Brief statement of the reasons for the decision:
1. The complainant, M/s. [ENTITY] Ltd. filed the present complaint u/[SECTION] of the [ACT], against the accused [ENTITY]. Before proceedings further let it be mentioned here that during the pendency of complaint, accused [ENTITY] expired and, vide order dated 11.4.2007, my Ld. Predecessor Court was pleased to substitute three LRs of deceased accused, namely Smt. [ENTITY] (widow of deceased accused); Shri [ENTITY] and [ENTITY] (both sons of deceased accused), as accused in this case. On 14122009 accused [ENTITY] and [ENTITY] were dropped as a result the present judgment is directed against accused [ENTITY] only.
2. It is claimed that the complainant company is duly incorporated under the [ACT] and the complainant company is the proprietor of Birla Textile Mill, located at Post Office Birla Lines, Kamla Nagar, Delhi. It has various employees JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 2 of 38/ e and housing colonies such as Old Birla Lines, New Birla Lines, Roshanara Building (Shivaji Lines), Birla Lines Officer's Flats and Birla Flats, Khilona Wala Bagh etc. It claims that these housing colonies are located near the vicinity of the mill and they were allotted to employees for the greater convenience of the employees due to exigencies attached with their job and, so that the work of the mill is done effectively. It is also claimed that the complainant company acquired proprietary rights in respect of the mill, as well as, the housing colony vide a scheme of arrangement arrived at between the complainant company and M/s. Birla Cotton Spinning and Weaving Mills Ltd., vide orders of Hon'ble Delhi High Court dated 03.1.1983 in [CASE NUMBER]. It is also claimed that pursuant to the said arrangement, all the agreements, more particularly, licence agreement entered between the M/s. Birla Cotton Spinning and Weaving Mills Ltd. with third parties are deemed to be entered between the complainant company and those third parties. The complainant company also acquired all the rights, titles, interest in the properties of the mill and the housing colonies of the mill unit of the said M/s. Birla Cotton Spinning and Weaving Mills Ltd. company without any further act or deed and all the employees of the said mill unit of M/s. Birla Cotton JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 3 of 38/ e Spinning and Weaving Mills Ltd. became the employees of the complainant company pursuant to the said scheme of arrangement.
3. It is further claimed that the deceased accused joined the services of the erstwhile company M/s. Birla Cotton Spinning and Weaving Mills Ltd., on 18.7.1973 and on his request, tin shed no.3, Khilona Wala Bagh, Pambari Road, Delhi, was allotted to him on 04.10.1980 vide allotment letter of even date.
4. It is further claimed that the accused ceased to be in services of Complainant Company from 09.8.1982 and thereafter in terms of orders of Hon'ble Supreme Court of India in [CASE NUMBER], the working of the mill in Delhi was closed w.e.f. 30.11.1996 . It is claimed that therefore the accused was no more in the services of Complainant Company, but despite ceasor of his employment with the complainant company, the accused was withholding the said quarter, which is contrary to the licence allotment letter executed between the accused and the complainant company. It is claimed that Hon'ble Supreme Court in [CASE NUMBER] in IA No.36 vide order dated 04.12.1996 observed that the retiring workmen will be entitled to remain in the quarter for a period of 1 years and those workers who opt to be JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 4 of 38/ e relocated at the new site ( in this case at Baddi, Himachal Pradesh), will vacate the quarters at Delhi on being offered alternative accommodation at the new place of joining. Hon'ble Supreme Court in the same CWP in [CASE NUMBER] vide order dated 19.2.2002 finally observed that the employees residing in the said quarters have no rights and the said [CASE NUMBER] was dismissed by Hon'ble Supreme Court. The complainant claims that till today the accused is withholding the said quarter allotted to him on licence basis and thereby he commits offence u/[SECTION] of the [ACT].
5. On the above complaint being filed, my Ld. Predecessor summoned the accused and thereafter a notice for the offence of [SECTION] of The [ACT], was served upon the accused in terms of [SECTION] [ACT] to which the accused claimed trial.
6. In support of its case, complainant examined two witnesses namely PW1 Sh. [ENTITY] and PW2 Sh. [ENTITY].
PW1 Sh. [ENTITY] deposed that the complainant company is duly registered and incorporated under the Companies JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 5 of 38/ e Act vide certificate of incorporation Ex. PW1/1 and that M/s. Birla Textiles is a unit of the complainant company. It is claimed that tin shed no.3, Khilona Wala Bagh, Pambari Road, Delhi, was property of M/s. Birla Cotton Spinning and Weaving Mills and by virtue of scheme of arrangement of Hon'ble Delhi High Court dated 03.1.1983 Ex. PW1/2, the said property became property of the complainant company. It is deposed that the accused joined M/s. Birla Cotton Spinning and Weaving Mills on 18.7.1973 and by virtue of Ex. PW1/2, the accused became employee of complainant company and the abovementioned tin shed no.3 was allotted to the accused for his residence by virtue of his employment in the company. The allotment letter of the tin shed is proved as Ex. PW1/3. The accused was to vacate the quarter on termination of his services and it is deposed that despite superannuation of the deceased accused from the services of the complainant company on 09.8.1982, the accused wrongfully withheld the quarter in question. This witness also proved power of attorney in his favour Ex PW1/4. Nothing material could be brought out in the cross examination of this witness on behalf of the accused.
Complainant also examined PW2 [ENTITY] JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 6 of 38/ e who proved application Ex. PW2/1 , PW2/2 and PW2/3 made by the accused to the company for allotment of quarter and he also deposed that those applications bear signature of the accused. Nothing material could be brought out on record from the cross examination of this witness also.
7. After examination and closing of prosecution evidence, all the incriminating evidence against the accused was put to the accused in his examination u/[SECTION] [ACT] read with [SECTION] [ACT] In his statement, the accused admitted that he joined M/s Birla Cottons Spinning and Weaving Mills on 18.07.1973 and he also admitted that scheme of arrangement Ex. Pw1/2 and he also admitted that he seized to be in the services of the company w.e.f 09.08.1992.
8. The accused examined DW1 [ENTITY] who deposed that the accused constructed the premises himself from his own expenses.
9. I have perused the written arguments filed from both the sides and have perused the record.
10. [SECTION] of the [ACT] provides as under JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 7 of 38/ e "(1) 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 knowingly applies it to purposes other than those expressed or directed in the articles and authorized by this Act, he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to [ten thousand rupees].
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
11. The accused admits that he joined the company M/s Birla Cottons Spinning and Weaving Mills and that he seized to be in the services of the company. The stand taken by the accused is that he constructed the property himself . There is no denial of fact that the said property is still being withheld by the JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 8 of 38/ e accused. Perusal of Ex. PW1/3 reveals that it is the allotment letter vide which the property was allotted to the accused. It bears the signature of the accused. Signatures are not denied rather the accused claims that his signatures were obtained on blank papers, but he has not put forth any explanation as to how, when and under what circumstances his signature were so obtained. Similarly the accused has tried to wriggle out of his signatures on Ex. PW2/1 to Ex. PW2/3 which are applications given by the accused to the company for allotment of quarter. These last mentioned four documents itself belie the stand taken by the accused. The accused has not furnished any proof that he const the property in question himself. Even otherwise assuming for the sake of arguments that the accused constructed the property on the vacant land, still his case would be covered u/[SECTION] of the [ACT]. U/[SECTION] of [ACT] even if an employee wrongfully obtains possession of any property gets covered. There is no denial of the fact that the land on which the property stands, does not belong to the accused and, belongs to the company . If the accused constructed the property himself JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 9 of 38/ e without permission of the company, it amounts to wrongfully obtaining possession of the property.
12. The documents Ex. Pw1/3 clearly reveals that the property in question was allotted to the accused by virtue of his employment with the company and it was allotted purely on licence basis. The accused is no more in service but still withholding the property. It is duly proved that the complainant company is duly incorporated under the [ACT] and that the present property vested in the complainant by virtue of Ex. PW1/2.
[PRECEDENT] "K. G. K. Nair v. P. C. Juneja" BOMBAY HIGH COURT It is held that, the provisions of [SECTION] are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld and the complaints be taken up and disposed of on a priority basis, the accent being on the avoidance of any unwarranted delay; that the trial Courts should address themselves to the fact that the scope of the enquiry in a proceeding under [SECTION] is extremely restricted in law and, consequently, the parties be confined within those narrow ambits without being permitted to dilate or protract JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 10 of 38/ e the proceeding through extraneous avenues.
14. It is argued that the complainant company has no locus standi to file the present complaint and that it was M/S Birla Cotton Spinning and Weaving Mills Ltd. only which could have filed the present proceedings against the accused.
This argument is absolutely without any force. As mentioned above the present complainant company acquired all the property rights, interests etc. in the unit mill 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 proved as Exhibit PW1/2. The accused has also not denied the scheme of arrangement Ex. PW1/2 and perusal of the said document reveals that on page 5 in the order of petition, it is specifically written as follows.
" a) That all the property, rights, and powers of the said transferor company specified in the first , second and third parts of the Schedule II hereto and all the other property, rights and powers of the said transferor company be transferred without further act or deed to the said transferee company and accordingly the same shall, pursuant to [SECTION] of the [ACT], be transferred to and vest in the said JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 11 of 38/ e 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] of the [ACT], be transferred to and become the liabilities and duties of the said transferee company:
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 [ENTITY] as the case may be and enforced as fully and effectively as if [ENTITY] instead of Birla Cotton had been a party thereto.
15. Accordingly it is very clear that the complainant company became the owner of all the property, rights and JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 12 of 38/ e 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.
16. The next contention raised by the accused is that the power of attorney and resolution in favour of the complainant is not proved in accordance with law and the power of Attorney in favour of the complainant is defective as it does not comply with the provisions of the [ACT], nor it complies with the provisions of the [ACT]. It is also argued that the resolution regarding the power of attorney in favour of the complainant has not been proved and that the complainant is stranger to the company and that therefore no resolution could have been passed in favour of the complainant.
17. Again all these contentions are without any force. [SECTION] of the [ACT] clearly provides that once there is a duly notarized power of attorney than it shall be JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 13 of 38/ e presumed to be true, unless the contrary is proved. It is noticed that the power of attorney on record is perfectly and legally notarized and it fulfils all the ingredients of [SECTION] of the [ACT]. The accused has not produced any evidence to disprove the power of attorney of the company.
18. In the case of [PRECEDENT] before a three judge bench of hon'ble Supreme court it was argued that [SECTION] of the [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. It was contended 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 ought to have been signed by the persons named in [SECTION] 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 JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 14 of 38/ e attorney was invalid, because it did not show on its face that the Notary Public had satisfied himself that it was Mr. [ENTITY] who executed the document.
It was held that the power of attorney does show that it was executed before a Proper Notary Public who complied with the laws of California and authenticated the document as required by that law. SC was also satisfied that that Power of attorney is also duly authenticated in accordance with our laws. The only complaint is that the Notary Public did not say in his endorsement that Mr. [ENTITY] had been identified to his satisfaction. It was held that "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." It was held that the power of attorney was a valid document.
19. In the case of [PRECEDENT] it is observed as follows:
" 11. Under the aforesaid provisions, it would JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 15 of 38/ e 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 [ENTITY] had executed the power of attorney in favour of [ENTITY] which was duly authenticated by a notary public as mentioned in [SECTION]. The Court is, therefore, bound to presume that the power of attorney was duly executed and authenticated. This presumption, however, is a rebuttable presumption and it was open to the defendants to challenge the authority of the attorney or to prove that the power of attorney was invalid or that the person acting on the basis of such power of attorney was not duly authorised. No such evidence has come from the side of the defendants "
20. In the case of [PRECEDENT], Respondents. [PRECEDENT] it is held, that a Power of attorney along with verifications are to be presumed to be true u/[SECTION]. Also see [PRECEDENT], Respondent. [PRECEDENT] .
21. In the case of [ENTITY] and Ors. v. M/s. [ENTITY] Ltd. AIR 2007 DELHI 147 which was a case of this very JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 16 of 38/ e complainant on the same facts , i.e. company named M/s. Birla Cotton Spinning and Weaving Mills Ltd. filed eviction petitions invoking [SECTION] of the Delhi Rent Control Act, 1958 alleging that the premises in question were allotted to the respondent (predecessorininterest of some respondents) for residential purposes as a service tenant exclusively by virtue of their being in the service and employment of the said company. It was a term of allotment that within 4 days of superannuation or cessation of employment, vacant possession would be redelivered to the company. In spite of cessation of employment, vacant possession was not handed over. Under a scheme of arrangement sanctioned by Hon'ble Delhi High Court , the entire assets of M/s. Birla Cotton Spinning and Weaving Mills Ltd. stood transferred to M/s. [ENTITY] Ltd. and therefore said company was the successor ininterest of M/s. Birla Cotton Spinning and Weaving Mills Ltd. The defence set up in all the petitions was that allotment was not due to the allottee being an employee of M/s. Birla Cotton Spinning and Weaving Mills Ltd. That the allottee was tenant independent of his status as employee of the company. That the eviction petitions were not filed under a proper authorisation. JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 17 of 38/ e That M/s. [ENTITY] Ltd. was not successorininterest of M/s. Birla Cotton Spinning and Weaving Mills Ltd. Learned Addl. Rent Controller held that authority of Shri [ENTITY] was not established to file the eviction petitions. It was observed that it shows that the learned trial Court has been influenced by the fact that the Executive Director of the company who had executed the power of attorney in favour of Shri [ENTITY] pursuant to the board resolution dated 1071978 whereunder it was resolved that Shri [ENTITY] be authorised to file the eviction petitions and sign the petition and verify the pleadings had not appeared in the witness box and notwithstanding that the power of attorney was duly notarised, the notary public was also not examined. Thus, it was held that recourse could not be had to [SECTION] of the [ACT]. In [CASE NUMBER] reported in [PRECEDENT] the Supreme Court directed closure of the mill on account of the reason that Master Plan for Delhi did not permit the industrial user in question. The mill was required to shift out of Delhi. Under orders of the Supreme Court 68% of the land had to be handed over to DDA and the remaining 32% vested in the company. The scheme of transfer of M/s. Birla Cotton Spinning and Weaving JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 18 of 38/ e Mills Ltd. and M/s. [ENTITY] Ltd. as approved by Hon'ble Mr. Justice [ENTITY] of this Court was duly proved. Certified copies of the scheme of arrangement and orders passed by this Court were proved and were given exhibit marks.
A two fold contention was urged before HC. Firstly, that the structures in question fell on the part of the land which had to be handed over to DDA and therefore [ENTITY] Limited was not the owner thereof and hence could not maintain the evidence petition. Second point urged was that since the Executive Director of the company who executed the power of attorney in favour of the employee who had signed and verified the petition as also instituted the eviction petition was not produced as a witness, therefore the power of attorney which was relied upon as constituting the authorisation remained an unproved document.
It was held by Hon'ble High Court as follows:
" 24. On the first issue raised, suffice would it be to note that eviction as finally pressed was under [SECTION] of the [ACT]. The legislative provision is that where the premises were let out to a tenant for use as a residence by reason of his being in the service or employment of the landlord, service or employment ceasing, entitles the landlord to a JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 19 of 38/ e decree for ejectment.
25. Ownership is not relevant for the reason a person may be a landlord without being an owner.
26. A company may take a premises on a 30 year lease from the owner with a permission to induct its employee as a tenant/subtenant. Such an employee to whom the said permission is allotted would be a tenant under his company and the allotment would be pursuant to his employment. Such an allottee cannot resist the eviction, if otherwise grounds are made out.
27. Even otherwise, under the directions of the Supreme Court, 68% land had to be handed over to DDA for being maintained as open area. DDA has not become the owner of the said land. Ownership would vest in DDA when possession is handed over.
28. It would be the obligation of the company to evict its tenants including heirs of the tenants and hand over possession to DDA.
29. But, I rest my decision on firmer grounds. A tenant JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 20 of 38/ e 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. [ENTITY] Ltd. for the reason either they or their predecessorininterest were inducted as a tenant by the predecessorininterest of M/s. [ENTITY] Ltd.
31. On the second issue raised, namely, authority of the person who has signed and instituted the eviction petition, the controversy between the parties stood resolved by the Tribunal in the context of [SECTION] of the [ACT].
32. It is not in dispute that the notarised power of attorney in favour of the person who had signed and verified the eviction petition as also who had filed the same was produced at the trial and copy thereof was assigned an exhibit mark. The only question which arises for consideration is, whether in absence of the notary public being produced as a witness or the executant thereof being not produced as a witness to prove the same, was the document proved as per law.
33. Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 21 of 38/ e 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 the notary public. As observed in [PRECEDENT], 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] 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] has to be granted.
36. No negative evidence has been brought on record, JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 22 of 38/ e none has been shown to me by the petitioners.
37. The purpose of [SECTION] of the [ACT] appears to be that a duly executed and authenticated power of attorney can be proved under [SECTION] without undue expenses to be incurred by producing the executant thereof or the original board resolution.
38. The reason is obvious. Banks, insurance companies and multinational companies empower officers to institute and file suits on their behalf. Large number of suits are filed by these organisations. If the original board resolution or the executant of the power of attorney has to submit 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 JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 23 of 38/ e the notary public.
40. Decision of the Supreme Court reported as [PRECEDENT] 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."
22. In the case of [PRECEDENT], Plaintiff v. Juggilal Kamlapat Jute Mills Co. Ltd., Kanpur, Defendant. [PRECEDENT] it was held Execution of power of attorney by a Bank's Executive Officer and Cashier delegating certain powers to one employee of that Bank. Document bearing Bank's seal and attested by Notary Public. Presumption that power of attorney is executed by the Bank arises. Presumption that the officers executing the document had authority to execute it on behalf of the Bank also arises Word "person" in [SECTION] includes legal person Presumption arising under [SECTION] is rebuttable. (Paras 17, 18, 19, 20, 22, 28).
23. It is next argued that the order of honorable Delhi High Court dated 3rd January 1983 regarding the scheme of JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 24 of 38/ e arrangement is not binding on the accused since they were not party to it and accused did not give his consent in the said proceedings. The next contention raised by the accused is that the mandatory directions mentioned in the order dated 3rd January 1983 by honorable Delhi High Court has not been complied with by the complainant as the necessary proceedings before Calcutta High Court has not been conducted. It is claimed on behalf of accused that the scheme of arrangement of Delhi High Court dated 03.1.1983 was not complete as the approval of Calcutta high Court was not obtained nor the copies were delivered to the Registrar of Company.
Whether the accused was a party to the said proceedings or not is immaterial. The judgment of honorable Delhi High Court is indeed binding and it was also relied upon in the case of [ENTITY],s case as mentioned above. Similarly the contention that the property in question does not found part of the said scheme is baseless for the said reason.
24. The next contention raised is that the accused is a tenant and not a licensee. I have already mentioned above that the contents of the allotment letter clearly stipulates that the accused is a licensee and not a tenant. No rent agreement has been proved by JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 25 of 38/ e the accused in his favour to show that he was a tenant. The conditions mentioned in the exhibit PW 1/3 indeed reveals that the accused was a licensee.
25. It is argued that the complainant is not the owner of the premises and thus cannot maintain these proceedings.
Here it would be relevant to note of what is stated in [SECTION] of the [ACT]. The same reads as follows:
"Estoppel of tenant; and of licensee of person in possessionNo 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."
26. the case of [PRECEDENT], the Privy Council observed as follows :
"A tenant who has been let into possession cannot deny JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 26 of 38/ e his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord."
(Emphasis supplied).
27. In the case of [PRECEDENT] it is observed as follows :
" 14. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given.
15. The underlying policy of [SECTION] is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
16. The principle of estoppel arising from the Contract JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 27 of 38/ e of tenancy is based upon a healthy and salutory 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.
17. [SECTION] enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time.
18. As laid down by the Privy Council in [PRECEDENT], "It ([SECTION] deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation".To the same effect is judgment in [PRECEDENT] (dead) by JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 28 of 38/ e LRs [PRECEDENT].
28. In the case of [PRECEDENT] the case pertained to [SECTION] of the [ACT] which is some what similar to [SECTION] of the [ACT] and which provides a Procedure for summary delivery to railway administration of property detained by a railway servant. It was observed as follows:
"The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also books, papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant. Further, from the afore quoted second ingredient, it is clear that a railway servant who is discharged or suspended from his office, dies, absconds or absents himself would include a railway employee who is removed, retires or dismissed from service. In context, the JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 29 of 38/ e words 'discharge, dies, absconds or abstains himself' would certainly include employees who retire at the age of superannuation. The word 'discharge' used in context is of widest amplitude and would include cessation of relationship of employer and employee, may be by retirement, resignation, dismissal or removal. This Court in [PRECEDENT] considered [SECTION] and held that a close perusal of the section clearly reveals that the provision has widest amplitude and takes within its fold not only a railway servant but even a contractor who is engaged for performing services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in [SECTION]. The Court also observed that the said provision is in public interest and must be construed liberally, broadly and meaningfully so as to advance the object sought to be achieved by the [ACT] "
It was also observed that, " 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 JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 30 of 38/ e invoking [SECTION] 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] of the [ACT] "
"14. Second part of the aforesaid section clearly provides that no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny the title to such person to such possession of the property. He cannot deny the same during the pendency of such license or sublease. Such estoppel continues to operate so long as licensee or subtenant has not openly restored possession by surrender to such person. This rule of estoppel would cease to operate only after such licensee or subtenant has been evicted. This position does not require reference to many judgments. However, we would refer to the decision in S. Thangappan v. P. JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 31 of 38/ e Padmavathy [(1999) 7 SCC 474] in which the appellant tenant who was running an automobile workshop since 1962 disputed the title of respondentlandlady on the ground that certain [ENTITY] was the actual landlord. This Court held that [SECTION] of the [ACT] puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are 'at the beginning the tenancy'. So a tenant once inducted as a tenant by a landlord, later cannot deny his landlord's title. However, defective the title of such landlord may be, such tenant cannot deny his title." 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."
29. In the case of [PRECEDENT] it is held thus: JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 32 of 38/ e " [SECTION] of the [ACT], which codifies the common law rule of estoppel between landlord and tenant, provides that 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. The rule of estoppel so enacted has three main features; (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) [SECTION] of the [ACT] is not the whole law of estoppel between the landlord and tenant. The principles emerging from [SECTION] can be extended in their application and also suitably adapted to suit the requirement of an individual case "
30. the case of [ENTITY] and Ors. v. M/s. [ENTITY] Ltd. (Supra) it was held as follows:
"25. Ownership is not relevant for the reason a person may be a landlord without being an owner.
JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 33 of 38/ e
26. A company may take a premises on a 30 year lease from the owner with a permission to induct its employee as a tenant/subtenant. Such an employee to whom the said permission is allotted would be a tenant under his company and the allotment would be pursuant to his employment. Such an allottee cannot resist the eviction, if otherwise grounds are made out.
27. Even otherwise, under the directions of the Supreme Court, 68% land had to be handed over to DDA for being maintained as open area. DDA has not become the owner of the said land. Ownership would vest in DDA when possession is handed over.
28. It would be the obligation of the company to evict its tenants including heirs of the tenants and hand over possession to DDA.
29. But, I rest my decision on firmer grounds. A tenant who accepts a person as his landlord is estopped from questioning the title of his landlord.
30. The petitioners are therefore estopped from JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 34 of 38/ e questioning the title of M/s. [ENTITY] Ltd. for the reason either they or their predecessorininterest were inducted as a tenant by the predecessorininterest of M/s. [ENTITY] Ltd."
31. It is next argued that the documents proved on record are merely photocopies and originals was not produced. Admittedly there are number of cases filed by complainant. Complainant cannot be expected to file originals in one case. It would be required by the complainant in other cases also. Even otherwise the accused cannot raise this objection now at final stages since the exhibiting of these documents were not opposed at the time of its proof during the evidence of the complainant.
32. In the case of [PRECEDENT] discussing the stage at which the objection as to admissibility can be raised it is held by Hon'ble SC , "such objections can be classified as,
(i) that the document sought to be proved is itself inadmissible, and
(ii) Objection directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency.
Objection under the category (i) can be raised even after the JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 35 of 38/ e document has been marked as exhibit or even in appeal on revision. But the objection under [SECTION] can be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit. In the present case the ledger of books and photo state copies of the order in question and of the rent agreement were admitted in evidence by the trial court without any objection from the opposite side. Therefore, the objection raised before High Court in second appeal that in the absence of the deceased maker of the entries in the ledger of books and in the absence of production of the originals the said document ought not to have been admitted, fell under the [SECTION] and High Court erred in upholding that objection in appeal."
33. In the present case no such objection was raised at the time when these documents were proved and so exhibited by the complainant in its evidence and thus this objection cannot now be entertained.
34. It is settled law that the scope of inquiry in a proceedings u/[SECTION] is extremely restricted in law and the case is JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 36 of 38/ e to be confined within those narrow ambit's without permitting any delay. The provision contained in [SECTION] 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 [PRECEDENT], it was held that the purpose of enacting [SECTION] is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or an ex employee.
35. 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/[SECTION] of The [ACT].
ANNOUNCED IN OPEN COURT ON ([ENTITY]) 14.12.2009. ACMM, SPECIAL ACTS, CENTRAL, TIS HAZARI COURTS DELHI
JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 37 of 38/ e JUDGMENT/[ENTITY] Vs. [ENTITY] [CASE NUMBER] of [ACT]/Convicted/DATED 14.12.2009/Page 38 of 38/ e