1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2797 OF 2006 IN SUIT NO.193 OF 2005 Sonal Corporation and Ors. ...Plaintiffs Vs. Sharjil Builders Ltd. & Ors. ...Defendants Mr.D.S. Dani with Mr. S.S. Shah for Plaintiffs Mr. J.A. Udaypuri with Ms. B. Trivedi i/b. A. Bharat & Co. for Defendants 1 & 2 Ms.B. Mistry, G.B.Dalal & Co for Defendant No.11 Mr. Anit Gor i/b. D.S. Shah for Defendants 3 to 10 CORAM: SMT.ROSHAN DALVI, J. DATED: 29TH APRIL, 2008 P.C. 1. This Notice of Motion is taken out for passing a judgment on admission under Order 12 Rule 6 of C.P.C, for prosecuting Defendants 1 and 2 under Section 191, 192 and 193 of I.P.C, for possession from the Receiver, for discharge of the Receiver and other ancillary reliefs. 2. Mr.Dani on behalf of the Plaintiffs states that he presses prayer (a) alone. 2 3. The suit is filed against M/s. Sharjil Bhilders Ltd., as Defendant No.1. One Mr. Iqbal Attarwala, Chairman of the aforesaid Company as Defendant No.2 and other Defendants. 4. The first Defendant Company has been represented in the earlier interim application by one Naushad Mohammed Sayyed Khan, who is the Director of the first Defendant. Defendant No.2 is also a Director. Though he is shown to be Chairman and Managing Director, in law he has the same rights, duties, liabilities and responsibilities as any other Director. 5. The Director, who represented the Company and filed affidavits being Naushad Mohd. Sayeed Khan has since resigned as Director. After his resignation, he has made a statement under Section 164 of Cr.P.C before the Metropolitan Magistrate, 10th Court, Andheri, Mumbai on 18th March 2006. 6. The suit has been filed on 7th December 2004. The aforesaid Director resigned on 31st March 2005. The confessional statement shows circumstances under which he 3 resigned. There appears to be several disputes between Defendant No.2, the other Directors of the Company and the person making the statement between the date of the filing of the suit and the date of his resignation. 7. For the incident that took place, initiating this suit, a criminal complaint has also been filed. Under the directions of the High Court it has been investigated by GB, CB, CID Mumbai. During the course of investigation the confessional statement was made by the Director Naushad Mohd. Sayeed Khan. In this statement, amongst various other allegations made against Defendant No.2, a statement is made that the Defendant No.2 forcibly grabbed the suit property along with his hoodlums and goons on the night of 27th and 28th November 2004 by ousting the security guard on the property and appointing his own security guard. This constitutes the cause of action in this suit. 8. Hence, the statement made by one Director who is a Director of Defendant No.1, is essentially sought to be used against another Director, Defendant No.2. Mr. Dani argued that the Plaintiffs would apply for judgment against Defendant No.1 alone since the statement is made by a Director of Defendant NO.1. A Director is an Agent of and 4 Trustee for the Company. A Director has to make statements and file affidavits as per resolutions passed by the Company. The Director, therefore, acts for and on behalf of the Company upon the authority granted to the Director by the Company in a Court of law. 9. Mr. Udaypuri argued that the statement recorded under Section 164 of Cr.P.C is not a statement authorised by the Defendant No.1 Company. Hence, the use of that statement by or against the company in a Civil proceeding cannot be made. 10. The authority of the Company is required to be shown by a person filing an affidavit and deposing on behalf of the Company. Hence, there is a lot of substance in the argument of Mr. Udaypuri that the statement made by one Director cannot be used against another Director or against the Company as an admission for passing a judgment on such admission under the provisions of Order12 Rule 6 of the C.P.C. 11. Mr. Udaypuri drew my attention to the fact that the end of the statement shows that it is signed by the person making a confessional statement before the Magistrate who 5 has also simplicitor signed against his signature. The statement is dated 18th March 2006. 12. Mr. Udaypuri drew my attention to the fact that the statement does not comply with the specific provision of Section 164(4) of the Cr.P.C. The memorandum which is required to be signed by the Magistrate as an inbuilt measure for accepting the statement as a confessional statement, and which specifically distinguishes it from a statement recorded by the police under Section 161 of the Cr.P.C, is not recorded in this case. Hence, the mandatory provision of Section 164(4) is not complied. 13. A true copy of this statement has been obtained on 20th March 2006. The certified true copy has been applied for on the date of the making of the statement. It has been made ready and delivered two days thereafter. Mr. Udaypuri contended that the fact that certified copy of the statement was applied on the same day as the confessional statement was made, itself shows that it was meant to be used for a purpose other than for a charge-sheet in the criminal case in which the person making a confessional statement was a mere witness. 6 14. A xerox copy of the certified copy has been relied upon by the Plaintiff and annexed to this Notice of Motion as exhibit-7. Mr. Dani states that the Applicants obtained the xerox copy of the certified copy of the confessional statement as a part of the charge sheet in the criminal trial. Mr. Dani on behalf of the Plaintiffs states that the Plaintiffs have not applied for a certified copy of the statement from the Magistrate' s Court. 15. However, in view of the various other statements in this confessional statements itself a complete acceptance of a statement constituting the cause of action in this suit would not be prudent. A Judgment on admission cannot be based upon the statement made in Exhibit-7 to the affidavit in support to this Notice of Motion. 16. Prayer (a) of the Notice of Motion is refused. Since the other reliefs are not pressed, there shall be no order on the Notice of Motion. No order as to costs. (SMT. ROSHAN DALVI, J.)