Case: Hooghly Mills Company Ltd Vs. The State of West Bengal and Ors

3. The facts giving rise to this appeal are as follows: The Appellant is an existing company within the meaning of the Companies Act, 1956 (for short 1956 Act), which entered into agreement for sale dated 26.4.2008 for purchase of a flat situated on the 3rd Floor, of Plot-D in Sreekunj, 13, Gurusaday Road, Police Station-Karaya, Kolkata-700019 (hereinafter disputed property) with the legal heirs of one late Mr. Arun Kumar Bajoria (hereinafter Vendors). Per the terms of the agreement, the vendors would execute and register the deed of conveyance in favour of the Appellant upon payment of the entire sale consideration of Rs. 2,02,26,000/-. However in the interim, under Clause 6 of the agreement, the Appellant company would be put into possession of the property subject to payment of monthly rent of Rs. 84,275/-. This agreement is notAppellants case is that the 2nd Respondent/Accused Mr. Bal Binode Bajoria was a director of the Appellant company from 1988 to 2008. He was allowed to use and occupy the disputed property on and from 1.5.2008 by virtue of holding the office of director. The 2nd Respondent was to retire by rotation from the Board of Directors in the Annual General Meeting of the Appellant company held on 22.11.2008; however he offered himself for re-election. The members present in the meeting voted against him and thereafter the 2nd Respondent ceased to be a director of the Appellant company. Consequently he was required to return the disputed property to the company; however he failed to doAppellant company on 20.4.2009 asked the 2nd Respondent to vacate and deliver physical possession of the disputed property. When he refused, the Appellant sent a letter on 30.4.2009 to the 2nd Respondent requesting delivery of possession. When the 2nd Respondent still failed to comply with the Appellants request, criminal complaint was filed against him Under Section 630(1) of the 1956 Act on 11.8.2009. During the pendency of this complaint, the Appellant company filed an application on 29.4.2010 Under Section 630(2) of the 1956 Act for dispossessing the 2nd Respondent from the disputed property. Section 630 reads asPenalty for wrongful withholding ofIf any officer or employee of awrongfully obtains possession of any property of a company;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 authorised by thisshall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousandThe 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 twoto the Appellants allegations, the 2nd Respondent contends that he had a mutual understanding/oral agreement with the deceased Mr. Arun Kumar Bajoria, who was his cousin brother, under which the deceased had paid consideration of Rs. 9,10,170/- for construction of the disputed property. It was agreed between the 2nd Respondent and Arun Kumar Bajoria that the latter would transfer the disputed property to the 2nd Respondent and his nominee upon payment of the purchase price, once the 2nd Respondent was in a position to pay such amount. In other words, according to the 2nd Respondent, he was permitted to purchase the disputed property based on his oral understanding with the deceased Arun Kumar Bajoria on and after the date on which he tendered sale consideration to Arun Kumarafter Arun Kumar Bajoria expired, relations between the- 2nd Respondent and Arun Kumar Bajorias family became strained. Hence the vendors failed to execute a deed of conveyance as agreed upon between the 2nd Respondent and their predecessor- in-interest, and also wrongfully removed him from Directorship of the Appellantthe 2nd Respondent filed Suit No. 2126/2009 before the Civil Judge (Senior Division) at Alipore against the vendors, praying for specific performance and a permanent injunction restraining the vendors from disturbing his possession, based upon the supposed oral agreement/understanding of sale he had with Arun Kumar Bajoria. The Civil Judge (Senior Division) by order dated 6.7.2009 issued a temporary injunction directing the parties to maintain status quo in respect of possession of the disputed property. This suit is still pending adjudication.The learned Judicial Magistrate at Alipore by order dated 6.9.2010 allowed the Appellants application Under Section 630(2). The Magistrate relied upon this Courts decision in Atul Mathur v. Atul Kalra, (1989) 4 SCC 514 , and the Calcutta High Courts decision in Tata Tea Limited v. Fazlur Rahman, (2001) 104 Comp Cas 718 Cal. to hold that the pendency of a civil suit would not bar the filing of a criminal complaint in respect of the disputed property Under Section 630, and that an application Under Section 630(2) could be allowed even before final disposal of the complaint Under Section 630(1) of the 1956Magistrate further held that in view of this Courts decision in Baldev Krishna Sahi v. Shipping Corporation of India Limited, (1987) 4 SCC 361 , and the Calcutta High Courts decision in Metal Box India v. State of West Bengal, (1997) 2 CHN 423, the term officer or employee in Section 630 would include erstwhile officers of the company who have wrongfully retained possession of the companys property subsequent to cessation of their employment. Therefore the Magistrate, taking into account the fact that the Accused/2nd Respondent had not denied that the disputed property belonged to the Appellant company and that he was given possession of the flat by the company for his accommodation, directed the 2nd Respondent to vacate and hand over possession of the disputed property to the Appellantlearned Sessions Judge at Alipore by order dated 21.12.2012 dismissed the 2nd Respondents revisional application Under Section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (Cr.P.C.), and affirmed the Magistrates order, noting that since the Appellant company was not a party to the civil Suit No. 2126/2009 between the 2nd Respondent and the vendors, the pendency of the suit would not bar criminal proceedings againstthe High Court in the impugned judgment allowed the 2nd Respondents petition Under Section 482, Code of Criminal Procedure and set aside the findings of the Magistrate and the Sessions Judge on the ground that there was no evidence to prove that the disputed property was given to the 2nd Respondent by the Appellant company as a perquisite for his service as director, either at the time of his induction into the Board of Directors, or after execution of the agreement for sale dated 26.4.2008. Rather, the 2nd Respondent had been a director of the company since 1988, and the disputed property had been in his possession at least since 2001, long before the Appellant company and the vendors entered into an agreement for sale. Hence the decisions in Baldev Krishna Sahi (supra), Metal Box India (supra) and Tata Tea Limited (supra) would not be applicable to the present case as in those decisions; property had been allotted by the company to the Accused officers/employees as a perquisite of theirHigh Court further held that since there was no evidence that any deed of conveyance was registered with respect to the agreement for sale dated 26.4.2008 (supra), and the company had not paid any consideration or advance rent at the time of the agreement, it could not be said that the company had any title to the disputed property. Hence the High Court held that the lower court finding that the disputed property had been given to the 2nd Respondent by the company was patently incorrect, and that Section 630(2) of the 1956 Act would not apply to the present case; and consequently set aside the lower courts orders.

Reasoning: 8. With respect to the first issue, it is undisputed that a company has a separate legal personality. Hence even if we accept the Respondents contention that the Appellant company is owned and controlled by the vendors themselves, any orders issued in the civil suit between 2nd Respondent and the vendors would not be binding upon the Appellant company as it is not a party to the suit. It is true that in some cases the Court may pierce the corporate veil and look at the reality behind the entity if it is found that the device of incorporation has been used to perpetrate some illegality or fraud (See Delhi Development Authority v. Skipper Construction Company (P) Ltd., (1996) 4 SCC 622 ). However no such illegality or fraud has been pleaded and proved in the presentany case, it has been settled by this Court in Damodar Das Jain v. Krishna Charan Chakraborti, (1989) 4 SCC 531 , and Atul Mathur (supra) that the pendency of a civil suit in respect of a property, would not bar a complaint Under Section 630 with respect to the same property, even if it is between the same parties, if there is no dispute or no bona fide dispute regarding the companys right over the property. The mere fact that the Accused employee has refuted the companys claim to possession would not make the dispute bonathe present case, we find that there is no bona fide dispute in as much as the 2nd Respondents entire claim to the disputed property is based on an oral agreement/understanding, as to the terms of which no documentary evidence has been produced. Whereas the Appellant company has at least been put into symbolic possession of the property by Clause 6 of the agreement for sale dated 26.4.2008, which 2nd Respondent has notare of the considered opinion that in a case such as the present complaint, where there was only an oral agreement in favour of the Accused employee for purchase of the property, but the civil court has issued a temporary injunction directing status quo, the Accused will nevertheless acquire the right to possess the disputed property lawfully only if he is successful in obtaining a decree in his favour in the civilmere issuance of a temporary injunction by the civil court directing maintenance of status quo in respect of the disputed property does not make the dispute bona fide or bar the companys right to recover the disputed property from the Accused employee Under Section 630 of the 1956 Act. At best, such an injunction would only bar the company from creating any rights in favour of third parties pending disposal of the civil suit. This is because the cause of action in the civil suit is completely different from the question of whether the employee is wrongfully withholding the companys property, which is the issue for consideration in the present criminal proceedings. If prima facie the trial court finds that the company has the right to possess the property, the issuance of a temporary injunction by the civil court cannot be used to defeat the companys lawful right ofon the aforementioned discussion, it can be concluded that the principle laid down in Atul Mathur (supra) would also extend to cases Under Section 630 where a civil court has, in spite of there being no bona fide dispute, issued an order of temporary injunction in respect of the disputed property. In such a case, the pendency of the civil suit and any interim reliefs granted therein would not bar criminal prosecution Under Section 630.Similarly, with respect to the second issue, we are of the considered opinion that where the Magistrate has found that prima facie the company has a right to possession of the disputed property, he may grant interlocutory relief Under Section 630(2) prior to conclusion of the trial Under Section 630(1). Courts have time and again observed that Section 630 has to be given a liberal interpretation so as to facilitate expeditious recovery of the companysgiven that the primary object of Section 630 is to provide a speedy mechanism for restoration of wrongfully withheld property to companies, we find that the provision should be construed as far as possible to facilitate a remedy in favour of the aggrieved company and to prevent the wrongful retention of the property for an unduly long period by theis no stipulation in Section 630(2) that an order for delivery of wrongfully withheld property must be made only after the Accused has been convicted Under Section 630(1). Rather, it says the Court trying the offence may direct the delivery of such property, which indicates that such an order may be passed at any stage by the trial court. This Court in Baldev Krishna Sahi (supra) upon finding that a case Under Section 630(1) was prima facie made out. directed the Petitioner therein to vacate the disputed premises during pendency of the substantive complaint Under Section 630(1). Therefore in the present case, the courts below have not committed any error in allowing the Appellant Companys application Under Section 630(2) during pendency of substantive criminal proceedings.With respect to the third and fourth issues, we find that the High Court has gone against the spirit of the provision, as enunciated by this Court in Baldev Krishna Sahi (supra), by strictly interpreting Section 630 to mean that the Appellant company must have title by way of ownership to the disputed property and that the Accused should have been in possession of the flat as a perquisite of his2nd Respondent has admitted that after the death of Arun Kumar Bajoria, the disputed property was inherited by the vendors who subsequently transferred possession to the Appellant company by the agreement dated 26.4.2008. The 2nd Respondent also handed over the title deeds of the property to the Appellant company. Therefore, till the time that the 2nd Respondent does not prove in the civil suit that the vendors were required to have sold the property to him, it is the company which has the exclusive right to possess the property atit is true that in the majority of cases falling under the ambit of Section 630, it has been that property possessed by the company was allotted to an employee for the purposes of residential accommodation, etc. as an incidence of his service, at the first instance itself. In the present case, the 2nd Respondent has been a director of the company since 1988, and claims to be in permissive possession of the disputed property as per the alleged understanding between him and his relative, the deceased Arun Kumar Bajoria, since 1994. However the company acquired the disputed property only in 2008. Be that as it may, the 2nd Respondent has failed to rebut the fact that as of 26.4.2008 it is the company which has acquired the exclusive right to possess the property, and the company handed over possession to him w.e.f. 1.5.2008 only in his capacity as the director of the company. Whatever may have been the situation prior to 26.4.2008, on and after that date the company became entitled to recover possession of the disputedfind no substance in the 2nd Respondents argument that he was misled into delivering the title documents of the disputed property by his sister-in-law on the ground that they were required for updation of records. The 2nd Respondent, being an office bearer in the company, could have got the records updated on his own or could have delivered it to the vendors, if it was on their insistence that he handed over the documents. However the letter dated 9.6.2008 shows that the title documents were delivered to a representative of the Appellant company. This shows that the 2nd Respondent acknowledged that title was to be transferred to the company vide the agreement dated630 nowhere stipulates that the property should have been allotted by the company to the Accused as a perquisite of service. There may be a number of purposes for which the Accused may be given lawful possession of the companys property during the course of employment for example, for safe custody of the property or for maintenance thereof. The purpose for which and the time at which possession was given is irrelevant. What is sufficient is that the Accused was put into possession of the property in their capacity as an officer/employee of the company and continued to withhold such property without having any independent right, title or interest thereto even after cessation of his employment. As we have found in the discussion supra, mere oral agreement or understanding would not be sufficient to establish such an independent right.Coming to the final issue, Section 397(2) of the Code of Criminal Procedure provides that the High Courts powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 of the Code of Criminal Procedure provides that nothing in the Code of Criminal Procedure will limit the High Courts inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers Under Section 482 to set aside an interlocutory order, notwithstanding the bar Under Section 397(2). However it is settled law that this can only be done in exceptionalis, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (See Madhu Limaye v. State of Maharashtra, (1977) 4 SCCthe present case, the order of the Magistrate Under Section 630(2) was an interlocutory relief based on a prima facie assessment of facts and did not conclusively decide the ongoing trial Under Section 630(1). If the Magistrate finds that the Appellant company has been unable to prove that the 2nd Respondent was wrongfully withholding possession of the property, such interlocutory relief shall stand vacated. In light of the above discussion, it is clear that there was no exceptional case of illegality or lack of jurisdiction in the interlocutory order of the lower court calling for the exercise of the inherent powers of the High Court Under Section 482, Code of Criminalwe are in agreement with the High Courts direction that the trial Under Section 630(1) ought to be completed as soon as possible. Further, it is needless to say that if the civil court passes a decree in favour of the 2nd Respondent in Suit No. 2126/2009, such decree must be honoured and possession of the disputed property may be restored to him accordingly.