Keki Hormusji Gharda & Ors vs Mehervan Rustom Irani & Anr

M/s Gharda Chemicals Limited is a deemed public limited company registered and incorporated under the Companies Act, 1956. It has its registered office at 5/6, Jer Mansion, First Floor, W.P. Varde Marg, Tuner 2 Road, Bandra (West) in the town of Mumbai. Appellant No. 1 (Accused No.

1) is the Chairman cum Managing Director of the said Company. Appellants 2 to 5 are the Directors thereof and the Appellant No. 6 is an Architect. It is stated that Appellants 1 and 3 are no longer associated with the Company.

Gharda Villa, in which the first respondent resides and the premises known as `Khaiber Property' are adjacent to each other. They were said to be belonging to Hormasji Dinshawji Gharda since deceased. The Company is said to be the owner of the property. Gharda House being an old building was required to be demolished and reconstructed. Several proceedings, however, were initiated in respect of the said building by the Bombay Municipal Corporation.

3. Father of the first respondent filed a suit in the year 1978 in his capacity as a tenant against the predecessor-in-interest of the Company. An application for amendment of the plaint was filed in the said suit on 17.4.1998. It is stated that the said application for amendment was dismissed. An appeal allegedly was preferred thereagainst. An interim relief prayed for by the first respondent in the said appeal is also said to have been rejected. In regard to the proposed action on the part of the Company to demolish and reconstruct the said building, the first respondent had 3 initiated various proceedings. Bombay Municipal Corporation also issued a stop-work notice dated 25.7.1998, which was said to have been withdrawn on 21.5.1999. When repair work on the road upon removing the debris lying on a portion of the land was started, a first information report was lodged by the first respondent before Bandra Police Station against the officers of the Company and the representatives of the Contractor. A charge sheet was also filed before the Additional Chief Metropolitan Magistrate, 9th Court, Bandra in that case. However, after one month the first respondent again filed a private complaint before the Additional Chief Metropolitan Magistrate, 9th Court, Bandra in regard to the same incident wherein not only the original accused were made parties but also appellants were made accused Nos. 1 to

5. Before the learned Additional Chief Metropolitan an application under Section 210 of the Code of Criminal Procedure, 1973 (for short, "the Code") was preferred by the first respondent since both the cases arose out of the same incident/cause of action, which by an order dated 6.5.2004 was allowed.

9. Indisputably, the dispute arose in regard to construction/tarring of the road by reason whereof, the first respondent might have faced difficulties in ingress and egress to and from his house for a short while. However, evidently, first respondent went to the Police Station and made a complaint thereabout. The work was stopped for some time, but allegedly the same was started again. Accused Nos. 7 and 8 were called to Police Station. However, first respondent again went to Police Station to lodge a first information report after he allegedly found that the work had been continuing. Allegations at that point of time were confined to Accused Nos. 8, 9 and 11 at the first stage and to Accused Nos. 8, 10 and 11 at the second stage. Accused Nos. 7 to 10 were workers of the Company. They were arrested. They were, however, granted bail.

15. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.

17. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed.

18. For the reasons aforementioned, the impugned judgment and order of the High Court is set aside. The appeal is allowed. The order summoning the appellant is quashed.

May 13, 2009