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1913 DIGILAW 413 (CAL)

P. Ray Chaudhuri v. Nolini Prokas Sen

1913-12-22

body1913
JUDGMENT Imam, J. - This matter of contempt has come up on a motion and upon a writ issued by this Court against Nolini Prokas Sen and Asoke Prokas Sen for their attachment and committal to prison for obstructing and assaulting a Receiver in the discharge of his duty. On the 18th July last, Mr. P. Ray Chaudhuri, Barrister at Law, was appointed by this Court a Receiver of certain properties, the subject of Suit No. 594 of 1913. The two Respondents are not parties to the suit, but their brother Kumud Behary Sen is. The properties in suit comprise among others the premises No. 15, College Square, in the town of Calcutta commonly known as the Albert Hall. On the 16th September last the two Respondents and their three other brothers through their Attorney addressed a letter to Mr. Ray Chaudhuri, informing him that the premises No. 15, College Square, were in their possession and enjoyment jointly with their brother Kumud Behary Sen and that the order appointing him Receiver could not be binding on them or affect their right to the property in question, they not being parties to the suit. The letter further stated that while there would be no objection to the Receiver taking possession of a sixth share of the rents and profits of the premises representing the share of Kumud Behary Sen, they would not allow him to either receive the entire rents or take possession of the entire premises. The Receiver in his affidavit states that on the 17th September he went to the premises, walked over and took formal possession of the same. The Receiver thereafter for the safety and protection of the premises and the properties contained therein appointed a durwan of the name of Akbar Khan. On the 24th September in the morning the Receiver sent the durwan and a clerk of his, Tarkeshwar Ganguli, to remain in charge of the premises. Tarkeshwar Ganguli in his affidavit states that on entering the premises with Akbar Khan he was showing the rooms to the latter when Asoke Prokas Sen objected to the durwan remaining there and on his leaving the durwan there, he came away to report to his master Asoke Prokas Sen's objection. Tarkeshwar Ganguli in his affidavit states that on entering the premises with Akbar Khan he was showing the rooms to the latter when Asoke Prokas Sen objected to the durwan remaining there and on his leaving the durwan there, he came away to report to his master Asoke Prokas Sen's objection. Akbar Khan states in his affidavit that after the clerk left, Nolini Prokas Sen collected some gundas and forcibly put the durwan out of the house and closed the gate. Being informed of this Mr. Ray Chaudhuri accompanied by the clerk and the durwan went to the premises and found Asoke Prokas alone there. Mr. Ray Chaudhuri says that he enquired of Asoke Prokas Sen the reason of the treatment given to his men but received no satisfactory reply. Mr. Ray Chaudhuri further says that referring to Asoke Prokas's conduct towards the clerk and the durwan, he remarked that he, Asoke, was an "unworthy son of his illustrious father." Two other witnesses, Profulla Kumar Bannerjee and Ahindra Nath Chatterjee, both of No. 15, College Square, whom the Receiver had taken with him when entering the premises, state that on meeting Asoke Prokas Sen in one of the rooms the Receiver took exception to the conduct of Asoke Prokas Sen and his brother in driving away and assaulting the durwan in the morning which caused an exchange of angry words between them, and while conversation was going on between them, Asoke Prokas sent for his elder brother Nolini Prokas Sen. Mr. Ray Chaudhuri states that at about 1 p.m. as he was about to leave the premises and had come near the gate, Nolini Prokas came from the street outside and immediately caught hold of him and wanted to turn him out, and on his protesting against such conduct assaulted and beat him with blows and fists causing him bruises on his body, specially on his right wrist. After this Mr. Ray Chaudhuri left the premises, and laid an information at the Police Station and then appeared before this Court and verbally reported the incident. As against the version of the Receiver and his witnesses the Respondents give their own account supported by statements of their witnesses. Their story is the following : On the 17th September Mr. Ray Chaudhuri came to the Albert Hall but did not take possession of the entire premises. As against the version of the Receiver and his witnesses the Respondents give their own account supported by statements of their witnesses. Their story is the following : On the 17th September Mr. Ray Chaudhuri came to the Albert Hall but did not take possession of the entire premises. He took possession of only a sixth share owing to the objection of the two Respondents. On the 24th September at about 11 a.m., a durwan accompanied by a person unknown to the Respondents walked into the premises and after some conversation among themselves the durwan's companion went away. The durwan then without any reference to the Respondents, proceeded to close and padlock the doors of some of the rooms in which some classes of the Albert Collegiate School, of which the Respondents claim to be part proprietors and superintendents, were being held. The Respondents protested against the durwan's action. The durwan said that he had been sent there by Mr. Ray Chaudhuri, the Receiver, and on being asked to bring a letter of authority from the Receiver he left. The Respondents deny having forcibly turned out the durwan and having called in budmashes. At about 1 P.M. Mr. Ray Chaudhuri walked into the room where Asoke Prokas was seated and in a rude and peremptory voice said "Why did you turn out my durwan and assault him ?" Whereupon he was told that the durwan had not been turned out but had been prevented from locking up the school rooms. This offended Mr. Ray Chaudhuri who used abusive language to Asoke calling him "scoundrel," "not the true son of your father" etc. On this Asoke Prokas said that Mr. Ray Chaudhuri was not talking like a gentleman and that he, Asoke, "would not answer." This remark excited Mr. Ray Chaudhuri who struck Asoke a blow which the latter did not return. Again Mr. Ray Chaudhuri aimed another blow at Asoke but he lurched and Mr. Ray Chaudhuri's fist violently his against the chair on which Asoke had been seated whereby he hurt himself. Then Mr. Ray Chaudhuri demanded of Asoke to give him his name and to hand over to him the bunch of keys of the school rooms which the latter refused to do. Thereafter Mr. Ray Chaudhuri's fist violently his against the chair on which Asoke had been seated whereby he hurt himself. Then Mr. Ray Chaudhuri demanded of Asoke to give him his name and to hand over to him the bunch of keys of the school rooms which the latter refused to do. Thereafter Mr. Ray Chaudhuri threatened to his Asoke so hard with his stick as to lay him flat on the ground and ordered Asoke to leave the room. He further tried to snatch away the bunch of keys but failed to accomplish his purpose. Asoke then said that he would not leave the room, whatever might happen. After this Mr. Ray Chaudhury left the room and meeting the Respondents' durwan, Shib Lall Tewari, asked him how he dared to turn out his durwan, Akbar Khan, and gave him a slap on the face. Then he walked into the Tewari's chowka (cooking place) and broke the earthen pots with his slick. Having done this he went to the gate and stationed some men there to stop the passage. At this time Nolini Prokas Sen arrived and after some altercation between him and Mr. Ray Chaudhuri in the course of which the former attempted to force his passage, the latter struck him a blow. As Mr. Ray Chaudhuri was about to his him another blow Nolini Prokas Sen caught hold of Mr. Ray Chaudhuri's hand and a scuffle ensued, resulting in both of them falling on a wall. Then Nolini Prokas Sen went to the Police Station at 1-30 p.m., and made a complaint for assault and abusive language against Mr. Ray Chaudhuri whose name Nolini Prokas says was not known to him at the time. 3. The two versions are entirely contradictory of each other and I have to find which of the two is true. Mr. J. N. Roy appearing for the Respondents has not impeached Mr. Ray Chaudhuri's veracity but has urged that he must have been excited when he went to the premises and has suggested that his statements are inaccurate, on account of a natural failure to observe events in a moment of excitement. Mr. Mr. J. N. Roy appearing for the Respondents has not impeached Mr. Ray Chaudhuri's veracity but has urged that he must have been excited when he went to the premises and has suggested that his statements are inaccurate, on account of a natural failure to observe events in a moment of excitement. Mr. Ray Chaudhuri's statements appear to me to be too definite and clear to admit of such an explanation, and if I am to accept them there is no escape from the conclusion that he was obstructed in the discharge of his duty, by both the Respondents and was assaulted by Nolini Prokas Sen. The story set up by them is so incredible in itself, that I have no doubt, it embodies a tissue of falsehoods invented to save them from the present charge. In his statement to the Police Nolini Prokas Sen did not make any higher case than that of being pushed and it has to be noticed, that he did not even mention Mr. Ray Chaudhuri's name ; then, to explain the omission Nolini Prokas now states, that he did not know Mr. Ray Chaudhuri's name at the time of the information to the Police. This, however, is contradicted by the statement in paragraph II of the joint affidavit of Nolini Prokas Sen and Asoke Prokas Sen from which it is clear, that both the brothers came to know Mr. Ray Chaudhuri by name and sight at least on the 17th September when he had gone to take possession of the premises. I believe Mr. Ray Chaudhuri's version of the incident of the afternoon of the 24th September. I also believe the version of the morning incident as related by Tarkeshwar Ganguli and Akbar Khan. 4. Mr. Roy has contended that his clients being in possession of five-sixths share in the premises, were not affected by the order appointing a Receiver as it was not binding on them. In support of this contention he has cited a passage from 24 Halsbury's Laws of England, at page 379, which runs thus: "as against a stranger to the action, who is in actual possession, the appointment of a Receiver is of no effect," and has referred to several casts enunciating the proposition. In support of this contention he has cited a passage from 24 Halsbury's Laws of England, at page 379, which runs thus: "as against a stranger to the action, who is in actual possession, the appointment of a Receiver is of no effect," and has referred to several casts enunciating the proposition. I do not understand the proposition to amount to more than this that the right of a stranger in possession, to continue in possession, is not affected by the order appointing a Receiver, but the fact of his possession does not, to my mind, give him the privilege to interfere with the Receiver directed to take possession of the property. His proper course is to apply to the Court for the redress of his grievance. If he interferes with the Receiver he does so at his peril. It is a settled rule that the Court will not permit a Receiver, appointed by its authority, to be interfered with or dispossessed of the property he is directed to receive, by any one, although the order appointing him may be perfectly erroneous ; the Court requires and insists that application should be made to the Court for permission to take possession of any property of which the Receiver either has taken possession or is directed to take possession [Ames v. The Trustees of the Birkenhead Docks 20 Beav. Rep. 332 at p. 353 (1856)]. Mr. Roy has contended that the cases relied upon by Mr. Chakravarti on behalf of the Plaintiffs do not apply to this case, as they all relate to interference with the Receiver by persons who were not in possession of the property. The principle nevertheless that the Court will not allow anyone to interfere with a Receiver while the order lasts, is there. 5. I hold that Nolini Prokas Sen has been guilty of a contempt of this Court's authority by obstructing and assaulting the Receiver in the discharge of his duty. I further hold that Asoke Prokas Sen has been guilty of a contempt of this Court's authority by obstructing the Receiver in the discharge of his duty. In the case of Nolini Prokas Sen his conduct has been so contemptuous and so grossly disrespectful to this Court, that a mere order for payment of costs will not vindicate the majesty of law. In the case of Nolini Prokas Sen his conduct has been so contemptuous and so grossly disrespectful to this Court, that a mere order for payment of costs will not vindicate the majesty of law. I therefore order the committal of Nolini Prokas Sen to prison for three weeks. The conduct of Asoke Prokas Sen has not been as heinous. I order him to be detained in custody till the rising of the Court and to pay the costs of the Plaintiffs and the Receiver. [Then Mr. P. N. Chatterjee said that he was instructed to offer a most unqualified apology to the Court and asked the Court to remit the sentence. The Court ordered the matter to be mentioned and an application made at half-past two. This being done, the Court ordered the discharge of Nolini Prokas Sen and directed him to pay the costs of hearing of the matter to the Plaintiffs as well as to the Receiver, the Receiver's costs as between attorney and client and the Plaintiffs' costs as between party and party. In the meantime he was ordered to give security for Rs. 5,000 to the satisfaction of the Registrar.]