Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 193 (CAL)

Biva Pyne v. Chunilal Pyne

2008-02-15

SANJIB BANERJEE

body2008
Judgment :- (1.) THE plaintiffs in a suit relating to the management and administration of the fourth defendant company complain that the fourth defendant and/or persons in control thereof have acted in derogation of an order passed in the suit on September 18, 2006. (2.) ACCORDING to the plaintiffs, the order of September 18, 2006 required the fourth defendant to issue a fortnights prior intimation to the Advocate-on-Record of the plaintiffs, in the event the fourth defendant sought to alienate any property standing in its name. The plaintiffs complain that sometime last week, unknown persons came to take possession of the property at Khardah which the plaintiffs knew to be standing in the name of the defendant company. The plaintiffs allege that the plaintiffs were in position to resist possession of the Khardah property being taken up and the plaintiffs could approach Court only on February 13, 2008 as the Court was closed on the Monday and Tuesday of this week. (3.) ON February 13, 2008, a Special Officer was appointed and the Special officer was requested to visit the Khardah property on the same day. The special Officer visited the property at or about 9 p. m. and has filed a detailed report. According to the Special Officers report, some of the persons present at the Khardah property disclosed to the Special Officer that possession thereof had been made over by the company or its directors on or about January 31, 2008. The Special Officer was referred to conveyances having been executed in favour of various entities on or about January 31, 2008. The plaintiffs have also referred to certain documents having been executed and claim that in the melee that followed the plaintiffs resistance to the wrongful attempt to take possession on or about February 8, 2008, a file containing such documents was left behind by those attempting to take possession of the property. (4.) THE defendants have been served and it is not the defendants case that any prior notice had been issued. The defendants submit that the order of september 18, 2006, particularly, the embargo on the company to alienate any property without prior notice, remained effective till November 22, 2006 and did not operate thereafter. (4.) THE defendants have been served and it is not the defendants case that any prior notice had been issued. The defendants submit that the order of september 18, 2006, particularly, the embargo on the company to alienate any property without prior notice, remained effective till November 22, 2006 and did not operate thereafter. It is necessary, in view of the stand taken by the defendants, to notice the entirety of the order of September 18, 2006: "the Court: This interlocutory motion has been taken out praying for a restraint order upon the defendant No. 4 from alienating any property standing in his name. The defendant No. 4 appears to be a closely held company belonging to the members of the family who are locked in a dispute which is the subject-matter of the present proceeding. Learned Counsel appearing for the plaintiff submits that this is a suit for administration of the company in question as various allegations have been made as regards management of the said company. Learned Counsel for the defendant, on the other hand, strongly resists any interim order being passed at this stage. His case is that essentially the property involved in the present proceeding is also subject-matter of other suits instituted by the plaintiff in the Court of the learned Junior Civil Judge, sealdah, as also the learned City Civil Court, Calcutta. This submission has been disputed by the learned Counsel for the plaintiff. Having regard to the nature of the allegations and the pendency of the various proceedings, I am of the view that for considering the reliefs in this matter, affidavits are to be filed. Let the affidavit-in-opposition be filed within November 7, 2006 and the reply may be filed by November 21, 2006. The matter will appear on November 22, 2006. In the meantime, in the event the defendant No. 4 seeks to alienate any property standing in his name, the same shall not be done without at least a fortnights prior intimation to the learned Advocate-on-record of the plaintiff. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. " (5.) THE plaintiffs have given notice to some of the persons who have claimed to have purchased the Khardah property from the defendant company. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. " (5.) THE plaintiffs have given notice to some of the persons who have claimed to have purchased the Khardah property from the defendant company. The purchasers contend that upon satisfaction that the vendor had good title, the purchasers acquired the property upon due payment therefor by and under documents executed on January 31, 2008. It is submitted on behalf of the purchasers that registration of the conveyances has been completed and there is a hearing before the appropriate authority as to the quantum of stamp-duty payable on the transaction. (6.) THE purchasers have also submitted that a suit has been filed by the purchasers before the Fourth Civil Judge, Junior Division, Sealdah being t. S. No. 38 of 2008 and an ex parte ad Interim order has been obtained on february 8, 2008 requiring the parties to maintain status quo in respect of the nature, character and possession of the property till February 25, 2008. The purchasers say that the plaintiffs herein are also parties to the Sealdah suit and the purchasers have complied with the provisions as to service of an ex parte, order. (7.) THE defendants have relied on a Division Bench judgment of this Court reported at 1993 (2) CHN 444 for the interpretation of the expression "in the meantime". In such case, the Division Bench declined to receive contempt proceedings for violation of an order which is quoted in the judgment to be as follows: "in the meantime the interim order as issued earlier will -continue. " (8.) IN concluding that there was no contempt committed, the Division bench held that whatever the effect of the interim relief granted, the order made it clear that the relief would continue "in the meantime" and that such time ended prior to the commission of the alleged act of contempt. The division Bench was of the view that the phrase "in the meantime" must be given its normal meaning, that is, "during or within the time which intervenes". What weighed with the Court in that case was that if there was an order which was capable of two constructions and the alleged contemnor had accepted one construction, it would not be held against the contemnor and the contemnor may not be found guilty of contempt. What weighed with the Court in that case was that if there was an order which was capable of two constructions and the alleged contemnor had accepted one construction, it would not be held against the contemnor and the contemnor may not be found guilty of contempt. (9.) THE defendants have also relied on a judgment reported at 1992 (2)SCC 644. In such case, a matter relating to the disqualification of a member of the Legislative Assembly, an argument was made for the first time before the Supreme Court that the act complained of was in violation of the following order which is quoted in the report: "last time when the matter was listed before this Court, Mr. Jethmalani appearing for respondents had stated that until the end of July, disputes would not be adjudicated. This matter could not be taken up by this court because of the exigencies of the work. In that view of the matter, the matter will be taken up as soon as the situation of the list of this court permits. List the matter on 30th October. 1990. In the meantime. status quo as on today will continue. " (10.) THE defendants urge that the last two sentences of the relevant order quoted in the report match with the two sentences in the penultimate paragraph of the order of September 18, 2006. It is submitted that what the court in the Supreme Court matter passing the order implied was that till such time the matter was taken up by Court, the status quo as on the date of the order would continue; but it was interpreted by the Supreme Court to imply that when a date had been mentioned, the expression "in the meantime" would indicate that the order was to remain effective till the date mentioned. (11.) THE Supreme Court proceeded to hold that "as to what is the outer terminal point of the portion of the restraint when the expression in the meantime is used is arguable". It was held that such an expression would take colour from the context and the Supreme Court found that it was difficult to say that the period of restraint spilled beyond October 30, 1990. It was held that such an expression would take colour from the context and the Supreme Court found that it was difficult to say that the period of restraint spilled beyond October 30, 1990. It is such interpretation that the defendants rely on, to say that the defendants understood the order of September 18, 2006 to mean that it would remain operative till November 22, 2006 and that there would be no embargo on any of the defendant companys properties being dealt with without any notice to the plaintiffs. (12.) IN addition to the interpretation of the expression "in the meantime", the Supreme Court found that the order quoted was not made either at the instance nor for the benefit of the appellant before the Supreme Court. The interpretation of the expression and the conclusion that such order had not been made either at the behest or the benefit of the appellant before the supreme Court resulted in the opinion expressed in that case. (13.) IN the present case the plaintiffs earlier application, as is noticed in the opening paragraph of the order of September 18, 2006, was for an order of restraint upon the defendant company from alienating any property standing in its name. The ground for seeking such order was that the fourth defendant was a closely held company belonging to members of the family who were locked in a dispute which was the subject-matter of the proceedings. If such was the context in which the application was appreciated to have been made and the order passed thereon, it would appear unreasonable to construe that the Court required the interim order to remain till the returnable date irrespective of whether the matter was taken up on the returnable date or not. Prima facie, it appears, and subject to correction upon affidavits being filed, that the Court required a fortnights prior intimation to be given by the fourth defendant to the plaintiffs Advocate on record irrespective of whether such period was before or after November 22,2006, but subject to the final order that would be passed on the application. (14.) ON the tentative view of the order dated September 18, 2006 as above, the other matters that have been referred to need now be noticed. (14.) ON the tentative view of the order dated September 18, 2006 as above, the other matters that have been referred to need now be noticed. The plaintiffs claim to have been in exclusive possession of the Khardah property, though the defendants suggest that at paragraph 29 of the plaint, the plaintiffs had claimed only to be in joint possession of the property and had subsequently applied for divers amendments, including an amendment to the effect that the plaintiffs were in exclusive possession of the Khardah property. According to the plaintiffs, they were away on the occasion of a marriage in the family and it was such time that the defendants chose to have the purchasers obtain possession. The Special Officers report speaks of security guards, gunman and dogs having been posted from January 28, 2008 at the behest of the purchasers, though the letter of possession placed before the Special Officer and the purchasers assertion is that possession was delivered on January 31, 2008. The Special Officer has recorded that one of the plaintiffs had access to the building at the Khardah property and had the keys to almirahs whereat clothes and other regular necessities of at least one of the plaintiffs were kept. (15.) THE filing of the suit by the purchasers arouses a suspicion. If on january 31, 2008 there was no dispute and the fourth defendant was, or the human agencies in control thereof were, agreeable to make over possession to the purchasers, there would be no necessity for things to come to such a head within a week for a suit to be instituted to enable the purchasers to obtain or retain possession. The ex parte order of February 8, 2008 appears, prima facie, to have been obtained to ward off the plaintiffs attempt to enter the premises. Again, such matters have to await affidavits being filed by the defendants and by the purchasers. (16.) ONCE it appears that there is a subsisting order of Court and it appears that such order has apparently been violated, the first step is to ensure that the hindrances to the continuance of the order be removed. Though the defendants and the purchasers have an arguable case, the Special Officer appointed in the matter is appointed as Receiver with a direction to take immediate possession of the Khardah property. Though the defendants and the purchasers have an arguable case, the Special Officer appointed in the matter is appointed as Receiver with a direction to take immediate possession of the Khardah property. The plaintiffs will have access to the building thereat if the plaintiffs need any daily article of use and the receiver will permit the removal of such articles by the plaintiffs. (17.) THE Receiver will ensure that the property is kept secured and may allow the security guards engaged by the purchasers to guard the place but on the clear understanding that it is the Receiver who is in possession. In the alternative, the Receiver may engage security personnel of his choice against payment to be made by the plaintiffs at the initial stage, to keep the property secured. The Receiver will have liberty to obtain assistance from the Khardah Police Station and the Officer-in-Charge of such Police Station and the Superintendent of Police, North 24-Parganas, will ensure that the receiver gets all assistance that he calls for. (18.) THE Receiver will be paid an initial remuneration of 1000 GMs. by the plaintiffs. (19.) AFFIDAVITS-IN-OPPOSITION to this application may be filed by the defendants and the purchasers within a week from date; replies thereto, if any, within a week thereafter. This application will appear along with GA no. 2800 of 2006 in the monthly list of March, 2008 as an adjourned Motion. (20.) IF affidavits have not been completed in GA No. 2800 of 2006 the same directions would apply. (21.) THE fourth defendant shall not expend any part of the consideration received from the purchasers and shall kept the same deposited in a special account. If any part of the money has already been used, the explanation as to how and for what purpose such money has been used should find place in the affidavit to be filed on behalf of the fourth defendant, with fullest particulars in support thereof. (22.) NO further money from any part of the consideration received by the fourth defendant will be expended till further orders of Court. (23.) THE defendants application for dismissal of the suit being GA No. 3090 of 2006 will also appear in the next monthly list along with this application and the plaintiffs earlier application. The same directions for filing affidavits would apply. (23.) THE defendants application for dismissal of the suit being GA No. 3090 of 2006 will also appear in the next monthly list along with this application and the plaintiffs earlier application. The same directions for filing affidavits would apply. (24.) URGENT photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Matter to appear as adjourned motion.