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Sitaram Khemka Vs. Arthur Charsley Thomas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal132
AppellantSitaram Khemka
RespondentArthur Charsley Thomas
Excerpt:
- .....which the present application is based. the charges relate to five matters. failure to deliver (1) account books; (2) assay books and assay reports; (3) a diary book alleged to have been kept by the defendant; (4) 3 prospecting licenses: and (5) a german map and another map of the mines said to contain details of the mining area and the reefs and other relevant matters. the matter came before ameer ali, j., who directed that mr. thomas and mr. biswas, his accountant, should appear before the court and be examined orally. they were examined by ameer ali, j., and they have now been cross-examined before me. the main charge relates to the failure to disclose accounts. thomas has put in a statement of accounts, and after a certain amount of correspondence he has informed the receivers on 9th.....
Judgment:
ORDER

McNair, J.

1. This is an application to commit Mr. Arthur Charsley Thomas for contempt of Court. Mr. Thomas was the defendant in an action for dissolution of partnership. Dissolution has been decreed and a reference has been held in which the accounts of the partnership are being considered and the assets determined. The partnership traded under the name of Golden Reef Mining Syndicate, and its operative headquarters were at Patkum in the District of Manbhum. In December 1932 Mr. Thomas and one Teluram Agarwalla started prospecting for gold and in February and March 1933 they acquired prospecting licenses from the guardian of the minor zamindar of the Patkum estate. In December 1933 Teluram left, and a partnership was started between Thomas and the plaintiff in this suit Sitaram Khemka. Thomas was to have 2/3rd share and Sitaram 1/3rd. On 20th February 1934 prospecting licenses were renewed, and some eight months later machinery was in operation at Patkum. It is suggested that on an average 40 to 50 tons of ores were crushed daily which yielded a high percentage of gold. On 20th November 1934 an order was made by this Court in the suit appointing the Official Receiver interim receiver of the business called the 'Golden Reef Mining Syndicate' and its assets and of the gold field, machinery and other accessories at Patkum and all books of account at the office of the said business at 7, Old Post Office Street, Calcutta, and at Patkum.

2. On 10th December 1934, there was a reference to arbitration and two members of the Bar were appointed Receivers in place of the Official Receiver. A consent petition was made in connexion with the order. The petition is said to be the petition of the plaintiff, and in para. 11 there is a statement: 'The defendant consents to this petition,' and it is also signed by the defendant at the conclusion under the words 'I consent.' Para. 6 of that petition refers to the order appointing the Official Receiver and states that:

The Official Receiver had been to No. 7, Old Post Office Street, Calcutta, to take possession of all the books of account there, but the Official Receiver could not take possession of any books of account as there were no books of account at the said office.

3. Para. 7 states.

that as negotiations for settlement were going on between the parties your petitioner did not take any further steps and did not take any steps to put the Official Receiver in possession, of the books of account and the assets, machinery and properties of the said partnership at Patkum.

4. On 21st December 1934, there was a meeting before the Receivers, the minutes of which state that after hearing the parties the Receivers directed that within three weeks from that date Mr. Thomas should deliver the books of account and documents relating to the partnership in his possession to the Joint Receivers. Mr. Thomas was also directed to make a list of machinery, etc., at the mines and deliver that list to the Receivers. On 17th April 1935 an application was made that Mr. Thomas be committed to jail for contempt, and that he do forthwith deliver up possession of the partnership to the Receivers together with all papers, books of account, etc., relating to the said partnership. On 27th April 1935 Mr. Thomas made an affidavit stating that he was unable to comply with the order owing to illness. I will refer to this affidavit more fully later. An order was then made by this Court that Mr. Thomas should on or before.the 10th of May deliver up to the Receivers possession of all the partnership assets referred in the previous order together with all papers, memoranda, writings and documents relating to the partnership business, and should also file affidavit of documents. On 9th May 1935 Mr. Thomas filed his affidavit of documents containing a statement of accounts, but disclosing no books of accounts.

5. On 6th June the present application was filed. The petition by the plaintiff Sitaram Khemka sets out the above facts and in para. 11 there are set out the charges on which the present application is based. The charges relate to five matters. Failure to deliver (1) account books; (2) assay books and assay reports; (3) a diary book alleged to have been kept by the defendant; (4) 3 prospecting licenses: and (5) a German map and another map of the mines said to contain details of the mining area and the reefs and other relevant matters. The matter came before Ameer Ali, J., who directed that Mr. Thomas and Mr. Biswas, his accountant, should appear before the Court and be examined orally. They were examined by Ameer Ali, J., and they have now been cross-examined before me. The main charge relates to the failure to disclose accounts. Thomas has put in a statement of accounts, and after a certain amount of correspondence he has informed the Receivers on 9th May that there were no separate books of the partnership, but that the statement which he had put in was based on the books of two companies, the Dorgbun Trust Limited which is an English Company and the Island Trust Limited which is an Indian Company. The minutes of the 9th May contain the following entry:

Mr. Thomas says that no cash ledger or journal of the partnership were kept, but there is a statement of accounts compiled from the books of the companies whose money was borrowed for the purpose of running the partnership business. The items in the statement of accounts filed can be checked and verified from the books of these companies.

6. That offer was repeated in a letter of the 17th May by Mr. Thomas's Solicitor to the Solicitors for the plaintiff. (His Lordship then discussed the evidence and proceeded.) With regard to all the charges excepting those relating to the accounts I find that they are based on supposition, and there is nothing really to support them in view of the denials which have been made by Mr. Thomas and Mr. Biswas and in the supporting affidavits. With regard to the accounts, on the other hand, there is a mass of material which raises the deepest suspicion. I have referred in detail to the fact that it was only at the very last moment that Mr. Thomas stated that there were no accounts of the partnership business other than accounts of the Dorgbun Trust and the Island Trust from which the materials required in the reference could be gathered. The witnesses originally swore that these books contained only accounts relating to the mining syndicate, but Biswas was forced to admit that it was incorrect. The list of liabilities and the dues to store suppliers, are not taken from the accounts of these companies as has been admitted in the witness box by the accountant. Mr. Thomas in the witness box was a thoroughly unsatisfactory witness. He fenced with most questions and created an extremely bad impression. He professed absolute ignorance of the accounts, but when his attention was directed to them he found little difficulty in following and in answering the question, quickly if the answer was in his favour, but with considerable difficulty if he did not consider that the answer would be satisfactory from his point of view.

7. From the material which has been placed before me, it appears to me that the petitioner was amply justified on the respondent's own statements in supposing that there are other accounts, that Mr. Thomas had knowledge of, and access to, the other accounts, and that he was evading disclosing them to the Court. This raises the deepest suspicion, but it is not sufficient to establish a charge of contempt of Court. To establish such charges it is essential to prove that in fact there are in this case other documents which had been deliberately withheld. That, in my opinion, has not been established, and this application must be dismissed. In view, however, of the attitude which has been taken up by Mr. Thomas throughout, I direct that he should pay the costs of this application as of a hearing.


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