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C.S. Majoo and anr. Vs. Administrator General of Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1964CriLJ449
AppellantC.S. Majoo and anr.
RespondentAdministrator General of Bengal
Cases ReferredAli Mohomed v. Emperor
Excerpt:
- .....the order dated the 13th day of september last passed by the court of appeal directing the. official receiver of this court to take possession of the entire premises-no. 50, chittaranjan avenue, calcutta, and the notice dated the 27th day of september last served by the official receiver requiring the petitioner company to pay the rent to the said receiver by his deliberate statements, affidavits and/or verifications in respect of the1 course of the proceedings in this court throughout and/or in the suit no. 4138 of 1962 in the presidency small causes court and/or in the course of the correspondence inspired' or instructed by him with the said petitioner company and by initiating and/or maintaining suits or proceedings for parallel investigation into one of the vital issues and/or.....
Judgment:

H.K. Bose, C.J.

1. This is an application for committal of the respondents Soil Pestonji Majoo in his capacity as sole proprietor of Byron and Co. and in his capacity as executor to the Estate of P. S. Majoo deceased and also in his capacity as partner of a firm of Beverage and Merchandise Co. and onei Sri Homi Pestonji Majoo alleged to be a partner of the said firm of Beverage and Merchandise Company for contempt of Court. A Rule was issued by this Court upon the said two respondents to show cause why they should not be committed for contempt of this Court constituting-the following deeds, namely, the said respondent Soli Pestonji Majoo also known as S. P. Majoo in his status an capacity as the executor to the estate of P. S. Majoo- deceased and/or sole proprietor of Byron and Company and/or to carry on the business in partnership in the firm name and style of Beverage and Merchandise Company and/or In one of sued status or capacity getting merged' in another or others deliberately and/or willingly disobeying the order dated the 13th day of September last passed by the Court of Appeal directing the. Official Receiver of this Court to take possession of the entire premises-No. 50, Chittaranjan Avenue, Calcutta, and the notice dated the 27th day of September last served by the Official Receiver requiring the petitioner company to pay the rent to the said Receiver by his deliberate statements, affidavits and/or verifications in respect of the1 course of the proceedings in this Court throughout and/or in the suit No. 4138 of 1962 In the Presidency Small Causes Court and/or in the course of the correspondence inspired' or instructed by him with the said petitioner company and by initiating and/or maintaining suits or proceedings for parallel investigation into one of the vital issues and/or subject matters and/or questions concerned directly in suit No. 691 of 1960 of this Court namely the nature and extent of the interest of the said respondent opposite party No. 1, Soli Pestonji Majoo in or in respect of the', entire- premises No. 50, Chittaranjan Avenue, or any portion thereof,

2. The facts giving rise to this application are shortly as follows:

On 10th December, 1940 one Dorabji Sorabji Majoo died intestate leaving an estate consisting inter aiia of (1) an undivided 2/3rd share in the premises no. 50, Chittaranjan Avenue and (2) 1/3rd share in the business of Byron and Company carried on at 50, Chittaranjan -Avenue, Calcutta. On 9th June, 1941, the Administrator General of Bengal was appointed executor to the estate of O.S. Majoo, deceased. On the 22nd December, 1943 tail Administrator General filed a suit in this Court being Suit No. 1580 of 1943 (Cal) for dissolution and accounts of the partnership firm Byron and Company against one Pestonji Sorabji Majoe. On 23rd February, 1948 a consent decree was passed in the said suit providing inter alia as follows:

(1) The claims of the Administrator General on behalf of the estate D. S. Majoo, deceased, in the business, good-wilt and assets etc. of Byron and Company be finally settled at Rs. 15,500/- payable by P. S. Majoo.

(2) P. S. Majoo on behalf of the business of Byron .and Company agreed to pay to the Administrator General a sum of Rs. 275/- per month on account of the 2/3rd share of the estate of D. S. Majoo in the ground floor of premises No. 50, Chittaranjan Avenue, Calcutta from 1st March, 1947 as long as the said premises would be occupied by the said Byron and Company. On 14th August, 1954 P. S. Majoo died leaving a will of which probate was obtained by Soli Pestonji Majoo as executor and Mrs. Themina Pestonji Majoo as executrix of the said will. On 18th March, 1960 Mrs. Themina Pestonji Majoo, the executrix, died and S. P. Majoo became the sole executor. On 18th May, 1960 the Administrator General of West Bengal filed a suit in this Court being suit No. 691 of 1960 inter alia for (a) ascertainment and declaration of the shares of the parties (b) partition of the undivided 2/3rd share of land and premises No. 50, Chittaranjan Avenue by metes and bounds and allotment to the plaintiff of his undivided share In severalty, (c) possession and de Receiver. On or about 31st January, 1961 an application was mads in1 the said suit No. 691 of 1960 by the Administrator General for appointment of a Receiver. On 11th April 1961 an order was made by G. K. Mitter, J. appointing the Official Receiver to be the Reiceiver of the ?preperties in suit and directing the Official Receiver to collect rents of tha said premises No. 50 Chittaranjan Avenue and out of such collection to pay to the Administrator General 2/3rd share of the rents. An appeal was preferred by the' defendants against the said order of G. K. Mitter, J. On 6th June, 1961 the Court of Appeal passed an order directing the Receiver to restore possession of the ground floor of the premises No. 50, Chittaranjan Avenue to the appellants and allowed the appellants to remain in occupation of the premises on condition that the appellants would pay to the Administrator General from month to month on or before the 16th of Avery month a sum of Rs. 275/-. On 29th January, 1962 Soli Pestonji Majoo as proprietor of Byron and Co. leased out to the petitioner, Siemens Engineering and Manufacturing Company of India Limited a portion of the ground floor of premises No. 50, Chittaranjan Avenue together with certain structures, plant machinery, fittings etc. for a period of 21. years with effect from the date of delivery of possession at a rent of Rs. 1305/- per month, and a sum of Rs. 15,500/- was given by way of advance to S.P. Majoo to be spent towards costs and repairs etc. it being stipulated that the said sum of Rs. 15,500/-would be repaid by deducting Rs. 400/- from the monthly rant payable by the petitioner. On 26th February, 1962 upon an application made by the Administrator General in suit No. 691 of I960, Law J. made an order prohibiting and restricting the defendants including S. P. Majoo as executor to the estate of P. S. Majoo from carrying out structural alterations: to the premises except putting up a collapsible gate and roller shutter. Thereafter on 2nd April, 1962 possession of the demised premises was given to the petitioner company. On 18th July, 1962 the Administrator General made another application before the Court of Appeal for directing the Official Receiver to take possession of 50, Chittaranjan Avenue and for varying the order dated 6th June, 1961. On 13th September 1962 the Court of Appeal made an order directing the Official Receiver to take possession of the premises and varied the order of the 6th June accordingly. On 15th September 1962 a letter was written by the Solicitor of the Administrator General to the petitioner company intimating that by an order of the 13th September 1962 the Official Receiver who had been appointed Receiver of premises No. 50, Chittaranjan Avenue by an earlier order was directed to take possession of the said premises, and by virtue of the said order the Official Receiver is now only entitled to realise all rents payable by the tenants of the said premises and the petitioner was, therefore, warned that it was not to pay rent to anyone else in raspect of the portion of the ground floor of the premises which the petitioner company was occupying as tenant. On the 27th September, 1962 the Official Receiver also wrote a letter to the petitioner company Intimating that by an order dated the 11th April, 1961 he had been appointed Receiver of the rents issues and profits of premises No. 50, Chittaranjan Avenue, Calcutta, belonging to the estate which was the subject-matter of suit No. 691 of 1960 a portion of which premises was in the occupation of the petitioner company, and the petitioner company was further called upon to attorn and pay rent to the Official Receiver in respect of the said tenancy and to forward to the Official Receiver alone rent receipts for adjustment of the rent account. It was further pointed out in that letter that ail rents both arrears and current should be paid to the Official Receiver and to no one else. On 2nd November, 1962 the petitioner company wrote a letter to the Official Receiver by way of reply to the letter of the 27th September, 1962 intimating that without prejudice to their interest, rights and remedies and in view of their inability because of the High Court holidays to ascertain the correct facts and to obtain competent legal advice, the company was depositing with the Official Receiver a sum of Rs. 905/- by crossed cheque on account of rent payable in respeict of their lease for the month of October, 1962. A copy of this letter was forwarded amongst others to S. P. Majoo the proprietor of Byron and Company. On 6th November, 1962 one Mr. Baiaydnath Sarkar, an Advocate, wrote a letter to the petitioner company on behalf of Messrs. Beverage and Merchandise Company and S. P. Majoo proprietor of Byron and Company, complaining of the fact that the petitioner had wrongfully and illegally refused to pay the agreed rent in respect of the lease dated 29th January 1962. In the said letter it was inter alia stated as follows:

That in spite of my cliaint's repeated demands you have yet allied and neglected to pay rent for the months of September and October, 1962 at Rs. 905/- per month as agreed upon.

That any client states that there is no order by any competent Court enabling you to pay rent to the Official Receiver.... The Official Receiver is entitled to recover rant in respect of the entire ground floor of the premises from my client Messrs. Byron and Company and you being in the position of a sub-lessee of their demised factory are liable to pay rent to my client and nobody else. This is the actual legal position and you will be better advised not to pay rent to the Official Receiver but to my client.

That finder the circumstances 1 am Instructed finally to call upjon you which I hereby do to remit to me or thy client a; sum of Rs. 1800/-...failing which my client without prejudice to other legal remedies will file a suit] against you for recovery of the said sum to gether with all interest and costs and that without any farther reference to you.

3. on 8th November, 1962 one B. K. Mukherjee, Advocata for the petitioner company, replied to the letter of the 6tlj November, 1962 On 30th November, ,,1962 S. P. Majoo, proprietor of Byron and Company wrote a tetter to the petitioner company saying that the deposit made by the petitioner company with the Official Receiver is invalid and is not binding on him and pointing out that the Official Receiver could not give any discharge for Byron and Company. On that very date (30th November, 1962) j Beverage and Merchandise Company and S. P. Wlajoo filed: a suit in the Court of Small Causes against the petitioner -company being suit No. 4138 of 1.962 for recovery of Rs. 1832/- for rent of September and October, 1962 (Rs. 1800/-) together with interest thereon at the rate of 12 per cent per annum. The date fixed for appearance of the defendant in the Small Causes Court in the said suit Was 14th December 1962. On 17th December, 1962 the petitioner company moved an ex parte application before the Court of Appeal and a Rule Nisi for contempt confined to certain specific prayers in the petition was issued 'on that date. The returnable date of the Rule was subsequently extsnded inasmuch as there was difficulty in1 serving the rule upon the respondents. On 20th February, 1J963 direction was given by the Court of Ap-paail for filing of the respective affidavits and also for serving a copy of the grounds ion certain parties.

4. Apart from certain minor points which have been raised with regard to service of the order and as to the defective form and signature on the petition, the principal questions that have arisen for consideration in this case ars whether the petition is maintainable at the instance of the petitioner company which is not a party to the proceedings in which the order for appointment of Receiver was made and whether the respondents are in fact guilty of contempt of Court. It may be observed at the very outset that there is no specific charge made against the respondent Homi Pestonji Majoo and therefore there can be no question that the application for contempt is not maintainable, as against this respondent and the Rule issued must therefore be discharged so far as he is concerned.

5. Now with regard to the question whether the application is maintainable at the instance of the petitioner company, the first thing to be considered is the nature of the contempt which is alleged to have been committed. It is well-known that a contempt may be a civil contempt or a criminal contempt. Criminal contempt consists, of words or acts obstructing or tending to obstruct the administration of justice and civil contempt otherwise known as contempt in procedure consists of disobedience to the judgments, orders and other process of the Court and involving a private injury, e.g., disobedience to orders for the payment of money or wilful disobedience to any order or process or in the breach of any undertaking given to the Court. The case of interference with or obstruction to a Receiver appointed by the Court is treated as a contempt of a Criminal nature falling within the first category. As pointed out in the case of Kilachand Devchand v. Ajudhia Prasad ILR 59 Bom 10 : AIR 1934 Bom 452 by Kania J. at pp. 17-18 (of ILR Bom) : (at p.. 455 of AIR) :

The Court jealously guards the possession of its officer and therefore cases in which1 an action of abetment is brought against a Receiver without the leave of the Court that appointed him, or taking forcible possession of estates or the rents and profits of which a Receiver has been appointed, or by issuing without the leave of the Court a sequestration of the profits of a living of which a Receiver has been appointed previously, or levying an execution upon partnership assets in the possession of a Receiver or taking management out of his hands, are considered contempts of a criminal nature. See Angel v. Smith (1804) 9 Vos. Jun. 335, In re Battersby's Estate, (1892) 31 Ir. 73; Broad1 v. Wickham (1831) 4 Sim 511; Hawkins v. Gathercole (1852) 1 Drew 12; Lanei v. Sterne (1862) 3 Giff 629 and Ex parte Hayward; Re Plant (1881) 45 LT 326.

6. Later on at p. 25 (of ILR Bom) : (at p. 459 of AIR), in dealing with the question whether the High Court has jurisdiction to punish a person who commits contempt of its orders by interfering with the possession of a Receiver appointed by it even if that person is not a party to the suit in which order appointing Receiver is made, the learned Judge made the following observations ;

The question of contempt is not a dispute which arises between the parties in respect of the dealings as contained in the pleadings, but is a matter lo be adjusted between the Court on the one hand and the respondent on the other and that dispute may arise in respect of property which is outside the original civil jurisdiction of the Court. I do not, therefore, see any difference in principle to be applied in assuming Jurisdiction In contempt proceedings in cases where the defaulting respondent is a defendant in the suit or an outsider.

7. Im the case of Tarafatullah v. S. N. Maitra : AIR1952Cal919 , Chakravartti, J. (as he then was has pointed out that although contempt of Court is 9 matter between the Court and the party in contempt, proceedings in contempt must be allowed to be initiated by a motion made by private parties because that is one of the ways in which cases of breaches of the Court's orders may come to the Court's notice. The teamed Judge In that case made the following observations:

The High Court is and has always bean jealous of its authority in public interest and will always continue to tie so. It will regard persons who bring to it notice cases of violation of its orders as persons who aid the administration of justice.' (Paragraph 23 of the judgment).

8. In a subsequent decision of a Division Bench of this Court reported in Dulal Chandra Bhar v. Sukumar Banerjes : AIR1958Cal474 , Chakravarti, C, J. in dealing with the nature of contempt which is of a civil nature and of a criminal nature observed:

A contempt is merely a civil wrong where there has been disobedience of an order made for the benefit of a particular party, but where it has consisted In setting the authority of the Courts at naught and has had a tendency to invade the efficacy of the machinery maintained by the State for the administration of justice, it is a public wrong and consequently criminal in nature.

9. The distinction between criminal and civil contempt was again emphasised by Chakravartti, C. J. and Lahirl J. in the case of Saibal Kumar Gupta v. B. K. Sen : AIR1959Cal103 and it was observed that:

Where the contempt consists in offering affront to the Court or in interfering or tending to interfere with the administration of justice, there is public wrong and tha contempt committed in such form is said to be criminal contempt and it is undoubtedly a well settled law that if what is done by a person tends to interfere with tho administration of justice then whether or not he intends such effect and whether or not the effect is actually caused he will be guilty of contempt of Court.

10. In an English case reported in Ames v. Trustees of the Birkenhead Docks (1855) 20 Beav. 332, the learned Master of the Rolls observed:

There is no question but that this Court will not permit a Receiver, appointed by its authority and who is, therefore, its officer, 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.

11. In the casaf of Kilachand DDvchand ILR 59 Bom 10 at p. 17 : AIR 1934 Bom 452 at p. 455, as pointed out already it has been held that the conduct of a party attempting to collect rent after the appointment of a Receiver amounts to interference with the possession of the Receiver and it is contempt of Court of a criminal nature. Further it is clear that a Court which has taken possession of a property through its Receiver for and on behalf of the parties to the suit should not concern Itself with any claims of, or rights which may have accrued to, any third party by reason of any assignment or transfer during tha pendency of that suit. Any interference with that possession by any such third party would be a contempt of the authority of that Court, see Doulat v. Hameswari Koeri ILR 26 Cal 625 at p. 629 -. 3 Cal WN 461, at p. 463 (per Wilkins, J.)

12. Reference may also be made1 in this connection to another decision of the Division Bench of this Court reported in Amulya Chandra Bhaduri v. Satish Chandra Giri : AIR1932Cal254 . In this case Lort-Williams, J. and S. K. Ghosh, J. in dealing with the question whether the application made before the District Judge for contempt at the instance of the Receiver to the Tarakeshwar estate, was maintainable or not, observed as follows:

In all such cases the application should be made by one of the litigants who is or alleges that he is damaged by the actions of the other party, who have interfured with the arrangement made by the Receiver and that application must be made to the High Court direct, supported by the necessary affidavits and asking that a rule shall be issued calling upon the other side to show cause why they should not be committed for contempt. The same procedure with regard to notice, to personal service and otherwise must be followed as in applications in contempt to the High Court on the Original Side. We do not say that in no case should the application be made by the Receiver himself or that in certain cases the Court might not take action of its own accord without any application either by the Receiver or by either of the parties to the litigation; such might be the case if the Receiver or the parties refused to apply ..

13. Another principle is also well-settled that the existence of an alernative remedy does not preclude as application for committal for contempt. Ali Mohomed v. Emperor .

14. Bearing these principles in mind and coming to the facts of this case it appears that it cannot be said; that the petitioner company was not at all justified in making the application that it has done in the present case. The effect of the order of the Appeal Court dated the 13th September 1962 was practically to revive the order of G. K. Mitter, J. dated the 11th April, 1961. The said order for appointment of Receiver was drawn up according to the practice and rules of the Original Side of this Cotuit in the form' prescribed in Form No. 1 in Appendix F of the Original Side Rules of this Court as contained in Chapter XXI of the Rules of the Original Side. Rule 7 of the said Rules provides that the order appointing a Receiver shall be in Form No. 1 or as the Court or a Judge may direct. A reference to Form No. 1 in Appendix F shows that an order appointing a Receiver should contain inter alia the following provisions;

And it is further ordered that the defendants and all persons claiming under them to deliver up quiet possession of the said property, moveable and irremovable, of the said intestate together with all leases, agreements for lease, fabulists, accounts, books, papers, memoranda and writings relating thereto to the said Receiver And it is further ordered that the said Receiver do take possession of the said property, moveable and immoveable, and collect the rents, issues and profits of the said im-tnoveable property and that the 'tenants and occupiers' thereof do attorn and pay their rents in arrears and growing rents to the said Receiver.

15. The expression 'tenants and occupiers' as occurring in the order of appointment is, in my view, wide enough to include the petitioner company (see Jowitt's Dictionary of English law, Vol. 2, page 1259) and consequently if the petitioner company had refused to pay rent to the Official Receiver after the notices dated the 15th September, 1962 and 27th September 1962 demanding rent to be paid to Official Receiver by virtue of the order of appointment mads, had been served, the pampered company might be held to be guilty of contempt of Court although the petitioner company was not a party to the proceeding in which the Receiver was appointed and was an outsider in that sense. The position in law is clear that an outsider may be bound by the effect of an order of Court appointing a Receiver made in his absence. It was argued that the expression 'occupiers' should be construed by applying the principle of ejusdem generis and as forming part of the genus 'tenant', I find it difficult to follow the reasoning of this argument. The term 'occupier' has a wider connotation and includes the case of the petitioner company. So as the/ petitioner company was in law bound by the order which affected its position as a tenant w occupier of the premises over which the Receiver was appointed, it is-open to the petitioner to bring to the notice of the Court which appointed the Recejver the fagot that an attempt is being made or has been made by a party to the proceeding in which the Receiver was appointed to prevent the petitioner company fro paying to the Receiver the rent which was payable by the petitioner company in respect of its occupation of a portion of the premises in question, or that an attempt was being made to realise the rent from the petitioner cojnpany by a party to the proceeding by a suit net-withstanding the fact that a Receiver had been appointed respect of the premises with power to collect rents from persons who arei the tenants or occupiers in respect of the iame. The attempt to interfere with the collection of fent by the Receiver or the disobedience of the order of the Court authorising the Receiver alone to collect rents from, the tenants and occupiers amounts to criminal I contempt. Therefore there can hardly be any room for doubt that the petitioner company who was bound or affeded by the order of appointment of Receiver is entitled to bring to the notice of the Court the set or conduct of the party alleged to be guilty of such criminal contempt. The Receiver has realised the rent from the petitioner and therefore is not interested in making any application. It is well known that the jurisdiction to punish far contempt possessed by this High Court which is a Court of record is a jurisdiction which can be exercised suo imotu. In the circumstances, I hold that the application for contempt is maintainable at the Instance of the petitioner company. But the further question that remains to be considered is whether the respondent Soli Pestonji Majoo can be punished for contempt of Court in the facts and circumstances of this case. It is clear from the correspondence and also from the argument which tha learned Counsel for the contemnor had advanced In this case that the contemnor and his legal advisers have construe the effect of the order of appointment as not affecting; the petitioner company at all and as casting no obligation1 upon the petitioner company to attorn or pay rent to the Receiver. It was thought by them that there was no privity between trie Official Receiver and the peth tioner company and as such it was the duty or obligation of the petitioner company to pay the rent to the lessor and notto the Official Raceiver. It is fairly well settled that where the interference with the Receiver's possession or firs right to collect the rents is not wilfully committed abd where the act complained of is done under a mistake of law the Court as a rule will not commit the person who is guilty of the act of interference to prison; but may impose a fine or direct the contemnor to pay costs of; the proceeding. It appears to me that in the present jcasa the act or conduct of the alleged contemnor is promoted by i misunderstanding of the correct legal position and that there has been no wilful disobedience of the ordir of the Court or deliberate interference with the possession of the Receiver or his right to collect the rents, arid so I do not propose to make any order of committal or even imposition of fine against the responcent S. P. Majoo. It may further be pointed out that the petition is defective in form inasmuch as it does not bear any signature of or on behalf of the petitioner company. It is signed by a principal officer of the company no doubt, but not on behalf of the company. This is, in my view, is a curable defect and we have given liberty to the petitioner to put the matter right by having the proper signature put on record.

16. For he reasons given above, no order Is mads on this application.

17. There will be no order as to costs.

18. Interim orders, if any, are vacated.

G.K. Mitter, J.

19. I agree.


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