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TMI Blog2004 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... d by both the parties. Another ground of challenge is that the Magistrate has wrongly concluded that the complainant has failed to prove that the property in question was wrongly held by the accused despite the Appellants having proved the same by the evidence of prosecution witness Nos. 1 and 2 as well as various Exhibits which have gone unchallenged. Yet another ground of challenge is that Magistrate has wrongly decided that the Respondents-accused were permitted to continue in occupation of the said flat by Mr. Goenka, a non-executive Chairman of the Board of Directors of the Appellants. It is submitted that the case of the accused has been demolished by the evidence of PW 2 and letters written on behalf of the Appellants viz. Exhibits P-11 and P-12 which were sent after discussion with Mr. Pandya, Managing Director, Mr. Goenka and other Directors. The case of the Respondent is further demolished by Exhibit-16, the unanimous board resolution of the Appellants, at which Mr. Goenka was also present authorising PW2 to take necessary steps for recovery of the flat wrongly withheld by Respondents. 3. Briefly, the case of the complainants that late S.C. Agerwalla was an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to purchase the flat at its written down value after his retirement from the company (Exhibit P-15). It appears that thereafter, since accused No. 1 was suffering from serious illness, the Company on humanitarian ground did not take any steps for obtaining vacant possession of the premises. However, after Mrs. Agerwalla recovered from her illness and since accused failed to vacate the flat, the Company by letters (Exhibits P-11 and P-12) dated 9-11-1994 called upon the accused to vacate the flat. The accused vide letter dated 12-12-1994 (Exhibit P-13) replied stating that the Chairman, Mr. Goenka had requested her to continue to stay in the flat Sonmarg till the company give her possession of the flat in Blue Heaven . She further stated that she had repeatedly requested for completion of the transfer of Blue Heaven flat and had given her consent to the transfer. However, due to some difficulties, the company had delayed in giving possession of the said flat and it was at the request of the company that she agreed to stay on in Sonmarg flat till the company was in a position to give her possession in the Blue Heaven flat. Pursuant to this, the accused, both widow and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to stay in the said flat till they could make available the flat to them in Blue Heaven . The third defence witness is Aditya Prakash Gupta, son-in-law of accused, husband of the third daughter of the deceased. Mr. Gupta has stated that he met Mr. Goenka some 8 to 12 times, the first time was on 4-11-1992 when he met him in connection with the said flat. He has referred to four diaries of the years 1992, 1993, 1994 and two diaries of the 1993 showing the entries of the meeting with Mr. Goenka. He has further stated that Mr. Goenka told him to see Mr. Vakil and that after he met M. Vakil, Mr. Vakil told him that it was difficult to transfer the flat in Blue Heaven in his mother-in-law s name because different taxes became applicable. In view thereof, he states he obtained legal opinion of counsel S.C. Dastoor and gave a copy of the said legal opinion to Mr. Goenka on 28-7-1993. 8. After filing the suit No. 7 of 1995 for specific performance of contract in this Court, interim order came to be passed on a statement made by counsel on behalf of the Appellants (complainant) that the Respondents would not be dispossessed from the premises in Blue Heaven except by due process o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he flat in Blue Heaven , is not borne out by the evidence on record. It is pointed out that the claim of the respondent accused has been specifically denied by the PW2 who stated that it is not true to say that the accused is living in the disputed flat with the express licence granted to her by Mr. Goenka on behalf of the company and that it is not true to say that the company has deliberately not transferred the flat in Blue Heaven and thereby committed breach of Agreement. It is further contended that Mr. Goenka was a Non-Executive Chairman of the Board of Directors during the period from 1983 to 1984 and he did not participate in the day-to-day affairs of the company which were being looked after by Managing Director Mr. Pandya. It is further pointed out that PW2 has also stated that the correspondence with the accused calling upon her to handover possession of the disputed premises (Exhibits PW-11 and PW-12) was written by Mr. Pandya, Mr. Goenka and Mr. Vakil, Directors, and that pursuant to the unanimous resolution (Exhibit 16), the complaint came to be filed. At the said meeting, Mr. Vakil, Mr. Pandya and Mr. Goenka were present. 11. It is also the contention of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of 1995 for specific performance of the Agreement (Exhibit P-15). The suit is pending. We are not concerned with the final outcome of the suit. However, the interim order passed in the suit on the undertaking given by Counsel for the Appellants that they will not dispossess the Respondents without due process of law is a fact that ought to have taken into consideration by the trial Court in deciding whether the Respondents-accused were in wrongful possession of the flat in Sonmarg . 13. Since the complaint is one of wrongful possession of the company property viz. flat at Sonmarg , it is essential for this court to ascertain whether possession of the accused-respondents is, in fact, unlawful or wrongful. The accused-Respondents have relied upon assurances given to them by Mr. Goenka, the Chairman of the Company that they need not vacate the flat in Sonmarg till they got possession of the flat in Blue Heaven . Reference has been made to this in several letters as well as in the evidence of the defence witnesses. Mr. Goenka who allegedly gave the assurances has not been examined either by the Appellants or Respon- dents. It is the contention of the learned Advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Respondents claim that Mr. Goenka had given the assurance. Nor has Mr. Goenka send any letter to the Respondents denying their claim of any assurance having been given by him. No doubt, in the correspondence, there is a general denial by the Appellants of the allegations made by the Respondents and the Appellants have been at pains to point out that Mr. Goenka was party to and fully aware of all the correspondence made on behalf of the company. However, we find no specific denial in the correspondence of the alleged assurance given by Mr. Goenka. Since Mr. Goenka is a party to the resolution to prosecute the Respondents, there ought to have been at least a formal denial by Mr. Goenka that he had given any such assurance of permitting the Respon- dents to stay in the flat Sonmarg till possession was given to Respondents of the flat in Blue Heaven . The failure on the part of the company to deny the averments of assurance given by Mr. Goenka which is manifest from the two letters of Respondents to Mr. Goenka being Exhibits P-22 and P-23, receipt of which is admitted by the Appellants, would require this Court to draw an inference in favour of the Respondents, making the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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