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TMI Blog1955 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of Bihar for grant of licence to supply electric energy at Giridih and Pachamba. Thereafter followed some correspondence between the Secretary to the Government of Bihar on the one hand and Messrs. Lalji and Co. on the other in which at the enquiry of the Government of Bihar as to how the latter proposed to run the undertaking Roy brothers replied that they intended to float a limited liability company the shares of which would be subscribed by them and some of their friends and relations, and, if necessary, they would finance the limited liability company to enable it to run the undertaking. Eventually, on 9-7-1929, the Governor of Bihar and Orissa in Council was pleased to grant to Roy brothers carrying on business in partnership in the name and style of Messrs. Lalji and Co., at 34 Sobhabazar Street, Calcutta, the licence for the supply of electric energy within the limits of the town of Giridih as described in Clause 4 of the license. Soon after the grant of the license Messrs. Lalji and Co. floated a limited liability company which was named and styled as The Giridih Electric Supply Corporation Limited (hereinafter called the Corporation for the sake of brevity) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g agents of the Corporation. On the application of the British Insulated Cables Ltd. Roy brothers, carrying on a partnership business in the name and style of Messrs. Lalji and Co., were adjudged insolvents on 17-7-1934, by the Hon'ble Judge in charge of the insolvency matter before the Calcutta High Court. The Official Assignee appointed by the Calcutta High Court thereafter authorised Mr. Nripendra Lal Roy, one of the three Roy brothers, to carry on the business of Messrs. Lalji and Co. at Giridih. As the Corporation also could not meet the demands of their creditors an application was filed before the Patna High Court for its liquidation. On 20-8-1935, the Company Judge of the Patna High Court passed the winding up order. On 6-9-1935, one Mr. B. Gupta was appointed the official liquidator. On the application of the official liquidator the official assignee decided that the power house, plants, machineries etc. described in Annexure A attached to the present plaint were properties of the Corporation and released them all in favour of the official liquidator. On 25-6-1938, the Government of Bihar granted sanction to the official liquidator to supply electric energy at Gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint, moveable and Immovable properties appertaining to the Corporation before the auction sale in favour of the plaintiff. Schedule 3 consisted of additions, alterations and improvement to the undertaking made by the plaintiff thereafter. The plaintiff prayed for a declaration of its title to and confirmation of its possession over the suit properties and for permanent injunction restraining defendants 1 to 5 or their servants and agents from taking possession of the said undertaking and its assets or otherwise interfering with plaintiff's possession. 4. The suit was contested by Roy brothers and Messrs. Lalji and Co., defendants 1 to 4, who filed a joint written statement. According to these defendants, they were really the owners of the suit properties. They further stated that the plaintiff had omitted to include in the present suit a number of properties which formed part of the Giridih Electric undertaking. They give a list of these properties in Schedule A attached to their written statement. They pleaded that by a resolution dated 16-9-1933, the Board of Directors of the Corporation had sold their assets to Lalji and Co. They further pleaded that even if the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government, acquire by purchase or otherwise, the license or the undertaking of, or associate himself so far as the business of supplying energy is concerned with any person supplying, or intending to supply, energy under any other license, and, before applying for such consent, the licensee shall give not less than one month's notice of the application to every local authority, both in the licensee's area of supply and also in the area or district in which such other person supplies, or intends to supply, energy: Provided that nothing in this sub-section shall be construed to require the consent of the State Government for the supply of energy by one licensee to another in accordance with the provisions of Clause IX of the schedule. (2) The licensee shall not at any time assign his license or transfer his undertaking, or any part thereof, by sale, mortgage, lease, exchange or otherwise without the previous consent in writing of the State Government. (3) Any agreement relating to any transaction of the nature described in Sub-section (1) or Sub-section (2), unless made with, or subject to, such consent as aforesaid, shall be void. He submitted that without san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chief Engineer of the Company do see the said Government Inspector and the Secretary without delay. The Secretary of the company in his capacity as a lawyer do help the Managing Agents in this matter. Mr. Mukherji placed before us in this connection Exs. Y and R. He submitted that in pursuance of the above-quoted resolution Mr. S. C. Chaudhary, who was the Secretary of the Corporation had pressed for payment to the Corporation the sum of ₹ 2,14,666-12-6 representing the money advanced to the insolvent to purchase the machinery etc., of the undertaking. The Court below has held that Mr. S. C. Chaudhary had no authority to make the claim, and that he did it in collusion with the insolvents. It becomes, therefore, necessary to see whether Mr. S. C. Chaudhary had in fact power to prefer this claim in the insolvency proceeding on behalf of the Corporation. (Their Lordships considered the material evidence and concluded:). 18. Thus, it is clear that Mr. S. C. Chaudhary had no authority to prove any debt on behalf of the Corporation in March, 1935, when Ex. Y was filed and in June, 1935, when Ex. R was filed in the insolvency proceeding pending before the Original Side of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided into two holdings. From the assessment register of the Giridih Municipality, Ex. 17(a), it appears that the holding containing the power house was recorded in possession of the Corporation. This is clear with reference to the original municipal papers on record, Ex. 17(a) and other connected papers. From Ex. 3 to 3(j) also it appears that the municipality always treated the Corporation as the occupier of the new holding No. 229 on which the power house stood. From papers available on the record it transpires that the Corporation was reputed to be the owner of the undertaking. But as we have already said, that this point cannot be permitted to be raised for the first time in appeal, it is not necessary to deal with this matter any further. 21. Mr. Mukherji next contended that the title of the Corporation, if any, in the plant and machineries etc. had been extinguished under Section 28, Limitation Act long before the date of the auction sale in favour of the present plaintiff and the date of the institution of the present suit. According to him, the suit for their possession was governed by Article 49, Limitation Act which runs as follows : For other specific moveabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished. According to Mr. Mukherji, the evidence of hostile attitude was also furnished by letters Ex. 7z(2) dated 11-2-1939, and Ex. 7z(3) dated 15-2-1939; but counting from those dates the title of the corporation was not extinguished either on the date of the auction purchase by the plaintiff or on the date of the institution of the present suit. 22. It appears that as in the plaint the properties mentioned in Schedule II have been described as movables. Mr. Mukherji maintained that Article 49, Limitation Act would have applied, in a suit for, possession of such articles. But even if it be held that Article 49, Limitation Act applied, the period of limitation would commence from the time when the possession of the defendants 1 to 4 becomes unlawful. A permissive possession can become unlawful only when the demand for possession is refused as was held in the cases of -- 'Gopalasami Ayyar v. Subramania', 35 Mad 636 at p. 638 (B); -- 'Kuppuswami v. Pannalal' AIR 1942 Mad 303 (C); -- 'Leddo Begam v. Jamal-Ud-Din AIR 1920 All 353 (D) and -- 'Ma Mary v. Ma Hla Win AIR 1925 Rang 146 (E). The earliest hostile attitude was expressed by Mr. N. L. Roy in his le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaking in question. On that occasion in a summary enquiry it was held that the official liquidator had failed to bring the case within the provisions of Section 185, Companies Act. But in spite of such an order the Corporation was entitled to file a regular suit for declaration of its title and for confirmation of its possession. In fact, such a right was hinted to even in the judgment in Letters Patent Appeal No. 26 of 1940 (Ex. 12-c). In our view, in face of the decree passed in favour of the plaintiff of this suit for declaration of its title and confirmation of possession defendants 1 to 4 will not be entitled to enforce the restitution order, The intention of the Plaintiff is, therefore, to restrain defendants 1 to 4, their servants and agents from interfering with the possession of the plaintiff. The Court below has on the strength of the decision in the case of -- 'Sheo Nandan Prasad v. Sheo Parsan Pathak' AIR 1942 Pat 349 (I), granted to the plaintiff the relief for permanent injunction. We respectfully agree with the view taken by the learned Judges in the case of 'Sheonandan Prasad (I)', mentioned above and we also hold that Section 56, Specific Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors passed a resolution for the execution of the lease as drafted by Messrs. Roy Choudhuri Co. with certain additions and alterations and Mr. S. C. Choudhuri was authorised to execute the lease on behalf of the Corporation. Item No. 8 of the agenda of the ninth meeting, of the Board of Directors was with regard to the completion of lease of the land at Giridih, but in the meeting which was held on 22-5-1931, this item of the agenda was withdrawn as being unnecessary. We thereafter do not find any mention about the lease in the subsequent meetings of the Board of Directors of the Corporation. The lease itself is not on the record of the case, and there is no satisfactory evidence to prove that actually a lease was executed. There is, however, an admission of Messrs. Lalji Co. in their letter Ex. 7, referred to above, that the Corporation took a lease of certain land in Barganda in the town of Giridih and erected a power house building thereon. In this connection Mr. Dutt appearing for the plaintiff-respondent has drawn our attention to the deposition of Mr. Hemendra Lal Roy, one of the appellants, Ex. 18, referred to above, in the insolvency case wherein he made the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Bihar and its purchase or the right title and interest of the plaintiff in the properties in suit. He ugred that this Court is bound to decide the appeal on the basis of the position occupied by the parties on the date of the institution of the present suit. We agree with Mr. Mukherji that that is the general rule, but in exceptional cases, in order to do justice in the case and to shorten litigation, Courts can take into consideration subsequent events also. By consent of parties Miscellaneous Appeal No. 82 of 1949 has been heard along with this First Appeal No. 60 of 1947. Miscellaneous Appeal No. 82 of 1949 arose out of the Land Acquisition proceeding in which Bishram Kutir with its surrounding land was acquired by the State of Bihar. The present defendants 1 to 4 have not challenged the validity of the acquisition proceeding. On the contrary, they have admitted its validity by claiming compensation under it. The State of Bihar has been added as a respondent on the basis of its having purchased the right, title and interest of the plaintiff during the pendency of this First Appeal. These facts cannot be ignored. 29. It may also be mentioned that the trial Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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