w w w . L a w y e r S e r v i c e s . i n



Tarun Keshrichand Shah & Another v/s M/s. Kishore Engineering Company & Others


Company & Directors' Information:- M & B ENGINEERING LIMITED [Active] CIN = U45200GJ1981PLC004437

Company & Directors' Information:- G. R. ENGINEERING PRIVATE LIMITED [Active] CIN = U65990MH1990PTC058602

Company & Directors' Information:- G G ENGINEERING LIMITED [Active] CIN = L28900MH2006PLC159174

Company & Directors' Information:- V U B ENGINEERING PRIVATE LIMITED [Active] CIN = U29290MH2005PTC154033

Company & Directors' Information:- N S ENGINEERING COMPANY PVT LTD [Active] CIN = U29219TG1989PTC010511

Company & Directors' Information:- S S S ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U27205KA1981PTC004194

Company & Directors' Information:- H M G ENGINEERING LIMITED [Active] CIN = U45200MH1977PLC019533

Company & Directors' Information:- K R R ENGINEERING PRIVATE LIMITED [Active] CIN = U29309TN1989PTC016852

Company & Directors' Information:- G G ENGINEERING LIMITED [Active] CIN = U28900MH2006PLC159174

Company & Directors' Information:- D B ENGINEERING PRIVATE LTD [Active] CIN = U74899DL1986PTC026541

Company & Directors' Information:- G G ENGINEERING PRIVATE LIMITED [Active] CIN = U28900MH2006PTC159174

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- J P ENGINEERING CORPN PVT LTD [Active] CIN = U34103WB1951PTC019638

Company & Directors' Information:- S N B ENGINEERING PRIVATE LIMITED [Active] CIN = U27106DL2007PTC301213

Company & Directors' Information:- T P W ENGINEERING LTD [Active] CIN = U27203WB1975PLC029939

Company & Directors' Information:- C L ENGINEERING PRIVATE LIMITED [Active] CIN = U34300PB1992PTC012057

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- W & W ENGINEERING PRIVATE LIMITED [Active] CIN = U72900TN2003PTC051228

Company & Directors' Information:- M L R ENGINEERING PRIVATE LIMITED [Active] CIN = U74999TG2006PTC051974

Company & Directors' Information:- K B ENGINEERING CO PVT LTD [Active] CIN = U74160TG1988PTC008366

Company & Directors' Information:- R P ENGINEERING PVT LTD [Active] CIN = U29299WB1992PTC055482

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- J & K ENGINEERING LIMITED [Active] CIN = U45203JK2006PLC002684

Company & Directors' Information:- S P T ENGINEERING PRIVATE LIMITED [Converted to LLP] CIN = U27109UP2005PTC030940

Company & Directors' Information:- A R F ENGINEERING LIMITED [Active] CIN = U27200TN1980PLC008347

Company & Directors' Information:- A M ENGINEERING PRIVATE LIMITED [Amalgamated] CIN = U65910MH1981PTC187856

Company & Directors' Information:- S. S. E. ENGINEERING PRIVATE LIMITED [Active] CIN = U36990MH2007PTC175320

Company & Directors' Information:- C T ENGINEERING LIMITED [Strike Off] CIN = U29259GJ1986PLC009007

Company & Directors' Information:- R AND S ENGINEERING INDIA PVT LTD [Active] CIN = U29199GJ1995PTC027661

Company & Directors' Information:- U AND R ENGINEERING PRIVATE LIMITED [Active] CIN = U29199TZ1999PTC009012

Company & Directors' Information:- I Q ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U85110KA1996PTC021507

Company & Directors' Information:- G M ENGINEERING PRIVATE LIMITED [Active] CIN = U28910GJ2013PTC077091

Company & Directors' Information:- W. E. ENGINEERING PVT. LTD. [Active] CIN = U52335WB1985PTC039370

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- L. B. ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2018PTC225084

Company & Directors' Information:- R I ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U74210KA1991PTC012420

Company & Directors' Information:- U D ENGINEERING PRIVATE LIMITED [Active] CIN = U32109DL1999PTC102586

Company & Directors' Information:- K M T S ENGINEERING PRIVATE LIMITED [Active] CIN = U29192DL2005PTC141240

Company & Directors' Information:- C A G ENGINEERING LIMITED [Active] CIN = U00350PB2006PLC029521

Company & Directors' Information:- C A G ENGINEERING LIMITED [Active] CIN = U29110PB2006PLC029521

Company & Directors' Information:- D ENGINEERING PRIVATE LIMITED [Active] CIN = U29269TZ1932PTC000046

Company & Directors' Information:- V K B ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL2005PTC141483

Company & Directors' Information:- INDIA ENGINEERING PRIVATE LIMITED [Active] CIN = U72200PN1999PTC014259

Company & Directors' Information:- C N C ENGINEERING LIMITED [Strike Off] CIN = U93000KA1986PLC007922

Company & Directors' Information:- M K V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29199TZ1997PTC007736

Company & Directors' Information:- G V T ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U29219DL1996PTC082427

Company & Directors' Information:- K. I. ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2009PTC133109

Company & Directors' Information:- G M E P ENGINEERING PRIVATE LIMITED [Active] CIN = U29192DL1998PTC096737

Company & Directors' Information:- J T ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1984PTC018756

Company & Directors' Information:- M C ENGINEERING CO PVT LTD [Active] CIN = U74899DL1972PTC006392

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- C P ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U27209TN1987PTC014052

Company & Directors' Information:- J B L ENGINEERING PRIVATE LIMITED [Active] CIN = U28112MP2008PTC021459

Company & Directors' Information:- H V S ENGINEERING PRIVATE LIMITED [Active] CIN = U28920MH2005PTC158342

Company & Directors' Information:- S C ENGINEERING CO PVT LTD [Active] CIN = U74210WB1982PTC035623

Company & Directors' Information:- U M ENGINEERING PRIVATE LIMITED [Active] CIN = U29200MH1977PTC019574

Company & Directors' Information:- A V K ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071971

Company & Directors' Information:- S K ENGINEERING CO PRIVATE LIMITED [Strike Off] CIN = U05001UP1952PTC002408

Company & Directors' Information:- G D ENGINEERING COMPANY (INDIA) PVT LTD [Active] CIN = U74210WB1993PTC058553

Company & Directors' Information:- V M R ENGINEERING PRIVATE LIMITED [Active] CIN = U29120DL2005PTC136764

Company & Directors' Information:- K. S. I. ENGINEERING PRIVATE LIMITED [Active] CIN = U36999HR2007PTC036660

Company & Directors' Information:- N S S ENGINEERING PRIVATE LIMITED [Active] CIN = U28999KA1989PTC010312

Company & Directors' Information:- A P V ENGINEERING CO LTD [Strike Off] CIN = U29113WB1945PLC006428

Company & Directors' Information:- G B ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29212PB1996PTC017500

Company & Directors' Information:- C M S ENGINEERING INDIA PRIVATE LIMITED [Strike Off] CIN = U74210TN2010PTC075302

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- J K B ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U31300TN1996PTC036482

Company & Directors' Information:- T S C ENGINEERING PRIVATE LIMITED [Active] CIN = U70109DL2011PTC217251

Company & Directors' Information:- H T S ENGINEERING PRIVATE LIMITED [Active] CIN = U74999MH2008PTC187914

Company & Directors' Information:- T P ENGINEERING PRIVATE LIMITED [Active] CIN = U45201OR2010PTC011517

Company & Directors' Information:- S B ENGINEERING PVT LTD [Active] CIN = U29199GJ1982PTC005292

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- J J ENGINEERING PVT LTD [Active] CIN = U29219WB1986PTC041433

Company & Directors' Information:- D & L ENGINEERING PRIVATE LIMITED [Converted to LLP] CIN = U29113TN2004PTC052690

Company & Directors' Information:- P KISHORE & CO PVT LTD [Strike Off] CIN = U51909WB1980PTC033193

Company & Directors' Information:- H R P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31503MH1997PTC108621

Company & Directors' Information:- S H ENGINEERING PRIVATE LIMITED [Active] CIN = U70101WB1999PTC088930

Company & Directors' Information:- V K S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28133TN2005PTC057283

Company & Directors' Information:- M K ENGINEERING PVT LTD [Active] CIN = U29199GJ1995PTC027278

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- K J ENGINEERING PRIVATE LIMITED [Active] CIN = U29299PN2006PTC129171

Company & Directors' Information:- C S S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45302TN2003PTC051161

Company & Directors' Information:- N. P. ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31100WB2010PTC150609

Company & Directors' Information:- S R K ENGINEERING CO PVT LTD [Active] CIN = U67120WB1994PTC063442

Company & Directors' Information:- M P T ENGINEERING PVT LTD [Strike Off] CIN = U29299KL1994PTC007761

Company & Directors' Information:- T S R C ENGINEERING PRIVATE LIMITED [Active] CIN = U29100UP2020PTC133920

Company & Directors' Information:- A K ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U50300UP1981PTC005354

Company & Directors' Information:- H M T D ENGINEERING PVT LTD [Active] CIN = U99999MH1981PTC035175

Company & Directors' Information:- J P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28129MH1972PTC015813

Company & Directors' Information:- V M ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U28920MH1969PTC014224

Company & Directors' Information:- H M A ENGINEERING LIMITED [Strike Off] CIN = U45209PB2008PLC031777

Company & Directors' Information:- P T S ENGINEERING INDIA PRIVATE LIMITED [Active] CIN = U74210TZ2011PTC016944

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- K S M ENGINEERING PRIVATE LIMITED [Active] CIN = U74210TG1997PTC028612

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- M M ENGINEERING COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U28932MH1979PTC021819

Company & Directors' Information:- N G T ENGINEERING PVT LTD [Active] CIN = U27109WB1968PTC027292

Company & Directors' Information:- M A S ENGINEERING PRIVATE LIMITED [Active] CIN = U99999MH1976PTC019233

Company & Directors' Information:- G R K ENGINEERING (INDIA) PRIVATE LIMITED [Active] CIN = U74200AP2011PTC076356

Company & Directors' Information:- P N S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29120TN2006PTC060120

Company & Directors' Information:- K P ENGINEERING CORPORATION PVT LTD [Strike Off] CIN = U74200WB1961PTC025258

Company & Directors' Information:- M A N INDIA ENGINEERING LTD [Strike Off] CIN = U74200WB1979PLC020893

Company & Directors' Information:- R V K ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253TN2010PTC074505

Company & Directors' Information:- R K ENGINEERING COMPANY PVT LTD [Active] CIN = U74899DL1975PTC007743

Company & Directors' Information:- G S A ENGINEERING CORPN PVT LTD [Strike Off] CIN = U74210WB1957PTC023382

Company & Directors' Information:- A R M ENGINEERING PRIVATE LIMITED. [Strike Off] CIN = U00500JH1988PTC003057

Company & Directors' Information:- L & V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45202MZ2005PTC007690

Company & Directors' Information:- S G A ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U29200MH2005PTC154349

Company & Directors' Information:- C P C ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29120TZ1986PTC001880

Company & Directors' Information:- P K R ENGINEERING INDIA PRIVATE LIMITED [Strike Off] CIN = U29130TZ2004PTC011094

Company & Directors' Information:- M N B ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U70101TN2005PTC057442

Company & Directors' Information:- R R K ENGINEERING PRIVATE LIMITED [Active] CIN = U74999WB2011PTC161080

Company & Directors' Information:- D M S ENGINEERING CO PVT LTD [Strike Off] CIN = U28920WB1964PTC026168

Company & Directors' Information:- S D S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28999PN2000PTC014838

Company & Directors' Information:- G B L ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U29130RJ1998PTC015182

Company & Directors' Information:- N T ENGINEERING COMPANY PVT LTD [Strike Off] CIN = U99999PY1986PTC000445

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- R K ENGINEERING PRIVATE LIMITED [Active] CIN = U31100MH2005PTC152838

Company & Directors' Information:- V J S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29130TN1996PTC036636

Company & Directors' Information:- R. K. V. ENGINEERING PRIVATE LIMITED [Active] CIN = U29253MH2010PTC205237

Company & Directors' Information:- U S ENGINEERING PVT LTD [Active] CIN = U34300CH1986PTC006887

Company & Directors' Information:- A D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74210OR1989PTC002348

Company & Directors' Information:- R J ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U27107RJ1972PTC001441

Company & Directors' Information:- H F ENGINEERING PRIVATE LIMITED [Active] CIN = U29244KL2013PTC033909

Company & Directors' Information:- O N ENGINEERING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC031987

Company & Directors' Information:- KISHORE ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U29199GJ1981PTC004489

Company & Directors' Information:- P S R ENGINEERING PVT LTD [Strike Off] CIN = U40200WB1987PTC042244

Company & Directors' Information:- P N ENGINEERING CO PVT LTD [Strike Off] CIN = U74210WB1980PTC032750

Company & Directors' Information:- A M A R ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29219DL1997PTC084187

Company & Directors' Information:- S G D ENGINEERING PRIVATE LIMITED [Active] CIN = U29210KA2009PTC050452

Company & Directors' Information:- G A S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29191MH2004PTC149606

Company & Directors' Information:- G T ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29219PN2012PTC145781

Company & Directors' Information:- M. M. K. ENGINEERING COMPANY PRIVATE LIMITED [Active] CIN = U29305MH2014PTC252830

Company & Directors' Information:- K-4 ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U31400MH2010PTC204004

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- N J ENGINEERING PRIVATE LIMITED [Active] CIN = U45209MH2015PTC262607

Company & Directors' Information:- M. P. SHAH ENGINEERING PRIVATE LIMITED [Active] CIN = U74200MH2007PTC171131

Company & Directors' Information:- P R S ENGINEERING PRIVATE LIMITED [Active] CIN = U29253TN2009PTC073915

Company & Directors' Information:- U P S ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U40300TN2013PTC090167

Company & Directors' Information:- K G D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400WB2014PTC200732

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- T A ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U28992CH2003PTC025800

Company & Directors' Information:- M N A ENGINEERING PVT LTD [Strike Off] CIN = U45202CH2006PTC030215

Company & Directors' Information:- A A P ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U27106DL2005PTC138318

Company & Directors' Information:- A C ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253DL2011PTC222515

Company & Directors' Information:- S. Z. ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253DL2014PTC274095

Company & Directors' Information:- IN ENGINEERING PRIVATE LIMITED [Active] CIN = U74210DL2011PTC212284

Company & Directors' Information:- J N ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC278906

Company & Directors' Information:- N I ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC280734

Company & Directors' Information:- A N D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U51502DL2012PTC242516

Company & Directors' Information:- R R V ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U51909DL1997PTC089342

Company & Directors' Information:- Z. M. ENGINEERING PRIVATE LIMITED [Active] CIN = U51909DL2007PTC168270

Company & Directors' Information:- K Y ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74999DL2013PTC248278

Company & Directors' Information:- R AND T ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U34300DL2005PTC136846

Company & Directors' Information:- THE ENGINEERING CORPORATION PRIVATE LIMITED [Strike Off] CIN = U99999KA1951PTC000699

Company & Directors' Information:- S J P ENGINEERING CO. PRIVATE LIMITED [Strike Off] CIN = U51505KA2002PTC030808

Company & Directors' Information:- S I ENGINEERING COMPANY PRIVATE LIMITED [Strike Off] CIN = U27109UP1967PTC003182

Company & Directors' Information:- W D ENGINEERING PRIVATE LIMITED [Active] CIN = U29308MH2020PTC345065

Company & Directors' Information:- KISHORE INDIA PVT LTD [Strike Off] CIN = U70101AS1984PTC002242

Company & Directors' Information:- S D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U18101DL1999PTC102948

Company & Directors' Information:- M B D ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U74210DL2008PTC181446

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- A. B. C. ENGINEERING CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1950PLC008192

Company & Directors' Information:-  ENGINEERING COMPANY ( [Not Available for eFiling] CIN = U99999MH1951PLC010002

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

Company & Directors' Information:- F M P ENGINEERING PVT LTD [Strike Off] CIN = U29259GJ1965PTC001337

    Criminal Appeal No. 153 of 2019

    Decided On, 05 February 2020

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE PRITHVIRAJ K. CHAVAN

    For the Appellants: Abhinav Chandrachud a/w Naresh Ratnani i/b Ashwin Ankhad & Associates, Advocates. For the Respondents: R2 & R3, Mr. Ankit Lohia a/w Mr. Chetan R. Shah a/w Mr. Arun Mehta i/b Akshar Laws, Advocates, R4, M.H. Mhatre, A.P.P.



Judgment Text


1. Feeling aggrieved with and dissatisfied by an order dated 5th October, 2018 passed in Notice of Motion No.823 of 2018 in Suit No.6117 of 2007 by the learned Judge, City Civil Court, Greater Mumbai, the appellants have approached this Court under section 341 of the Code of Criminal Procedure (for short ‘Cr. P.C’).

2. Facts germane for the decision of the appeal can be summarized thus:

The appellants have filed a civil suit in City Civil Court at Greater Mumbai against respondent No.1-M/s. Kishore Engineering Company for recovery of amount of Rs.75,600/- towards arrears of service charges @ Rs.2100/- per month for the period from November, 2004 to October, 2007. The appellants are legal heirs of Mr. Keshrichand B. Shah deceased Proprietor of M/s. Union Commercial Corporation which came to be dissolved on the demise of its Proprietor on 22nd January, 1980.

3. Respondent No.1 is a partnership firm and was a licencee of the subject premises which is situate on the third floor of Churchgate House 32, Veer Nariman Road, Fort, Mumbai – 400 023. Appellant No.2 is the Director of M/s. Modern Products Private Limited. It is contended that respondent No.1 were liable to pay service charges @ Rs.2100/- per month to M/s. Union Commercial Corporation for the use of furniture and fixtures in the said licence premises. After the death of Mr. Keshrichand B. Shah, respondent No.1 had paid service charges to the appellants till October, 2004. Thereafter, they were in arrears of charges with effect from November, 2004 to October, 2007 amounting to Rs.75,600/-.

4. Despite due service upon respondent No.1 in June, 2008 by registered post, none appeared and, therefore, the suit proceeded further before this Court. Subsequently, the suit came to be transferred on the list of un-defended suits. The suit thereafter came to be transferred to the City Civil Court, Mumbai and proceeded ex-parte against respondent No.1. The appellants tendered their affidavit in lieu of evidence as well as written arguments on 6th May, 2015.

5. The judgment could not be delivered by the trial Court for a period of three years. Meanwhile, respondent No.2 came to be inducted as a defendant qua licenced premises by respondent No.1 which, according to the appellants, is a trespass and wrongful as well as illegal occupation of the subject premises by respondent No.2. Respondent No.2 took out a Notice of Motion No.1925 of 2017 for setting aside the order dated 11th February, 2014 for closing the evidence and order dated 12th November, 2014 for proceeding ex-parte in the aforesaid suit and Notice of Motion No.1346 of 2018 for being joined as a party defendant in place and stead of respondent No.1.

6. It is the specific contention of the appellants that respondent No.3 in an affidavit dated May, 2017 in support of Notice of Motion No.1925 of 2017 and an affidavit dated 2nd April, 2018 in support of Notice of Motion No.1346 of 2018 deliberately and intentionally made a false statement on oath that respondent No.2-Company i.e Nak Engineering Private Limited Company is the successor of respondent No.1-firm i.e M/s. Kishore Engineering Company under part IX of the Companies Act, 1956, inter alia, contending that respondent No.1 which is a registered partnership firm bearing registration No.65205 registered with Registrar of Firms, Government of Maharashtra was converted and registered as respondent No.2 a Private Limited Company under the provisions of Part IX of the Companies Act, 1956.

7. It is contended that respondent No.2 has falsely contended that respondent No.2-company was not aware and had not received any notice about aforesaid matter, as even respondent No.1-firm was not served with any notice and, therefore they could not appear in the matter.

8. Admittedly, appellant No.1 has already initiated eviction proceedings i.e L.E. & C Suit No.139/158 of 2007 in the Small Causes Court of Mumbai against respondent No.1 as their licensee and respondents No.2 and 3 as the unauthorized occupants in respect of the subject premises. In an order dated 6th September, 2008, it has been observed that respondent No.2 and respondent No.3 are not licensee of M/s. Modern Products Private Limited of which appellant No.1 is a Director. It is held that respondents No.2 and 3 have been unlawfully inducted by respondent No.1 in the said premises without permission of M/s. Modern Products Private Limited.

9. In Revision Application No.32 of 2009 in Exhibit 11 in L.E & C Suit No.139/158 of 2007, Division Bench of the Small Causes Court, by an order dated 6th April, 2009 upheld the order of the Judge, Small Causes Court. Thus, it is contended that respondent No.2 is trying to make a backdoor entry by projecting themselves as successor of respondent No.1.

10. Thus, according to the appellants, respondent No.2 had made a totally false statement through respondent No.3 who is the Director of respondent No.2 and is also a full time practicing Chartered Accountant having full and complete knowledge of the provisions of Part IX of the Companies Act, 1956 who on oath stated that respondent No.2-Company is converted into and consequently it is the successor of respondent No.1- Firm, under Part IX of the Companies Act 1956 only to dishonestly deceive and manipulate the appellants and the trial Court.

11. It is thus, contended that the learned trial Judge has failed to appreciate and consider all the aforesaid aspects while passing the impugned order. The appellants have assailed the impugned order on the ground that the learned trial Judge had failed to appreciate that the only document relied on by respondent No.2 in support of their claim being successor of respondent No.1-Firm is the memorandum of association in which one of objects is to take over, acquire, undertake and carry on the business activities presently carried out by respondent No.1-Firm and two other partnership firms which merely indicates the intention of respondent No.2 and does not amount to actually taking over respondent No.1-partnership firm, and that even a single document for conversion furnished under Part IX of the Companies Act 1956 and even take over, for that matter, was produced which clearly shows neither conversion nor take over of respondent No.1-Firm by respondent No.2.

12. While countering the submissions made by the learned Counsel for the appellant, learned Counsel for the respondents contends that the appellants are habitual litigants who have filed various civil and criminal proceedings before several Courts. The learned Counsel has drawn my attention to paragraphs 2 and 6 of the plaint in Suit No.6117 of 2007, more particularly to the fact that M/s. Modern Products Private Limited itself is a tenant in respect of the suit premises who had granted licence to the respondents on a monthly compensation of Rs.400/-.

13. Learned Counsel has also drawn my attention to memorandum of association of respondent No.2, more particularly, main objects of the Company to be pursued by the Company on its incorporation. He emphasized that a certificate came to be duly issued by the Registrar of the Companies, Maharashtra. There is no question of fabricating a single document by respondent No.2. Respondent No.2 is, therefore entitled to the benefit of part IX of the Companies Act, 1956.

14. Learned Counsel for the respondents has further drawn my attention to the three orders passed by the trial Court in Notice of Motion No.1925 of 2017 in Suit No.6117 of 2007 dated 5th October, 2018, Notice of Motion No.1346 of 2018 dated 5th October, 2018 and the main Notice of Motion No.823 of 2018 dated 5th October, 2018. It is vehemently urged that since respondent No.2 is the successor company of respondent No.1, it should be given an opportunity to defend the suit. The learned Counsel, therefore, supported the impugned order passed by the trial Court.

15. A short question which needs determination is as to whether respondent No.3-Mr. Himanshu Patwa, director of Nak Engineering Company Private Limited, knowingly and intentionally had sworn false affidavits in Notices of Motion No.1925 of 2017 and 1346 of 2018 so as to say that respondent No.2-Company was the successor of respondent No.1- Firm under Part IX of the Companies Act, 1956 which tantamounts to giving or fabricating false evidence at any stage of judicial proceedings? The answer is in the affirmative for the reasons to follow.

16. I have meticulously gone through the entire record vis-a-vis, the impugned order. A detailed procedure is laid down in the Companies Act, 1956 for converting a partnership firm into a Limited Company under Part IX of the Companies Act.

17. Following are the few basic requirements and procedure contemplated in Companies Act, 1956;

(a) There should be at least seven or more members to form a Limited Company under Part IX of the Companies Act, 1956;

(b) There is a requirement of Form No.1A filed with ROC;

(c) There has to be a supplementary partnership deed under settlement deed filed with ROC;

(d) There should be mention in the memorandum of association of the Company about reconstituting partnership having seven or more partners and then only a Company under Part IX of the Companies Act, 1956 can be formed.

18. It is apparent from the record that respondent No.1-firm has only four partners and as such is incapable as well as statutorily barred and cannot be said to be eligible for being converted into a Private Limited Company under Part IX of the Companies Act, 1956. Memorandum of Association and Article of the Company indicates four subscribers as against minimum seven. No documents of whatsoever nature have been tendered by respondent No.1 to indicate any such procedure as provided in Part IX of the Companies Act, 1956 has been followed. It would be apposite to refer section 561 (i) (b) of Part IX of the Companies Act, 1956 which requires seven or more persons for converting a partnership Firm into a Company. It is pertinent to note that respondent No.1 continues to exist even today as per the certified extract issued by the Registrar of Firm, Government of Maharashtra. The certificate of incorporation of respondent No.1-Company has been issued under section 574 of the Companies Act, 1956 which specifically provides and mentions that the Company is incorporated under Part IX of the Companies Act, 1956. The certified extract of respondent No.1-Firm from the Registrar Firms dated 20th September, 2016 indicates that respondent No.1 continues to be an existing partnership firm.

19. An additional affidavit sworn by one of the appellants on 10th January, 2020 which is annexed with an information provided by the Assistant Registrar of Companies Maharashtra, Mumbai under Right to Information Act buttressed the fact that as per the incorporation certificate issued by that office on 22nd February, 1988, the Company was registered as Private Limited and not Part IX Company. This information was sought for by the appellant as to whether Nak Engineering Company Private Limited registered under the Companies Act, 1956 and having CIN No. U74210MH1988PTCO46288 is a Company converted under Part IX of the Companies Act, 1956. Thus, this information hammers a last nail in the coffin of the respondent’s contention.

20. The documents referred hereinabove, if juxtaposed with affidavit sworn in by respondent No.3 who is admittedly a full time practicing Chartered Accountant and a Member with the Institute of Chartered Accountants of India and also a Proprietor of Himanshu Y Patwa and Company has had complete knowledge as regards the provisions of Part IX of the Companies Act, 1956. Despite being aware about legal niceties, he appears to have knowingly made a statement on oath that respondent No.2-Company is converted and consequently is the successor of respondent No.1-Firm under Part IX of the Companies Act, 1956 which can only be said to be with a dishonest intention.

21. The learned Counsel for the appellants has, therefore, rightly placed a useful reliance on a decision of the Supreme Court in case of Amarsang Nathaji Vs. Hardik Harshadbhai Patel, AIR 2017 Supreme Court Cases 113. It would be apposite to refer to paragraphs 5 and 6 of the judgment which read thus;

“5. There are two preconditions for initiating proceedings under Section 340 Cr. PC:

(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b) (i) of sub-section (1) of Section 195 CrPC, and

(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340 (1) CrPc, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case”.

22. The ratio decidendi is squarely applicable to the case in hand wherein the material tendered on record, prima facie, makes out a case for the purpose of inquiry into an offence referred to in clause (b) (i) of sub section (1) of Section 195 of the Criminal Procedure Code. The material is quite sufficient to indicate that there has been a deliberate and intentional false evidence for using the same in a judicial proceeding.

23. In case of Prem Sagar Manocha Vs. STATE (NCT OF DELHI), (2016) 4 Supreme Court Cases 571, the Hon’ble Supreme Court while dealing with section 193 of the Indian Penal Code observed that if an expert changes his stand in the Court as a witness from that taken in his written opinion whether to help the accused or otherwise then if it is deliberate or based on the insistence of trial Court then whether the change of stand in the case amounted to perjury by such expert witness.

24. It would be apposite to reproduce paragraphs 10, 11 and 12 of the judgment to understand scope of section 340 of Cr.P.C prior to amendment in 1973 which was section 479A in 1998 and thereafter the position of the sub section post amendment. Paragraphs 10, 11 and 12 read as under:

“10. Section 340 CrPC falls under Chapter XXVI of the Code - “Provisions as to Offences Affecting the Administration of Justice”. Either on an application or otherwise, if any court forms an opinion that it is expedient in the interest of justice that an inquiry should b made in respect of an offence referred to under Section 195 CrPC which appears to have been committed in relation to a proceeding in that court, the court after such preliminary inquiry, enter a finding and make a complaint before the Magistrate of competent jurisdiction. It is this jurisdiction which has been invoked suo motu by the High Court in the criminal appeal, leading to the impugned order.

11. Section 340 CrPC, prior to amendment in 1973, was Section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the expression “shall” has been substituted by “may” meaning thereby that under the 1973 Code, it is not mandatory that the court should record a finding. What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the court, and that too, opinion on an offence “which appears to have been committed”, as to whether the same should be duly inquired into”.

12. We are unable to appreciate the submission made by the learned Senior Counsel that the impugned order is liable to be quashed on the only ground that there is no finding recorded by the court on the commission of the offence. Reliance placed on Har Gobind v. State of Haryana is of no assistance to the appellant since it was a case falling on the interpretation of the pre-amended provision of the Cr.P.C. A three- Judge Bench of this Court in Pritish v. State of Maharashtra has even gone to the extent of holding that the proceedings under section 340 of CrPC can be successfully invoked even without a preliminary inquiry since the whole purpose of the inquiry is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. To quote:

“9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This subsection has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.”

25. Thus, it is quite clear that after having gone through the entire material on record, prima facie opinion can be formed that an inquiry needs to be initiated into an offence/s referred to in clause (b) of sub section (i) of section 195 Cr. P.C. It must be noted that an inquiry contemplated in sub section (i) is not for finding whether the respondents are guilty or not but it is restricted only to the extent as to whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. The ratio is, therefore, squarely applicable to the present set of facts.

26. The learned Counsel for the respondents has also placed reliance upon a judgment of the Supreme Court in the case of Chajoo Ram Vs. Radhey Shyam, AIR 1971 Supreme Court 1367. The essence of the judgment can be found in paragraph 7 which reads thus;

“7. The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation : it seems to have ignored the fact that the appellant was a Panch and authorized to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed. by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of the

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se proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed”. (emphasis supplied) 27. The ratio laid down by the Hon’ble Supreme Court in this judgment is in consonance with the judgment of the Supreme Court in case of Premsagar (supra). Thus, giving of false evidence in the form of an affidavit or fabricating false evidence in the judicial proceeding needs to be dealt with an iron hand. Nevertheless, for initiating prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose as has been observed in the case of Chajoo Ram (supra). As already stated that the material on record qua the conduct of the respondents clearly indicates that it is expedient in the interest of justice to initiate an inquiry. There is, prima facie, case of deliberate falsehood on the part of the respondents. The ratio, I am afraid, is not of any assistance to the respondents’ case. 28. As such, the learned trial Judge has erred not only in fact but also in law to take into consideration the true scope and ambit of Part IX of the Companies Act, 1956 as well as clause (b) of sub section (i) of Section 565 of the said Act by reaching an erroneous conclusion in the impugned order. The impugned order, therefore needs to be quashed and set aside and as such, it stands quashed and set aside. 29. Upshot of the aforesaid discussion is that there is a prima facie case and deliberate falsehood on a matter of substance. There is an adequate foundation for framing a charge. It is, therefore, expedient in the interest of justice that there should be a complaint. 30. Needless to say that the respondents will have full and adequate opportunity in due course of the proceedings to establish their innocence. 31. As such, the impugned order dated 5th October, 2018 in Notice of Motion No.823 of 2018 in Suit No.6117 of 2007 is hereby quashed and set aside. 32. The learned trial Judge shall proceed further in accordance with section 340 of the Cr. P.C independently, un-influenced by the observations made hereinabove. 33. The appeal stands disposed of in the aforesaid terms. <
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