HIRALAL HARGOVINDAS Vs. POPATLAL SANKALCHAND PATEL

JUDGEMENT

(1.) This Letters Patent Appeal arises out of proceedings for contempt taken out against the appellant for breach of an ad interim injunction granted in Insolvency Petition No. 24 of 1961, In these proceedings, there were two chamber summons one in respect of the transfer of rickshaw bearing No. BYD. 9602 (New No. GJD 1890) and the other in respect of transfer of rickshaw bearing No. BYD 9410 by the appellant in contravention of the order of injunction passed by the Court on 21st March 1960 restraining the appellant and respondent No. 2 from disposing of their property. The injunction was served on the appellant on 22nd March 1960 when an inventory of the property was taken. These two rickshaws were shown as properties belonging to the appellant in Schedule 'A' which was annexed to the main petition and the inventory that was taken in the presence of the first opponent referred to a permit in the name of one Haji Nurmahmad in respect of rickshaw No. 9410 and the name of Jairam Dunger in respect of rickshaw No. 9602. It was the case of the petitioning creditor that rickshaw No. 9602 was transferred on 29th April 1960 and rickshaw No. 9410 was transferred at a date subsequent to the order of in junction and that the appellant had parted with possession of the two rickshaws. The defence of the appellant was that the rickshaws did not belong to him and that he had not committed any breach of the order of injunction. These two applications in respect of the two rickshaws were heard together and the learned Judge of the City Civil Court held that it was established that the two rickshaws belonged to the appellant and the appellant had disobeyed the injunction order issued on 21st March 1960 and ordered the appellant to be committed to civil prison for one day in respect of each of the breach of injunction and further ordered both the punishments to run concurrently. Against this order, the appellant preferred Appeal No. 100 of 1964 in the High Court which was dismissed summarily by Divan J. on 8th October 1964. It is against that order of dismissal that the present Letters Patent Appeal has been preferred by the appellant.

(2.) As regards the question of ownership of the two rickshaws, the finding of the learned Judge of the City Civil Court that the two rickshaws belonged to the appellant has not been seriously challenged by Mr. S. N. Shelat appearing on behalf of the appellant. There is sufficient material on the record to support this finding of the learned Judge. In the first place, the two rickshaws were shown in the list of properties annexed to the petition as belonging to the appellant. When an inventory was taken on 22nd March 1960 in the presence of the appellant, two permits in the names of Haji Nurmahmad and Jairam Dunger in respect of the two rickshaws were found. The appellant filed his reply to the main petition as also to the application for injunction and nowhere in that reply has he denied that the two rickshaws mentioned in the schedule were not of his ownership. Besides this, there are sufficient facts and circumstances which establish beyond doubt the fact that the two rickshaws were of the ownership of the appellant. The evidence discloses that the appellant was in possession of the two rickshaws that the appellant got the two rickshaws plied on hire and collected the income out of such hire; that the appellant maintained day to day accounts of the earnings of these two rickshaws by crediting the earnings and treating them as his own and utilized the same for expenses incurred in connection with the said rickshaws as also for his household and personal expenses. The appellant did not examine the permit holders or the drivers plying the rickshaws to prove his version that the accounts in respect of the two rickshaws were merely maintained, on behalf of the drivers and that he had nothing to do with the same.

(3.) The appellant stated in his evidence that he had maintained accounts in respect of the rickshaws; that he had given bonus to the rickshaw drivers; that he had given moneys by way of permit charges to the persons in whose names the permits of the two rickshaws stood and that he had treated the earnings as his own by crediting them on the credit side and then appropriating them towards not only the expenses incurred in respect of the rickshaws but also towards his household expenses. There is no note that has been maintained by the appellant which would show that he was getting a remuneration of Rs. 15 per month in respect of each of the rickshaws. The earnings of these two rickshaws appear to have been credited from day to day and a diary has been maintained in the form of a cash-book where there are corresponding debit entries showing as to how these earnings were appropriated. The learned trial Judge has referred to the accounts and the entries in detail and the learned advocate for the appellant has not advanced any argument to show that the several entries and the documents referred to by the learned trial Judge were false or that the learned trial Judge had in any manner, erred in the appreciation of evidence on the basis of which he had come to the conclusion as regards the ownership of the two rickshaws. It must therefore, be held that the two rickshaws were of the ownership of the appellant.