INDIRA J KAUSHIK Vs. R M SALUNKE

JUDGEMENT

(1.) A firm under the name and style of M/s. J. Philips Manufacturing Co. was carrying on for the past several years business in Bombay is its office premises situated at Bombay Mutual Annexe, Gunbow Street, Bombay. For the purpose of its business, the firm had acquired and had been allotted two telephone installations with requisite instruments and connections. This was in or about the year 1953. All requisite charges and expenses in that behalf had been paid. The numbers allotted were 263352 and 263353. These telephones throughout stood and continued to stand in the name of M/s. J. Philips Manufacturing Co. On 22nd January, 1971, the proprietress Miss Elveisa Olivia Couto of the aforesaid firm assigned the business of the said firm as a going concern together with goodwill, stock in trade and all assets and also benefit of tenancy rights to one John Francis Lima. This was by a registered deed of assignment. The telephones continued to stand in the name of the said firm itself, but consequent upon the registered assignment in question, the same were used by the proprietor John Francis Lima. At no stage was there any objection whatever raised by the telephone department to either the aforesaid assignment (which obviously the department could not) or to the use of the telephones consequent upon the assignment of the business etc. by the new proprietor of the said business. The telephones continued to be used by John Lima all throughout uninterruptedly and without any objection. He also continued to pay all the bills regularly in that behalf. The telephones being in the name of M/s. J. Philips Manufacturing Co., bills were throughout in the said name. The very initial allotments of the telephones also were in the said name. Some years thereafter, on 17th October, 1974, John Lima executed a registered deed of assignment in favour of Indira J. Kaushik, the petitioner herein assigning the entire business of the said firm M/s. J. Philips Manufacturing Co., as a going concern along with stock-in-trade, furniture, fixtures, and goodwill including benefit of tenancy rights. In both the aforesaid deeds of assignment viz., one of January 1971 and the other of October, 1974, benefit of the user of the aforesaid two telephones belonging to M/s. J. Philips Manufacturing Co. also was given to the owner at the relevant time of the said firm. After the petitioner became the owner of the said firm, she, as the previous owners before, used the said telephones without any objection or interruption by the telephone department. She also regularly paid all the bills sent in the name of M/s. J. Philips Manufacturing Co. and of which she, Indira J. Kaushik was now the owner.

(2.) However, in August 1975, a show cause notice was issued to the petitioner for an alleged breach of Rule 429 of the Indian Telegraph Rules, 1921. The said notice annexed at Exhibit B to the petition stated that the above telephones had been unauthorisedly either assigned or sublet or transferred in breach of the Indian Telegraph Rules and thereby rendering the said telephones liable for immediate disconnection and closure of telephone services. On receipt of the above notice, the petitioner sent a representative to meet the 2nd respondent who had issued the aforesaid show cause notice along with all the relevant documents including the registered deed. It was further explained to the 2nd respondent that there was in fact no unauthorised assignment of transfer on subletting. According to the averments in the petition, the 2nd respondent appeared to the satisfied after pursuing the documents and after going through the true facts of the case. The 2nd respondent also appeared to have been satisfied with the explanations given. He, however, advised the petitioner to make a formal application to the Contract Officer for transfer of the said telephones to her name. The petitioner accordingly, by her letter dated 20th August, 1975, applied to the Contract Officer for transfer. She also enclosed a copy of the registered deed in question. She also assured to give further information, if required. Nothing of substance, however, took place thereafter. The petitioner continued to use the said telephones regularly. Bills continued to be issued in the name of the said firm M/s. J. Philips Manufacturing Co. and the said bill were being regularly paid.

(3.) Almost a year later and all of a sudden, the petitioner received a threatening letter dated 7th August, 1976 from the Bombay Telephones informing her that the service of the above telephones would be withdrawn and closed after seven days. It was further mentioned in the said letter that there had been a breach of Rule 429 of the Indian Telegraph Rules. A detailed reply to this letter was sent by the petitioner on 30th August, 1976. No cognizance however, appears to have been taken in that behalf by the department. Advocates notice was subsequently sent on 10th September, 1976. Neither to the letter of 30th August, 1976 nor to the Advocates notice of 10th September, 1976 did the petitioner receive any reply. The petitioner thereupon filed in the Bombay City Civil Court a suit, being Suit No. 6987 of 1976, for requisite reliefs. A notice of motion was also taken out therein for interim reliefs. Though ad interim relief was granted on the said notice of motion, the said notice of motion had to be subsequently dismissed for want of prior requisite notice of suit under section 80 of the Code of Civil Procedure. In view of the aforesaid technical difficulty, the suit was withdrawn with liberty to file a fresh suit. Soon thereafter, the petitioner filed the present writ petition in this Court.