MAHESH GOVIND Vs. L P REGO

JUDGEMENT

(1.) RESPONDENT No. 1, as the Administrative Officer of M/s. Mahindra and Mahindra Limited, filed a complaint against the petitioner herein before the Court of the Metropolitan Magistrate, 59th Court, Vile Parle, Bombay, being Case No. 4/S/95 (38/S/85). It was the case of the respondent No. 1 that the petitioner was in possession of premises belonging to the company and though he ceased to be an employee, he had refused to hand over possession of the premises and consequently the complaint. Process in the case was issued on 29th August, 1988. There was one more accused who was discharged by order dated 27th July, 1994 and charge under Section 630 of the Companies Act and 406 of the Indian Penal Code was framed against the petitioner herein. In the complaint, the complainant set out that the petitioner was initially employed on probation by appointment letter dated 9th October, 1953. He was confirmed on 27th April, 1954 and his resignation was accepted as and on July, 14, 1972. In letter dated 22.1.1964 some of the terms and conditions of the employment were set out. One of the conditions was that the petitioner would be entitled to free unfurnished flat subject to the condition that the lease would be in the name of the company. In fact the premises were taken on leave and licence/lease basis. The first such agreement is dated 15th April, 1959 entered between Mr. B.N. Madon and Mrs. F.B. Madon and Mahindra and Mahindra Limited. On the acceptance of the petitioner's resignation the petitioner was given letter dated May 12, 1972 whereby the petitioner was informed that as and from July, 15, 1972 the petitioner would be paid retainership of Rs. 1,000/ -. It was further set out that the petitioner will be permitted to stay in the office flat in Sputnik subject to the condition that the petitioner would surrender the flat to the company on securing alternative accommodation or leaving out of Bombay or on termination of the retainership whichever is earlier. It was further set out that the arrangement was expected to continue until the petitioner reaches the age of superannuation of 60 years subject to the termination by either side by one month's notice. On 6th August, 1973 the petitioner and the company entered into an agreement whereby the petitioner was treated as an employee and allowed to reside in the premises. The licence fee for the premises was to be deducted from the emoluments. There were some other clauses which need not be adverted to. The company addressed a letter dated July 29, 1983, setting out therein that as per the records of the company he would be completing 60 years on October 2, 1983 as his date of birth as per the company's record was October 3, 1923 and his retainership would stand terminated on that date and to hand over the vacant possession of the premises. There was subsequent correspondence by the company.

(2.) THE petitioner chose not to vacate the premises. It was his contention that in fact he was the licensee/tenant of the premises and that the agreement between the company and the landlord was only entered into as it was required by the landlord. Such a defence was raised for the first time by the petitioner by his letter dated September 21, 1983. The petitioner has thereafter filed a Rent Declaratory Suit No. 2594 of 1988 in the Court of Small Causes at Bombay, which is pending wherein the petitioner has sought relief of declaration that he is the tenant of the landlord and in the alternative a declaration that he is a deemed tenant or protected licensee. The petitioner is depositing the licence fees in respect of the premises in the Court of Small Causes.

(3.) AT the hearing of the petition the principal contentions raised are as under: - (1) the provisions of Section 630 were not attracted as the petitioner was not an officer or employee within the meaning of Section 630 of the Companies Act; (2) that the case involves a question of Civil Law and, therefore, cannot be gone into in proceedings under Section 630 of the Companies Act; (3) on the face of the petitioner's case it could not be said that the defence was not bonafide or that the suit was filed in scheming manner. It is further contended that the judgment in Kannankadi Gopal Krishnan Nair v. Prakash Chunder Juneja and Anr. 1994 Co. Cases 104 requires reconsideration insofar as concept of continuing wrong and fine imposed.