D.G.DESHPANDE, J. - (1.) HEARD Mrs. Thorat for the petitioner and Mr. Raja Thakare for the opponent No. 1 and the learned A.P.P. for the State.
(2.) THE opponent No. 1 had filed complaint against the petitioner under Section 630 of the Companies Act. He was convicted by the Trial Court and was sentenced to pay fine of Rs. 1,000/ - in default to undergo S.I. for 60 days and he was also directed to hand over possession of the disputed premises. The petitioner preferred an appeal before the Additional Sessions Judge, Mumbai, against the said conviction but the same was also dismissed. Hence this writ petition. It was contended by Mrs. Thorat that the respondent No. 1 Company could not prove its ownership over the flat in dispute, that the defence of the petitioner -accused was also not properly considered, that the witnesses of the respondent Company did not have personal knowledge of the events that took place in 1968, that the respondent Company was not the owner of the flat, that the petitioner had filed a civil suit for declaration against the respondent Company in the Small Causes Court, that he was a deemed tenant of the suit premises. She also contended that the respondent Company had filed a civil suit for declaration of ownership against the petitioner in this Court and these factors were not properly considered by the Trial Court or Appellate Court. She pointed out that the petitioner had filed an application in this Court for amendment of the petition so as to enable the petitioner to file a document, namely leave and licence agreement executed between the petitioner and the original or real owner Prabhu Dayal Agarwal in 1972 and according to her this document squarely supports the defence raised by the petitioner. She further submitted that from the circumstances brought on record before the Trial Court and the Appellate Court, as well as the other circumstances mentioned above, the petitioner has succeeded in proving that a bona fide civil dispute existed between him and the respondent Company and consequently the judgment of both the Trial Courts were liable to be set aside and quashed. She also submitted that in the civil suit filed by the petitioner before the Small Causes Court, the respondent Company had given an undertaking that the petitioner will not be evicted from the suit premises till the suit before the Small Causes Court was decided and therefore according to her in view of the undertaking, the judgments of the Criminal Courts, which are challenged in this writ petition could not be enforced against the petitioner.
(3.) COUNSEL for the respondent Company firstly contended that so far as the civil suit of the respondent in the High Court was concerned, the same was mainly filed against the society, as the society was insisting on charges for transfer of the flat in the name of the respondent Company from the name of the Transport Corporation of India, which was a partnership firm. Counsel for the respondent Company pointed out that Navyug Nagar Co operative Housing Society Limited, which was joined in that suit as defendant No. 2 had written a letter to the respondent Company on 29.9.1997 by which the respondent has been Informed that the proposal to recognise the respondent Company as owner of the suit flat or Hat in dispute has been accepted by the society in its Special Annual General Meeting. Counsel for the respondent Company stated that in view of this letter, the respondents intend to withdraw the suit filed in the High Court. In view of this statement, the objection of Mrs. Thorat that till the declaratory suit filed by the respondent Company is decided, the Court cannot recognise the respondent as the owner of the suit flat is required to be rejected as it does not survive.;