MOHAN M.SHANTANAGOUDAR,J. - (1.) Leave granted.
(2.) This appeal by special leave arises out of judgement dated 24.8.2017 of the Calcutta High Court allowing the 2 nd Respondent 's Criminal Revision Petition against order dated 6.9.2010 of the Judicial Magistrate, Alipore and order dated 21.12.2012 of the Additional Sessions Judge, Alipore.
(3.) The facts giving rise to this appeal are as follows: The Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2019.10.18 10:20:17 IST appellant is an 'existing ' company within the meaning of the Reason: Companies Act, 1956 (for short '1956 Act '), which entered into agreement for sale dated 26.4.2008 for purchase of a flat situated on the 3rd Floor, of Plot-D in Sreekunj, 13, Gurusaday Road, Police Station-Karaya, Kolkata-700019 (hereinafter 'disputed property ') with the legal heirs of one late Mr. Arun Kumar Bajoria (hereinafter 'vendors '). Per the terms of the agreement, the vendors would execute and register the deed of conveyance in favour of the appellant upon payment of the entire sale consideration of Rs 2,02,26,000/-. However in the interim, under Clause 6 of the agreement, the appellant company would be put into possession of the property subject to payment of monthly rent of Rs 84,275/-. This agreement is not disputed. The appellant 's case is that the 2 nd Respondent/accused Mr. Bal Binode Bajoria was a director of the appellant company from 1988 to 2008. He was allowed to use and occupy the disputed property on and from 1.5.2008 by virtue of holding the office of director. The 2nd Respondent was to retire by rotation from the Board of Directors in the Annual General Meeting of the appellant company held on 22.11.2008; however he offered himself for re- election. The members present in the meeting voted against him and thereafter the 2nd Respondent ceased to be a director of the appellant company. Consequently he was required to return the disputed property to the company; however he failed to do so. The appellant company on 20.4.2009 asked the 2 nd Respondent to vacate and deliver physical possession of the disputed property. When he refused, the appellant sent a letter on 30.4.2009 to the 2nd Respondent requesting delivery of possession. When the 2nd Respondent still failed to comply with the appellant 's request, criminal complaint was filed against him under Section 630(1) of the 1956 Act on 11.8.2009. During the pendency of this complaint, the appellant company filed an application on 29.4.2010 under Section 630(2) of the 1956 Act for dispossessing the 2nd Respondent from the disputed property. Section 630 reads as follows: "630. Penalty for wrongful withholding of property. (1) If any officer or employee of a company- (a) wrongfully obtains possession of any property of a company; or (b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. " Contrary to the appellant 's allegations, the 2 nd Respondent contends that he had a mutual understanding/oral agreement with the deceased Mr. Arun Kumar Bajoria, who was his cousin brother, under which the deceased had paid consideration of Rs 9,10,170/- for construction of the disputed property. It was agreed between the 2nd Respondent and Arun Kumar Bajoria that the latter would transfer the disputed property to the 2 nd Respondent and his nominee upon payment of the purchase price, once the 2nd Respondent was in a position to pay such amount. In other words, according to the 2nd Respondent, he was permitted to purchase the disputed property based on his oral understanding with the deceased Arun Kumar Bajoria on and after the date on which he tendered sale consideration to Arun Kumar Bajoria. However, after Arun Kumar Bajoria expired, relations between the 2nd Respondent and Arun Kumar Bajoria 's family became strained. Hence the vendors failed to execute a deed of conveyance as agreed upon between the 2 nd Respondent and their predecessor-in-interest, and also wrongfully removed him from Directorship of the appellant company. Thereafter the 2nd Respondent filed Suit No. 2126/2009 before the Civil Judge (Senior Division) at Alipore against the vendors, praying for specific performance and a permanent injunction restraining the vendors from disturbing his possession, based upon the supposed oral agreement/understanding of sale he had with Arun Kumar Bajoria. The Civil Judge (Senior Division) by order dated 6.7.2009 issued a temporary injunction directing the parties to maintain status quo in respect of possession of the disputed property. This suit is still pending adjudication. ;