SIEMENS ENGINEERING AND MANUFACTURING CO OF INDIA LTD Vs. S P MAJOO

JUDGEMENT

(1.) THIS is an application for committal of the respondents Soli Majoo in his capacity as sole proprietor of Byron and Co. and in his capacity as executor to the estate of P. S. Majoo, deceased and also in his capacity as partner of a firm of Beverage and Merchandise Co. and one Sri Homi Pestonji Majoo alleged to be a partner of the said firm of Beverage and Merchandise Co. for contempt of Court. A Rule was issued by this court upon the said two respondents to show cause why they should not be committed for contempt of this Court constituting the following deeds, namely, the said respondent Soli Pestonji Majoo also known as S. P. Majoo in his status and capacity as the executor to the estate of P. S. Majoo, deceased and or as claiming to carry on the business of and or sole proprietor of Byron and Co. and or to carry on the business in partnership in the firm under the name and style of Beverage and Merchandise Co. and/or in one of such status or capacity getting merged in another or others deliberately and or willingly disobeying the order dated the 13th day of September last passed by the Court of Appeal directing the Official Receiver of this court to take possession of the entire premises No. 50, Chittaranjan Avenue, Calcutta, and the notice dated the 27th day of September last served by the Official Receiver requiring the petitioner company to pay the rent to the said Receiver by his deliberate statements, affidavits end or verification in respect of the course of the proceedings in this court throughout and! or in the suit No. 4138 of 1962 in the Presidency Small Causes Court and/or in the course of the correspondence inspired or obstructed by him with the said petitioner company and by initiating and or maintaining suits or proceedings for parallel investigation into one of the vital issues and or subject-matters and or questions concerned directly in suit No. 691 of 1960 of this court, namely, the nature and extent of the interest of the said respondent opposite party No. 1, Soli Pestonji Majoo in or in respect of the entire premises No. 50, Chittaranjan Avenue, or any portion thereof. The facts giving rise to this application are shortly as follows:

(2.) ON 10th December, 1940 one Dorabji Sorabji Majoo died intestate leaving an estate consisting inter alia of (1) an undivided 23rd share in the premises No. 50. Chittaranjan Avenue and (2) 13th share in the business of Byron and Co. carried on at 50, Chittaranjan Avenue, Calcutta. On 9th June, 1941, the Administrator General of Bengal was appointed executor to the estate of D. S. Majoo, deceased. On the 22nd December, 1943 the Administrator general filed a suit in this court being Suit No. 1580 of 1943 for dissolution and accounts of the partnership firm Byron and Co. against one Pestonji Sorabji Majoo. On 23rd February, 1948 a consent decree was passed in the said suit providing inter alia as follows: (1) The claims of the Administrator General on behalf of the Estate D. S. Majoo, deceased, in the business, goodwill and assets etc of Byron and Co. be finally settled at Rs. 15,500/-payable by P. S. Majoo. (2) P. S. Majoo on behalf of the business of Byron and Co. agreed to pay to the Administrator General a sum of Rs. 275/- per month on account of the 213th share of the estate of D. S. Majoo in the ground floor of premises. No. 50, Chittaranjan Avenue, Calcutta from 1st March 1947 as long as the said premises would be occupied by the said Byron and Co. On the 14th August, 1954 P. S. Majoo died leaving a will of which probate was obtained by Soli Pestonji Majoo as executor and Mrs. Themina Pestonji Majoo as executrix of the said will. On 18th March, 1960 Mrs. The mina Pestonji Majoo, the executrix, died and S. P. Majoo became the sole executor. On 18th May, 1960 the Administrator General of West Bengal filed a suit in this court being suit No. 691 of 1960 inter alia for (a) ascertainment and declaration of the shares of the parties (b) partition of the undivided 23rd share of land and premises No. 50, Chittaranjan Avenue by metes and bounds and allotment to the plaintiff of his undivided share in severalty, (c) possession and (d) Receiver. On or about 31st January, 1961 an application was made in the said suit No. 691 of 1960 by the Administrator General for appointment of a Receiver. On 11th April, 1961 an order was made by G. K. Mitter, J. appointing the Official Receiver to be the Receiver of the properties in suit and directing the Official Receiver to collect rents of the said premises No. 50, Chittaranjan Avenue and out of such collection to pay to the Administrator General 2/3rd share of the rents. An appeal was preferred by the defendants against the said order of G. K. Mitter, J. On 6th June, 1961 the court of Appeal passed an order directing the Receiver to restore possession of the ground floor of the premises No. 50, Chittaranjan Avenue to the appellants and allowed the appellants to remain in occupation of the premises on condition that the appellants would pay to the Administrator General from month to month on or before the 16th of every month a sum of Rs. 275/ -. On 29th January, 1962 Soli Pestonji Majoo as proprietor of Byron and Co. leased out to the petitioner, Siemens Engineering and Manufacturing Co. of India Ltd. a portion of the ground floor of premises No. 50, Chittaranjan Avenue together with certain structures, plant machinery, fittings, etc. for a period of 21 years with effect from the date of delivery of possession at a rent of Rs. 1305/-, per month, and a sum of Rs. 15,500/- was given by way of advance to S. P. Majoo to be spent towards costs and repairs etc. it being stipulated that the said sum of Rs. 15,500/- would be repaid by deducting Rs. 400/- from the monthly rent payable by the petitioner. On 26th February, 1962 upon an application made by the Administrator General in suit No. 691 of 1960 Law, J. made an order prohibiting and restricting the defendants including S. P. Majoo as executor to the estate of P. S. Majoo from carrying out structural alterations to the premises except putting up a collapsible gate and roller shutter. Thereafter on 2nd April, 1962 possession of the demised premises was given to the petitioner company. On 18th July, 1962 the Administrator General made another application before the court of Appeal for directing the Official Receiver to take possession of 50, Chittaranjan Avenue and for varying the order dated 6th June, 1961. On 13th September 1962 the court of Appeal made an order directing the Official Receiver to take possession of the premises and varied the order of the 6th June accordingly. On 15th September 1962 a letter was written by the Solicitor of the Administrator General to the petitioner company intimating that by an order of the 13th September 1962 the Official Receiver who had been appointed Receiver of Premises No. 50, Chittaranjan Avenue by an earlier order was directed to take possession of the said premises, and by virtue of the said order the Official Receiver is now only entitled to realise all rents payable by the tenants of the said premises and the petitioner was, therefore, warned that it was not to pay rent to anyone else in respect of the portion of the ground floor of the premises which the petitioner company was occupying as tenant. On the 27th September, 1962 the Official Receiver also wrote a letter to the petitioner company intimating that by an order dated the 11th April, 1961 he had been appointed Receiver of the rents, issues and profits of premises No. 50, Chittaranjan Avenue, Calcutta, belonging to the estate which was the subject-matter of suit No. 691 of 1960 a portion of which premises was in the occupation of the petitioner company, and the petitioner company was further called upon to attorney and pay rent to the Official Receiver in respect of the said tenancy and to forward to the Official Receiver alone rent receipts for adjustment of the rent account. It was further pointed out in that letter that all rents both arrears and current should be paid to the Official Receiver and to no one else. On 2nd November, 1962 the petitioner company wrote a letter to the Official Receiver by way of reply to the letter of the 27th September 1962 intimating that without prejudice to their interest, rights and remedies and in view of their inability because of the High Court holidays to ascertain the correct facts and to obtain competent legal advice, the company was depositing with the Official Receiver a sum of Rs. 905/- by crossed cheque on account of rent payable in respect of their lease for the month of October, 1962. A copy of this letter was forwarded amongst others to S. P. Majoo, the proprietor of Byron and Co. On 6th November, 1962 one Mr. Baidyanath Sarkar, an Advocate, wrote a letter to the petitioner company on behalf of Messrs. Beverage and Merchandise Company and S. P. Majoo, proprietor of Byron and Co. complaining of the fact that the petitioner had wrongly and illegally refused to pay the agreed rent in respect of the lease dated 29th January 1962. In the said letter it was inter alia stated as follows:

(3.) THAT under the circumstances I am instructed finally to call upon you which I hereby do to remit to me or my client a sum of Rs. 1800/ -. . . . . . failing which my client without prejudice to other legal remedies will file a suit against you for recovery of the said sum together with all interest and costs and that without any further reference to you. "