G.P. Goenka Vs. Asstt. Collector of C.Ex. - Court Judgment

Excerpt:
company repreiesattative: a company which was 111 coarge at the ralevaat time run only represent it during trial. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.jayachandra reddy, j.1. the question is as to who should represent m/s. duncan tobacco company, which figures as a-2 in c.c. no. 179 of 1986. the learned special judge for economic offences, hyderabad, passed orders in crl. m.p. 868 of 1987, in c.c. no. 179 of 1986 to the effect that shri g.p. goenka (the 8th accused), who is the chairman of the duncan agro industries ltd., should represent a-2 i.e., m/s. duncan tobacco company. the 8th accused shri g.p. goenka, has filed this revision case under section 482 cr. p.c. questioning the order of the learned judge.2. to appreciate the submissions made on behalf of the petitioner, it is necessary to state a few material facts. duncan agro industries ltd., (a-1) is a public limited company registered under the companies act and obtained licences under section 6 of the central excises and salt act read with rule 174 of the central excise rules, in form l.4 no. 1/78-80 (cigarettes) for the manufacture of cigarettes in their factory at biccavolu. a-1 was having other licences to manufacture other commodities also. therefore, a-1 company got their cigarette factory at boccavolu renamed as 'm/s. duncan tobacco company-a division of duncans agro industries limited, biccavolu' which figures as a-2 in this case. there was alteration of the name also in l.4 licence and that was valid till 31 -12-1986. while so, a letter was addressed on 15-12-1984 by a-1 company to the collector, central excise, guntur, requesting to change the name of the duncan tobacco company, i.e., the 2nd accused, as new tobacco company ltd., biccavolu. accordingly, the name was changed and the new tobacco company ltd., figured as a-3 in the case. the other accused are all managing directors and other concerned persons and agents.3. the gravamen of the complaint is that large quantities of cigarettes were moved from the factory at biccavolu without paying excise duty. it may not be necessary for the purpose of this case to know the other particulars regarding the offences said to have been committed by the accused-persons. suffice it to say that the assistant collector of central excise, rajahmundry, filed a complaint against 40 persons including a-8, a-23 the general manager (production), new tobacco company ltd., and other officials of a-1, a-2 and a-3 companies. a-8 is the chairman/director of the duncan agro industries ltd., which figures as a-1. he filed crl. m.p. no. 868 of 1987 stating that duncan agro industries ltd. i.e., a-1, has ceased to have any control over a-2 company and that it is a-3-company which has completely taken over a-2 company and at present it is a-3 company that can be made to represent a-2. that was, as already mentioned, rejected by the lower court.4. shri c. padmanabha reddy, the learned counsel for the petitioner, submits that even assuming that a-2 company, viz., duncan tobacco company was a unit or a division of m/s. duncan agro industries ltd. and others after 1984, a-1 company has nothing to do with a-2 company and on the other hand a-3 company is the successor company of a-2 and a-8 can in no manner represent a-2 company. the case is only at the stage of service of summons. if some of the documents are examined, it becomes clear that duncan tobacco company (a-2) was a unit of a-1 company and a-1 company, though registered as a separate company in the year 1979, it was named as duncan tobacco company, a division of m/s. duncan agro industries ltd. to the same effect is the entry in l.4 licence and this position continued to be so till the year 1984. therefore, till 1-4-1984 it is a-1 company that was having control over the affairs of a-2 company because a-2 company was only a unit of a-1 company and a-8 was and is the chairman of a-1 company. subsequent to 1-4-1984, as mentioned above, the duncan tobacco company, a division of a-1 company, itself applied to the collector, central excise, guntur to name the company as new tobacco company ltd. therefore, at least at this juncture it must be presumed that a-2 company as a division of a-1 company applied for a change of the name, as new tobacco company. it may be mentioned here that in the year 1984, a-1 and a-3 companies filed an application in the calcutta high court for transfer of a-2's division together with all the properties in favour of a-3 company. the calcutta high court passed the necessary orders. consequently a-2 company stood transferred to a-3 company. thereafter the duncan tobacco company, a division of duncan agro industries ltd., applied to the collector of central excise for a change of the name of the company as new tobacco company. it can, therefore, be seen that the duncan tobacco company continued to be a division of a-1 company of which a-8 was the chairman. though there was a merger of a-2 company with a-3 company, yet having regard to the period during which the offences are said to have been committed by a-3, a-2 company is individually shown as an accused in the complaint and therefore, the same has to be represented by some concerned person who was and who is in charge of over-all affairs of the company. in that view of the matter, it has to be noted that a-2 company, as described in all the records, was a division of a-1 company of which a-8 was the chairman during the relevant period viz., upto 1-4-1984 (i.e., till which date it was in existence).5. for all these reasons, it is just and proper that a-8 should represent a-2 company during the trial.6. shri c. padmanabha reddy however submits that all the records and the relevant registers are in the custody of a-3 company and it may not be possible for a-8 while representing a-2 company to produce these documents or registers whenever required. this is a matter of procedural aspect and necessary directions can be obtained from time to time from the court. i see no grounds to interfere with the order of the court below. the criminal revision case is dismissed accordingly.