Calcutta High Court

Aloka Ojha & Anr vs Calcutta Safe Deposit Company ... on 12 April, 2023

                   IN THE HIGH COURT AT CALCUTTA

                   (Ordinary Original Civil Jurisdiction)

                             ORIGINAL SIDE



Present:

The Hon'ble Justice Krishna Rao



                           IA No: GA 22 of 2022
                            In CS 159 of 2010


                            Aloka Ojha & Anr.
                                    Vs.
              Calcutta Safe Deposit Company Limited & Ors.


           Mr. Aniruddha Mitra
           Mr. Arindam Ghosh

           Mr. Dhilon Sengupta

           Mr. Dhruba Ghosh
           Mr. Rohit Banerjee

           Mr. Sakya Sen
           Mr. Amritam Mondal
                                          ... Advocates.


Heard on                : 03.04.2023

Judgment on             : 12.04.2023

Krishna Rao, J.:


     The petitioner, Mukesh Keshavlal Ojha has filed the present Notice of

Motion praying for addition as defendant in the suit and for inducting him
                                        2


as one of the member of the Interim Board of Management representing the

heirs of Keshavlal Ojha.


      The petitioner claims that he is the one of the legal heir of Keshavlal

Ojha who was the son of the third wife of the deceased Amrit Lal Ojha. Amrit

Lal Ojha, since deceased, the grandfather of the petitioner had formed a

Company namely M/s. Calcutta Safe Deposit Co. Ltd., the respondent no.1

herein. Amrit Lal Ojha died in the year 1944 and after his death, certain

dispute and differences arose between the sons of the deceased Amrit Lal

Ojha with respect of the Company, respondent no. 1 herein. One of the son

namely, Pramode Rai Ojha since deceased had filed a suit before this Court

being CS. No. 560 of 1976 praying for management and administration of

the respondent no.1 Company. During the pendency of the suit, parties

have entered into a terms and settlement on 16th January, 1989 and on the

basis of the settlement this Court had disposed of the suit by passing the

following order :

"TERMS OF SETTLEMENT

Consent of the plaintiffs and defendant nos. 4, 5 and 8 herein the following order is made :

The suit is treated on the day's list. All interim orders passed in the suit till today are modified as follows:

a) Sri Gunvant Roy Ojha, Shri Chimanlal Ojha, Shri Navin Chandra Ojha, Shri Promodray Ojha and Sriram Amritlal Ojha are appointed members of an interim Board of Management of Calcutta Safe Deposit Company Ltd. (hereinafter referred to as the company) with all the powers conferred upon the Special Officers appointed from time to time by the Hon'ble Court with power to manage the day to day affairs of the company jointly and with liberty to jointly operate all the bank

accounts of the company, as well as the accounts with the United Bank of India, High Court Branch, Calcutta, now being operated by the Chairman, Sri J.N. Roy, they will be entitled to remuneration & Rs. 1,000/- each per month.

b) The Senior most member by age will be the chairman of the interim Board of Management of Calcutta Safe Deposit Company Ltd. and will be entitled to an additional remuneration of Rs. 250/- per month for acting as Chairman.

c) Mr. J.N. Roy, Bar-at Law the outgoing Chairman is discharged from further acting as Chairman is discharged from further acting as Chairman of the company. He shall hand over all the papers and documents of the company lying with him to the interim Board of Management and filling of accounts by Mr. J.N. Roy is dispensed with Mr. J.N. Roy is authorised to make the following payments before such discharged out of the funds of the said company.

i) The sum of Rs. 21,000/- received by him earlier under order dated 21st February, 1988 past in Appeal No. 510 of 1987 (Navin Chandra Ojha Vs. Promodray Ojha & Others) to Sri Promodray Ojha.

ii) The salary for the current month to the employees of the said company along with the additional amount of Rs. 7,000/- out of the funds of the company.

iii) Mr. J.N. Roy shall be paid further remuneration as the court may deem fit and proper.

4. The interim Board of Management will take all necessary steps to regularise the affairs of Calcutta Safe Deposit Company Ltd.

5. All parties including the Interim Board of Management and outgoing Chairman, Shri J.N. Roy, Bar-at-Law to act on signed copy of the minutes of this order on the usual undertaking. Dated this 16th day of January, 1989.

Being aggrieved with the order passed by this Court dt. 16.01.1989 in Suit No. 560 of 1976 an appeal was preferred by Girish Chandra Amritlal Ojha and Others being Appeal No. 123 of 1991.

The said appeal was disposed of by the Appellate Court on 10.04.1992 by passing the following order:-

"It appears that the appellant has clarified the position while the copy on an order could not be produce in terms of the undertaking. We are satisfied and accept the same and discharge the appellant of the undertaking given to the court in this respect.

As result of our finding as above, this appeal succeeds and the order impugned stands modified on the following terms.

a) The appellant, Girish Chandra Ojha is appointed a member of the Interim Board of Management.

b) In place of deceased Gunamantaroy Ojha, his wife Mayadebi Ojha is appointed a member of the interim board of Management of the company.

c) Other members of the Interim Board of Management shall continue to function as member of the same Board.

d) The Board of Management is directed to prepare and upto date the share register of the company within a period of 10 weeks from this date.

e) The board of Management will lock filed the day to day functioning of the company and also to measure to product the interest of the customers of the company.

f) The Bank account of the company will be operated jointly under signature of the four of the members of the Interim Board of Management.

g) The other powers and authority granted to the Interim Board of Management by an order dated 16.1.89 not modified by this order, shall remain in force. The appeal is, accordingly, disposed of. There will be no order as to costs.

All parties to act on the signed copy of the operative part of the judgement on the usual undertaking.

The Advocate for the respondent prayed for stay of the order which is refused."

Shri Navin Chandra Ojha, one of the son of the deceased Amrit Lal

Ojha during his life time filed the present suit praying for the following

reliefs:

"a) Declaration that, the Interim Board of Management constituted under the Terms of Settlement recorded by the Order dated 16th January, 1989 is void and/or nullity;

b) Decree superseding the Interim Board of Management constituted by the Terms of Settlement recorded by the Order dated 16th January, 1989 as modified by the Order dated 10th April, 1992;

c) A scheme be framed by this Hon'ble Court for the management and administration of the affairs of the defendant no. 1 company in such manner as this Hon'ble Court may deem fit and proper;

d) Perpetual injunction restraining the defendants and each one of them from representing and/or holding themselves out to be members of the Interim Board of Management or to be the persons in the control and management of the defendant no. 1 company;

e) Injunction restraining the defendants and/or their men, servants and agents and each of them from selling alienating, disposing of and/or in any manner dealing with and/or encumbering any assets and properties of the defendant no. 1 company including the vacant spaces of the building situated at 23B, Netaji Subhas Road, Calcutta-700001;

f) Perpetual injunction restraining the defendants and each one of them from interfering with the business affairs of the defendant no. 1 company in any manner whatsoever;

g) A decree directing the investigation into the affairs of the defendant no. 1 company and into the conduct of the defendants and all consequential orders to be made upon such investigation being completed on such terms and this Hon'ble Court may deem fit and proper;

h) A decree directing the regularization of the affairs of the defendant company by reconstruction of the Register of Shareholders, convening the Annual General Meeting and filing return with the Registrar of Companies. West Bengal in such manner as this Hon'ble Court may deem fit and proper;

i) A decree directing the accounts of the defendant No. 1 to be properly audited;

j) Receiver;

k) Injunction;

l) Attachment;

m) Costs and

n) Further and other reliefs."

Due to the differences between the legal heirs of the deceased Amrit

Lal Ojha with regard to the shares of the Company, the respondent no.1

herein, one of the son namely Girish Chandra Ojha had filed a suit being

C.S. No. 164 of 2004 for declaration that all the shares of the respondent

no.1 Company jointly belonged to the Ojha family comprising of seven

branches being the seven sons of the deceased Amrit Lal Ojha having 1/7th

share each in the said company. The petitioner herein is the defendant

no.14 in the said suit.

The father of the petitioner Keshavlal Ojha died on 26th May, 1981.

The petitioners says that the share capital of the respondent no.1 Company

is Rs. 7.50 lakhs divided into 75,000 equity shares of Rs.10/- each out of

which 72,415 are fully paid-up and the petitioner being the son of the

deceased Keshavlal Ojha is entitled to 1/7th share in the respondent

Company which is equivalent to 10,345 shares of the respondent no.1

company.

The petitioner intends to be a member of the Interim Board of

Management of the respondent no.1 Company and the other legal heirs of

the deceased Keshavlal Ojha have consented to the petitioner being

appointed as member of the Board of Management of the respondent

company.

The contention of the petitioner is that, Girish Ojha was inducted in

the Interim Board of Management of the respondent no.1 Company in his

own capacity in the branch as well as nominee of the deceased Keshavlal

Ojha.

The petitioner is relying upon the certificate dated 5th March, 1991

wherein the petitioner along with all the legal heirs of the deceased

Keshavlal Ojha have given no-objection to Shri Girish Chandra Ojha to be a

member of Interim Board of Management of the respondent company. The

petitioner submits that though the father of the petitioner was not in the

Interim Board but the petitioner and the other legal heirs of Keshavlal Ojha

were represented by Girish Chandra Ojha in the said company.

The petitioner submits that the petitioners were in the Interim Board

through Girish Chandra Ojha and as such he is entitled to be inducted as

one of the member of the Interim Board of the respondent no.1 Company.

The respondent no. 5 submits that there is a specific rules of the

Company for inclusion of a member in its Board. The members of the

Interim Board have to be considered as Directors of the Company and the

Board is to be treated as Board of Directors. He submits that the petitioner

is required to apply to the Board in the manner as prescribed in the

Memorandum and Article of Association of the Company. The petitioner has

also not made any application before the present members of the Board to

show his interest and eligibility to become the part of the Board.

The respondent no. 5 submits that only being a member of the Ojha

family does not automatically entitle the petitioner to be a member of the

Board. He submits that the petitioner has not filed any document to show

that the other legal heirs have submitted their consent in writing to the

petitioner to become a member of the Board.

The respondent no. 5 submits that the father of the petitioner was one

of the party in the Suit No. 560 of 1976 and the father of the petitioner died

on 26th May, 1981 but the petitioner took no steps in substituting himself in

the suit. He submits that interim order management was formed on consent

of the parties in the said suit and in the absence of the petitioner but the

petitioner choose not to appear in the suit and also to get himself added as a

party to become a member in the Interim Board. He submits that the

Interim Board of Management was formed on 16th January, 1989 but till the

filing of the instant application, the petitioner has not taken any steps and

thus the petitioner has waived his right to become a member of the Interim

Board and thus the application filed by the petitioner is barred by law of

limitation.

Admittedly, in Civil Suit No. 560 of 1976, the father of the petitioner

was one of the party and during the pendency of the said suit, the father of

the petitioner has expired in the year 1981. The said suit was disposed of by

way of terms of settlement on 16th January, 1989 wherein as per terms of

settlement, Interim Board of Management was formed. As some of the legal

heirs of the deceased Amrit Lal Ojha were not made as member of the

Interim Board and accordingly they have preferred an appeal and the

Hon'ble Court has inducted them as member of the Interim Board. At that

point of time also the petitioner has not come forward to be a member of the

interim board.

The petitioner relied upon the Certificate dated 5th March, 1991 which

reads as follows:-

"TO WHOM IT MAY CONCERN

Before the Hon'ble High Court at Calcutta Re: Petition filed by Shri Girish Chandra Ojha

This is confirmed that I have received a copy of the petition moved by Shri Girish Chandra Ojha before the Hon'ble High Court at Calcutta in the matter of Calcutta Safe Deposit Co. Ltd., Suit No. 560 of 1976, Pramaodray Ojha & Anr. -Vs- Keshavlal Ojha & Others.

I hereby declare on behalf of the heirs & family of my father the late Shri Keshavlal Ojha, who have duly authorized me to do so, that we have no objection at all to Sri Girish Chandra Ojha coming on the interim board of the Management of the company and to his being added as a party to the Suit No. 560 of 1976. We further state that the said Shri Girish Chandra enjoy our full trust & confidence, & that we nominate him to represent us and our interests.

We have signed this document with great sadness and only after every effort to reach an amicable settlement undertaken at the initiative of Sri Girish Chandra Ojha and the undersigned failed to produce results.