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2015 Supreme(Bom) 1623
IN THE HIGH COURT OF BOMBAY AT GOA
C.V. Bhadang, J.
Brenda Nazareth Menezes & Ors. - Appellants
Vs.
Andre de Menezes & Ors. - Respondents
Appeal From Order No. 41 of 2015
Decided on : 24-08-2015
Advocate Appeared:
Mr. N. Sardessai, Mr. Vibhav Rajiv Amonkar, for the appellants.
Mr. S.D. Lotlikar, Mr. A.N. Ramani and Ms. M. Furtado, for the respondents.
Ad interim orders must be supported by objective satisfaction based on the pleadings and material, and brief reasons indicating application of mind are essential.
Headnote:
Inventory Proceedings - Portuguese Civil Code - Article 1235, Sections 108 to 112 of the Companies Act, Articles 429 and 430 of the Portuguese Code
Fact of the Case:
The case involved a dispute over the estate of Cosme de Menezes between his descendants from his first and second marriages. The respondents alleged that the second wife and her children manipulated the estate to deprive the first marriage descendants.
Finding of the Court:
The Court found that the impugned order lacked sufficient reasons and failed to demonstrate the necessity for sealing the premises. It emphasized the need for objective satisfaction based on material before granting preventive measures.
Issues: The main issue was the validity of the order directing sealing of the premises and listing of articles in the context of the alleged manipulations and dissipation of property.
Ratio Decidendi: The Court held that ad interim orders must be supported by objective satisfaction based on the pleadings and material, and brief reasons indicating application of mind are essential. It emphasized the need for clarity, objectivity, and transparency in decision-making.
Final Decision: The impugned order was set aside, and the matter was remanded to the Trial Court for a fresh decision, emphasizing the need for expeditious resolution and granting opportunity of hearing to the parties.
Admit. Learned Counsel for the respondents waives service. Heard finally with consent.
2. By this appeal, the appellants (original respondent nos.1, 2, 4 and 5) are challenging the order dated 29/07/2015 passed by the learned Civil Judge, Senior Division, Panaji in Civil Miscellaneous Application No.38/2015/A in Inventory No.57/2015/A. By the impugned order, the learned Trial Court has directed sealing of the office premises as stated in prayer (I)(b) and had ordered listing of the articles.
3. The brief facts are that the present respondent nos.1 and 2 have initiated Inventory Proceedings of the estate leavers Cosme de Menezes and his wife Maria Renee Menezes. The dispute is between the descendents of Cosme de Menezes from his first marriage on the one side and the descendents born out of second marriage of Cosme de Menezes with the appellant no.1, Brenda Menezes on the other. The case made out before the Trial Court is that the succession of estate of said Cosme, during first marriage is reflected in Agreement dated 06/11/1998, which is styled as Memorandum of Understanding (MOU). By the said MOU, deceased Cosme was granted exclusive ownership of CFL Pharmaceutical Ltd and M/s. Menezes Pharmaceutical (a Partnership Firm). Cosme died on 06/11/2013. His first wife Maria predeceased him on 16/05/1978. Cosme was suffering from Cancer since the year 2006. His condition deteriorated since October, 2012. On account of this, he was suffering from mental delirium and was disoriented as to time, place or person. Thus, according to the respondents, Cosme was incapable of managing his personal property. The appellant no.1, his second wife, was in a dominating position and got the transfers done from deceased Cosme to the benefit of her children, thereby depriving the respondents, who are the children from first marriage. (Cosme remarried with appellant no.1 on 24/10/1981.) According to the respondents, the share of the second wife and the children born out of the said marriage, is governed by Article 1235 of Portuguese Civil Code (Portuguese Code, for short). It is the material case of the respondents that they have reasonable grounds to believe that there are manipulations done by the appellants as follows :-
“8(a). Change of the share-holding pattern in contravention of provision of Section 108 to 112 of the Companies Act, 1951, i.e. without following the procedure prescribed under the law to effect the transfer of shares.
(b) Addition of directors on the board of the companies without following the provisions of Companies Act.
(c) Unauthorised withdrawal/misappropriation of funds from company accounts and personal accounts of the deceased Cosme Menezes.”
4. The details of the said manipulations are set out in paragraph 9(a) to 9(za) of the application. It was in these circumstances that the Inventory Proceedings along with an application under Articles 429 and 430 of the Portuguese Code came to be preferred before the learned Civil Judge, Senior Division. In the application under Articles 429 and 430 of the Portuguese Code, the respondents sought for following material reliefs :-
I. Direct the sealing of the premises mentioned below:-
(a) 104A Vainguinim Valley, Dona Paula, Taleigaon 403001 Goa,
(b) 5th Floor Dempo Tower, EDC Patto Plaza, Panaji 403001 Goa, specifically the areas mentioned below :
(i) The work area/ cabin of the late Mr. Cosme's de Menezes (marked in red in the plan annexed as Annexure M)
(ii) The work area/ cubicle of Helen Furtado secretary to the Late Mr. Cosme de Menezes (marked in blue in the plan annexed as Annexure M)
(iii) The work area/ cubicle of Mr. Wilfred Dias, former PA to late Mr. Cosme de Menezes (marked in yellow in the plan annexed as Annexure M)
II. Upon sealing, if time permits, on the same day enlistment of movables, shares, documents of the different companies be made or otherwise the same may be done or completed on the subsequent working days.
III. Ad-interim, ex-parte relief in terms of prayer (I)
