POWER TO MORTGAGE FOR RAISING LOANS
Mr. Dwivedi a Senior Advocate continued his arguments today in Uphaar case and demonstrated through documentary evidence and Minutes of the Meetings of Board of Directors that Green Park Theaters & Associates Pvt. Ltd. (GPTA) had expanded into other lines of businesses like, buying plots for development, running of clubs and investment in shares and debentures. This was in addition to cinema business.
The land on which Uphaar cinema is built belongs to Ansal Housing and Estates Pvt. Ltd. This company has given lease hold rights to GPTA Pvt. Ltd for 99 years. The cinema was built and is owned by GPTA Pvt. Ltd. and not by Ansal Housing and Estates Pvt. Ltd. The Board of Directors of GPTA Pvt. Ltd. in its meeting of 1986 authorised some of the Officers and Directors of the company to mortgage some of its properties to raise loans from banks and other financial institutions to finance the expansion programme of the company which Green Park had agreed to develop through Ansal Properties and Industries Ltd.
Subsequently in the Board Meetings of 1988, 1989 and 1991, the Board passed resolutions to extend the lien on the properties already mortgaged to get the limits enhanced according to the value assessed by the lending institutions. Such resolutions passed by the Board of Directors for raising finances for diversification into other businesses does not in any way show that Sushil Ansal or Gopal Ansal were directly or indirectly controlling the day to day affairs of the cinema as argued and demonstrated by Mr. Dwivedi.
Application for renewal of cinema licenses:
After Mr. Sushil Ansal resigned from the Board of Directors in 1988 all application for renewal of licenses were signed by Mr. R.M. Puri whole time Director of the company and Mr. K.L. Malhotra on behalf of the licensee company GPTA Pvt. Ltd. Only in the year 1992 Mr. Sushil Ansal had inadvertently signed one application/affidavit requesting for renewal of the license on behalf of the company. This was rectified in 1993 when Mr. R.M. Puri/Mr. K.L. Malhotra signed applications and affidavits for renewal. This continued till 1997 the year of occurrence of the incidence. Argued by Mr. Dwivedi.
Special Invitee
Mr. Sushil Ansal was invited only 4 times out of 43 Board meetings in 9 years as a special invitee to seek his advice on expansion and growth of new businesses like clubs, property development and other investments. Special invitee does not mean that he was a director of the company. In 1988 Mr. Sushil Ansal resigned from the Board of Directors of the company due to his pre occupation and busy schedule with other businesses and therefore could not devote time to the cinema business and tendered his resignation which was duly accepted by the Board of Directors, i.e. 9 years before the fire incident.
Mr. Dwivedi also referred to Section 78 and Section 79 of IPC. Pursuant to these sections he demonstrated that the order for retaining seats, gangways and exits in the balcony was passed by the licensing authority in pursuance of the order passed by the Delhi High Court in 1979. As such the company was protected under Section 78 in retention of seats, gangways and exit doors. Since the sanction of seats, gangways and exit doors were as per the Cinematograph Act & Rules there is no case of negligence made out under Section 304-A.
Mr. Dwivedi then addressed the Court on the issue of negligence. He demonstrated that to attract the criminal liability the degree of negligence should be very high and gross and should be direct and efficient cause of death. Contributory negligence cannot be considered in this respect. He demonstrated that there is no evidence that any act of Sushil Ansal and Gopal Ansal was direct and efficient cause of the death.
