9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2004 (11) TMI 329 - SC - Companies LawWhether the decree obtained by the plaintiff against the defendant was capable of being enforced against the Corporation and the State of Orissa? Held that - Allow the appeal. In the interest of justice is to accede to the plea of the appellant to give it a chance to defend the suit especially in view of the relevant clauses of the Amalgamation Order, 1991, by setting aside the orders impugned in this appeal and also by setting aside the ex parte decree and reviving the suit and by directing the trial court to try and dispose of the same afresh and in accordance with law, after bringing on record the Corporation, the Government of Orissa and TISCO, since the State had subsequently sold the assets to TISCO, and after giving the newly added defendants an opportunity to file their written statements, not inconsistent with the one already filed by the defendant. After giving of such an opportunity to the newly added defendants, it will be for that court to proceed with the trial and disposal of the suit in accordance with law.
Issues Involved:
1. Restoration of the dismissed suit. 2. Amalgamation of the defendant company and its legal implications. 3. Execution of the decree against successors-in-interest. 4. Obligation to implead successors-in-interest in the suit. 5. Setting aside the ex parte decree and remanding the suit for fresh trial. Detailed Analysis: Restoration of the Dismissed Suit: The plaintiff filed a suit on August 1, 1986, for recovery of Rs. 3,90,210 with interest. The suit was dismissed for default on August 29, 1990. The plaintiff filed an application under Order IX, rule 9 of the Code of Civil Procedure for restoration on September 20, 1990. The defendant did not oppose the restoration, and the suit was restored on September 2, 1991. Amalgamation of the Defendant Company and its Legal Implications: On August 30, 1991, the Ministry of Law, Justice, and Company Affairs issued a notification under section 396 of the Companies Act, 1956, amalgamating the defendant with the Orissa Mining Corporation Limited ("Corporation"). Clause 12 of the amalgamation order provided for the dissolution of the defendant and barred any claims against it, except for enforcing the provisions of the order. Clause 7 saved ongoing legal proceedings, allowing them to continue against the Corporation. Execution of the Decree Against Successors-in-Interest: The plaintiff obtained an ex parte decree on November 12, 1991, and filed an execution petition on October 24, 1994, against the defendant, the Corporation, and the State Government of Orissa. Both the Corporation and the State objected, arguing they were not bound by the decree as they were not parties to the original suit. The executing court overruled their objections, holding them as successors-in-interest bound by the decree. The High Court of Orissa upheld this decision. Obligation to Implead Successors-in-Interest in the Suit: The essential difference in judicial opinion was whether it was the plaintiff's duty to implead the Corporation and the State of Orissa or whether the successors-in-interest should have sought to be impleaded themselves. The court noted that under normal circumstances, it is the assignee's responsibility to come on record. However, the amalgamation order specifically required the plaintiff to implead the Corporation and the State of Orissa. Setting Aside the Ex Parte Decree and Remanding the Suit for Fresh Trial: The court concluded that the plaintiff should have impleaded the Corporation and the State Government before proceeding with the suit. The failure to do so meant the decree could not be enforced against them. The court set aside the ex parte decree and remanded the suit for fresh trial, directing the trial court to bring the Corporation, the Government of Orissa, and TISCO on record and allow them to file their written statements. Conclusion: The appeal was allowed, the orders of the executing court and the High Court were set aside, and the ex parte decree was annulled. The suit was remanded for fresh trial with directions to implead the necessary parties and proceed in accordance with law. The parties were directed to bear their own costs.
|
