2009 (7) TMI 796 - HC - Companies Law

Whether fraudulent petitioner had deceived the applicants into believing that a particular state of affairs existed when subsequent disclosure by the petitioner in terms of the order showed otherwise? Held that - There is no illegality involved in the present case. The defaulting broker may have itself applied and the applicants in their wisdom may have allowed the transactions. There was no compulsion on the applicants to concede or consent to the order; at least no submission has been made to such effect. If the applicants volunteered to acquiesce in a state of affairs which was within their authority to do, their shouting fraud would not permit the undoing of the consent order. Though the word fraud has been mentioned a few times in the application, no particulars of fraud have been furnished. The application refers to the codes CLI and PRO without mentioning as to whether it was possible for the applicants to ascertain the true beneficial owner of the shares on the basis of the documents already available with them prior to the order dated July 5, 1999. The consent or concession on the part of the applicants that is evident from the order appears to be a voluntary relinquishment of a known right and merely because the implication of the order dawned on them after they had consented thereto is not good ground for the order being recalled despite their repeated incantation of fraud. Appeal dismissed.

Issues Involved:
1. Application for recalling the order dated July 5, 1999, on grounds of fraud.
2. Maintainability of the writ petition against the applicants.
3. Alleged fraudulent conduct by the petitioner.
4. Legibility and relevance of delivery numbers in transaction documents.
5. Legal principles regarding consent orders and fraud.

Detailed Analysis:

1. Application for recalling the order dated July 5, 1999, on grounds of fraud:
The applicants argued that the order dated July 5, 1999, should be recalled because they were misled into conceding to the arrangement recorded in the order. They claimed that the petitioner had fraudulently deceived them into believing a certain state of affairs, which was later contradicted by the petitioner's subsequent disclosures. The applicants alleged that the petitioner, in collusion with a defaulting broker, used illegible copies of documents to conceal the true nature of the transactions, thereby perpetrating fraud on the court and the applicants.

2. Maintainability of the writ petition against the applicants:
The applicants contended that the writ petition was not maintainable against them as they did not qualify as "State" or "other authority" under Article 12 of the Constitution. They also argued that there was no privity of contract between them and the petitioner, making the petitioner a rank stranger to them.

3. Alleged fraudulent conduct by the petitioner:
The applicants claimed that the petitioner was a front for a defaulting broker who had devised a scheme to fraudulently obtain rectification or return of shares from the NSE. They argued that the broker had marked the transactions as "PRO" (for self-transactions) rather than "CLI" (for client account orders), indicating that the transactions were made by the broker for itself and not for the petitioner.

4. Legibility and relevance of delivery numbers in transaction documents:
The applicants emphasized that the delivery number in the relevant documents was not legible, which prevented them from locating the faulty shares. They argued that the petitioner's failure to provide legible delivery numbers was a key factor in their inability to address the petitioner's grievance earlier. However, the court noted that the applicants were aware of the identity of the broker involved and could have followed the nature of the transactions even without the legible delivery numbers.

5. Legal principles regarding consent orders and fraud:
The court examined various legal precedents to determine whether the order could be set aside on grounds of fraud or mistake. The court noted that fraud must be established with specific particulars and that a mere assertion of fraud is insufficient. The court also observed that the applicants had voluntarily conceded to the order and that their subsequent realization of its implications did not constitute grounds for recalling the order. The court distinguished the present case from other cases where fraud or mistake had been established, noting that there was no illegality or compulsion involved in the applicants' consent to the order.

Conclusion:
The court dismissed the application for recalling the order dated July 5, 1999, and directed that the shares held by the Registrar be made over to the petitioner. The court emphasized that fraud must be specifically asserted and established, and that the applicants' voluntary concession to the order could not be undone merely by alleging fraud without providing concrete particulars.

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