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TMI Blog2006 (3) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... take possession of the property and reached the spot on 3-2-1994. As many as eleven persons were present on the spot, including the Official Liquidator, when they proceeded to take possession, they found that at the main entrance, one reeling contractor was holding possession of the premises. On being asked, Shri Brahmbhatt (a representative of the company-ex-management) informed the Official Liquidator that the said reeling contractor was holding the possession of the said premises since last ten years. One Mr. Babubhai, owner of Amin Traders, informed the Official Liquidator that 'they were doing reeling contract with the mills company and he was provided the premises on monthly . . .' (there is a blank space in the spot memo prepared by the Official Liquidator) 'of Rs. 100 only and the same was paid up to 31-12-1987'. The said Babubhai also informed the Official Liquidator that the rent beyond 31-12-1987, could not be paid since the mills company was closed and no management was on record. Based upon these informations, the Official Liquidator submitted a report before the Court. 4. It is to be seen that one of the secured creditors, namely, the Central Bank of India, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties joined the issue, the learned Single Judge heard the parties. Lo and behold, the pandora's box was opened in the Court. Number of objections were raised by the Textile Labour Association and the Official Liquidator and they were clear in their submission that the earlier order dated 31-1-1996, was a result of fraud; the present appellant was not a tenant; the document on which the appellant was placing reliance was forged, concocted and manufactured. The present appellant, taking an exception to all the allegations, submitted to the Court that in the light of the earlier findings, the Court was not entitled to look into the matter and if such were the allegations, then, the parties be asked to go to the ordinary civil court/ rent court where a detailed inquiry into the facts can be made. The learned Single Judge, after hearing the parties, found that the first order was obtained after suppressing the material facts and he also pointedly recorded a finding that the documents, on which the appellant was placing reliance, were concocted and forged. He has also observed that in view of his findings, the present appellant is required to be evicted from the premises. 7. Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or with the person in possession. Whatever information is given to the Official Liquidator is required to be revealed by him in his report to the Court. In the present case, if the ex-management and the present appellant were making submission that the appellant was the tenant, then, for the Official Liquidator, there was no reason to say contrary to it. The Central Bank of India when made an application, then, on the strength of these two documents, i.e., memorandum prepared on the spot and the submissions made in the Official Liquidator's report, the learned Single Judge observed that the present appellant was in possession and was paying rent. 13. The first order if it is based on the information supplied by the Official Liquidator, which later on is said to be wrong information, then, obviously, the information would not stand on proper foundation and any construction made on the strength of such a foundation would collapse. Though the learned Single Judge has entered into the disputed questions of facts and has observed that the rent receipts and other documents are forged, but, in our considered opinion, the moment it was brought to the notice of the learned Single Judge t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant at the time when the order was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 19. In a case where the Court is satisfied, on an application by the applicant, that there, in fact, is discovery of a new and important matter of evidence, which was not within the knowledge of the applicant, or which was though within his knowledge, but could not be produced despite exercise of due diligence, or that there was some mistake or error apparent, on the allegations made by the party, the order can be recalled or reviewed, but, if the Court is of the opinion that there is an error or mistake apparent on the face of the record, or even otherwise there are sufficient reasons for recalling the said order, then, the Court would certainly recall the order. In the matter of Indian Bank's case (supra), the Supreme Court has observed, placing its reliance upon the judgment of Smith v. East Elloe Rural District Council [1956] AC 736 (HL), that the effect of fraud would normally be to vitiate any act or order. In the matter of Lazarus Estate Ltd. v. Beasley [1956] 1 QB 702, Denning LJ., said (163 of 92 Comp. Cas. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties to lead evidence, hear the parties properly and then record a finding that whether the first order was obtained by playing a fraud and whether the appellant is liable to be evicted. 22. In our considered opinion, such an exercise is not required to be entered into in view of the findings recorded by the learned Single Judge. We would simply say that we are satisfied that the findings recorded by the learned Single Judge do not call for any interference. However, we would make it clear that the findings recorded by the learned Single Judge in this order would be binding on the parties for recall of the first order only and would not affect the merits of the matter or the rights of the parties. We also hereby observe that the findings recorded by the learned Single Judge in the application submitted by the Textile Labour Association are only for the purposes of recalling the earlier order and nothing beyond that. The order passed by the learned Single Judge though does not specifically say that the earlier order dated 31-1-1996, stands recalled, but, in our considered opinion, the learned Single Judge, by proceeding further in the matter, had made it clear that he was recall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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