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TMI Blog2012 (9) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to the extent that the order dated May 31, 1998 as drawn up be corrected by incorporating the following words, “and all other the property, rights and powers of the transferor company in jute division”. - A.P.O. No. 194 of 2012 & 287 of 2012 C.P. No. 28 of 1993 C.A. No.145 of 2011 & - - - Dated:- 13-9-2012 - Ashim Kumar Banerjee And Shukla Kabir Sinha JJ. For Gloster Ltd. : Mr. S.K. Kapoor, Senior Advocate Mr. Jishnu Saha, Advocate Mr. Ravi Kapoor, Advocate Mr. P.K. Jhunjhunwala, Advocate Mr. B. Sharma, Advocate For Fort Gloster Industries Ltd. : Mr. Debangshu Basak, Advocate Mr. Prantik Garai, Advocate Mr. S.K. Kundu, Advocate Mr. S. Rudra, Advocate For Bowreah Jute Mills Pvt. Ltd.: Mr. P.C. Sen, Senior Advocate Mr. Dhruba Ghosh, Advocate Mr. Sanjoy Bose, Advocate Mr. Dipnath Roy Chowdhury, Advocate Mr. Souvik Majumdar, Advocate Ms. Abha Alley, Advocate ASHIM KUMAR BANERJEE. J: BACKDROP : Fort Gloster Industries Ltd. (hereinafter referred to as the Fort Gloster ) had two divisions; cable division and jute division. The company, although a public limited company, had scat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different heads of management. The sale was not also concluded in respect of North Mill in absence of permission from the Land Ceiling Authority. Hooghly subsequently transferred the jute mill to Bowreah Jute Mills Pvt. Ltd. (hereinafter referred to as Bowreah) (Appellant in Appeal No. 287 of 2012). In 2009, Gloster Ltd. filed an application with an innocuous prayer for correction of the drawn up order as according to them, since jute division stood transferred by demerger, the North Mill also came through such demerger, subject to the agreement for sale. Since sale was frustrated in absence of permission from the Land Ceiling Authority, it should retain with them. However, because of the mistake crept in the order so drawn up, it would need correction. Gloster also took the plea that the order was required to be drawn up as per Form No. 42 of Company Court Rules, 1959. While doing so, the portion as statutorily required to be incorporated and all other the property, rights and powers of the transferor company was omitted. Correcting the drawn up order should incorporate that. Prayer (a) of the Judge s summons is quoted below : The order dated 31 May 1993 in Company Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of entering into agreement for partition of the family business. Hence, Gloster was entitled to get back the North Mill. In case any part of the said property was subsequently transferred to the Government by acquisition or vesting or otherwise, Gloster would be entitled to the benefit of compensation. In short, the rights and responsibilities in respect of North Mill would still remain with the jute division that stood transferred through demerger to Gloster and Gloster was entitled to have correction of the order as drawn up, while sanction of the scheme by this Court in 1992. S.K. KAPOOR : Mr. S.K. Kapoor, leaned Senior Counsel also appearing for Gloster, while taking over from Mr. Saha, placed the list of dates and the judgment and order impugned to contend that the learned Judge had thoroughly misunderstood the innocuous prayer of Gloster to have a correction that had been required to be done as the order as drawn up would contain an inherent lacuna being contrary to Form-42. He referred to the schedule as well as the scheme particularly schedule-F to contend that the parties had contemplated transfer of jute division that would obviously include, what right Fort Gloster ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from page- 625 of the paper book in Appeal No. 287 of 2012. Clause-9 of the scheme would show, the share exchange ratio would not depend upon North Mill being a part to the said scheme. Mr. Basak further contended, no mistake crept in the order as drawn up. The balance sheet for the relevant years would show that the Fort Gloster, prior to its demerger, accepted the transfer with all assets and liabilities of the jute division pertaining to North Mill, to Hooghly that could not come back to the jute division or that the parties to the demerger contemplated so. He referred to the schedule to the balance-sheet particularly schedules 13 and 18 to show that the concerned property was shown to have been transferred to Hooghly. Page-629 of the said paper book would show that the payment was also received. Pages 628 and 629 of the paper book would show that the agreed consideration was rupees Two Crores out of which Fort Gloster received rupees1.39 Crores through pay order dated March 28, 1988. The balance rupees Sixty Lacs was adjusted against leave and bonus liability of the workers in terms of clause-7 of the agreement and a sum of rupees One Lac was kept outstanding to be paid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer of Gloster. Mr. Sen also cited the House of Lords decision in the case of The Rev. Oswald Joseph Reichel, Clerk (Pauper) and The Rev. John Richard Magrath reported in Volume- XIV Appeal Cases page-665. S.K. KAPOOR IN REPLY : Mr. Kapoor, in reply distinguished the English case to contend that the facts would defer. On the Apex Court decision in the case of M. Nagabhushana (supra) Mr. Kapoor contended, the issue was decided between the same party whereas in the present case the arbitration proceeding was between the Gloster on the one hand and Bowreah on the other hand and the present application was between the Gloster and Fort Goloster where the learned Judge specifically held that Bowreah was not a necessary party. Hence, the proposition of law as to res judicata would not apply at all. He rather conceded that North Mill was possibly an issue that would have to be decided in the pending civil action between the parties. He would rather insist to have correction of the order by incorporating the words so missed out from Form-42. It would have statutory force. On the issue of limitation, he contended, the reasons were assigned as to why Gloster did not approach the Court e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would comment on the role of a Judge in an adversarial proceeding. Abdul Gani Anr. Vs. Nabendra Kishore Roy Ors. reported in Volume-XXXIII Calcutta Weekly Notes page-876 : In this decision the Division Bench of our Court once again interpreted the phraseology Matter in issue within the meaning of Section 11 of the Code to say, it is distinct from the subject-matter and the object of the suit as well as from the relief that may be asked for in it and the cause of action on which it is based and the rule of res judicata requiring the identity of the matter in issue will apply even when the subject-matter, the object, the relief and the cause of action are different. The Division Bench further observed, It is the matter in issue and not the subject-matter of the suit that forms the essential test of res judicata . Narayanan (supra) : The Apex Court herein observed, It is a well-established principle that when there is inconsistency in the body of the document, containing the evidence clause and the schedule, the former prevails over the latter . Citing this decision, Mr. Kapoor contended that the scheme itself would be the guiding factor and not the schedule. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ites; the matter in issue, must be the same and both the proceedings must be between the same parties. The decision in the other Court might have a persuasive value in the latter proceeding. However, it would not operate as res judicata as parties were not same that would take care of the plea of res judicata. Let us now come to the core issue. From the agreement dated March 24, 1988 it was clear that the parties to the said agreement understood the same as concluded subject to formalities being completed on the permission from the statutory and/or governmental authorities being received. If the agreement did not stipulate, what would happen in case the permission would not come, it would be for the parties to take appropriate steps. We are told, civil suits are pending and/or likely to be filed on the issue. We refrain from making any comment that might prejudice the rights of the parties in the civil action. We only say, at the time of sanction of the scheme, the parties having the management and control of the original company having cable and jute division wanted to divide two divisions being cable division and jute division on equal basis. Whether the jute division would i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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