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TMI Blog2017 (5) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, a promissory note for the said sum of Rs. 35 lacs together with interest was executed by ABL and second charge on ABL's fixed assets was also created on consent of ABL's bankers, Punjab and Sind Bank, who had the first charge over such assets. BCCL's case, as made out in the winding up petition was that Rs. 15 lacs in instalments was repaid by ABL along with interest of Rs. 1,81,232.87, the former constituting three instalments upto 31st March 1981 and thereafter default was committed by ABL. Subsequently, it has been alleged by BCCL that ABL purported to send two share scrips of Angelo Rhodes Ltd., an English Company covering 50,000 shares of Rs. 1/- each for pledging the same by way of further security subject to compliance of the provisions of Foreign Exchange Regulation Act, 1973. It has been pleaded in the winding up petition that ABL had never sent the permission of the Reserve Bank of India as per the provisions of the 1973 Act. Total demand, for which the winding up proceeding was instituted was Rs. 27,69,781.66. In course of hearing before me, it has been pointed out by Mr. Khosla, learned counsel representing the applicants in C.A. No. 715 of 2015 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nine hundred and eighty two after deducting therefrom the amount upto the date of payment, shall become due and payable and the winding up proceedings shall be proceeded with And it is further ordered that the order for advertisement of the winding up petition as granted by the said order dated the twenty fifth day of March in the year one thousand nine hundred and eighty three shall remain stayed until further orders of this court and it is further ordered that the said applicant company shall be at, liberty to apply before this Court for further direction." A copy of the said order has been annexed to the affidavit in C.A. 187 of 2016, which is BCCL's application seeking dismissal of C.A. 715 of 2015, C.A. 97 and C.A. 131 of 2016. It has been pleaded in the affidavit taken out in support of Judge's Summons C.A. 715 of 2015 that 50,000 shares of Angelo Rhodes Ltd. was fraudulently transferred from ABL to BCCL on 20th June 1994, when these shares were to be in physical custody of the Official Liquidator. In paragraph 8 of the affidavit, the deponent thereof, being Nirmaljit Singh Hoon (NHS), has referred to further journey of these shares to another subsidiary of BCCL. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken out by it on 2nd March 2016, the following prayers have been made:- "a) C.A. No. 715 of 2015, C.A. No. 97 of 2016 and C.A. No. 131 of 2016, all filed in C.P. No. 575 of 1982 (In re Angelo Brothers Limited -and-Bennett Coleman and Company Limited) be dismissed; b) An order be passed directing and declaring that Mr. Nirmaljit Singh Hoon has no locus, right, or authority to represent Angelo Brothers Limited, a company in liquidation; c) An order be passed directing that Hungerford Investments Trust Limited has no locus, right or authority to make any application in C.P. No. 575 of 1982; d) Stay of all further proceedings in C.A. No. 715 of 2015, C.A. No. 97 of 2016 and C.A. No. 131 of 2016, all filed in C.P. No. 575 of 1982 (In re Angelo Brothers Limited -and-Bennett Coleman and Company Limited) till the disposal of this application; e) Ad interim orders in terms of prayers above; f) Costs; g) Such further or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper." 4. From the affidavit filed in support of the Judge's Summons in C.A. 187 of 2016, there are averments to the effect that copies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 16th September 1983. On that date the matter was taken up for hearing by the Court and an order was passed recording that the said company had paid in Court Rs. 4,654.84p by cheque bearing No. 533901 dated 9th September 1983 drawn on Grindlays Bank Ltd. in full and final settlement of the claim of the applicant firm. It was also ordered by the Court on that date that "the petition for winding up of the said company shall remain stayed permanently." On 29th September 1983, however, the same Hon'ble Judge was pleased to recall the order of permanent stay. On 26th March 1984, order was passed to wind up ABL. The Official Liquidator was appointed as Liquidator and was directed to take possession of assets and records of the company but the order was stayed for six weeks to enable the company to settle the claim of the petitioning creditor and other creditors, whose petitions were pending. Those petitions were directed to be admitted and be treated as in support of the petition. There were subsequent orders through which revival of the company were explored but all these attempts had failed. On 1st October 1986, the Official Liquidator was directed to take possession of the assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule to Limitation Act. His contention is that the recall petition was instituted beyond the prescribed period of three years from the date NHS could be said to have had acquired knowledge thereof. On his first submission, Mr. Kar has referred to the provisions of Rules 3 and 3A of Order 23 of the Code of Civil Procedure. It has also been urged by him that HIT in any event has not explained or described its interest in the subject-dispute, and its status as a contributory or creditor has not been spelt out in the pleadings of any of the applications which are being dealt with in this judgment. According to him, mere oral submission on this count ought not to be taken cognisance of by the Court. His argument is that HIT cannot be an aggrieved party to bring these actions. On the point of limitation, Mr. Kar has also taken me through the provisions of Section 17 thereof to contend that C.A.715 of 2015 and all consequential proceedings are time-barred. 7. Extensive argument has been advanced by the learned counsel for the parties on these points and parties have submitted their written notes on submissions. Mr. Khosla has submitted written notes on submissions in seven volumes on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Company, i.e. ABL itself or that of said NSH, who at the material point of time was in effective control of the said company. It has also been contended by him that BCCL had not disclosed the relationship between itself and ABL. His submission is that BCCL at the material point of time was controlling entity of another company, Turner Morrison & Co. Ltd., which was the dominant shareholder of ABL. He has also complained that the notice of the proceeding was not given at the registered office of the company but was sent to 11, Brabourne Road, even though affidavit-of-service pertaining to the said proceeding made by the Advocate-on-Record of BCCL showed service thereof to have had been made at 6, Ram Gopal Ghosh Road Kolkata. It is also his case that the statutory notice was never served upon ABL. He has advanced arguments on certain other factual issues which according to him would demonstrate that fraud was played on Court in obtaining the consent decree. 9. I shall first deal with the case of Mr. Khosla on demurrer, which submission is a novel one in the Indian context. But before I do so, I shall be briefly narrating the factual background in which Mr. Khosla's clients br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estrated by Mr. Ashok Jain that a winding-up petition would be filed against Angelo Brothers Ltd. by some other alleged creditors in February 1983, alleging non-payment of a grand and princely sum of Rs. 4,564.84p. (This aspect will assume greater significance as further events set out in the present Legal Notice unravel, relating to "fraudulent preference"). 20. Reverting back to the collusive decree of 27-04-1983, in discharge of the alleged liability of Angelo Brothers Ltd., a sum of Rs. 3 lakhs was paid to BCCL by an associate of Mr. N.S. Hoon [one M/s. Minerals Syndicate (1960)] on account of the liability of, and on the request of my client, Angelo Brothers Ltd., vide bank draft No. PQW/119904 drawn on Punjab National Bank, Bombay. Receipt of the same was acknowledge by BCCL vide receipt dated 29-04-1983 issued by their Calcutta office. 21. Thereafter, Mr. Hoon contacted Executive Director and Secretary of BCCL (one Mr. P.R. Krishnamoorthy), in response to which the aforesaid individual sent the following telex to Mr. N.S. Hoon on 30-04-1983 at 1718 hours : "SERVICE TWENTY FIVE FOR CALCUTTA FROM P.R. KRISHNAMOORTHY TO SHRI N S HOON, CALCUTTA YOUR MESSAGE. PL DELIVER T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Syndicate (1960)], forwarding two more bank drafts aggregating to the balance of Rs. 2 lakhs, which was tendered by them in full and final settlement of the collusive court decree of 27-04-1983. 24. It was categorically stated in the letter as follows: "We shall be grateful if you send us the shares of Angelo Rhodes Ltd., and until delivered, hold the same in trust for us." (Emphasis supplied.) 25. acting on the instructions of BCCL's Mr. P.R. Krishnamoorthy, as set out in his telex dated 30-04-1983, these 2 bank drafts for the balance Rs. 2 lakhs were delivered to M/s. Khaitan & Co (Solicitors), acting in this particular transaction not as solicitors but as "agents"/"attorneys" of BCCL. 26. According, M/s. Khaitan and Company issued their formal receipt dated 08-06-1983 for an on behalf of BCCL, in which it was categorically stated and confirmed by them that they had received the sum "on account of Angelo Brothers Ltd., in pursuance of the order of the court dated 27 April, 1983". 27. Thereafter, shockingly, in a letter dated 21-04-1984 signed by the same Mr. P.R. Krishnamoorthy to one Mr. M.J. Swallow, Director of Angelo Rhodes Ltd. (UK), it was falsely stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Group itself in CA No. 579 of 1989 executed on 02-09-2015 and filed in CP No. 90 of 1983 by one Mr. Sanket Agarwal, Director of Sahu Jain Ltd., once a company has been ordered to be would up by a court, Its Board of Directors, its management, et cetera all are functus officio. A copy of the aforesaid CA No. 579 of 2015 is appended to this notice, and is marked as Annexure 4 (pages 41-57 of this Legal Notice) 32. This being so, it is not only clear that the transfer papers could not have lawfully been signed by such person, but also that this legal impediment is a fact known to you also." 10. The present set of proceedings arise out of a petition for winding-up, and jurisdiction this Court is exercising while hearing these applications is that of the Company Court under the provisions of the Companies Act, 1956 (the 1956 Act). Such jurisdiction is guided by the Companies (Court) Rules, 1959. So far as practise and procedure of the Companies Court is concerned, Rule 6 of the 1959 Rules provides:- "R.6 Practice and Procedure of the Court and provisions of the Code to apply.-Save as provided by the Act or by these rules the practice and procedure of the Court and the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code, the term employed is rejection of plaint. Mr. Kar has specifically referred to Clause (d) of Rule 11 of Order 7, and has contended that it is that provision which should guide this Court for dealing with C.A. 187 of 2016. Rule 11 of Order 7 provides:- "The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited by Mr. Khosla from these judgments of the Courts in the US because these decisions uniformly hold that seeking dismissal on demurrer plea would bind the applicant for dismissal to the facts pleaded in the plaint of petition. In a Bench decision of the Bombay High Court in the case of Sowkabai Pandharinath Rajapurkar v. Sir Tukojirao Holkar [: ILR LVI (Bombay) 224], there is reference to the "demurrer" Rule in England. There is observation in that judgment to the effect that Rule 2 of Order XIV of the Code may be applied to introduce that practise in this country, but the opinion of the Bench in that decision was that under Order XIV, the Court does not have power to frame something in the nature of preliminary issue of fact. Mr. Khosla's further submission in this context is that the doctrine of non-traverse, as embodied in Rule 5 of Order VIII ought to become operational so far as C.A. 715 of 2015 is concerned as BCCL, by taking out C.A. 187 of 2016 in demurrer shall be deemed to have admitted the facts stated in C.A. 715 of 2015. His argument is that without referring to the provisions of Order VII Rule 11, and upon specifically taking stand before the Court that C.A. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court by which the dismissal plea was upheld. The High Court was directed to hear the company petition afresh. In paragraph 16 of the Report, referring to another judgment of the Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association: 20057 SCC 510], it was held and observed:- "16. It was emphasised in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application or Order 7 Rule 11 CPC. The principle, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the company petition was barred by limitation has to be examined by looking into the averments made in the company petition alone and any affidavit filed in reply to the company petition or the contents of the affidavit file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , without adverting to merits of the case. Mr. Kar, on the other hand, has cited a judgment of the Bombay High Court in the case of Globex Financial Services Ltd. v. Bakulesh T. Shah and Ors. [: 2000(2) ALL MR 419]. Submission on this very point was rejected by a learned Single Judge of the Bombay High Court in this case, and it was held in the context of that case that when the defendant proceeded on demurrer, it would only mean that they are denying the contentions of the plaintiffs as raised in the plaint and in their view assuming without conceding that those contentions were to be gone into, the Court did not have the pecuniary jurisdiction. 19. The opinions expressed in these authorities do not lay down the law that a motion for dismissal of a plaint or petition on a preliminary point in India forfeits the right of the applicant to contest the case later or such a procedure results in admission of facts pleaded in such plaint or petition whose dismissal is sought for. On the other hand, in the case of Ramesh B. Desai (supra), the Supreme Court examined an application seeking dismissal of a company petition applying the principles of Order 7 Rule 11 of the Code. In the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party. The principles of Order 7 Rule 11 would apply in relation to such petitions, and if it is found that adjudication of such motion involves mixed questions of fact and law, then adjudication of that question would stand deferred, and those points would be left to be determined on trial. Though there does not appear to be a clear Indian authority on this point as yet, from the decisions to which I have referred to earlier, it is apparent that the practise followed in England and the US had never been accepted as a part of Indian jurisprudence. The term "demurrer" in the Indian context has been construed to have connotation wider than the dictionary meaning, and motions for dismissal of a proceeding on a preliminary point has been commonly referred to as applications "in demurrer". Otherwise, no statutory reference to this term has been brought to my notice. The U.S. and English principle on demurrer does not apply in the Indian context. Law in India proceeds on a different trajectory on this point, and I do not find any reason to adopt a different course though such a course would be compatible with the US and the English principles. 21. The next question I shall address is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgement-debtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the application of the judgement-creditor made after the expiry of the said period extend the period for execution of the decree or order: PROVIDED that such application is made within one year from the date of the discovery of the fraud of the cessation of force, as the case may be." 22. Submission on behalf of the BCCL is that there are enough contemporaneous materials to demonstrate knowledge of NSH of the consent decree and the same was acted upon. In this regard, he has referred to a copy of a report of Sri Ashit Das Gupta, Chief Judge, City Civil Court, Calcutta, dated 30th November, 1998. The said report was given pursuant to an order of a Division Bench of this Court. This report has been made Annexure "A" to the application, being C.A.715 of 2015. He has also referred to other annexures to C.A.715 of 2015 through which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kar has also referred to the decision of the Supreme Court in the case of M.P. Steel Corporation v. Commissioner of Central Excise [: (2015)7 SCC58] to non-suit the applicants in C.A. 715 of 2015 on the ground of their applications are barred under the provisions of the Limitation Act, 1963. 23. Main thrust of Mr. Khosla's submission is that the said consent decree was obtained upon playing fraud on Court and there is no limitation on bringing an action in such a situation because such a decree obtained on playing fraud upon Court would constitute nullity or a void act. On this point he relied on a judgment of the Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead) By Lrs. v. Jagannath (Dead) By Lrs. & Ors., [: (1994)1 SCC 1]. In this judgement, it has been held:- "The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused." 24. The same principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, one of the points which was dealt with by the Supreme Court was the point of limitation. Question arose in that case as to whether Article 59 or Article 113 of the Schedule to the Act would apply to the facts in that case. The Supreme Court held that Article 59 would govern any suit to set aside a decree either on fraud or any other ground. 26. While dealing with the question of maintainability of the recall petition in relation to challenge of BCCL on the ground of the same being time barred, three factors would require to be considered. First would be the question as to whether in a proceeding for setting aside a decree on the ground of fraud, the law of limitation would apply or not. In both Gurdev Singh (supra) and Md. Noorul Hoda (supra), this question stands answered in the affirmative. Mr. Khosla, however, has sought to counter this point basing his arguments on two planks. First, he has argued that his clients did not have knowledge of the consent decree when the same was passed, and they acquired such knowledge at a much later date. Secondly, he has submitted that it was a case in which fraud was played on Court, and the consent decree obtained on playing fraud on Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, writ or even in collateral proceedings." The different authorities cited by Mr. Kar, being the cases of Brahm Datt Sharma (supra), Babu Singh (supra), Indian Council for Enviro - Legal Action (supra), M.P. Steel Corporation (supra), Meghmala and others (supra), Gurdev Singh (supra) and Md. Noorul Hoda (supra) did not specifically deal with the question of fraud on Court. Mr. Khosla has also referred to the provisions of Section 44 of the Evidence Act, 1872 in support of his argument that there can be no limitation on bringing an action to declare a decree obtained upon playing fraud on the Court as void. His case is that law provides that such decree can be questioned in a different proceeding without even bringing an action independently to invalidate it. I am of the opinion, considering these authorities, that in the event it is a fraud on Court, the principle of limitation would not apply as a decree obtained on playing fraud on Court would be nullity. If the result of an act by itself is nullity, then passage of time would not confer legitimacy on such act. In the light of ratios of the decisions Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra) and A.V. Papayy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as fraudulently shown. Ratio of these two authorities does not apply in the facts of this case. 29. The next point I shall turn to now is as to whether petition of ABL could be presented by NHS as a co-petitioner, in C.A. 715 of 2015 and the two other applications. Mr. Kar's submission, so far as ABL is concerned, is that a company in liquidation cannot bring any proceeding represented by its erstwhile Director or Directors. This argument has been advanced citing C.P. 90 of 1983 which is pending before this Court. Sub-Sections (3) and of Section 445 of the 1956 Act contemplates that on filing of a certified copy of the winding up order, and upon the Registrar making a minute thereof in his books relating to the company, and on notification being issued in the Official Gazette that such an order has been made, such order shall be deemed to be notice of discharge to the officers and employees of the company, except when business of the company is continued. Section 2(30) defines "officers" of a company, which term includes Directors. Section 457 of 1956 Act vests the Official Liquidator with power to institute or defend any suit, prosecution or other legal proceeding, civil or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company any more inasmuch as the possession of the factory of the company had been taken over by some unauthorised persons and neither the Special Officer nor the Official Liquidator retained any control over the company. Further attempts at revival of the company was made. But ultimately, by an order passed on 1st October 1986 the revival scheme was put to an end. As regards present status of the company, Mr. Kar brought to my notice an order passed by an Hon'ble Single Judge of this Court on 7th May, 2010, in which it has been, inter alia, held:- "After prolonged enquiry and various orders passed from time to time, I have been able to ascertain that on 29th September, 1983 the order permanently staying the application was recalled by the Hon'ble Justice D.K. Sen (as His Lordship then was). This has appeared from the Minute Book which was produced before me. I have also allowed inspection of this semi-ancient document by Mr. Hoon whose reaction is that this is a forged entry made in the Minute Book subsequent to my order dated 1st December 2009." Stand of BCCL is that there is conclusive finding on 7th May 2010 that the order permanently staying the winding up order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. He has relied on the decision of the Delhi High court in the case of Vivek Kumar v. Pearl Cycle Industries Ltd. (1983) 54 Company Cases 77 (Delhi)]. In that case, to a limited extent the right of a member of the family which had controlling interest over a company-in-liquidation in the pre-liquidation stage to question execution of decrees issued prior to the period the company went into liquidation was sustained. In this judgment, it has been held:- "It must, however, be pointed out that while none of the applicants has the locus standi to challenge the decrees or their executability and their Applications are not maintainable u/s. 446 of the Act or under any other provision of the Companies Act, Surender Kumar is certainly interested in the proceedings for the realisation of the amount by the Bank by the disposal of the assets of the Company because on the amount realised would depend the quantum of the shortfall which he would be bound to make good by virtue of the personal decree passed against him as a guarantor. He is, therefore, certainly interested in the securities sought to be proceeded against in execution getting the best possible price and if there is anything i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidate something which occurred prior to the time the company went into liquidation, if such action is called for in the interest of the company. Question may come up as to what would be the course if the Official Liquidator does not act to protect the interest of the company. In such a situation also, the proper course would for the parties interested to bring the issue before the Company Court hearing the winding up proceeding and obtain appropriate directions. I, accordingly hold that the application of the ABL, not being presented by the Official Liquidator is not legally sustainable. 36. I shall address now the question as to whether HIT independently could bring C.A. 715 of 2015 and the other two applications. HIT's contention is that it has the locus as a contributory to a company in liquidation to institute proceedings for invalidation of a consent order obtained upon playing fraud on the Court. I have already observed, while dealing with the issue of limitation that it is not possible at this stage on the basis of materials available to determine the question as to whether there was any fraud played in obtaining the aforesaid consent order or not. Thus the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 8A of the Code of Civil Procedure. In this regard the judgment relied upon him is the case of N. Natarajan v. B.K. Subbarao: AIR 2003 SC 541). Citing the judgment of Andhra Pradesh High Court in the case of P. Satyanarayana v. Land Reforms Tribunal: AIR 1980 AP 149) he has reiterated his submission that the Court has inherent powers to recall orders obtained by practising fraud on it at the instance of a party of the proceedings. Drawing my attention to Section 44 of the Evidence Act he submits that the term "proceeding" employed therein would include a recall petition as well. Mr. Khosla also stresses on the fact that in this case the main victim to the act of fraud, that is ABL, is in liquidation and the Official Liquidator not having brought any action HIT, as a contributory should be permitted to agitate the grievance of ABL, and I should act on the information furnished by the applicants to invalidate the decree upon conducting enquiry suo motu. Mr. Khosla wants this Court to exercise jurisdiction under Article 215 of the Constitution of India as well as Section 340 of the Code of Criminal Procedure, 1973. 38. Three authorities have been relied upon by Mr. Kar to contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 of the Code of Civil Procedure which prescribes provisions for Withdrawal and adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read together, makes it clear that a party to the suit is debarred from filing suit for setting aside compromise decree on the ground of being unlawful. Such a party has remedy by moving appropriate application before the Court concerned which has passed the compromise decree." 40. None of the three decisions lay down as absolute proposition of law that a stranger, who was not a party to a suit or proceeding which was disposed of by a consent decree or order cannot apply to the same Court for recalling that decree on the ground of fraud or collusion. The decisions cited by Mr. Kar that a compromise decree gets insulated from future proceeding assailing the same on the principle of res judicata cannot apply in a situation where allegation is that such decree has been entered fraudulently. Mr. Kar has also cited certain authorities and argued that a party must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same reason, in my opinion, initiation of contempt action or a proceeding under Section 340 of the 1973 would not be proper course in the facts of this case at this stage. One hurdle HIT might face if it is to bring fresh action, would be the fact that ABL is at present a company in liquidation. But in the event HIT contemplates any action involving ABL, it can always apply for leave of the Court hearing C.P. No. 90 of 1983. It can also bring these allegations to the notice of the Court in C.P. 90 of 1983 and seek appropriate direction upon the Official Liquidator. I also make it clear that I have not determined to locus of HIT to bring any action. That question, along with other questions founded on the principle of limitation and fraud would be examined if a fresh proceeding, is instituted. 43. As regards protection of ABL's interest in its own assets, in C.A. 572 of 2016 taken out in connection with C.P. No. 90 of 1983, I have asked for a report from the Official Liquidator as regards asset position of BCCL. I propose to examine the issue raised in these proceedings relating to 50,000 shares in Angelo Rhodes Ltd. while hearing C.P. 90 of 1983, after receiving the report. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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