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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 ..... een 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. It is not possible for me to conclude at this stage that the consent decree was obtained by playing fraud upon Court. BCCL must have opportunity to meet HIT's challenge to the decree on such allegations through a proper adjudicatory process. A recall petition, which is usually decided following summary procedure for such purpose is inadequate instrument - For the same reason, 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. - C.P. No. 575 of 1982, C.A. Nos. 187 of 2016, 715 of 2015, 97, 131 and 529 of 2016 - - - Dated:- 16-5-2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 1983 in the following terms:- 2. It is ordered that the said respondent Company do on or before the fifteenth day of May in the year one thousand nine hundred and eighty three pay Rupees Three lacs to the said applicant Company by Demand Draft on a Schedule Bank at Bombay or any other mode acceptable to the said applicant company and it is further ordered that Fifty thousand fully paid ordinary shares of pound one each in Angelo Rhodes Ltd. United Kingdom held by the said respondent Company are lying with the said applicant company as security for loan subject to permission of Reserve Bank of India and it is further ordered that the said Reserve Bank of India had originally rejected the proposed transfer but a fresh representation has been made by the said applicant company to the said Reserve Bank of India for reconsideration and it is further ordered that the said applicant company shall have the right to appropriate the said shares in their favour subject to permission by the said Reserve Bank of India being obtained And it is further ordered that in the event of the said Reserve Bank of India refusing the permission for transfer of the said shares the said resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if non-est on the allegation of fraud. There are prayers also for certain other directions, inter alia, for issue of subpoena against 36 persons connected with BCCL, Angelo Rhodes Ltd., Turner Morrison Co. Ltd. and a firm of solicitors and its partners in the Judge's Summons. The applicants also want to initiate prosecution under the provisions of Sections 539-544 against these persons. Further prayer of the applicants is for appointment of Receiver for taking physical charge of the 50,000 equity shares of Angelo Rhodes Ltd. freezing the voting rights thereof as also maintaining status quo on the affairs of the said company. There are certain other prayers of the applicants as well, but having regard to the points which I shall deal with in this judgment, I do not consider it necessary to reproduce all the prayers for which the Judge's Summons has been taken out. The applicants, whose locus to bring the action in C.A. 715 of 2015 as also C.A. 97 of 2016 and C.A. 131 of 2016 is questioned by the BCCL in C.A. 187 of 2016, initially appeared in person, through NHS. I have been informed by Mr. Khosla that said NHS has passed away in the month of March, 2016. The backsheet o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the BCCL, but not of C.A. 131 of 2016. In C.A. No. 97 of 2016, the same two applicants as in CA 715 of 2015 want subpoenas to be issued upon 29 persons. The applicants also want a restraint order upon the counsel for BCCL to prevent them from taking a stand contrary to that taken in C.P. No. 90 of 1983 on the question of sole authority of the Official Liquidator to represent ABL. Further reliefs prayed for in this application include certain modification in the prayers of C.A. 715 of 2015. The applicants in C.A. 97 of 2016 want the consent order-cum-decree in C.P. 575 of 1982 to be recalled upon declaring it void, inter alia, on the principle of cadit opus fundementalo sublato. In C.A. 131 of 2016 also, prayers include issue of subpoenas to the same 29 persons named in C.A. 97 of 2016, as also seven individuals named in Annexure P-14 to the affidavit taken out in support of the Judge's Summons. The object of the subpoenas which the applicants want to be issued is for their deposition before this Court on being examined. 5. So far as ABL is concerned, as I have already observed, that company is subject of another winding up proceeding being C.P. No. 90 of 1983. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main stand of HIT and NHS (which was taken during his lifetime) as regards status of ABL in C.P. 90 of 1983. Argument has been advanced on their behalf in that proceeding that the winding up order, inter alia, was void ab initio on the grounds that the Hon'ble Judge who recalled the order permanently staying the winding up did not have the jurisdiction or determination to pass such order and also the recalling order was void, being unreasoned. It was also urged that the Board of Directors stood revived. These points are being examined by me in course of hearing of C.P. 90 of 1983. 6. The ground primarily on which the applicant in C.A. No. 187 of 2016 seeks dismissal of the aforesaid three applications is that none of the said two applicants is entitled to bring the applications in law and these applications are not maintainable. The applicants in C.A. 529 of 2016 are also ABL and HIT, and they seek dismissal of C.A. 187 of 2016. It is contention of BCCL that ABL, being in liquidation, no entity or person other than the Official Liquidator can bring any proceeding on its behalf, or represent that company. So far as locus of HIT is concerned, argument of Mr. Joydeep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and two other applications. In this judgment I would not be referring to the written submissions of the parties line by line, but, I shall deal with the legal and factual points highlighted in the written notes on submission to the extent I consider them material and relevant to examine rival submissions. Several decisions have been cited by the learned counsel for the parties in support of their respective submissions. As regards these decisions also, I shall refer to in this judgment those decisions only which I find relevant for determining the points in conflict. 8. Mr. Khosla has taken a point that the application of BCCL, registered as C.A. No. 187 of 2016 is in the nature of a demurrer application and he wants me to hold that by taking out the demurrer application, the applicant shall be deemed to have accepted all the factual statements made in the three applications, being C.A. 715 of 2015, C.A. 97 of 2016 and C.A. 131 of 2016 to be true, irrespective of the fact as to whether his clients succeed in these applications or not. He has relied on a set of US authorities and also English principle to contend that a demurrer application by its very nature proceeds on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications and the summary of their allegations. The consent order itself would reveal in what manner the dispute in C.P. 575 of 1982 was being resolved, assuming it was a valid resolution. So far as institution of the winding up proceeding is concerned, Mr. Khosla's case is that the same was brought with fraudulent motive. The allegations in that regard have been made in a notice issued by Mr. Khosla on 2nd October 2015 addressed to the Board of Directors of BCCL. In this notice, it has been, inter alia, stated:- 14. Sometime in the 1980s, an ante-dated Promissory Note for a sum of ₹ 35 lakhs, antedated to 25.02.1981, was forged and fabricated, purporting that my client (i.e. Angelo Brothers Ltd.) had allegedly promised to pay M/s. Bennett, Coleman and Co., Ltd. (herein, BCCL ) a sum of ₹ 35 lacs on demand for value received, along with interest @ 21% per annum, with quarterly rests. 15. The fabrication of this alleged Promissory Note was done undoubtedly in criminal collusion with the persons then in charge, claiming to be in charge, of the affairs of Angelo Brothers Ltd. 16. Taking undue advantage of his strangle-hold over Turner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.R. KRISHNAMOORTHY TO SHRI N S HOON, CALCUTTA YOUR MESSAGE. PL DELIVER THE DRAFT TO BENNETT COLEMAN, CALCUTTA OFFICE WITH A COVERING LETTER FROM ANGELO BROS. LTD. AND SAYING THAT IT IS IN PAYMENT IN TERMS OF THE ORDER OF THE CALCUTTA HIGH COURT. YOU MAY ALSO REQUEST BENNETT TO ASSIGN AND TRANSFER THE PRO-NOTES HELD BY THEM IN FAVOUR OF THE PARTY FROM WHOM YOU HAVE TAKEN THE D/DRAFT. THERE IS NO NEED FOR ANY TRIPARTITE AGREEMENT. THE SHARES WILL BE APPROPRIATED BY BENNETT COLEMAN AND THE PRO-NOTE WILL BE ASSIGNED TO YOUR PARTY. THE PRO-NOTES FOR RS.35 LACS MINUS RS.15 LACS ALREADY RECEIVED EXCLUSIVE OF INTEREST. YOU MAY CONSULT MR. KHAITAN ALSO, SHOWING THIS MESSAGE TO HIM. BOM. PLS ACK BOMBAY AAS 1718 HRS 30/4/83 A copy of that telex is not being annexed to this notice, as its contents have been reproduced above, verbatim, in their entirety. In any case, it forms a part of the court records before the Hon'ble High Court of Calcutta, inter alia, in APO No. 953 of 1993, and CP No. 33 of 1988. As BCCL and Turner Morrison are parties to the aforesaid proceedings, they are in possession of the copy, whose veracity and authenticity they have not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 that so far as Angelo Brothers Ltd. are concerned, they have transferred the shares to us, and transfer is pending only for Reserve Bank of India confirmation and, therefore, Angelo Brothers Ltd. has no right whatsoever in respect of the shares in your company. A copy of this letter is appended hereto, and is marked as Annexure 3 (page 40 of this Legal Notice) 28. It is extreme relevance to the present Notice to highlight that vide orders dated 13-04-1983/04-04-1983/13-06-1983 passed in CP No. 90 of 1983, it had been ordered by the Hon'ble High Court of Calcutta that M/s. Angelo Brothers Ltd. be wound up. 29. From this, it is clear that even assuming without admitting that 50,000 shares of Angelo Rhodes Ltd. owned by Angelo Brothers Ltd. were transferred to BCCL (or some other nominee, say, Times Center for Business Studies, though the letter dated 21-04-1984from BCCL's Mr. P.R. Krishnamoorthi to Mr. M.J. Swallow, the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies (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 provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the Court. 11. There is no specific provision under the 1959 Rules stipulating the procedure to be followed for recalling a consent decree or order passed in a winding up petition or in respect of petitions taken out for dismissal of an application filed in connection with liquidation or winding up proceedings. This would bring in provisions of the Civil Procedure Code, 1908, following the 1959 Rules. Under the aforesaid Code also there is no specific provision for instituting applications of these nature. But neither the 1959 Rules nor the Code bar filing of such applications. In such context, what would be the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. .... ....; Mr. Kar has submitted is that even if the said application fails, the applicant's right to contest the opponent's case on merit would not stand forfeited, and such demurrer point should not result in admission of what is stated in the application of the opponent. 13. In two major common law jurisdictions, the U.K. and the U.S., practise for bringing motion for demurrer has been abandoned. When such a practise subsisted, it constituted proceeding on admission of facts. BLACK'S LAW DICTIONARY (Ninth Edition) has the following meaning for this term:- A pleading stating that although the facts alleged in a complaint may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 187 of 2016 was an application in the nature of demurrer, BCCL cannot be permitted to invoke the principles of Order 7 Rule 11 to keep open its chance to contest the recall petition along with the other petitions even if its dismissal plea in respect of the aforesaid three applications fail. 14. Mr. Kar in course of hearing before me has indeed taken a stand that his application is in the nature of demurrer, but his case is that in Indian jurisprudence, an application in the nature of demurrer retains the characteristic of an application for rejection of plaint, and the import of the noun demurrer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the company petition cannot at all be looked into. 17. The point of demurrer has been used interchangeably with motion for dismissal of a suit on preliminary issue in a judgment of a Coordinate Bench of this Court in the case of Himungsu Kumar Basu v. Sudhangsu Kumar Basu (: AIR 2004 Cal 217). In paragraph 10 of the Report, a learned Single Judge of this Court held:- ...Even I have no doubt or hesitation in my mind about such principle by whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 judgment of a Coordinate Bench in the case of Himungsu Kumar Basu (supra), the learned Judge has dealt with the concept of demurrer interchangeably with an application for rejection of plaint under Order 7 Rule 11 of the Code. Mr. Khosla urged before me that there was material difference between an application under Order 7 Rule 11 of the Code and the character of C.A. 187 of 2016 in that the former provision contemplates rejection of plaint whereas in the latter BCCL has sought for dismissal of the recall petition. But to make such a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the plea of limitation raised by BCCL, assuming both ABL, in the manner represented and HIT otherwise have the locus to bring the application, which has been registered as C.A.715 of 2015. Contention of Mr. Kar has been that NSH all along knew of the consent order and even acted on it and such knowledge ought to be attributed to both HIT and ABL at the pre-winding up stage. He has pointed out in course of his submissions that in the recall petition there is no pleading as regards the date on which cause of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 he sought to attribute knowledge or notice of transactions between ABL and BCCL. In the notice referred to in paragraph 9 of this judgement, there is reference to certain transactions, which according to Mr. Kar, reflect NSH's knowledge of the winding-up proceeding (C.P. 575 of 1982) as well as the consent order or decree. On the point of limitation Mr. Khosla has advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 principle of law has been laid down in case of A.V. Papayya Sastry and Ors. v. Government of A.P others [AIR 2007 SC 1546] and in the case of Bishunath Tewari v. Mst. Mirchi [AIR 1955 Patna 66]. Elaborate arguments had been advanced before me on this point by the learned counsel for the parties. On behalf of BCCL, stress has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree 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 Court is a nullity, and law of limitation would not apply to a proceeding instituted to declare such decree as nullity. But to adjudicate on these points, I will have to come to a finding as to whether BCCL had obtained the decree playing fraud on Court or not, initially by instituting the winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. Papayya Shastri (supra), Article 59 of the Limitation Act, 1963 would not apply in such a situation, as the decree in such a situation shall never be deemed to have come into existence. But an order of the Court would be necessary to formally extinguish such a decree, as has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plications. 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 criminal, in the name of the company, with the sanction of the Court. He has also referred to the provisions of Sections 449 and 460(4) of the 1956 Act to emphasise such exclusive authority of the Official Liquidator. It is in this perspective Mr. Kar has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stood recalled. 32. I am in seisin over the proceedings in C.P. 90 of 1983 and the main issue I am hearing in connection with that proceeding is whether the company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the manner in which execution proceedings are carried out which may affect the quantum of realisation, he would certainly have the locus standi to appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 as to whether there was fraud on Court also cannot be adjudicated on the basis of materials available before me at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 that the consent decree cannot be varied at the instance of who is not a party to such decree these are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 have a grievance giving rise to cause of action to maintain an action. I am no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 44. So far these proceeding are concerned, I h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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