9911796707
TMI Blog1984 (7) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... ' of declaration that the defendants' occupation as office-bearers and the members of Executive Committee of the Club on the expiry of Dec. 1979 and/or expiry of April 22. 1980 are illegal and they have no right under the Rules of the said Club to function as office bearers and as members of the Executive Committee, (c) Permanent injunction restraining the defendants from acting and/or functioning as office bearers and members at of the Executive Committee of the Club and/or holding the election of the Club (d) Permanent injunction restraining the defendants and/or their agents and/or their employees from taking step or Steps for holding any meeting for amending the rules of the Club till fresh Executive Committee members are elected according to law. (e) Administrator and/or Receiver be appointed for the purpose of running the management and administration of the Club. (f) Receiver. (g) Temporary injunction. (h) Cost of the suit. (i) Leave under Order 1 Rule 8 C. P. C. (j) and such and further order or orders as your Honour may deem fit and proper, against the Respondents herein. 2. In that Suit, the right of the Respondents to amend the Rules of the Club was challenged an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected will be refunded to the members with proportionate interest accrued there in. The Appeal Court was constituted by Sabyasachi Mukharii and Suhas Chandra Sen. JJ. 6. The order as indicated above, was varied on 27th May 1982 by the same Bench as indicated above and it was directed that 50% of the excess subscription realised by the Receiver, pursuant to the previous order may be handed over to the Executive Committee of the Club, whose validity or legal competence are not admitted at this time. for the purpose of meeting the immediate needs for disbursement for running of the club. The Executive Committee would give an account of the amount received and how it has been spent to the Receiver who wilt forward a copy of the same to the appellant. This order is made on condition that in case the appellants succeed in the suit, the excess amount would be either adjusted against future subscription or refunded by the persons whoever be in the executive committee. It was also directed. having regard to the urgency of the matter, the parties would be at liberty to pray for an early hearing before the learned Trial Judge. The Appeal Court made it clear that the order, as made. was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee, Such order was made without prejudice to the rights and contentions of the parties and upon the undertaking given by the learned Counsel on behalf of the Executive Committee, that in case it is ultimately held by the Court that the increase in subscription of the members was not either proper or legal Executive Committee will refund the amount to the credit of the members by way of adjustment who will insist on refund of the enhanced payment of subscription. The Court also recorded that the learned Advocate on behalf of the appellant stated that in this regard he had no instruction from his client. It was also directed that the Receiver and all parties should act on a signed copy of the minutes . This order was also made by that Bench and by a further order made on 15th Oct. 1982. the same Bench, further directed that before handing over the extra amount which is mentioned in the order dated 14-10-1982 the Receiver should ensure whether the accounts directed by the previous order dated 27-5-1982 have been furnished to the appellant. If the said account have not been furnished, the additional money should not be handed over to the Executive Committee in the manner indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the things that have happened and the allegations as indicated hereinbefore. 8. It has been stated that thereafter, the matter was mentioned before Pyne and Suhas Chandra Sen. JJ. on or about 11-8-1983 or at that time the appellants came to know for the first time about the order dated 6-5-1983. which records . that by consent of the parties no further deposit need be made with the Receiver. The appellants have stated that they were surprised to know about the said order dated 6-5-1983 and it was their case that they were not aware of that order and the same was contrary to all the earlier orders passed by the Appeal Court, whereby the Appeal Court was pleased to give certain interim reliefs to the Respondents herein and that order was obtained on the plea that otherwise the Club would be facing great financial difficulties during the current football season and it has been stated that in such order, it was made clear that though the Court had allowed the Respondents to use the excess subscription due to financial stringency during the current football season, the validity of such right to use. would be determined by the Trial Court and on that basis the appeal was disposed of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y client if I also had no time to look into the papers to refresh my memory. I now realise that the consent order takes away the very substratum of the previous orders which you obtained after so such fighting. I am extremely sorry and I apologise for what has happened. I now realise that I should not have given consent in such a matter without first consulting you. Yours faithfully. Sd/- P. N. Mukheriee. The appellants have claimed that in view of the facts as disclosed and enumerated hereinbefore, such order of 6th May 1983. was obtained by the Respondents, without placing the correct facts before the Hon'ble Court and since the Court had. in fact, disposed of the appeal earlier and made the position clear by the orders as indicated hereinbefore, such order dated 6-5-1983. which virtually gave a go-by to the earlier orders, should not have been passed and in fact, the same was not authorisedly passed. In fact it has been claimed that the subsequent order dated 6-5-1983. in view of the earlier orders, was without jurisdiction. As the subsequent Appellate Bench had no jurisdiction authority and competence to pass an order, which would affect the rights of the parties in the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the:r learned Counsel expected that the learned Advocate for the appellants herein, would take immediate steps to serve a sicked copy of the minutes of the concerned order of 15-10-1982. on the Respondents or their Advocate on record. but strangely enough no information of that order, either by way of serving any minutes or otherwise, was given by the appellants herein, or their Advocate on record to any of the adversaries including the Respondents. In such circumstances, the deponent has stated that the Respondents herein, were totally unaware of that order of 15-10-1982 and in the meantime the concerned payment was made on 15-10-1982 by the learned Receiver to the Club and such payments have been appropriated by them in terms of the order as indicated above. It was the further case of the deponent that his Club, from time to time, duly furnished accounts to the petitioners' Advocate on record- In short and the categorical submission of the deponent was that the order dated 15-10-1982 was never brought to the notice of Mohan Bagan Club or its authorities or their Advocate on record nor any signed copy of the minutes thereof, was served either on the Club or their Solicito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the appellants herein, in terms of the order as indicated above. It has been claimed that since the order of 6th May 1983. was obtained after due notice to the learned Advocate for the appellants, they would not be justified to say that they had no knowledge of such order and more particularly when, the same was made by this Court in the presence of their authorised representative Mr. P. N. Mukherjee and with his consent. The statements that such order has been made contrary to all or any of the orders of the Court as passed earlier, have been denied. The deponent has stated that it is difficult to believe that the learned Advocate on record of the appellants viz. Mr. P. N. Mukherjee consented to the said order of 6th May 1983 being passed, without instructions from his clients or in any event he will not inform or has not informed the appellants, the terms of the said order, for about three months after the same was passed. Such order, according to the deponent. was passed by the learned Appeal Court, on the representations that the Club would require fund for the purpose of meeting the liabilities including making of payments to the soccer players. particularly in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en denied that was never the intention of the Court, to pass such order, so as to allow the Respondents to make use of the entire excess amount. The said order dated 6-5-1983. has also been claimed to have been made subject to the conditions imposed by the Court in its earlier order dt. Aug. 27-8-1982 viz. in case the petitioners succeed in the suit, the excess , amount as would be collected by the Club or scent by them in the meantime would either be adjusted against future subscriptions or refunded to the members by the Executive Committee of the Cub. It has further been stated that the order as impeached was passed by the subsequent Appellate Bench, with the due authority, jurisdiction. competence and power. It has also been denied by the deponent that by the order of 6-5-1983. The rights of the parties in the pending interlocutory application or the suit have at all been affected. It has been claimed that the present application is not a bona fide one and the appellants have initiated the proceedings, to hamper the smooth running of the Club and the proper management or the affairs of the same. 15. The learned Receiver. Mr. Abhijit Deb, has filed an affidavit-in-opposition dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of hearing before us, it transpired that Mr. P. N. Mukherjee the learned Advocate on record of the appellants had not filed his power of attorney and on such, a further point for consideration arose as to whether, because of such admitted non-filing of the power, the present application and all the orders obtained earlier or as passed by the Court, became null and void or such non-filing of the power was a mere irregularity, which could be cured. 18. Mr. Mullick claimed and contended that such initiation of the present proceeding or obtaining the orders earlier would not make the proceedings null and void and at best the initiation or obtaining orders thereon would be an irregularity, which could be cured and more particularly when the action as taken by the said Mr. P. N. Mukherjee is being ratified now by filing a fresh power of Attorney. He. in fact, filed a fresh power of Attorney and asked for the necessary leave of this Court to accept the same. 19. In support of his submissions as above. Mr. Mullick relied firstly, on the decision in the case of Danish Mercantile Co. Ltd. v. Beaumont (1951) 1 All ER 925. In that case, it has been observed that a solicitor who started ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 6-5-1983 Passed or what was the extent of his authority. While on the point and the competence of Mr. P. N. Mukheriee, to consent to the order dated 6-5-1933. Mr. Mullack relied on the case of Smt. Jamilabai Abdul Kadar v. Shankarlal Guliibchand. AIR1975SC2202 . where it has been observed that a pleader (which includes all legal practitioners as indicated in Section 2(15) C.P.C.) has the actual though implied, authority of a pleader to act by way of compromises a case in which he is engaged even without specific consent from his client, subject undoubtedly to two overriding considerations : (i) He must act in good faith and for the benefit of his client: otherwise the power fails: (ii) It is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground. It has also been observed in that case that ordinarily. when a junior (Pleader not enrolled as advocate in this case) and senior ( advocate in this case) appear in the case, it would be an adventurist act exposing himself to great risk on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terminations and the conditions indicated in the cases of Mulling v. Howell (18791 48 LJ Ch 679. Ainsworth v. Wilding (1896) 1 Ch 673. Khitipati Roy v. Dharani Mohan Mukherjee. AIR 1921 Ca] 229. Jamnabai v. Fazal-bhov AIR 1923 PC 184. Rameshwar Singh v. Hitendra Singh. AIR 1924 PC 202. apart from considering the determination in Wentworth's case (1829) 9B and C 840. 22. After referring to the letter of Mr. P. N. Mukherjee, the learned Advocate on record for the appellants, the text whereof has been quoted hereinbefore. Mr. Mullick specifically contended that the entire circumstances as depicted therefrom would show that Mr. Mukherjee himself felt that he made a very wrong and unauthorised thing or took a fresh action in giving such consent as mentioned in the order dt. 6-5-1983 and as such, even though Mr. Mukherjee had the power to represent the appellants on that day or even now, the appellants would not be bound by the consent as given by him and that too in view of the law as stated herein before. It was Mr. Mullick's specific case that immediately on hearing the fact of the consent order, the appellants had specifically written to Mr. Mukherjee that he had taken a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mischief of a default clause, in an order of the Court claimed that the consent order in this case cannot be varied or should not be allowed to be varied. 24. It has been indicated earlier that Mr. Mitter severely commented on and criticised the conduct of the appellants, their learned Advocate on record and the actions as taken by them. To supplement such submissions. Mr. Mitter referred to the letters dt. 13th May 1983. 29-6-l983 and 15-7-1983 all addressed by the said Mr. P. N, Mukherjee and that too after the consent order dt. 6-5-1983. and pointed out that in the letters as aforesaid and which were addressed by the said Mr. Mukherjee in May and June 1983, there has been no whisper or any indication that he was either mislead by any representation made by or on behalf of the Respondents or there has actually been any misrepresentation, on the basis whereof the said order dt. 6-5-1983. on consent, was obtained and there was any fraud practiced on him. The grounds of attack or challenge against the letter dt-15th July 1983 as put forward by Mr. Mitter have also been indicated hereinbefore and after scanning the said letter. Mr. Mitter also claimed the same, as mentioned here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptance of the order. Mr. Chatterjee pointed out. would be apparent from the subsequent letters of Mr. Mukherjee, which are disclosed with the application Mr. Chatterjee also indicated that by the letter of 5-5-1983. Mr. P. N. Mukherjee was specifically informed and indicated about the variation which would be asked for and no exception to such intended variation was taken. Mr. Chatterjee stated, that being the position, and when admittedly the said sum of Rupees 75,000/- or more is still lying with the learned Receiver, there is actually no real loss or harm caused to the appellants by the concerned order dt. 6-5-1983. According to him. loss or harm if the appellants have suffered or are sufferings by that order, is emotional only, which cannot be a cause or good ground for allowing the application, which is incidentally in the nature of a review application. 27. Mr. Mullick submitted that the order as impeached was made without jurisdiction as after the disposal of the appeal, the Bench presided over by Pyne J. had no authority to entertain the proceeding or make the order dt. 6-5-1983 so this Bench, which is one of the available Appeal Benches, would be authorised to hear and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the writ or other originating process is issued, and fill In some cases the sanction of the court is required to make a compromise valid e. g., in the Chancery Division where the rights of infants or patients are affected, and in proceedings (other than matrimonial causes) in the Q- B. D. or P. D. A. where a claim is made on behalf of an infant or patient and (iii) In any case in which as part of the terms of compromise the court's intervention to order that something shall or shall not be done is required, the court may notwithstanding anything which has been said or done by the counsel or solicitors of the parties inquire into the circumstances and withhold or grant its intervention as it may deem just, on the basis of the celebrated decisions as referred to and discussed by Cordery. the relevant propositions would thus be a consent order or compromise, made with the express authority of the client, is binding upon him from the time it is made, whether the case has been opened to the court or not and a mere consent order cannot be arbitrarily withdrawn, even before it is passed and entered, where the client is in court at the time, his express authority will generally be im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for non-prosecution is drawn up. signed and perfected, the absence of notice to the plaintiff is merely an irregularity and does not affect the validity of the order and in such a case, the Court has no power to recall the order. The said determination was referred to for the purpose of showing the limitations to the exercise of power by the Court. Mr. Mullick pointed out specifically that the said determination would appropriately apply in this case, as on the disposal of the appeal on 27-5-1982. there was no lis pending or 6-5-1983 and that been the position, the Appellate Bench presided over by Pyne J. was wrong and acted without jurisdiction in passing the impugned order. Mr. Mullick also made a reference to the case of Official Trustee. West Bengal' v. Sachindra Nath Chatteriee. [1969]3SCR92 . in which case there was a clause in a trust deed empowering the settlor to alter the Quantum of interest given to each beneficiary by will alone and the Court permitted the settlor to revoke that clause and permitted alteration being done by deed-On a challenge being thrown, such act of the Court was found to be incompetent and outside the jurisdiction of the Court. It was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the receiver including proceedings for contempt and so also when the appeal itself has been disposed of but the receiver has not been discharged. Mr. Chatterjee then and secondly, referred to, the determinations in the case of Surendra Nath Bhattachariee v. Harendra Nath Bhattacharjee n 75V 79 CWN 81. where it has been observed that when a receiver is appointed by the appellate Court, the power to remove or discharge such receiver. unless there is specific direction given to the trial Court on this behalf. will be with the appellate Court. The principle extends to cases even when the appeal is no longer pending in the appellate Court. He, thirdly, relied on the case of (Mahant) Parshotam Das v. Prem Narain. AIR1956All665 . which has specifically laid down that when a receiver is appointed by the orders of the High Court but he is directed to submit his accounts to the lower court and that court is authorised to issue necessary directions to him the receiver is still an officer of the High Court and the court below in giving the directions exercises a delegated power. As the receiver continues to be an officer of the High Court and the officer continues to have seisin of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, as some material portions therein. have been kept blank, it is further difficult to place any reliance on the said letter and in our view if the same is read with the earlier communications of Mr. Mukherjee, there would be grave doubt, as contended by the Respondents, about the bona fide of the same. The Respondents, in the facts of this case. were perhaps justified in their contentions that the said letter was later on obtained from Mr. Mukherjee, to suit the purpose of this proceeding and of the appellants. 32. As indicated earlier during the course of this proceeding, on the prayers made by the respective parties, we have allowed the warrant of attorney to be filed by the appellants and they have also filed such warrant. through Mr. P. N. Mukheriee, the learned Advocate. who was alleged to have acted to their detriment and prejudice. in having the consent order passed. Mr. Chatteriee, who is appearing in person has also filed his power. The effect on the conduct of the appellants to have filed their power of attorney even at this stage and that ton through Mr. P. N. Mukherjee will have to be considered and that too for the purpose of finding out the bona fide of their claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by consent can also be in terms of the determinations cited at the Bar, set aside, if there is fraud, mistake and misrepresentation. But such elements are not available in the instant case and more particularly in the actions of Mr. P. N. Mukherjee, in having the consent order obtained. As indicated earlier from the records of this proceeding, it is very difficult to hold and find that consent in the instant case was given by Mr. P N. Mukherjee on misrepresentation by the respondents or as he was misled. The character of the letter dt. 15-7-1983 which was addressed by Mr. P. N. Mukherjee has been indicated hereinbefore and it is very difficult to agree with Mr. Mullick. that the said letter has really established the necessary limbs for setting aside the consent order There is hardly any legal evidence available in this case, on the basis whereof, it can be held and observed that the consent by Mr. P. N. Mukherjee, the learned Advocate for the appellants, was not given in good faith. Mr. Mukherjee's conduct of having the consent order passed, cannot be held to be not bona fide and the consideration of his long silence and so also that of his clients cannot enure to the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he connected appeal have not 0s vet been drawn up- completed and filed, the Appeal Court as mentioned hereinbefore, which again was an available Appellate Bench at the relevant time, also retained their jurisdiction to pass the order dt. 6-5-1983. In view of the above, the case of Administrator General of West Bengal v. Kumar Purnendu Nath Tagore AIR1970Cal231 would really support the contentions of the respondents, on their submission'; of retention of jurisdiction of the Bench presided over by Pyne J. and to pass the order dt. 6-5-1983. The other cases as cited by Mr. Mullick. while on this aspect, are distinguishable. 36. Above being the position and our views the application cannot be entertained and as such, the same is dismissed without any order as to costs. 37. Before, leaving the matter, as must also say that on consideration of the submissions made by Mr. Sarkar, appearing on behalf of the learned Receiver. We discharge Mr. Abhijit Deb from further acting as such Receiver but subject to his filing of accounts, we however appoint Mr. Sovendra Kumar Mitra, a learned Advocate of this Court, as the Receiver in place and stead of Mr. Abhijit Deb. The outgoing' Receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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