Bombay High Court
Jyoti Mehta vs National Housing Bank And Ors on 3 May, 2018
Author: A. K. Menon
Bench: A. K. Menon
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sbw IN THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO
TRANSACTIONS IN SECURITIES) ACT, 1992
MISCELLAENOUS APPLICATION NO.35 OF 2017
Smt. Jyoti H. Mehta ... Applicant
v/s.
National Housing Bank & Ors. ... Respondents
Mr. Ashwin Mehta for the applicant.
Mr. Aspi Chinoy, Senior Advocate, a/w Ms. Niyathi Kalra i/b. Negandhi Shah &
Himayatullah for respondent no.1.
Mr. T. Cooper a/w Ms. Gaurangi Pujara i/b. Little & Co. for respondent no.2.
Mr. Hormaz Daruwalla a/w Ms. Shilpa Bhate i/b. Leena Adhvaryu & Associate
for the Custodian.
CORAM : A. K. MENON, J.
(SPECIAL COURT)
RESERVED ON : 1ST FEBRUARY, 2018.
PRONOUNCED ON : 3RD MAY, 2018.
JUDGMENT:-
1. By this Misc. Application, the applicant seeks the following reliefs:-
(a) A direction to National Housing Bank (NHB)-respondent no.1 to pay over a sum of Rs.454,46,60,923/-;
(b) to award actual costs incurred by the applicant in contesting Suit no.2 of 1995, Report no.19 of 2013 and the present application.
2. Apart from these principal prayers, the applicant seeks directions for adjudication of Report no.19 of 2013 filed by the Custodian as well as ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:12 ::: 2 spma-35.17(f).doc initiation of proceedings against the Custodian and respondent no.1 for allegedly misleading the Court by filing Report no.19 of 2013. The applicants' claim for payment of the aforesaid sum of Rs.454,46,60,923/- arises out of the decision in Suit no.2 of 1995 filed by NHB.
3. I may mention here that the respondent no.1 has opposed this application as not maintainable. At the outset it was contended by Mr. Chinoy that the application is an abuse of the process of law and the maintainability itself was called into question. Mr. Chinoy opposed the maintainability of the application including relief sought by way of prayer clause (a). He submitted that Report no.19 of 2013 was disposed of in view of the finding that the Custodian had no locus to file the Report and has recorded in the order dated 22 nd January, 2016 reserving the rights of the NHB to take out an appropriate application and contentions of all parties were kept open. Mr. Chinoy submitted that even the second prayer seeking a direction to pay over the amounts as computed by the applicant in Exhibit F is not maintainable since the applicant has not set out how the bonds constitute the attached assets of Harshad S. Mehta under the Special Courts Act. He submitted that the application has been filed on the basis that the Supreme Court has granted liberty to respondent to approach the Special Court when in fact no such liberty has been granted. The application is therefore an abuse of process of law. ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:12 :::
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4. I was of the view that the issue of maintainability could be gone into at the very outset but felt it appropriate to consider the merits of the claim. There are few facts which need to be set out before dealing with this application. The applicant contends that on 3 rd January, 1992 the NHB entered into two transactions on a back to back basis in respect of 9% IRFC bonds of the face value of Rs.100 crores. On 3 rd January 1992, NHB is stated to have issued a Banker's Receipt (BR) in favour of Canfina of the face value of Rs.100 crores in respect of sale of 9% IRFC bonds. On 30th March 1992 Canfina is believed to have discharged the BR issued by NHB upon receipt of bonds from late Harshad S. Mehta and accordingly NHB is expected to deliver to Harshad S. Mehta 9% IRFC bonds.
th
5. On 10 September, 1992, the Custodian issued a public notice informing the public at large of the notification of entities under Section 3(3) of the Special Courts Act and the fact that all properties of notified persons will stand attached. The applicant is the widow of late Harshad S. Mehta and has filed this application as legal heir of Harshad S. Mehta. It is the applicant's contention that the other legal heirs namely her son Atul Mehta and the mother of late Harshad S. Mehta namely Rasila S. Mehta have disclaimed any right or interest in the estate of Harshad S. Mehta and that she alone is entitled to pursue this application.
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6. On 2 January, 1995 NHB filed Suit no.2 of 1995 against State Bank of Saurashtra (SBS), Harshad S. Mehta, one C. Ravi Kumar, Suresh Babu and the Custodian sought decree in a sum of Rs.164.12 crores and further interest thereon @19% p.a. The respondent no.2 in this application is the State Bank of India into which the original defendant no.1 SBS in suit no.2 of 1995 stands merged. The present respondent no.2 has therefore been joined as a party to this application although no reliefs are sought against him. The Custodian has also been joined to the application being aggrieved by the conduct of the Custodian in allegedly failing to discharge his duties and recover assets of late Harshad S. Mehta. The applicant has contended that the Custodian has filed a Report no.19 of 2013 on 30 th September, 2013 seeking relief of payment of a sum of Rs.40.22 crores together with interest in all amounting to Rs.94.19 crores from the attached accounts of late Harshad S. Mehta, the applicant Ashwin Mehta and Dr. Hitesh Mehta. The applicant alleges that the Custodian has committed contempt of Court by non-compliance with the judgment of the Supreme court in Civil Appeal no.2155 of 1999 along with Civil Appeal no.2294 of 99 and 3647 of 1999.
7. According to the applicant, the decree passed by the Special Court in Suit no.2 of 1995 was set aside by the Supreme Court vide its judgment dated 31st July, 2013. Mr. Mehta, the learned counsel appearing for the applicant submitted that the Supreme Court only set ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 5 spma-35.17(f).doc aside the decree in the Suit but not the effect of the order and directions passed by the Special Court in the said Suit but for this contention this application could not have been filed. The applicant states that although Suit no.2 of 1995 stands dismissed and the decree set aside, effectively rejecting the pleas of NHB, the order has also rejected the set off allowed by the Special Court in relation to IRFC bonds of Rs.61.25 crores. Mr. Mehta submitted that the Custodian and NHB have contended that the dismissal of the Suit also results in rejection of the claim of the applicant, but although no relief has been granted to NHB, the applicant will entitled to receive a sum of Rs.40.22 crores along with 19% interest p.a. from NHB. Mr. Mehta contended that in Suit no.2 of 1995 NHB had not denied the claim of Harshad S. Mehta to bonds of Rs.100 crores face value since the Harshad S. Mehta had in fact delivered these bonds to Canfina on 30 th March, 1992. According to Mr. Mehta this is a fact not disputed by any of the parties and by rejecting the set off allowed by the Special Court in the order in Suit no.2 of 1995, the Supreme Court has now awarded the claim of Harshad S. Mehta which had earlier partially been granted by this Court to the extent of the claim.
8. It will be appropriate that I now make reference to the judgment and order dated 21/25th February, 1999 passed in Suit no.2 of 1995. NHB filed two Suits. One in the Bombay High Court Suit no.211 of 1995 and Suit No.2 of 1995 before the Special Court. The suits were filed ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 6 spma-35.17(f).doc against State Bank of Saurashtra (now merged with State Bank of India), Harshad S. Mehta, two employees of the NHB and the Custodian. Both the suits sought to recover a sum of Rs.95.93 crores and interest thereon as recorded in the order and judgment of the Supreme Court. By order dated 17 th April, 1995 the Special Court directed NHB to elect to either pursue the Suit in the High Court or the one before the Special Court. The bank challenged that order in the Supreme Court and the Supreme Court directed both Suits to be placed before the Special Court. The Special Court decided a preliminary issue of jurisdiction on 3 rd February, 1996 holding that the Special Court alone had jurisdiction to adjudicate the disputes involving the transactions in which a notified party was involved. In view thereof, Suit no2155 of 1995 came to be dismissed. Later the pleadings under Suit no.2 of 1995 were amended vide order dated 16 th October, 1996. In view of the amendment to the plaint, the SBI raised a preliminary issue of the maintainability of the Suit. This objection came to be rejected and SBI filed Civil Appeal no.2294 of 1999 in the Supreme Court. During the pendency of the said Civil Appeal, Suit no.2 of 1995 came to be disposed of on 24 th February, 1999. SBI then filed Civil Appeal no.2155 of 1999 challenging the decree against it in a sum of Rs.95,39,78,082.19 and interest thereon. The decree also directed the plaintiff to hand over a sum of Rs.40.22 crores and interest thereon from 30th March, 1992 to the Custodian within four weeks. ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 :::
7 spma-35.17(f).doc This portion of the decree was challenged by the plaintiff by filing Civil Appeal no.3647 of 1999.
9. The judgment of the Supreme Court has set out in a lucid manner the factual background. It will be useful to refer to the prayers in suit no.2 of 1995 which were as follows:-
"(a) that the 1st Defendant be ordered and decreed to pay to the plaintiff a sum of Rs.164,11,61,079.59 as per particulars at Exhibit 'B' hereto with further interest thereon at the rate of 24% per annum from the date hereof till payment and/or realisation.
(b) In the alternative to prayer (a) above the Defendant nos.1 to 4 or any one or more of them be ordered and decreed to pay to the plaintiff jointly and/or severally a sum of Rs.164,11,61,079.59 p. as per particulars at Exhibit 'B' hereto together with interest thereon at the rate of 24% per annum from the date hereof till payment and/or realisation."
10. NHB is believed to have drawn a cheque on the Reserve Bank of India dated 3rd January, 1992 for an amount of Rs.95.39 crores in favour of State Bank of Saurashtra. NHB later found that certain transactions ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 8 spma-35.17(f).doc entered into were still outstanding and it did not possess Bank Receipts or any other supporting documents or other security in relation to the outstanding transactions since SBS had not delivered the securities in any form. NHB addressed a letter to SBS seeking delivery of the BR and security for the aforesaid amount of Rs.95.39 crores. Correspondence was exchanged between the parties in which the SBS denied the existence of any outstanding transaction between the two parties. SBS denied that it had any obligation to deliver securities or refund the amount as claimed. Correspondence suggested that SBS had taken up the stand that the cheque received by it was on for and on account and for the benefit of the second defendant Harshad S. Mehta and this was sought to be justified by reference to certain market/banking practices. SBS contended that on the strength of instructions of Harshad S. Mehta against the cheque issued by NHB, SBS had issued a cheque on behalf of Harshad S. Mehta in favour of certain third parties. Prior to its amendment, the plaint asserted that the suit cheque had been issued in favour of SBS in respect of sale of 9% IRFC bonds of the face value of Rs.100 crores. The amended plaint, however, asserts that the suit cheque was drawn by NHB on Reserve Bank of India and issued in favour of SBS, that cheques were originally drawn in the name of SBI and altered in the name of SBS and received by SBS.
11. The plaintiffs contended that its Funds Management Group did not show a similar corresponding correction and they continued as if the ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 9 spma-35.17(f).doc transaction was between the plaintiff-NHB and SBI. The plaintiffs claim was made in the alternative as follows:-
(i) That there was no transaction between the plaintiff and SBS and therefore SBS was bound to hold the money realized by encashing the suit cheque till further instructions were issued by NHB and that they should not have paid the proceeds of the cheque on the directions of the Harshad S. Mehta and therefore the SBS was liable for conversion of the cheque.
(ii) Alternatively, SBS was bound to repay the amount since it had received it without consideration.
(iii) Alternatively, NHB sought repayment on the ground of conspiracy collusion and fraud between SBS, Harshad S. Mehta and two ex-employees of NHB.
(iv) SBS contended in its defence that its records did not show that the cheque was issued in respect of sale of any bonds. It contended that the suit cheque was issued for the benefit of Harshad S. Mehta through their employees the cheque was delivered to SBS. It was contended that the cheque was delivered to SBS under covering letter dated 3 rd January, 1992 issued by Harshad S. Mehta containing instructions to make payments as set out therein.
12. In defence, the second defendant-Harshad S. Mehta contended that on ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 10 spma-35.17(f).doc 3rd January, 1992 NHB undertook two sets of transactions in respect of 9% IRFC bonds(without outlay of any funds of NHB) with a view to make an assured profit of about 4 paise per face value of Rs.100/-. Accordingly the plaintiff-NHB purchased 9% tax free IRFC bonds of face value of Rs.100 crores at Rs.93.08 and delivered the same on instructions of Mehta to Canfina. It was further contended that NHB delivered a BR to Canfina and received a BR from SBS and the detailed terms of transactions were believed to have been recorded in computerized data maintained by Mehta. According to Mehta the sale of 9% IRFC bonds (the bonds) of the face value of Rs.100 crores by SBS to NHB was on behalf of Mehta under a routine facility offered by SBS to Mehta who was an SBS customer. The sale proceeds under the above routine facility was treated to have been received by SBS from the plaintiff NHB and were credited to its own account. It was contended by Mr. Mehta that 9% IRFC bonds would now constitute attached property of Harshad S. Mehta along with all accruals thereon and that the Harshad S.Mehta should be called upon to surrender the bonds together with accrued tax free benefits and interest of the Custodian on behalf of Harshad S.Mehta.
13. The Suit came to be decreed by the Special Court against the SBS and NHB. The Special Court rejected the case of NHB on the basis that the amounts claimed was money "had and received". As far as allegations of fraud were concerned, the Special Court observed that no fraud had ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 11 spma-35.17(f).doc been proved. The Special Court held that having received proceeds of the NHB cheque without there being any transaction, SBS was bound to refund the amount on the basis of conversion, tax free obligation and monies paid without intending to do so gratuitously. The decree was thus into two parts firstly in favour of NHB and secondly in favour of Harshad S. Mehta to the effect that NHB should pay certain amounts to the Custodian. NHB preferred Civil Appeal no.3647 of 1999 and sought direction against the Custodian, directing the NHB to hand over Rs.40.22 crores with interest thereon @ 19 % p.a. and payment of costs of Rs.10,000/- to defendant nos.3 and 4 the ex-employees of NHB and lastly against the finding that the top management of NHB was aware of the goings on. SBS filed its own Civil Appeal no.2159 of 1999. The Supreme Court proceeded to hold that the Special Court was authorised by law to adjudicate the claim of Mehta without being shackled by procedural fetters imposed under the Code of Civil Procedure. The Special Court partially accepted the counter claim of Mehta which was based on the existence of two transactions in securities (1) the sale and purchase of IRFC bonds between the plaintiff and Canfina and (2) between the plaintiff and SBS.
14. In the present application, we are concerned with the effect of the order of the Supreme Court on the applicant as a legal representative of Mehta. On behalf of Mehta it was contended that in the Suit NHB ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 12 spma-35.17(f).doc agreed to sell IRFC bonds to Canfina and had received the agreed price without actual delivery of the bonds and had issued a BR for the amount received. Mehta contended that he had actually got the bonds delivered to the satisfaction of Canfina which upon receipt of the bonds returned the discharged BR of NHB. Mehta did not dispute NHB's contention that he got possession of the suit cheque. Mehta also did not dispute the stand of NHB that the cheque was delivered by Harshad S. Mehta to NHB with a covering letter dated 3 rd January, 1992. Harshad S. Mehta also contended that he arranged for physical delivery of 9% tax free IRFC bonds of a face value of Rs.100 crores directly to Canfina and instructed to Canfina to tender the discharged BR to NHB to enable NHB to return the discharged BR issued by SBS and that Canfina received delivery of the bonds and had discharged NHB from all liability under the BR issued by NHB.
15. The Custodian in its written statement also took up the plea that there were two transactions in securities as observed by the Supreme Court and as contended by SBS and that the BR was issued by NHB in favour of Canfina and the same was later duly discharged in favour of NHB. On the basis of these pleadings, the Special Court had passed the decree. NHB did not lead any evidence. The findings arrived at by the Special Court can briefly be set out as follows:-
(a) SBS received the suit cheque without consideration;
(b) NHB agreed to sell IRFC bonds of face value of Rs.100 crores to ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 13 spma-35.17(f).doc Canfina for a consideration of Rs.95.43 crores approximately;
(c) NHB issued the BR to Canfina without delivery of the bonds although NHB received the sale price of the bonds;
(d) The BR was returned discharged by Canfina to NHB.
(e) The discharge was effected upon Canfina receiving the bonds.
(f) The bonds were delivered to Canfina partly by HSM and partly by SCB.
The Supreme Court proceeded to examine these conclusions. The first of which was based on an admission made by SBS in its written statement that SBS received the cheque without there being any consideration. As far as the four conclusions are concerned, the Supreme Court observed that the finding can arise only out of the pleadings of SBS and Harshad S. Mehta since NHB did not make any reference to transactions between the NHB and Canfina. Meanwhile, Harshad S. Mehta contended that bonds were delivered to Canfina by him and secured the discharge of BR given by NHB to Canfina. Harshad S. Mehta had examined a witness who deposed that there were two transactions in securities i.e. sale and purchase of IRFC bonds on 3 rd January, 1992. The deponent was not cross examined. The Special Court accepted the defence of Harshad S. Mehta to the extent of the existence of an obligation on the part of the NHB to deliver the bonds, the fact of delivery of bonds to Canfina and the return of the BR by Canfina but the Supreme Court found the litigation scandalous ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 14 spma-35.17(f).doc inasmuch as the plaintiff had not adduced any evidence although Harshad S. Mehta specifically pleaded and adduced some evidence to prove the existence of 'back to back' transactions and which remained unrebutted. The transaction was suppressed by NHB. The Special Court proceeded to hold that in the absence of contrary evidence the Court was proceeding on the basis of what the parties had stated to the Custodian. The Special Court also relied upon the conclusions on the Jankiraman Committee Report and the correspondence between the various parties whose details had not been specified in the judgment.
16. After having considered all aspects, the Supreme Court observed that Courts are not bound by conclusions and findings of even a statutory commission appointed under the Commissions of Inquiry Act, 1952. The Supreme Court reiterated that the statements made before the Commission could not be used as evidence in a Court and conclusions based on such statements also could not be used as evidence. In conclusion, the Supreme Court declined to approve the procedure followed by the Special Court. It observed that although the SBI summoned the Executive Vice-President of Canfina and examined him. Although this witness deposed to the existence of a security transaction dated 3rd January, 1992 between NHB and Canfina under which Canfina purchased the bonds, NHB declined to cross examine the said witness. On behalf of Harshad S. Mehta one Hiten B. Mehta, Chief dealer, was also examined. This witness also deposed to the ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 15 spma-35.17(f).doc existence of two transactions. In the course of deciding Suit no.2 of 1995, the Special Court concluded that only a part of the bonds were delivered to Canfina by Harshad S. Mehta based on the contents of the Jankiraman Committee Report and some correspondence which had not been proved. The Special Court observed that on 30 th March, 1992 the NHB had issued a cheque drawn on RBI in favour of SCB for a sum of Rs.55,18,43,647.07. When NHB sought to recover the said amount, the SCB contended that they had delivered the bonds of face value of Rs.80 crores to Canfina at the request of Harshad S. Mehta and therefore were not bound to refund to NHB the amount of Rs.55 crores since according to SCB that amount was paid to the SCB towards the price of IRFC bonds of face value of Rs.80 crores which were were delivered to Canfina by SCB.
17. The Supreme Court recorded that there was no evidence regarding payment of sum of Rs.55 crores by the NHB to the SCB except the Jankiraman Committee Report and some correspondence which was not proved. It observed that the Special Court had recorded that the NHB was unsure why the cheque for Rs.55 crores had been issued. The Court concluded that in the aforesaid factual background the suit was required to be dismissed for want of evidence.
18. The Supreme Court observed that the NHB approached the Special Court with unclean hands by suppressing relevant material. The ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 16 spma-35.17(f).doc Supreme Court was convinced that the plaintiff suppressed the relevant information and that this was in order to shield delinquent officers of the Bank who were responsible for such dealings by taking shelter under the legal principles of "unjust enrichment" and "monies had and received" to recover money paid by the NHB to SBS. In its judgment, the Supreme Court found fault with SBS in having acted on the instructions of HSM without there being any legal authority vesting in him to issue instructions regarding the disbursement of the proceeds of the cheque. The Supreme Court deprecated the attempt on behalf of the NHB and SBS to shield their respective officers. The Supreme Court has made a note of the fact that although the pleadings can give a picture that the suit transaction is an innocuous one, it was sheer abuse of the legal process. The Court observed that in cases where contesting parties are either organs of the State or its instrumentalities disputes inter-se are better resolved through a Committee of Secretaries of the Government of India or the States, as directed by the Supreme Court in other matters. However, such orders had not been implemented. The Special Court had also directed that such disputes should be settled through a Committee of Secretaries. Even during the pendency of the Civil Appeal, the Supreme Court passed an order on 18th February, 2009 that having regard to the dispute between two public sector banks, matter can be considered at the level of Finance Minister to explore the possibility of a settlement between the parties ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 17 spma-35.17(f).doc and therefore the appeals were adjourned. However, no settlement was initiated by the Government. Under the circumstances, the Supreme Court found that the Suit claims were baseless and that the decree could not be sustained. The Suit was therefore dismissed and the decree was set aside in toto.
19. Mr. Mehta on behalf of the applicant submitted that dismissal of the Suit and setting aside the decree in toto did not affect the right of the applicant to receive the monies due to Harshad S. Mehta. He contended that setting aside of the decree did not entail that the amount payable to Harshad S. Mehta was not so paid. In an affidavit in reply filed on behalf of the respondent, the contents in the application were refuted.
20. Mr. Chinoy contended that apart from the maintainability, the claim that forms subject matter of the application is the very claim that was made by Harshad S. Mehta as part of its written statement for suit no.2 of 1995. The Special Court treated his claim as a counter claim and passed the decree in favour of Harshad S. Mehta. The Supreme Court set aside the decree in "toto" and therefore nothing survives. The Suit also stands dismissed. The Supreme Court had in no certain terms held that the decree was in two parts, partly in favour of NHB and partly in favour of Harshad S. Mehta by directing them that NHB should pay certain amounts to the credit of Harshad S. Mehta. He submitted that ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 18 spma-35.17(f).doc the effect of setting aside the decree in toto and dismissing the suit is that the suit filed by NHB stands rejected in its entirety. Likewise, Harshad S. Mehta's claimed in having utilized NHB's cheque for purchase of the bonds was also found to be unsustainable and stands rejected. The applicant has proceeded on the basis that the Supreme Court had only set aside the decree passed in favour of NHB without affecting the claim of HSM to the bonds delivered to Canfina which is misconceived inasmuch as Supreme Court has clearly stated that the decree is in two parts the first part in favour of NHB and the second in favour of Harshad S. Mehta, yet it set aside the decree in toto and dismissed the Suit.
21. In my view, the dismissal of the suit seals the fate of all claims under the decree claim, counter-claim included. Thus upon dismissal of the Suit, the so called counter-claim also came to an end and as a proverbial final nail, the Supreme Court set aside the decree in toto. In the circumstances, in no certain terms, the claim of all parties under the decree dated 24/25th February, 1999 stood extinguished. The expression in "toto" is explained in Black's Law Dictionary as an adjective to mean "in-whole" and in other words "completely". In my view, contrary to what the Applicant want this court to believe, the dismissal of the suit and setting aside of the decree in toto would entail a comprehensive rejection of the claims arising out of the suit. The claim allowed in the suit that would, in my view, have been itemized in ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 ::: 19 spma-35.17(f).doc the decree. The comprehensive rejection of the claim and it is executable form in the decree encompasses the claim of the plaintiff as well as the defendant's counter claim to the extent it was contained in the pleadings.
22. In that view of the matter, the applicants claim is subsumed in the rejection of claim and dismissal of the Suit. In the result, I find that the application is entirely misconceived to say the least.. Once the Supreme Court had dismissed the suit and set aside the decree in its entirety there is no question of any of the observations in the decree or the judgment being actionable by any of the parties claiming benefit in the decree as it stood prior to its being set aside. The contention of the applicant that the observations in the judgment and the decree survive despite the dismissal of the suit is wholly misconceived. In the circumstances, the application must fail and I pass the following order:-
(i) Application is dismissed.
(ii) Applicant shall pay costs of Rs.50,000/- to the Respondent no.1 (A. K. MENON, J.) wadhwa ::: Uploaded on - 16/05/2018 ::: Downloaded on - 16/05/2018 23:44:13 :::