Calcutta High Court
Hungerford Investment Trust Limited vs Turner Morrison & Company Limited on 10 February, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
A.P.O. No.289 of 1994
C. P. No.274 of 1967
Hungerford Investment Trust Limited
Versus
Turner Morrison & Company Limited
Mr. Utpal Bose, Adv. with
Mr. D. Basak, Adv. and
Mr. D. N. Sharma, Adv.
. for the appellant
Mr. Nirmaljit Singh Hoon (in-Person)
. for the respondent
BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Mrinal Kanti Sinha __________________________________________________________________ Date: 10.02.2010 __________________________________________________________________ This appeal and cross-appeal both have been assigned before this Bench by the Hon'ble The Acting Chief Justice Mr. Bhaskar Bhattacharya, as His Lordship then was. The appeal arose with reference to the order passed in an execution application being Company Petition No.274 of 1967 by Hazari, J., as His Lordship then was, with reference to the order passed by the Division Bench in Appeal No.250 of 1970. Initially, the company petition was filed 2 seeking appropriate relief under Sections 397 and 398 of the Companies Act alleging oppression to the minority shareholders and mismanagement of company, which was rejected. The Appeal Court in Appeal No. 250 of 1970 quashing the impugned order of learned Trial Judge directed the Central Government to make an inquiry about the mismanagement allegation. So far as the mismanagement point is concerned, the Appeal Court came to a finding that as the dividend was not paid, as such there was mismanagement of the company. The ultimate order of the Appeal Court reads such:
"It is ordered that the order of trial Court dated the twenty fourth day of June in the year one thousand nine hundred and seventy be and the same is hereby set aside And it is further ordered that the affaires of the respondent Turner Morrison & Co. Ltd. abovenamed and its subsidiaries being respondents Lodna Colliery Company (1920) Ltd. Shalimar Tar Products (1935) Ltd.- Angelo Brothers Ltd. abovenamed be investigated by the Central Government in the manner laid down in Section 237 to 251 to Companies Act 1956 And it is further ordered such investigation shall be for the period from January in the year one thousand nine hundred and sixty seven upto September one thousand nine hundred and seventy two and shall be started and completed by the Central Government as expeditiously as possible And it is further ordered that the Registrar (Original Side) of this Court do within two months from the date hereof send a copy of this judgment to Ministry of Law Justice and Company Affairs, 3 Government of India And it is further ordered that this appeal be and the same is hereby disposed of on the terms as aforesaid And it is further ordered that all interim orders passed herein shall stand vacated And as other respondents abovenamed have not appeared at the hearing of this appeal And this Court does not think fit to make any order as to the costs of and incidental to this appeal."
Against that order execution application was filed claiming execution of huge amount of money as unpaid dividend along with the interest thereon. The learned Trial Judge considered the finding of the Division Bench "As no dividend paid it leads to the proof of mismanagement" and came to the conclusion that grant of dividend also became subject matter of lis, hence the order was executable and passed order of execution of huge amount. Against that order, the appellant has preferred an appeal. As the learned Executing Court did not pass any interest, alleged decree holder Company filed a cross-appeal. Both the appeal and cross-appeal, have been assigned before this Bench.
The appellant has argued at length by contending, inter alia, that there no such order for execution of the unpaid dividend amount and amount was not quantified in the order passed by Hazari, J. but there was only an order directing the Central Government to inquire about the company affairs. It has been 4 urged that since there was no order passed in the company petition directing payment of dividend as such the said order cannot be the deemed decree in terms of Section 634 of the Companies Act.
Mr. Hoon, however, asked to answer repeatedly by this Court on the issues namely, i) whether any finding of the Court could be considered as a decree/order which was not the subject matter of lis, ii) whether the payment of dividend sought to be executed was at all an order passed by the Division Bench and execution application could be filed, and iii) whether the Executing Court was right to consider the mere finding "that dividend not paid" as an order granting dividend.
Mr. Hoon, however, did not answer those legal questions on the plea that unless the Court considers his written notes of argument about exercise of fraud upon the Court by the present appellant as well as their locus, no answer could be given on merit.
The written notes of argument reads such:
"The above matter is pending in this court for the past several months having been specially assigned to this Hon'ble Court. This is because more than 20 judges of this Court refused to hear any case where the name of Mr. N S Hoon is involved. This is a crippling handicap for Mr. Hoon, only because he has fought against injustice ceaselessly for the past 45 years and he dared to expose the names of corrupt and rouge judges.5
As a result he was framed falsely in several contempt cases and presently also facing a case of contempt in Supreme Court. This is also because Mr. Hoon has all along tried to uphold the dignity and majesty of Supreme Court, which has been routinely and regularly flouted by corrupt and deviant judges to fill their pockets. In fact in a similar case in Karnataka High Court where several lawyers found that the supremacy of apex court is regularly undermined for personal gains of Judges as well as their Chief Justice. As such and as a last resort those exasperated lawyers openly rebelled and beat up several Judges including Chief Justice Dinakaran with shoes and chappals after locking up a few judges in their toilets and their rooms. In this connection, I enclose herewith my letter dated 11/11/2009 to the Honourable Chief Justice of India marked with Letter A. The idea of giving this brief background is purely to enlighten this court of the seriousness of disobeying the orders of Supreme Court together with the guidelines flowing from the citations of different cases from time to time. In fact a list of over 20 citations applicable to this very case was handed over to the Honorable Judges, which unfortunately have not been taken seriously by this Hon'ble court. In any case this Court is obedience to the Supreme Court citations or otherwise, rigidly insisted upon Mr. Hoon to prove his locus to represent his Company Hungerford in the present case. As such to test the locus of Mr. Hoon, at least three hearings were wasted before the learned Judge was satisfied when a resolution as per his strict requirements was filed.
However most strangely the same learned Judge for reasons best known to his Lordship was extremely adamant and reluctant to apply the same formula and rule of locus on Khaitan's Clients, who are admitted and proven frauds, and interlopers, without 6 any locus, in terms of various judgments which were confirmed also by Hon'ble Supreme Court. This is because it is an admitted fact that presently most of the Calcutta High Court judges are controlled by influential overlords through their various stables and each stable controls various Judges who blindly follow the orders of their masters or owners of the said stables. The important stableowners include 1. Ex Speaker Somnath Chatterjee, 2. Khaitan & Co., 3. Balai Roy (Advocate General), 4. Future CJI Kabir & 5. Retired Supreme Court Judge G N. Ray. After knowing all these facts three months ago, from Mr. Hoon the then Honorable acting Chief Justice specially assigned the above case to the present bench and the cases of single bench were assigned to the then Company Judge Girish Gupta presently presiding over Court no. 4. In fact Mr. Hoon met these Judges for the first time in his life.
Mr. Hoon who had extremely high regard for the said Acting Chief Justice Bhaskar Bhattacharya, holding him as an apostle of honesty, integrity and uprightness in Calcutta High Court. As such there was no question for Mr. Hoon to check, if those judges also belong to any of the stables mentioned above. Furthermore in the light of dozens of Supreme Court judgment on the subject of frauds and particularly when any favorable order, decree and/or judgment obtained by a party through fraud or through suppression of facts is to be treated as nullity and thrown out at any state whenever it comes to light, even before the lowest Court in any proceeding whatsoever.
As such a few citations which are almost custom-tailored to the above case are being reproduced herein below from the citation, already filed in this court.
Appeal No. 38275 of 07 Prestige Light Ltd. -vs- S.B.I. Dated 20.08.07 7 A. The Appellant Company is not entitled to any relief, as the very basis of the jurisdiction rests on the true disclosures of the complete facts. If the applicant does not disclose the full facts or suppress the relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. A party whose hands are soiled cannot hold the writ the court.
CA No. 5097/2004 Dated March 17, 2007 B. The matter can be looked at from a different angle as well. Suppose a case is decided by a competent court of law, after hearing the parties and an order is passed in favor of the plaintiff applicant, which is upheld by all the court including the final court. Let us also think of a case where this court does not dismiss special leave petition, but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the constitution applies. All orders passed by the courts/authorities below, there from merge in the judgment of this court and after such judgment and it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. The above principal, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practicing or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non existent and non-est and cannot be allowed to stand. This is the fundamental principal of law and needs no further elaboration. There from it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court, and it has to be treated as non-est vide chapter IV of part V. These 8 words act as an overriding effect and clearly indicate the intention of the framers of the Constitution, that it is a special jurisdiction and residuary power unfettered by any statute or other provisions of chapter IV of Part V of the constitution. It is extraordinary in its amplitude. Its limit, when it chases injustice, is the sky. Such powers, therefore, may be exercised by this court whenever and wherever justice demands intervention by the highest court of the country.
(1987) Supreme Court Cases 107 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Issues to be framed #1. The judgment of Hon'ble Justice Manjula Bose with fatal findings against Khaitan's client was upheld by the Division Bench dated 09.08.01 and thereafter upheld by three judges of Supreme Court presided over by CJI Pathak. See Vol. III being SLP No. 2528 of 1988.
(a) Whether this judgment which attained finality is binding on all Courts including this Hon'ble Court for all times to come, or not? If not ---------- WHY?
(b) Whether the admitted suppression of this judgment from al succeeding court amounts to a fraud on the part of Khaitans and any order thus obtained, is a nullity or not? If fraud is proved, they should be criminally prosecuted or not by the adjudicating court?
#2. Whether the judgment of Supreme Court dated .... July, 1992 in Khaitan's SLP No. 6675 of 92 on the subject of oral evidence, in which Mr. Somnath Chatterjee himself fought tooth-and-nail on behalf of Khaitans before the Appeal Court. Is the said order of all 9 courts including Supreme Court is binding, or not? If admitted perjury in the name of 3 Supreme Court Judges makes Khaitan and their clients liable for criminal prosecution, or not?
(a) Whether Khaitans who played outrageous fraud in the name of three Supreme Court judges and also succeeded before the single judge by nullifying the order of Supreme Court, which also attracted strong strictures from Division Bench, holding Khaitans guilty of criminal perjury. As such, Khaitans should be prosecuted, or not by this court.
#3. Whether the judgment of Supreme Court dated 13.07.98 of Khaitans SLP No. 8829 of 98 by the three judges presided over by the CJI against the order of referee judge dated 16.04.98 together with the Division Bench judgment dated 09.10.96, is binding or not, which has been also held as binding (by Mitra & Ansari) is sufficient for prosecution of Khaitans.
(a) Whether the suppression of all these judgment in Khaitans' last SLP ......2000.... From the various Apex Court Judges, both Single and Division Bench, is a fraud on those courts, or not? And if so, the guilty should be criminally prosecuted, or not. (this is because the above adverse three SLPs find no mention in any subsequent judgment, by any court and therefore the fraud through deliberate suppression by Khaitans is clearly established and as such, they should be criminally prosecuted by this court, or not?"
On a bare reading of the written notes we are afraid to consider those issues which were not the subject matter of lis before the Executing Court against which the appeal led and cross-10
appeal filed. Mr. Hoon is not inclined to answer those questions framed by us unless his written notes is considered and Mr. Hoon has further submitted that in the event Court does not consider his written notes and frame issue on exercise of fraud as an issue herein, he will be obliged if the matter stands released from this Court's list.
As Mr. Hoon is very much strict to his stand to press the locus standi on the allegation of fraud in terms of his written notes as filed, we have no other alternative but to release the matter from our list. The appellant prayed before us to decide the issue on merits. Since Mr. Hoon, appearing in person, is not assisting the Court on the point of law for disposal of the appeal and cross-
appeal, for the ends of justice, we should not hear the matters and the matters stands released.
All parties are to act on a xerox signed copy of this order on the usual undertakings.
( Pratap Kumar Ray, J. ) ( Mrinal Kanti Sinha, J. ) AKGoswami