Calcutta High Court
Montan Equipment And Allied Services ... vs Fiona Roy & Ors on 21 May, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Harish Tandon
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ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
GA NO. 1474 OF 2010
APOT NO. 268 OF 2010
C.S. 181 OF 2007
MONTAN EQUIPMENT AND ALLIED SERVICES PVT. LTD & ORS.
VERSUS
FIONA ROY & ORS.
BEFORE
The Hon'ble Justice PINAKI CHANDRA GHOSE
&
The Hon'ble Justice HARISH TANDON
Date : 21.5.2010
Dictated Order
The Court :
This appeal is directed against the judgment and order dated 26th April 2010
passed by the Hon'ble First Court disposing of the application to extend the time to file
the written statement.
It appears that one S.P. Roy, since deceased, the appellant no. 2 and one Lutz A.
Schuessler floated the appellant no. 1 company. The said Lutz A. Schuessler was not
included as the share holder but was all along agreed to utilise his expertise and
acumen in the business with the specific stipulation that he would be made a
shareholder at appropriate time. At the time of incorporation the appellant no. 2 and the
said S.P. Roy, since deceased held 100 shares each in the appellant no. 1 company. The
appellant no. 1 was dealing with the supply of the spare parts to the different collieries
and such spare parts were imported through a supplier of a foreign organization with the
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help of the said Lutz A. Schuessler who also at times provided a sufficient funds for such
supply. The funds so provided was agreed to be remitted in the form of shares being
allotted of the said appellant no. 1 in his favour but the said S.P. Roy, since deceased
caused all shares issued in his name instead of the said Lutz A. Schuessler.
Subsequently, the said discrepancy was detected and in a Board meeting held on 19th
March 2007, the said Lutz A. Schuessler was appointed as a director and it was decided
that shares to be issued in his favour. The resolution taken on the said Board meeting
was duly implemented and shares were, in fact, issued in favour of Lutz A. Schuessler
and the respective shareholding of the three shareholders the then stood viz. S.P. Roy,
since deceased - 2,99,300 shares, Prabuddha Choudhury - 100 shares and Lutz A.
Schuessler - 3,52,082 shares.
The said S.P. Roy died on May 21, 2007. The real dispute starts thereafter. Two
ladies namely Sipra Roy and Fiona Roy, claimed to be his widow laid their claim in
respect of the estate of the said S.P. Roy, since deceased including the aforesaid equity
shares held by the said S.P. Roy, since deceased in appellant no. 1 company.
It further appears that the said Sipra Roy obtained a succession certificate on 26th
November 2007 issued by the District Delegate at Barrackpore in respect of the aforesaid
equity shares of the S.P. Roy, since deceased. However, the plaintiff/respondent nos. 1,
2 and 3 herein also claimed in respect of the said shareholding of S.P. Roy, since deceased by causing a letter dated 1st August 2007. The plaintiff/respondent thereafter instituted a suit before this Hon'ble Court being CS no. 181of 2007 praying, inter alia, the following reliefs :
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"(a) A decree of declaration that the plaintiffs are the share holders in respect of 30,100 equity shares valued at Rs. 10/- each of the defendant no. 4 on and from May 21, 2007
(b) A decree of declaration that the defendant nos. 2 and 3 are not entitled to represent the company, being the defendant no. 4 in any manner whatsoever
(c) A decree of perpetual injunction restraining the defendant nos. 2 and 3 and defendant no. 4 and/or their employees, agents, servants, assigns from withdrawing any money from the bank accounts of the defendant nos. 4 including those particulars whereof are given in paragraph 5 hereinabove and/or from withdrawing the Title Deeds in respect of the properties mentioned in paragraph 8 hereinabove which is lying with the defendant no. 1
(d) A decree of perpetual injunction restraining the defendant nos. 2 and 3 their agents, servants, assigns from transferring, dealing with, disposing of, alienating and/or creating any third party interest in respect of the assets and the properties of the defendant no. 4 including the properties mentioned in paragraph 5 and 8 hereinabove
(e) A decree of perpetual injunction be passed restraining the defendant nos. 2, 3 and 4, their servants, agents, successor-in-office, assigns successor-in-interest, and/or each one of them from withdrawing any money lying in the bank accounts particulars whereof are given in paragraph 5 hereinabove and also from any other bank accounts in the name of the defendant no. 4
(f) A decree of perpetual injunction restraining the defendant no. 1 from handing over the Title Deeds, particulars whereof are given in paragraph 8 hereinabove to the defendant no. 2 and/or defendant no. 3 and/or defendant no. 4 their employees, agents, servants and assigns 4
(g) A decree of mandatory injunction directing the defendant no. 1 to hand over the Title Deeds in respect of the properties mentioned in paragraph 8 hereinabove to the plaintiffs
(h) A decree of mandatory injunction be passed directing the defendant no. 1 and defendant no. 1 and defendant no. 5 not to allow any withdrawal of money from the accounts particulars whereof are given in paragraph 5 thereof, by and/or on behalf of the defendant no. 2 and/or the defendant no. 3 and./or the defendant no. 4
(i) Receiver
(j) Injunction
(k) Attachment before judgment
(l) Costs
(m) Further and/or other reliefs."
The aforesaid claim of the plaintiff/respondent are based upon a right of inheritance under the Hindu Succession Act. An interlocutory application was filed by the plaintiffs/respondents and an ad interim ex parte order was passed restraining the appellant not to transact the business in the accounts and not to hand over the title deeds of the flat in question and not to create any third party interest in respect of a motor vehicle. Subsequent thereto, receiver was appointed to make an inventory in respect of the flat in question. Since by such order, there was a total stoppage of the business of the appellant company, the appellant company filed an application for vacating the interim order and by subsequent application also prayed for liberty to operate the bank account with the respondent banks in usual course of business. The court while disposing of the pending application was pleased to direct the appellant company to retain its position that was prevalent at the time of the death of S.P. Roy, 5 since deceased and all monies which has been withdrawn subsequent to the death of the plaintiff's predecessor-in-interest should be returned to the account by the appellant company and further appointed Mr. Sudip Dey, Advocate as receiver to forthwith take possession of the company's books of accounts, records, documents and its assets. The receiver was further directed to lock the registered office of the company. Feeling aggrieved thereby the appellant company preferred an appeal being APOT no. 166 of 2008.
In the meantime the other rival lady being Sipra Roy and another who obtained the succession certificate filed Title Suit no. 266 of 2007 against the plaintiff no. 1 in the 3rd court of Civil Judge (Junior Division) at Sealdah praying inter alia the following reliefs :
"(a) declaration that the plaintiff no. 1, Smt. Sipra Roy is the legally married wife of Soumendra Prakash Roy, son of Late Saroj Prakash Roy, since deceased
(b) declaration that the plaintiff no. 2, Kumari Mun Mun Roy is the only daughter of Soumendra Prakash Roy, son of Late Saroj Prakash Roy, since deceased
(c) declaration that the defendant is an impostor and the defendant has no right to claim as wife of Soumendra Prakash Roy, son of Late Saroj Prakash Roy, since deceased and/or the defendant has no right to claim over the estate left by the said deceased, pretending as wife
(d) deceleration that the certificate in the form specified in Schedule "C" under Rule 6(2) issued by Sri B.P. Chatterjee, Registrar under the Hindu Marriage Act, 1955 having office at Alipur, District South 24 Parganas, certifying that a Hindu Marriage dated 19.12.1986 at 109, Kalighat Road, Calcutta - 26 solemnized between Soumen Roy (Hindu), son of Late Saroj Roy of AE 503, Salt Lake City, Calcutta - 64 P.S - Salt Lake 6 and Fiona Angoola Roy (Das) (Hindu) daughter of Sri Bhuban Mohan Das of 650, Theatre Road, Calcutta - 17, P.S - Beniapukur is illegal, bad in law and should be void.
(e) permanent injunction, restraining the defendant from claiming as wife of Soumendra Prakash Roy, since deceased by virtue of a certificate in the form specified in Schedule "C" under Rule 6(2) issued by Sri B.P. Chatterjee, Registrar under the Hindu Marriage Act, 1955 having office at Alipur, District South 24 Parganas, certifying that a Hindu Marriage dated 19.12.1986 at 109, Kalighat Road, Calcutta - 26 solemnized between Soumen Roy (Hindu), son of Late Saroj Roy of AE 503, Salt Lake City, Calcutta -
64 P.S - Salt Lake and Fiona Angoola Roy (Das) (Hindu) daughter of Sri Bhuban Mohan Das of 650, Theatre Road, Calcutta - 17, P.S - Beniapukur and/or to utilise the aid marriage certificate dated 19.12.1986 for the purpose of her illegitimate gains in any way or any manner till the disposal of the suit, and ad interim order as prayed in separate petition
(f) for all costs of the suit
(g) any other relief or relieves."
The plaintiff no. 1, the respondent no. 1 herein, took out an application under clause 13 of the Letters Patent, 1865 before this court for transfer of the said Title Suit no. 266 of 2007 and by an order dated January 16, 2008 the said application was allowed and the Title Suit no. 266 of 2007 was transferred to this court.
During the pendency of the said appeal being APOT no. 166 of 2008 the said Lutz A. Schuessler made an application as an intervenor that the order which has impugned therein vitally affects his right.
It is averred in the said application that the said S.P. Roy, since deceased was working as a local agent of M/s. Orresntien & Kopple, Ag. Dotmund, Germany in Kolkata 7 and the appellant company was floated with his direction that he shall invest funds for smooth operation of the said business and such investment would be made on an understanding that a total sum of Rs. 85,13,490/- shall be invested for allotment of the equity shares of the appellant company in his favour. He further stated that on divulge dates the further sum was remitted for allotment of the equity shares and he is the major shareholder of the appellant company and as such the order passed by the Hon'ble First Court vitally affect his right. The said appeal was posted for hearing and was ultimately dismissed by the judgment and order dated 28th October 2009 thereby affirming the order passed by the Hon'ble First Court.
Against an order dated October 28, 2009 dismissing the said appeal being APOT no. 166 of 2008 the appellant company preferred a special leave petition before the Hon'ble Supreme Court which was subsequently dismissed.
The appellant company took out an application being GA no. 730/2010 praying for leave to file the written statement within such time as may be directed by the Hon'ble court. The case made out for such leave as enumerated in the said application are that the advocate on record of the appellant company while watching the another matter on March 3, 2010 noticed an undefended suit is going on in the court and the facts of the same case was very similar to the instant case. On enquiry and perusal of the cause list it was detected that the instant suit was being heard ex parte as an undefended suit. The said advocate immediately intervened and prayed before the Hon'ble First Court to adjourn the said matter and the Hon'ble First Court was pleased to adjourn the same till March 16, 2010.
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It is further averred in the said application that the appellant company was pursuing their right before the Division Bench in an appeal filed against the interlocutory orders and as such the learned Advocate inadvertently lost sight of the fact that the written statement was required to be filed.
The said application was contested by the plaintiff/respondent contending inter alia that the said application suffers from suppression of the material fact inasmuch as by an order dated 18th April 2008 the Hon'ble First Court peremptorily extended the time to file the written statement by four weeks from date. It is further contended that prior to the instant application an earlier application for extension of time to file written statement was filed and the same was allowed.
The said application is dismissed by the Hon'ble First Court on two grounds. Firstly, that the appellant company is guilty of suppression of material fact as to obtaining an extension once. Secondly the instant application is an abuse of power and process of the court.
In support the appeal Mr. Hirak Mitra, learned Senior Counsel submitted that the Hon'ble First Court did not consider that for the lapses, laches and negligence of the lawyer the litigant should not suffer. He further contended that the Hon'ble First Court should have allowed the said application in view of the nature of dispute raised by two rival ladies as legally wedded wife of the deceased which would ultimately affects their status and rights for all times to come.
Mr. Pramit Kr. Ray, learned Counsel appearing for the plaintiff/respondent disputed the contention of Mr. Mitra. He submits that it is not a universal rule that for 9 the lapses, laches and negligence of the lawyer the litigant should not suffer and cited a decision of the Hon'ble Apex Court in the case of Salil Dutta Vs. T.M. and M.C. Pvt. Ltd. reported in (1993) 2 SCC 185. He further relied upon the Division Bench judgment of this Hon'ble court in the case of Jayshree Tea & Industries Ltd. Vs. General Magnets Ltd. reported in 2008 (1) CHN 629 to the effect that it is not a general proposition that a mistake of Counsel by itself is always a sufficient ground. He strenuously argued further that in a case of Om Prakash Gupta Vs. Union of India reported in AIR 2000 SC 3585 the Hon'ble Apex Court did not extend the time to file the written statement. On the ground of suppression of the material fact Mr. Ray relies heavily on a judgment of the Apex Court in the case of General Manager, Haryana Roadways Vs. Jai Bhagwan & Anr. Reported in (2008) 4 SCC 127.
From perusal of papers it appears to us that a claim has been made by two ladies on the strength of their status as a widow of S.P. Roy, since deceased and the instant suit if allowed would have an impact of negating the claim of the other claimant. It has been strenuously contended all through by the appellant company at an interlocutory stages that the rival claims have been made as the two ladies are claiming as the legally wedded wife of the said deceased. In the light of the aforesaid disputes as emerges from the rival claims let us consider the judgments cited by Mr. Roy. The Apex Court in the case of Salil Dutta (Supra) distinguished the earlier judgment of the Apex Court reported in AIR 1981 SC 1400 on the ground that the ratio decided therein are mainly on the facts and circumstances of that case. It appears therefrom that the applicant therein boldly stated that the lawyer advised him not to appear in the court and not to file the written statement unless the interlocutory applications are disposed of. Another judgment reported in (2008) 2 CHN 629 delivered by the Division Bench of this Court, 10 the Division Bench was pleased to reject the application for extension of time to file written statement as there was no sufficient cause for not filing the written statement for a period of six years.
So far as the extension of time to file written statement have been refused by the Apex Court in a judgment of Om Prakash Gupta (supra) is concerned, the facts as emerges therefrom is that in spite of several orders being passed to file the written statement the defendant did not file the written statement and the Hon'ble Apex Court was pleased to hold that in spite of the repeated time being granted by the court for filing written statement if the defendant choose not to file the same. No indulgence should be granted to such callous litigant.
In another judgment, the Apex Court in the case of Lal Devi Vs. Vaneeta Jain reported in AIR 2007 SC 1889 was pleased to observe :
"Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the court had adjourned the proceedings to another day after deciding to proceed ex parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex parte. It thereafter examined the witnesses present in court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh (supra) the learned District Judge could not have entertained an application under Order IX Rule 7 11 Code of Civil Procedure we have also no hesitation in observing that counsel for the defendant were not careful enough to inform the learned District Judge about their pre- occupation before the high Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge."
Thus, the defendant cannot be made to suffer an ex parte decree when he was not at fault and was heavily relying upon the instruction of the counsel. The Division Bench of this Hon'ble Court in a case of Jayshree Tea & Industries Ltd. (supra) have accepted the proposition laid down in the case of Lal Devi Vs. Vaneeta Jain (supra) but distinguished on fact that the claim laid in the case is for fixation of fair rent and cannot be termed as harsh if ex parte decree is passed.
Although a decree for declaration in respect of the equity shares held by the said S.P. Roy, since deceased, is prayed for in the instant suit but while deciding the same the right of the plaintiff as legally wedded wife has to be adjudicated. Such adjudication shall have an impact upon the legal right and status of the rival claimant as widow of the said deceased. Here is a case where the status of the parties are involved and if decided in any one or another not only affect the party but the generation to come. We feel that the justice is subserved if we extend the time to file the written statement for a period till one week after the reopening of the Summer Vacation of this court. 12
We further direct that the plaintiff should be sufficiently compensated if the cost which is awarded by the Hon'ble First Court is not interfered with by us in the instant appeal.
Accordingly, the appeal is allowed in part. The time to file the written statement is extended by one week after the Summer Vacation of this court subject to payment of a cost of Rs. 40,000/- as awarded by the Hon'ble First Court.
However there will be no costs in the instant appeal.
(Pinaki Chandra Ghose, J) (Harish Tandon, J)