Anand Pershad Jaiswal vs Shakun Jaiswal & Ors
2012 Latest Caselaw 1092 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on : January 31, 2012
                     Judgment Pronounced on: February 16, 2012

+                        RFA(OS) 46/2011

       ANAND PERSHAD JAISWAL              ..... Appellant
                Through : Mr.Arvind Nigam, Sr.Adv. with
                          Ms.Jasmine Damkewala, Mr.Akshay
                          Makhija, Mr.Saurabh Seth, Mr.R.N.
                          Karanjawala, Advocates.

              versus

       SHAKUN JAISWAL & ORS                ..... Respondents
                Through : Mr.Sandeep Sethi, Sr.Adv. with
                          Ms.Malini Sud, Adv. for R-1.
                          Mr.Mayank Mishra, Adv. and
                          Mr.Divyam Agarwal, Adv. for R-2.
                          None for R-3.
                          Mr.Ashim Vachher, Adv. with
                          Mr.Achal Gupta, Adv. for R-4.
                          Mr.Rajeeve Mehra, Sr.Adv. with
                          Mr.Deepak Khurana, Adv. for R-5.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. Ladli Pershad Jaiswal was a man of means. He was a successful businessman. He was a colourful man. He was married to one Ms.Surjeet through whom two sons named Jagatjit and Karanjit were born. He lived with another woman Ms.Kamla and in respect of which relationship there is an issue whether the two were married; but he sired a son named Anand i.e. the appellant through Kamla. He then had a long term relationship with a lady called Mrs.Chaddha. The exact nature of which relationship is not known. Kamla and

Mrs.Chaddha have died. Surjeet survives. There is a dispute between Surjeet, Jagatjit, Karamjit and Anand on the issue whether Ladli Pershad Jaiswal died intestate or whether he executed Will(s) in which he appointed Ms.Gita Bawa, born to Mrs.Chaddha by a previous marriage as the executor. Parties do not dispute that Ladli Pershad Jaiswal died on August 11, 2005; domiciled in India.

2. Of the various properties acquired by Ladli Pershad Jaiswal, his main assets were his interest in a company called „Jagatjit Industries Ltd.‟ of which nearly 90% shares are held within the family or companies, trusts etc. controlled by the family. Inter-alia a company incorporated in British Virgin Islands called „Higro Trading Ltd.‟ through two Jersey incorporated nominee companies held the shares. These two companies had executed declarations of trust confirming that each company holds the respective shares upon bare trust for Ladli Pershad Jaiswal. Higro Trading Ltd. holds global depository receipts which entitle the holder to 25.1 million shares in Jagatjit Industries Ltd. The estate of Ladli Pershad Jaiswal also includes deposits with a bank at Jersey and also in Monaco. One Robert Clifford was Ladli Pershad Jaiswal‟s trustee to manage his affairs abroad.

3. Ladli Pershad Jaiswal came to India in the year 2004, and as per the appellant was virtually confined, as a prisoner, by defendant No.1 and defendant No.5 i.e. Shakun Jaiswal and her husband Karamjit Jaiswal and that the two contrived to create a situation that they were able to propound two Wills dated December 10, 2004 pertaining to the moveable estate of Ladli Pershad Jaiswal at Jersey Islands and British Virgin Islands. Pertaining to the testamentary capacity

of Ladli Pershad Jaiswal, the two Wills are a subject matter of consideration in a Testamentary proceeding pending on the Original Side of this Court. The non-testamentary estate of Ladli Pershad Jaiswal is also a subject matter of a non- testamentary Letter of Administration proceedings pending on the Original Side of this Court.

4. The appellant claims that before the death of Ladli Pershad Jaiswal, £ Sterling 86,41,735.82, US$ 2,54,589.83 and €10,000 from three accounts in the name of Ladli Pershad Jaiswal with Credit Foncier De Monaco (bank), defendant No.2, were fraudulently withdrawn by Shakun Jaiswal and in respect whereof CS(OS) No.2064/2009 was filed on November 03, 2009 by the appellant praying as under:-

"That in view of the facts and circumstances stated herein above, it is most respectfully prayed that a decree be passed in favour of the plaintiff as against the defendant:

(a) for declaration declaring the transfer of funds amounting to £ Sterling 86,41,735.82, US$ 2,54,589.83 and €10,000 from Account Numbers 080378/001.000.826, 080378/001.000.840 and 080378/001.000.001, belonging to Late Shri L.P.Jaiswal in favour of defendant No.1, to be fraudulent transactions and therefore be declared null and void; and

(b) A mandatory injunction directing the defendant No.1 and 2, jointly and severally, to transfer/restore the aforesaid fund and accretions thereto back to the accounts of Late Sh.L.P.Jaiswal, so that the same may be distributed amongst his legal heirs in accordance with law; and

(c) Cost be awarded in favour of the plaintiff as against the defendants.

(d) Any other relief order or direction which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case may also be passed.

It is prayed accordingly."

5. Along with the suit, vide IA No.14087/2009 interim orders were prayed for and by an interim order dated November 04, 2009, the defendant No.2 bank was directed to maintain the records of the transactions whereby the account of late Sh.Ladli Pershad Jaiswal was debited and credited to the account of Shakun Jaiswal between June 14, 2004 till November 10, 2004.

6. Summons being served in the suit, and within the time granted, Shakun Jaiswal did not file a written statement and thus the appellant filed IA No.16535/2009 under Order 8 Rule 10 CPC praying that Shakun Jaiswal be prohibited from filing a written statement. Shakun Jaiswal filed IA No.16537/2009 under Order 12 Rule 6 CPC read with Order 7 Rule 11 CPC on two counts. She firstly pleaded that the suit was barred by limitation and secondly the prayer in the suit, meaningfully read as claimed by her, and for which she highlighted prayer (b), was essentially in the nature of a money decree against her for the reason the prayer was to restore the funds to the account of Late Sh.Ladli Pershad Jaiswal and thereafter be distributed amongst the legal heirs, which obviously, as per her, would mean a distribution to the appellant as well. She questioned the Court Fee paid and urged that the same had to be on the value of the sum as per prayer(a). Shakun Jaiswal‟s husband, Karamjit Jaiswal, filed IA No.256/2010 under Order 7 Rule 11 CPC read with Order 12 Rule 6 CPC taking same pleas as were raised by his wife. The

defendant No.2 filed IA No.4785/2010 praying that the plaint be rejected qua the bank.

7. The applications afore-noted were taken up for hearing on various dates by the learned Single Judge and on 10.09.2010, while re-notifying the applications for further hearing to 18.11.2010, the learned Single Judge recorded a statement made on behalf of the appellant by his counsel in the following words:-

"Learned senior counsel for the plaintiff, on instructions, states that the portion of prayer (b) clause i.e. directing the defendant No.1 and 2, jointly and severally, to transfer/restore the aforesaid fund and accretions thereto back to the accounts of Late Sh.L.P.Jaiswal, so that the same may be distributed amongst his legal heirs in accordance with law, is not pressed in this Suit as the same is subject matter of the probate and testimony (sic should read testamentary) case between the parties i.e. Testamentary Case No.22 and 23 of 2006. In view of the aforesaid, learned senior counsel for defendants No.1, 2 and 5 do not press IA No.16537 of 2009 and 256/2010 qua the Court Fees aspect only."

8. Thereafter, arguments were heard on November 18, 2010, December 16, 2010, January 21, 2011 and February 15, 2011. Matter was reserved for judgment.

9. Vide impugned decision dated February 28, 2011, the learned Single Judge disposed of IA No.16537/2009 and IA No.256/2010, holding that the issue of limitation was a mixed question of law and fact and therefore had to be left open; to be decided after evidence was led. But, in view of the concession made by the appellant as recorded in the order dated September 10, 2010, the learned Single Judge held that the suit for declaration simplicitor would not be maintainable in view of Section 34 of the Specific Relief Act and thus, for a

reason other than the one(s) put forth by defendants No.1, 2 and 5, the plaint was rejected.

10. The plaintiff is in appeal on the plaint being rejected as per the strength of the reasoning of the learned Single Judge as afore-noted. Cross objections have been filed to challenge the view taken by the learned Single Judge that the issue of limitation arose between the parties as a mixed question of law and fact and thus the decision had to await trial.

11. With respect to the span of the concession made by learned counsel for the appellant, as recorded in the order dated September 10, 2010, the main issue which arose for consideration before us in appeal was: Whether the appellant, through his counsel, made a concession to give up clause (b) of the prayer as recorded in the said order or the counsel gave up something less, but unfortunately in the order something more got reflected and secondly: Whether this was brought to the notice of the learned Single Judge.

12. Whereas the respondents vehemently urged that the concession made was correctly recorded and that if the appellant alleged to the contrary, he ought to have moved an application before the learned Single Judge pointing out the alleged incorrect part of the statement attributed to the counsel; and as recorded. It was urged that the appellant has admittedly not done so. It was urged that being a matter of record in a judicial order, corrective action could not be enforced by way of an appellate remedy.

13. Learned counsel for the appellant urged that the error was pointed out to the learned Single Judge during subsequent arguments when the span of the concession

recorded in the order dated September 10, 2010 was noted by the counsel and the appellant remained under the impression that the learned Judge has noted the same and for said reason a formal application was not filed requiring the order to be corrected. To bring home the point, Sh.Arvind Nigam, learned Senior Counsel for the appellant drew the attention of this Bench to the written submissions filed before the learned Single Judge where aforesaid was pointed out. Learned Senior Counsel urged that with respect to prayer clause (b) and the pleadings in IA No.256/2010 and IA No.16537/2009, it would be revealed that the fulcrum of the objection pertains to the sentence „so that the same may be distributed amongst his legal heirs in accordance with law‟ in the prayer clause, which sentence was highlighted to urge that the plaintiff was in fact claiming a money decree. Learned Senior Counsel urged that the said sentence was surplus in the prayer clause, for the reason it was by way of a justification, and that it was sufficient if the prayer clause was retained, sans the said sentence; i.e. prayer (b) was restricted to: „A mandatory injunction directing the defendant No.1 and 2, jointly and severally, to transfer/restore the aforesaid fund and accretions thereto back to the accounts of Late Sh.L.P.Jaiswal‟ and thus the concession made was to delete the last sentence i.e. „s o that the same may be distributed amongst his legal heirs in accordance with law‟ and that unfortunately, by mistake, it got incorrectly recorded in the order dated September 10, 2010 that the counsel gave up the prayer clause (b) as recorded in the order. Learned Senior Counsel highlighted that the error is so apparent that no reasons need to be put forth to evidence the same; the apparent error being that if the concession

stands recorded as made, prayer clause (b), which admittedly has not been and was not given up in its totality, would read: „A mandatory injunction; and.‟ Learned counsel wondered as to what meaning could then be assigned to prayer clause (b) for the reason the truncated prayer clause would be seeking a mandatory injunction in vacuum or to put it differently, the retained part of the prayer clause would be vacuous.

14. Indeed, record of the learned Single Judge would reveal that the written submissions filed by the appellant in February 2011, in para No.15 thereof, pointed out to the learned Single Judge that there was an apparent error in the order dated September 10, 2010 pertaining to the concession made by learned counsel for the appellant and corrective action was prayed for; further submission was that the issue raised in IA No.16537/2009 and IA No.256/2010 be decided as per the challenge raised to the maintainability of the suit as pleaded therein and not with reference to the sweep of the concession recorded in the order dated September 10, 2010.

15. Unfortunately, the learned Single Judge has not adverted to the said aspect of the matter and thus on the strength of the reasoning of the learned Single Judge, the impugned order has to be set aside at least, insofar it holds that in view of the order dated September 10, 2010, since only prayer clause (a) exists, the suit seeking declaration simplicitor would not be maintainable in view of Section 34 of the Specific Relief Act.

16. The learned Single Judge ought to have decided, since it was admittedly brought to his notice, whether there was an error in recording the exact concession made when order dated September 10, 2010 was dictated and signed by

the learned Single Judge. With reference to the argument of the error being obvious, the learned Single Judge was obliged to decide whether the obviousness could be inferred from the fact that the concession made was not to give up the prayer clause (b), and the effect of the concession as recorded resulting in prayer clause (b) pertaining to mandatory injunction operating in vacuum and being rendered vacuous. The learned Single Judge ought to have decided on the intention of the counsel, as argued before us, to give up only the last sentence of prayer clause (b) which was the cause for the objections taken qua Court Fees paid.

17. As regards the argument advanced by learned counsel for the respondents that the plaintiff cannot question a matter of fact recorded in a judicial order in appeal and that the error, if any alleged, had to be first brought to the notice of the learned Single Judge, we hold that law does not mandate the said exercise to be carried out by way of written applications; and if there is sufficient material to show that the error was pointed out to the learned Single Judge, it would be sufficient compliance with law that the party took the necessary step to get the error corrected. In the facts of the instant case, it assumes importance to note that the consent was not in writing, but was made during arguments, and was noted by the learned Single Judge in the order dated September 10, 2010. Since the matter was being argued on short date intervals, we find no error committed by the plaintiff to seek an oral correction of what was alleged to be the incorrect part in the judicial order and for which we find that the plaintiff, while filing written submissions, has in writing, re- emphasized the oral submissions made.

18. For the reason, if the concession made is as recorded in the order dated September 10, 2010, it would render prayer clause (b) vacuous inasmuch as the retained part of the clause would read: „A mandatory injunction; and‟; a most inchoate sentence having no meaning, it is apparent that there is an error in recording the consent while dictating the order dated September 10, 2010 and we have no reason to disbelieve learned counsel for the appellant that the consent was restricted to the last part of the prayer clause and what was given up were the words: „so that the same may be distributed amongst his legal heirs in accordance with law‟ and thus we hold that the order dated September 10, 2010 should be read as limited to the concession recorded in italics in the preceding lines of the present paragraph.

19. The impugned order, insofar it holds the suit to be not maintainable as being barred by Section 34 of the Specific Relief Act is accordingly set aside.

20. On the issue whether the suit was barred by limitation i.e. was ex-facie barred by limitation or whether the issue of limitation was arising, on the pleadings, as a mixed question of law and fact, Section 17 of the Limitation Act 1963 needs to be noted with respect to the issue of limitation in a suit where fraud is alleged. The section as incorporated in the Statute Book in the year 1963 makes a departure from the previous analogous position, in that, it clearly states that in a suit, for which a period of limitation is prescribed by the Limitation Act, where the claim is based upon a fraud of the defendant, the period of limitation shall not begin to run until the plaintiff discovers not only the fraud but also had the

means of producing or compelling production of the documents to evidence the fraud.

21. In the plaint, the dates on which money was transferred from the account maintained by defendant No.2 in the name of Ladli Pershad Jaiswal to the account of Karamjit Jaiswal have been set out, but with reference to the fraud, copious pleadings have been made as to the manner in which the appellant had to first approach the Royal Court at Jersey upon information received and action taken by one Robert Clifford, the trustee of the investments made by Ladli Pershad Jaiswal, to bring out the date when actionable knowledge was acquired by the appellant i.e. knowledge to comply with the requirement of Order 6 Rule 4 of the Code of Civil Procedure, which enjoins that apart from pleading, in a concise form the material facts on which a party relies for its claim, in cases of fraud, material particulars constituting the fraud have to be pleaded. The appellant has brought out the various steps taken to compel the defendant No.2 bank in the Royal Court of Jersey to give information pertaining to the funds transferred and the exact nature of the manner in which the funds were transferred. It is pleaded in paragraph 56 of the plaint that as per the laws in Monaco, confirmations were recorded by the bank by speaking to Ladli Pershad Jaiswal before acting upon written instruments under his signatures received by the bank to transfer the funds and that when said transcripts were provided on February 27, 2008 the material particulars of the fraud were known to the appellant.

22. Now, what would constitute actionable knowledge, pertaining to a plea of fraud, would be a matter of fact to be considered and determined in each case after evidence is led

and thus we agree with the reasoning of the learned Single Judge that in the facts of the instant case, the issue of limitation requires trial and thus had to await a decision after evidence was recorded.

23. We bring the curtains down by setting aside the impugned order dated February 28, 2011 and declare that the concession made by learned counsel for the appellant during arguments before the learned Single Judge on September 10, 2010 was limited to deleting the words: „so that the same may be distributed amongst his legal heirs in accordance with law‟ and thus prayer clause (b) in the suit should read as under:-

"(b) A mandatory injunction directing the defendant No.1 and 2, jointly and severally, to transfer/restore the aforesaid fund and accretions thereto back to the accounts of Late Sh.L.P.Jaiswal."

24. Since IA No.16537/2009 and IA No.256/2010 have not been decided by the learned Single Judge with reference to the objection taken to the Court Fees paid, but clarifying that the decision of the learned Single Judge on the second plea urged in the applications relating to the bar of limitation is upheld by us and clarifying further that the said issue would not be re-urged before the learned Single Judge, we restore not only the suit, but even IA No.16537/2009 and IA No.256/2010 to be decided afresh with respect to the objection relatable to Court Fees paid and the decision would be by treating that apart from the existing prayer clause (a), the prayer clause (b) in the suit would be as noted by us in para 23 above.

25. The learned Single Judge is also directed to decide IA No.4785/2010, IA No.16535/2010 and IA No.14087/2009,

which have been disposed of as infructuous since the plaint was rejected; which three applications are restored for re- decision.

26. The appeal is allowed in terms aforesaid. Impugned order dated February 28, 2011 is set aside. The suit is restored and so are the various interim applications as afore- noted restored.

27. Parties are directed to appear before the learned Single Judge, when the suit and the applications would be shown listed for directions on March 06, 2012.

28. We leave the parties to bear their own costs in the appeal.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE FEBRUARY 16, 2012 dkb