Cosmos Business Pvt. Ltd vs Buragohain Tea Company Ltd. And 4 ...
2022 Latest Caselaw 40 Gua

                                                                 Page No.# 1/5

GAHC010165912018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/258/2018

         COSMOS BUSINESS PVT. LTD.
         A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH
         ITS HEAD OFFICE AT 15/1A LOUDON STREET, CALCUTTA- 700017 HAVING
         BRANCH OFFICE AT GATTANI BHAWAN, RAJAMAIDAM ROAD, JORHAT
         TOWN, JORHAT- 785001, DIST- JORHAT(ASSAM), REP. BY ITS DIRECTOR,
         SRI RAJEEV AGARWAL, S/O- LATE JUGAL KISHORE AGARWAL, R/O- M D
         ENCLAVE, 4TH FLOOR, RAJA MAIDAM ROAD, JORHAT TOWN, P.O AND P.S-
         JORHAT, DIST- JORHAT, ASSAM



         VERSUS

         BURAGOHAIN TEA COMPANY LTD. AND 4 ORS
         A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH
         ITS HEAD OFFICE AT DOSS AND CO. KRISHNA BUILDING, GOLAGHAT
         TOWN, GOLAGHAT- 785621, DIST- GOLAGHAT, ASSAM

         2:DIPAK KUMAR GOGOI
          S/O- LATE JIVA GOGOI
          R/O- KAHILIPARA
          JATIA
          DISPUR
          GUWAHATI
         ASSAM

         3:DIPENDRA NARAYAN DAS
          DIRECTOR
          51/A/24 BAMACHARAN ROY ROAD(PART) CMC 121 BEHALA
          S 24 PGS
          KOLKATA- 700034
         WEST BENGAL

         4:ASHISH KUMAR CHOUDHURY
                                                                                    Page No.# 2/5

             DIRECTOR
             3C SUNNY TOWERS
             43 OLD BALLYGUNGE ROAD
             KOLKATA- 700019
             WEST BENGAL
             INDIA

            5:TAPAS KUMAR CHATTERJEE
             DIRECTOR
             125 LAKE TOWN
             BLOCK B
             SOUTH DUMDUM MUNICIPALITY
             N 24 PGS
             KOLKATA- 700089
            WEST BENGAL
             INDI

Advocate for the Petitioner   : MR. T J MAHANTA

Advocate for the Respondent : MR G CHOUDHURY (R2)




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 05-01-2022

Heard Mr. T.J. Mahanta, the learned Senior Counsel assisted by Mr. D. Gogoi, learned counsel appearing for the petitioner. Also heard Mr. G. Choudhury, learned counsel for the respondent No. 2. Mr. A. K. Sahewalla is appearing on behalf of respondent nos. 1, 3, 4 and

5.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 19.05.2018 passed in Money Suit No. 16/2008. The brief fact of the instant case is that the petitioner as plaintiff had filed a suit for realisation of money along with interest both pendent lite and future. In the said suit the respondent nos. 1 and 2 were initially arrayed as defendant. The said respondent nos. 1 and 2 submitted their written statement. Pursuant thereto the Court below disposed of the suit on admission by a judgment and Page No.# 3/5

decree dated 18.03.2009. Thereupon the respondent nos. 1 and 2 herein filed an appeal before this Court which was registered and numbered as RFA 18/2009. This Court vide a judgment dated 10.06.2015 remanded the matter back to the Trial Court for deciding the suit afresh after framing issues and dispose of the same in accordance with law.

3. An application was filed by the defendant no. 1 under Order XXII Rule 10 of the Code of Civil Procedure bringing to the notice of the Court that the earlier Director i.e. the defendant no. 2 had already ceased to be Director and new Directors were appointed and the list of the names of the Directors were given in the said application. The names of the said Directors who have been given in the said application are the respondent nos. 3, 4 and 5 before this Court. There upon an application under Order VI Rule 17 was filed by the plaintiff/petitioner herein whereby it was prayed that the new Directors i.e. the respondent nos. 3, 4 and 5 herein should be arrayed as defendant nos. 3, 4 and 5 and paragraph no. 13(a) was sought to be inserted by way of amendment. The said application was under Order

VI Rule 17 was allowed by the Trial Court and pursuant thereto on 8 th of August 2016 the amended plaint was filed. Upon filing of amended plaint, the Court fixed the matter for filing of the written statement on 07.09.2016. Subsequent thereto on 07.09.2016 the Court below on a misconception that only the defendant nos. 3, 4 and 5 were added without there being any amendment to the pleadings, passed an order that there was no necessity of filing written statement and fixed 02.11.2016 for service report. On 02.11.2016 the newly impleaded defendant nos. 3, 4 and 5 filed their written statement. The plaintiff raised objection to the filing of the written statement and accordingly vide an order dated 02.11.2016 the case was fixed for hearing upon the point of acceptance of written statement on 22.11.2016. Thereupon the record reveals that it was on 19.05.2018 the Court accepted the written statement and it is against the said order dated 19.05.2018 the petitioner is before this Court under Article 227 of the Constitution of India.

4. Mr. T.J. Mahanta, the learned Senior Counsel appearing on behalf of the petitioner submits that the Court could not have passed the order dated 19.05.2018 without setting aside or reviewing the order dated 07.09.2016 whereby it has been specifically mentioned that the question of filing of the written statement does not arise.

5. I have perused the amendment application filed by the plaintiff/petitioner wherein in Page No.# 4/5

addition to incorporating the name of the newly appointed Directors an additional paragraphs

13(a) was inserted to the pleadings. Pursuant to filing of the amended plaint on 8 th of August, 2016 the Court below has fixed filing of written statement for the amended plaint on 07.09.2016. Surprisingly on 07.09.2016 the Court without taking into consideration the insertion of paragraph 13(a) to the amended plaint came to the finding that only the name of the Directors were incorporated in the pleadings and thereby held that the question of filing of written statement does not arise. This finding of the Trial Court on 07.09.2016 is a mistake committed by the Court thereby prejudicing the rights of the parties. In this regard it may be relevant to take note of the judgment of the Supreme Court in the case of Budhai Swain and Others in Gopinath Dey and Others, reported in (1999) 4 SCC 396 wherein the power of recall was discussed wherein it has been observed that the Court by itself has an inherent power to recall its own order if the order passed by the Court itself results in a mistake which prejudices a party. Paragraph 6 to 8 of the said judgment is quoted herein below:

" 6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order

(i) obtained by fraud practised upon the court,

(ii) when the court is misled by a party or

(iii) when the court itself commits a mistake which prejudices a party. In A.R. Antulay v. R.S. Nayak (vide para 130), this Court has noticed motions to set aside judgments being permitted where

(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,

(ii) a judgment was obtained by fraud,

(ii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.

7. In Corpur Juris Secundum (Vol. XIX) under the chapter "Judgment - Opening and Vacating" (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render to void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation Page No.# 5/5

of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppels. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.

8. In our opinion a tribunal or a court may recall an order earlier made by it if

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party, or

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.

The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation or a judgment may be lost by waiver, estoppels or acquiescence."

6. A conjoint reading of the above judgment along with the order dated 07.09.2016 would go to show that the Court below had committed a mistake in completely ignoring not only the order dated 08.08.2016 but also paragraph 13(a) of the amended plaint. This was set to right by the Court below by the order dated 19.05.2018 and as such I am of the opinion that the said order dated 19.05.2018 does not call for any interference in the instant proceeding.

7. The instant petition stands disposed of. No costs.

8. The interim order dated 17.05.2018 whereby the proceedings of M.S. No. 16/2008 was stayed is hereby vacated and the parties are directed to appear before the Trial Court on 04.02.2022. The Trial Court then shall proceed with the disposal of the suit in accordance with law.

JUDGE

Comparing Assistant