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Krishna Kumar Khemka and anr. Vs. Jagadish Narayana Bhan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 55 of 1970 and Company Petn. No. 408 of 1969
Judge
Reported inAIR1971Cal322,75CWN573
ActsHigh Court Rules; ;Hogh Court Orders; ;Calcutta High Court Original Side Rules - Rule 34; ;Limitation Act, 1963 - Sections 5 and 17(1) - Schedule - Article 124; ;Code of Civil Procedure (CPC) , 1908 - Sections 11and 12(2) - Order 23, Rule 1(3)
AppellantKrishna Kumar Khemka and anr.
RespondentJagadish Narayana Bhan and ors.
DispositionApplication dismissed
Cases Referred(See Ramlal v. Rewa Coalfields Ltd.
Excerpt:
- b.c. mitra, j.1. this is an application for condonation of the delay in making an application for review under order 47 of the civil procedure code, and for an order that the memorandum of review presented to the registrar on september 29. 1970, but returned by him, with the endorsement 'out of time', be admitted. before proceeding any further i should note that this is a third of a series of attempts to reopen an order made by consent of parties and on the basis of terms of settlement put in by them on july 9. 1970. the object of the review application is to obtain variation and alteration in the terms agreed upon between the parties by increasing the price of the shares in the capital of a joint stock company known as associated industrial development co. private ltd. the circumstances.....
Judgment:

B.C. Mitra, J.

1. This is an application for condonation of the delay in making an application for review under Order 47 of the Civil Procedure Code, and for an order that the memorandum of Review presented to the Registrar on September 29. 1970, but returned by him, with the endorsement 'out of time', be admitted. Before proceeding any further I should note that this is a third of a series of attempts to reopen an order made by consent of parties and on the basis of terms of settlement put in by them on July 9. 1970. The object of the review application is to obtain variation and alteration in the terms agreed upon between the parties by increasing the price of the shares in the capital of a Joint Stock Company known as Associated Industrial Development Co. Private Ltd. The circumstances in which the first application was made by the petitioner has been set out in paragraph 48 of the petition. That application was made on September 15, 1970, and was disposed of on September 28. 1970. The application was dismissed on the ground of non-compliance with the provisions in Order 47. Rule 3 of the Civil Procedure Code and Rules 34, 35 and 36 of Chapter XXXI of the Original Side Rules of this Court, as no memorandum of review was presented by the applicant for the purpose of the application. Counsel for the applicant had asked for leave to withdraw the application with liberty to make a fresh one, in proper form. But this prayer was rejected as we took the view that the application was barred by limitation under Article 124 of the Limitation Act. 1963. It is to be noted here that in that application there was no prayer for condonation of delay in filing the application or for enlargement of the time to present a memorandum of appeal to the Registrar as required by the Rules of this Court mentioned above. To the order dated September 28, 1970. I shall have occasion to refer later in this judgment.

2. On September 29. 1970. the petitioner presented a Memorandum of Review to the Registrar, Original - Side of this Court under Rule 36 of Chapter XXXI of the Original Side Rules of this Court. This Memorandum of Review was returned on the ground that it was out of time. I set out below the datesnoted by the Registrar in rejecting theMemorandum of Review.

Order passed on

9-7-70Requisition for order

13-7-70 Requisition for certified copy

31-8-70Order filed on

. . .

21-8-70 Folios marked on

. . .

7-9-70Stamp furnished on

7-9-70Certified copy ready on

. . .12-9-70 Memorandum of Review filed on...29-9-70

Quite apart from other grounds, to which I shall refer later, and on which we find that such an application is incompetent, it appears that the Original Side Rules do not provide for such an application. Rule 34 of Chapter XXXI of those Rules provides that Rules 2 and 3 of that Chapter shall so far as applicable, apply, mutatis mutandis to application for review. Rule 2 deals with the form of the Memorandum of Appeal from the Original Side and prescribes that it shall bo . in Form No. 1 and shall be drawn up in the manner prescribed by Order 41. Rule 1 of the Code. Rule 3 provides for acceptance of the memorandum by the Registrar, if it is duly stamped, and is within the time allowed by the law of limitation. Rule 4 of those Rules provides that when a Memorandum of Appeal is not accepted by the Registrar, he shall endorse thereon the date of its presentation, and return it to the party or attorney by whom it was tendered, and such memorandum may then be presented to the appellate Court for admission. It is to be noticed that Rule 4 has not been made applicable to a Memorandum of Review. That being so a litigant whose Memorandum of Review has been rejected by the Registrar has no right under the Rules to present the same to this Court for admission, as in the case of a Memorandum of Appeal. There is no other provision in the Original Side Rules to enable the petitioner in this application to move this Court for admission of the Memorandum of Review which has been rejected and returned by the Registrar.

3. If the question was to be decided only on the basis of the Original Side Rules alone it might be contended with a good deal of force that such an application was not maintainable. The question, however, has to be examined in the light of the provisions of Section 5 of the Limitation Act, 1963. That section provides that any appeal or any application other than an application under Order 21 of the Civil Procedure Code, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such, period. The petitioner in this case therefore has a riaht under Section 5 of the Limitation Act to move this Court for admission of the application after the prescribed period, if he can satisfy the Court that there was sufficient cause for not making the application within the period of limitation. Section 5 of the Limitation Act therefore confers upon the petitioner the right to move this Court for admission of the Memorandum of Review, provided of course he can satisfy this Court that there was sufficient cause for not making the application within the period of limitation. In our view Section 5 of the Limitation Act, and the Original Side Rules of this Court have to be read together, and if under the provision of the one, though not of the other, the petitioner has the right to apply for condonation of delay, and for admission of the Memorandum of Review, this right ought not to be denied to him. In that view of the matter we are of the opinion that although the Original Side Rules do not provide for such an application, the petitioner is entitled to move this Court under Section 5 of the Limitation Act. But although the petition itself is maintainable under Section 5 of the Limitation Act, the question that we have to consider is whether having regard to the events which have happened the petitioner is entitled to an order admitting the Memorandum of Review.

4. The first point to be considered is the effect of the attempt to withdraw the earlier application with a prayer to move another application in proper form, and the rejection of that prayer and dismissal of the application. As I have noticed earlier counsel for the petitioner prayed for permission to withdraw the earlier application, with liberty to make a fresh one, in proper form as it was conceded by him that the application was not in proper form as no Memorandum of Review was presented to the Registrar as required by the Rules mentioned above. That prayer was rejected by the Court. After rejection of that prayer counsel for the petitioner had two alternatives open to him namely to withdraw the petition without leave to file a fresh application. The petitioner undoubtedly had the right to withdraw the petition without leave to file a fresh application. But that is not what was done. The prayer for withdrawal of the petition without leave to file a fresh one was not pressed, and indeed if such a prayer was made the Court would have been bound to grant the prayer, subject of course to any conditions for payment of costs which the Court might have thought fit to impose. The second alternative open to counsel for the petitioner was to let the petition be dismissed and this is the course which was adopted. The petitioner allowed the petition to be dismissed, which of course was bound to happen as the petition was not accompanied by a Memorandum of Review. The question that arises is whether having applied for permission to withdraw the petition, with liberty to file a fresh one. and upon refusal of that prayer, and dismissal of the petition, the petitioner has a right to move a fresh application on the same ground and for the same relief. It is true that this is not a case of withdrawal of a petition without leave to file a fresh one, but is a case of dismissal of the petition; but it cannot be overlooked that a prayer for permission to withdraw, with liberty to file a fresh petition, was made and rejected, and thereafter the application itself was dismissed. What the petitioner now contends is that having suffered his petition to be dismissed, upon refusal of the prayer to withdraw the application with liberty to file a fresh one, he should be treated to be in the same position as if the Court had granted him permission to withdraw the petition with liberty to file a fresh one. The petitioner's contention is that he should be treated to be in a better position, than the one he should have occupied, if he had withdrawn the petition unconditionally without making a prayer for permission to withdraw with liberty to file a fresh application. If he had withdrawn the petition without permission to file a fresh one, under Sub-rule (3) of Rule 1 of Order XXIII of the Code, he would have been precluded from making a fresh application. He now contends that although he prayed for permission to withdraw with liberty to make a fresh application, which praver was rejected, and although thereafter his application was dismissed, he should be allowed the right of a party who has been permitted to withdraw an application with liberty to file a fresh one. It seems to us that there is no merit in this contention of the petitioner. If a praver for permission to withdraw with liberty to file a fresh petition was not made, the position would have been entirely different, because in that case if the petitioner's application was dismissed and he chose to file a second application on the same ground, although questions of res iudicata would have arisen, he would not have been faced with the bar imposed by Sub-rule (3) of Order 23. Rule 1. against making a fresh application. But that is not the case here. The petitioner's counsel prayed for permission to withdraw, with liberty to file a fresh application, and that prayer was rejected. The petitioner cannot now be allowed to contend that he should be treated to be in a position as if no such prayer was made and the application was dismissed on the ground that it was not in proper form.

Counsel for the petitioner contended that his client should not be made to suffer, because of a mistake on the part of his counsel, through inexperience, in making the prayer for permission to withdraw with liberty to file a fresh application. We can neither accept nor encourage such a contention on behalf of a litigant. It is not open to a litigant, after having lost an application, to contend in a subsequent application, on the same ground that in conducting the earlier application, counsel made an erroneous submission through inexperience, and therefore the Court should not take any notice of either of the order made on such submission, or of the submission itself. It is to be remembered that it was not a concession on a question of law nor a concession made on interpretation of statute so as to enable a litigant to contend that there is no estoppel against statute.

5. Judicial proceedings would be reduced to a state of utter confusion, chaos and uncertainty if a litigant's contention, in a subsequent proceeding asking for the same relief, that no regard should be paid to submission of counsel in an earlier application for the same relief, is to be accepted. This Court cannot therefore uphold the contention of counsel for the petitioner that although a prayer for permission to withdraw with liberty to file a fresh application was made and rejected, this Court in dealing with the present application would proceed as if no such prayer was made and no order rejecting the prayer was recorded. It seems to us that the petitioner ought not to be granted any relief in this application, which, in our view, is an abuse of the process of Court.

6. I now turn to deal with the prayer for condonation of delay. The ground, on which the prayer for leave to withdraw the earlier application with liberty to make a fresh one, was rejected, was that the application was barred by limitation under Article 124 of the Limitation Act, 1963. The judgment dated September 28, 1970, by which it was held that the application was barred by limitation, is a judgment and order inter partes and is binding on them. As I have noticed earlier there was no prayer for condonation of the delay in making that application. In this application the petitioner wants the delay to be condoned on various grounds. The judgment and order of the Court that the application is barred by limitation has become final as between the parties, and so far as this Court is concerned, the question whether the application is barred by limitation cannot be reopened. That being the position we do not see how we can condone the delay in presenting the Memorandum of Review, and admit the same having once held that the earlier application between the same parties and for the same relief was barred by limitation. It is to be remembered that there was no prayer for condonation of delay in the earlier application. In our view the finding of this Court that the application is barred by limitation debars the petitioner from making this application for condonation of delay in presenting the Memorandum of Review for a fresh application for review.

7. A large number of cases were relied on by counsel for the petitioner in support of his contentions. To some of these I shall now refer. Reliance was placed on a decision in AIR 1946 Lah 429. In that case the construction of the words 'other sufficient grounds' in Order 23, Rule 1 (2) (b) came up for consideration. It was held that those words were not ejusdem generis with the 'formal defect' contemplated by Order 23, Rule 1 (2) (a) and that the words 'other sufficient grounds' were wider in scope and could cover all cases which appeared to Court as affording such grounds. The plaintiffs in that case were running the risk of losing a valuable property because of serious defects in the plaint as filed. It was in these facts that it was held that it was a fit case to permit the plaintiff to withdraw the suit with liberty to institute a fresh suit in respect of the same subject-matter even at the stage of appeal. This decision is of no assistance to the petitioner in this case because we are not concerned with the question whether permission should be granted to the petitioner to withdraw the application with liberty to file a fresh one. That permission, as I have noticed earlier, had been refused and the application dismissed. The question with which we are concerned is whether having allowed the petition to be dismissed, instead of withdrawing it unconditionally the petitioner is entitled to move and maintain this application. The next case to be referred to is a decision of the Supreme Court in : [1964]2SCR538 . In that case the question was whether the High Court should in exercise of its power under Order 23 of the Civil Procedure Code allow an election petition to be withdrawn or refuse the petition to be withdrawn under Sections 109 and 110 of the Representation of the People Act. It was held that where an appellant in an election petition applied for unconditional withdrawal of the appeal the High Court should have allowed the withdrawal under Order 23 of the Civil Procedure Code. This case again is of no assistance to the petitioner because we are not concerned with the question whether the previous review application should or should not have been allowed to be withdrawn, but with the question whether after dismissal of the previous petition, upon rejection of the prayer for permission to withdraw, a second application for review is maintainable. Reliance was next placed on a decision of the Madras High Court in : AIR1951Mad715 . In that case the plaintiff filed a petition to withdraw the suit with permission to file a fresh suit on the same subject-matter. The trial Court dismissed the petition but ordered that the plaintiff might withdraw the suit if he wanted but it would not give him permission to file a fresh suit. It was held that the Court could not divide the petition into two and accept the withdrawal and refuse the liberty in the same order. The order made dismissing the petition was challenged in revision and the revision petition was dismissed. I do not see how this decision is of any relevance to the question with which we are concerned in this application. The next case to be referred to is a decision in AIR 1925 All 272. In that case an application was made to withdraw a suit with liberty to file a fresh one. The trial Court refused the plaintiff permission to withdraw the suit, but at the same time treated the application as if it was alternatively an application under Order 23, Rule 1 (1) and made an order allowing the plaintiff to withdraw the application as if it had been an application for an unconditional withdrawal coupled with a refusal of permission to file a fresh suit. It was held that this order of the trial Court was wrong. This decision again is of no assistance to the petitioner because we are not concerned with the correctness or the validity of the order made on September 28, 1970. The only question before us is whether the petitioner in the events that have happened is entitled to move a fresh application for review and for that purpose file a fresh Memorandum of Review. The next case relied upon was a decision of the Full Bench of this Court in (1886) ILR 13 Cal 104 at p. 105. Eani Madhub Mitter v. Matungini Dassi. In that case it was held that where a suitor was unable to obtain a copy of a decree from which he desired to appeal, by reason of the decree being unsigned, he was entitled under Section 12 of the Limitation Act, 1877, to deduct the time between the delivery of the judgment and that of the signing of the decree in computing the time taken in presenting the appeal. The next case relied upon was also a Full Bench decision of this Court in ILR 59 Cal 1215 = (AIR 1932 Cal 331) (FB). In that case it was held that in an appeal from the Original Side the appellant was as of right entitled to the exclusion of the time required for drawing up of the decree, assuming that no part of the delay was due to his default. It was also held that if the application for a copy was made after the expiry of 20 days from the date of the decree or order the question whether Section 12 of the Indian Limitation Act. 1908, could be invoked, depended on the facts of each case. The next case relied upon was a decision of the Judicial Committee in 55 Ind App 161 = (AIR 1928 PC 103). In that case it was held that Section 12 (2) of the Indian Limitation Act. 1908, applied even when by a rule of the High Court, a Memorandum of Appeal need not be accompanied bv a copy of the decree. It is to be noticed, however, that all these decisions on which reliance was placed by counsel for the petitioner were decisions under the Old Limitation Acts. An explanation has been added to the Limitation Act. 1963. which runs as follows:

'In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.'

8. Counsel for the petitioner contended that although in this case the petitioner had applied for a certified copy after expiry of the period of limitation, the tune taken in obtaining the certified copy should be excluded. In support of this contention reliance was placed firstly on a decision of the Orissa High Court in : AIR1970Ori116 and another decision of the Patna High Court in : AIR1966Pat1 . Reliance was also placed on two Bench decisions of this Court in : AIR1965Cal217 and : AIR1970Cal443 . Relying on these decisions it was argued that although the application for a certified copy of the order was made by the petitioner after the expiry of the period of limitation namely 30 days, the time taken in obtaining the certified copy even though it exceeded the limit of 30 days should be excluded in favour of the appellant.

9. This argument on behalf of the petitioner is plainly intended to establish that the Memorandum of Review was presented to the Registrar within time and that it was not barred by limitation. This position appears to us to be quite contrary to the prayers in the petition, which are that the delay, if any, in making the application for review of the order dated July 9, 1970. be condoned, and that the Memorandum of Review presented to the Registrar on September 29. 1970, be admitted. Therefore, the petitioner is proceeding on the basis that the application is barred by limitation, and that the delay involved may be condoned for reasons stated in the petition to which I shall refer hereafter. It seems to us, however, that the petitioner's contention based on the decisions noted above is not well conceived, because by the judgment of this Bench dated September 28, 1970. it was held that the application for review was barred by limitation. That decision is binding on the parties who are also parties in this application and it is not open to the petitioner now to contend that the application is not barred by limitation and that the time taken in obtaining a certified copy of the decree should be excluded in favour of the appellant, even though the application for certified copy was made after expiry of the period of limitation. The judgment of this Bench mentioned above is an inflexible bar to the petitioner's right to contend that the application is not barred by limitation. But apart from this bar it seems to us that the petitioner's contention that the application is not barred by limitation cannot be accepted. Two Division Bench decisions of this Court in : AIR1968Cal509 and (1968) 72 Cal WN 296 came to the conclusion that in order to exclude the time taken in obtaining a certified copy in favour of the appellant, the application for the certified copy should be made within the time of limitation and if this was not done, the time taken in obtaining the certified copy should not be excluded in favour of the appellant. The conflict in the various decisions mentioned above however was set at rest by the decision of the Supreme Court, A.D. Partha Sarathy v. State of Andhra Pradesh. : AIR1966SC38 , on which reliance was placed by Mr. Sen learned counsel for the respondent company. In that case in construing the period to be excluded under Section 12(2) of the Limitation Act. 1963, the Supreme Court observed at p. 40 of the report as follows:

'If time taken for obtaining a copy of the order before the commencement of the period of limitation could be excluded, on the parity of reasoning, time taken for obtaining a copy of the order after the period of limitation, also could be excluded. This would lead to an anomalous position: a party can keep quiet till the period of limitation has run out and thereafter apply for a certified copy of the order and claim to exclude the time taken for obtaining the certified copy of the order from the period of limitation. That could not have been the intention of the Legislature.' These observations of the Supreme Court clearly and plainly lay down the meaning and the purport of the Explanation to Section 12 of the Limitation Act, 196.3. It can no longer be said by any appellant that the time taken by him in obtaining a certified copy of a decree or order should be excluded in his favour even though he applied for a copy after expiry of the period of limitation. The contention of the petitioner based on the decisions mentioned above, which have taken a contrary view of the Explanation to Section 12 of the Limitation Act cannot therefore be accepted.

10. We shall now proceed to consider the petitioner's contention based on the Explanation to Section 5 of the Limitation Act, 1963. The Explanation prescribes that the fact that the appellant or applicant was misled by any order, practice or judgment of the High Court, in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of Section 5. Relying on this provision in the Explanation to Section 5, counsel for the petitioner contended that having regard to the decisions in : AIR1970Ori116 and : AIR1970Cal443 . he was misled in computing the period and therefore it should be held that there was sufficient cause for not presenting the Memorandum of Review within time. It seems to us that this contention of counsel for the petitioner is without any merit or substance. Whatever controversy or conflict there might have been with regard to the meaning of the Explanation to Section 12, it was clearly set at rest by the decision of the Supreme Court in A. D. Partha Sarathy's case. : AIR1966SC38 (supra). The observations of the Supreme Court quoted above leave no room for any ground for a prospective i appellant to contend that he was misled in computing the prescribed period in filing a Memorandum of Appeal or Review by reason of the conflicting decisions of the different High Courts to which I have referred earlier. In that view of the matter we hold that there was no sufficient cause for the petitioner in not presenting the Memorandum of Review to the Registrar of this Court within the time prescribed by Article 124 of the Limitation Act. 1963.

11. I will now proceed to see if sufficient cause as required by Section 5 of the Limitation Act has been made out by the petitioner for condoning of the delay. It is to be remembered that each day's delay has to be explained in an application for condonation of delay before an order condoning the delay can be made (See Ramlal v. Rewa Coalfields Ltd., : [1962]2SCR762 ). As the petitioner did not apply for a copy of the order until August 31, 1970, the limitation of 30 days prescribed by Article 124 of the Act expired on August 8. 1970. The petitioner therefore has to explain the delay day by day from August 9. 1970, until September 29, 1970, when the Memorandum of Review was presented to the Registrar, Original Side of this Court.

12. In Ground (X) of the Grounds set out under paragraph 62 of the petition the petitioner says that he left for Delhi on August 8. 1970. where he had several consultations with his lawyers between August 9, .1970, and August 13, 1970. It is also stated that until these consultations were over the petitioner did not know of his right to have the consent order dated July 9. 1970, recalled by an application for review. It is next stated that the petitioner returned to Calcutta on August 14, 1970. It is next stated that the application for review could not be made earlier as the applicability of Section 114 and Order 47 of the Civil Procedure Code, which according to the petitioner is a new and important matter, was pointed out only at the time of the consultations with the lawyers of Delhi between August 9. 1970, and August 13, 1970. It is not understood as to what is meant by a reference to Section 114. Possibly it is a mistake for Article 124 of the Limitation Act, 1963. Be that as it may, it is surprising that the petitioner had to travel all the way to Delhi to obtain advice from lawyers there that he had a right to an application for review and that limitation for such an application was 30 days under Article 124. It is difficult to believe that there was no lawyer available to the petitioner in Calcutta to give him the advice that he had a right to apply for a review of the order made on July 9. 1970. and that Article 124 of the Limitation Act, 1963, controlled the petitioner's right to such an application. There was no dearth of competent counsel in Calcutta for advice on this question. But even assuming that he was justified in travelling up to Delhi, for consultations with lawyers there, and that such consultations were held between August 9, 1970, and August 13, 1970. the petitioner has yet to explain the delay from August 13, 1970. until September 29. 1970, on which day the Memorandum of Review was presented. Of this delay there is no explanation at all in the petition. It is significant that although the petitioner took the trouble and incurred expenses of going up to Delhi, for consultations with lawyers and must have obtained competent legal advice there, he made the earlier application for review without a Memorandum of Review and he was not advised that under Order 47, Rule 3 of the Code of Civil Procedure the provision as to the form of preferring appeal apply mutatis mu-tandis to application for review. In any event, as there is no explanation for the delay from August 14, 1970, up to the date when the Memorandum of Review was presented namely September 29. 1970, it must be held that the petitioner has failed to show sufficient cause for condonation of the delay In preferring the Memorandum of Review. It is to be remembered that even if the petitioner succeeded in showing sufficient cause, he is not entitled to condonation of delay as. a matter of right. Proof of sufficient cause is a condition precedent for the exercise of the discretionary power vest-ed in the Court by Section 5 of the Limitation Act, 1963. This position is made clear by the Supreme Court in : [1962]2SCR762 . In this case quite apart from the fact that the petitioner has totally failed to make out a sufficient cause for condonation of the delay, this is not, in our view, a case where this Court should exercise its discretion in condoning the delay. We are unable to accept the petitioner's explanation for the delay, such as it is. in any respect whatsoever.

13. I shall now proceed to consider the question whether the petitioner is entitled to the benefit of Section 17 of the Limitation Act, 1963. Counsel for the petitioner contended that in this case fraud has been perpetrated and concealment of material facts has been made by the respondents and also a mistake has been committed by the petitioner with regard to the value of the shares, and therefore the period of limitation would wot begin to run until the petitioner has discovered the fraud or the mistake. The ground of fraud and concealment, however, was not pressed before us but the ground of mistake of Section. 17(1)(c) of the Act was canvassed. In paragraph 40 of the petition it is alleged that the petitioner had the valuation report examined by a competent valuer, and had discovered serious errors in the said valuation report. In paragraph 42 it is alleged that new and important matter of evidence which the petitioner discovered, appeared for the first time in the Statesman of August 8. 1970. In paragraph 43 there is a reference to the Statesman of August 9, 1970, and in paragraph 44 to the weekly issue of Capital of August 13, 1970. In paragraph 46 it is alleged that the petitioner received a report of B. Chhawchharia and Company. Chartered Accountants, which showed that the fair value of a share of the company would be Rs. 398.99 and not Rs. 152.22 as determined by Mr. C, P. Mukherjee. The report of the said firm of Chartered Accountants is alleged to have been received on September 5, 1970.

14. It is clear that the mistake as alleged appears to have arisen firstly from the views of a firm of Chartered Accountants obtained by the petitioner. after the valuer appointed by this Court had submitted his report; and secondly from the Stock Exchange quotations published in daily newspaper and a weekly journal. In our view different views with regard to the value of the shares given by a firm of Chartered Accountants cannot be said to provide any ground for mistake on the part of the petitioner regarding the value of the shares. Different valuers may give different opinions with regard to the value of any commodity, and such difference in opinion of valuers can by no means be said to furnish grounds of mistake to enable a litigant to file a suit or make an application for relief from the consequences of such a mistake.

15. The Stock Exchange quotations published in the newspapers and journals stand on no better footing. Such quotations may be an element in arriving at a valuation of shares, but merely because the quotations indicate that the price of shares has gone up, the petitioner cannot claim that he had made a mistake with regard to the valuation of the shares as share prices in the newspapers and journals indicate an upward trend.

16. Counsel for the respondents submitted with regard to the contention on the ground of mistake that this point was not taken in the earlier petition filed by the petitioner and which was dismissed by this Court by the order dated September 28, 1970. He argued that this point could have and should have been taken by the petitioner and was not in fact taken by him and therefore the right to agitate this question on the ground of mistake Is barred by the principles of constructive res judicata. In support of this contention Mr. Sen, counsel for the respondent No. 1, relied on two decisions in (1908) ILR 35 Cal 979 and 0044/1958 : AIR1958Bom152 . It seems to us that there is good deal of force in this contention of the respondents. But quite apart from the question of res judicata we are of the view that no ground has been made out by the petitioner for relief from the consequences of mistake as contemplated by Section 17(1)(c) of the Limitation Act, 1963.

17. What I have said above is enough to dispose of this application. But there is one other matter to which we feel called upon to refer before we conclude. This relates to the allegations made in paragraphs 31. 32 and 33 of the petition. The substance of the allegations in these paragraphs is that the petitioner agreed to the terms of settlement and also to an order to be made by consent under judicial coercion. In paragraph 31 it is stated that the Court declined to make an order under Section 402 of the Companies Act with regard to the sale of the shares unless the parties put in terms of the settlement regarding the purchase and sale at a price to be agreed upon between the parties. In paragraph 32 it is stated that counsel for the petitioner submitted that the price of the shares should be fixed by an order of this Court so that the petitioner may have a right of appeal against the order, if he felt aggrieved by the same. It is further said that since this Court declined to make an order under Section 402 of the Companies Act unless the parties consented to the terms of settlement, petitioner's counsel acquiesced in the mode of disposing of the petition which this Court adopted and thereupon agreed to accept an additional price of Rs. 22.78. In paragraph 33 it is alleged that consent of counsel for the petitioner could not be deemed free and fair and might be regarded as constrained and involuntary acquiescence in a mode of disposal of the application which this Court adopted.

18. We have not the least hesitation in saying that these allegations in the petition that consent was given under coercion and because the Court refused to make an order unless terms of settlement were put in are altogether false and unfounded. This Court had not the least interest as to whether the application in which the consent order was made was disposed of by consent of parties or upon contest. The consent given by the petitioner to the order made was freely given and this Court did not at any stage and in any manner seek to coerce either of the parties to agree to the terms of settlement. It is difficult for us to surmise the reasons, the object and the purpose of these unfounded and reckless allegations. We would have been constrained to take sterner view of these allegations, but have been spared that disagreeable task by the submission of counsel for the petitioner in this application. At the conclusion of his argument on February 9, 1971 Mr. Biswas submitted and prayed that the allegations in paragraphs 31, 32 and 33 of the petition be expunged. In view of this submission and without going any further into this matter we direct that paragraphs 31, 32 and 33 of the petition be struck out altogether from the petition filed by the petitioner and verified by the affidavit of Vijay Kumar Khemka on November 19, 1970.

19. For the reasons mentioned above this application fails and is dismissed with costs.

20. The respondents have not filed any affidavit in opposition. They do not admit the allegations in the petition.

S.K. Mukherjea, J.

21. I agree.


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