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Dwarka Prosad Bajaj Vs. Bisheswar Dayal Santi Swarup and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. Nil of 1977, Insolvency Case No. 1 of 1970
Judge
Reported inAIR1977Cal387
ActsConstitution of India - Article 133(1)
AppellantDwarka Prosad Bajaj
RespondentBisheswar Dayal Santi Swarup and ors.
DispositionApplication dismissed
Cases ReferredState Bank of India v. N. Sundara Money
Excerpt:
- .....for certain interim orders. on the said application on the 30th april, 1970 an order was passed by consent of the parties and by the said consent order two receivers were appointed for the purpose of selling some of the properties of the appellant mentioned in the said order, by consent of the parties another order was passed on the 26th aug., 1970 and by the consent order of 26th aug.. 1970 there was a change in the personnel of the receivers. it however appears that the receivers were not in a position to sell the said properties in terms of the orders passed. the said application for adjudication remained pending and the said application came up for hearing on the 22nd dec., 1970 and on that day an order was made directing the said application for adjudication to be tried on.....
Judgment:

A.N. Sen, J.

1. This is an application for the grant of a certificate under Article 133(1) of the Constitution of India for preferring an appeal to the Supreme Court against the judgment delivered by this Court on the 5th May, 1977.

2. An application was filed on the 30th January, 1970 for adjudication of the appellant as an insolvent. After the said application had been filed, an application was made in the said proceeding for certain interim orders. On the said application on the 30th April, 1970 an order was passed by consent of the parties and by the said consent order two receivers were appointed for the purpose of selling some of the properties of the appellant mentioned in the said order, By consent of the parties another order was passed on the 26th Aug., 1970 and by the consent order of 26th Aug.. 1970 there was a change in the personnel of the receivers. It however appears that the receivers were not in a position to sell the said properties in terms of the orders passed. The said application for adjudication remained pending and the said application came up for hearing on the 22nd Dec., 1970 and on that day an order was made directing the said application for adjudication to be tried on evidence. On the 6th April, 1971 the said application came up for hearing and on that day by consent of the parties another order was passed on the said application. By this consent order there was a change in the personnel of the receivers and Shri Ajit Kumar Roy Mukherjee was appointed a special officer for the purpose of effecting the sale of the properties in terms of the earlier orders passed on the terms and conditions mentioned in this order which was passed by consent. An application was subsequently made for setting aside the order passed by consent of the parties on the 6th April, 1971. The said application for setting aside the consent order was heard and was dismissed by an order passed on the 6th Sept., 1971. Against the said order dated 6th Sept., 1971 dismissing the application of the appellant for setting aside the consent order passed on the 6th April, 1971 the appellant preferred this appeal. The appeal came up for hearing before this Bench. This Bench for reasons recorded in the judgment dismissed the said appeal. Against the said judgment of this Bench dismissing the said appeal, the appellant intends to prefer an appeal to the Supreme Court and the appellant has made this application for the grant of the necessary certificate. The facts of this case and the contentions which were raised by the appellant have been fully set out in the judgment of this Bench. Various contentions had been raised in the said appeal. Certain grounds were sought to be urged which were also not taken in the grounds of appeal. An application had also been made for allowing the appellant to urge further grounds and also for bringing the attention of the Court to various subsequent events. For reasons stated in the judgment the said appeal was dismissed and the said application was also not entertained. The grounds which the appellant urged before this Court have been summarised in paragraph 16 of the present petition. The grounds which the appellant wants to urge before the Supreme Court have been set out in paragraph 19 of the petition.

3. Mr. Dutta appearing in support of this application has contended that the grounds which the appellant wants to urge before the Supreme Court raise substantial questions of law of general importance and they are required to be decided by the Supreme Court. It is the contention of Mr. Dutta that the present case meets the requirements of Article 133 of the Constitution. Mr. Dutta has referred to the decision of the Supreme Court in the case of Union of India v. Jyoti Chit Fund and Finance reported in : (1976)IILLJ69SC and also to the decision in the case of State Bank of India v. N. Sundara Money reported in : (1976)ILLJ478SC .

4. In the facts and circumstances of this case we cannot persuade ourselves to hold that this case raises any substantial questions of law of general importance which needs to be determined by the Supreme Court. The main question involved in the present proceeding was whether proper grounds had been made out for the setting aside of the consent order. The principles under which a consent order can be set aside are well established. It is no doubt true that various other contentions were raised and the said contentions have also been dealt with. One of such contentions raised was that this Court had no jurisdiction to pass the said order even by consent of the parties. It may however be noted, as has been pointed out in the judgment, that no appeal has been preferred against the consent order which was passed on the 30th April, 1970 directing sale of the properties by the receivers. No appeal was also preferred against the subsequent order bringing about a change in the personnel of the receivers for giving effect to the order of sale of the properties in terms of the earlier order. As we have noted in the judgment the argument was that these orders had merged in the order which was made directing that the application for adjudication should be tried on evidence. As we have noted the main question with which this Court was concerned in this appeal was whether proper grounds had been made out for the setting aside of the consent order. We are unable to certify that this is a question which involves a substantial question of law of general importance and this needs to be determined by the Supreme Court.

5. This application is, therefore, dismissed. There will be no order as to costs.

Bimal Chandra Basak, J.

6. I agree.


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