ANIRUDDHA BOSE,J. - (1.) By this judgement five applications arising in connection with C.P.No.575 of 1982 are being dealt with, being C.A. No. 715 of 2015, C.A. No. 97 of 2016, C.A. 131 of 2016, C.A. 187 of 2016 and C.A. No. 529 of 2016. C.P. 575 of 1982 was a winding up petition instituted by the Bennett, Colman & Co. Ltd. (BCCL) against Angelo Bros. Ltd. (ABL). ABL at present is a company in liquidation, and order to that effect has been passed in a separate winding up proceeding, being C.P. 90 of 1983. Separate proceedings have been instituted calling in question the validity of such order I shall briefly refer to those proceedings in later part of this judgment. In the winding up petition, out of which these actions arise, the petitioner, i.e. BCCL alleged lending Rs.35 lacs to ABL, which was repayable in instalments. As per the averments made in the winding up petition, a promissory note for the said sum of Rs.35 lacs together with interest was executed by ABL and second charge on ABL's fixed assets was also created on consent of ABL's bankers, Punjab and Sind Bank, who had the first charge over such assets. BCCL's case, as made out in the winding up petition was that Rs.15 lacs in instalments was repaid by ABL along with interest of Rs.1,81,232.87, the former constituting three instalments upto 31st March 1981 and thereafter default was committed by ABL. Subsequently, it has been alleged by BCCL that ABL purported to send two share scrips of Angelo Rhodes Ltd., an English Company covering 50,000 shares of Rs.1/- each for pledging the same by way of further security subject to compliance of the provisions of Foreign Exchange Regulation Act, 1973. It has been pleaded in the winding up petition that ABL had never sent the permission of the Reserve Bank of India as per the provisions of the 1973 Act. Total demand, for which the winding up proceeding was instituted was Rs.27,69,781.66. In course of hearing before me, it has been pointed out by Mr. Khosla, learned counsel representing the applicants in C.A. No. 715 of 2015 as also C.A. 97, 131 and 529 of 2016 that Angelo Rhodes Ltd. was a subsidiary of ABL. It further appears that Angelo Rhodes Ltd. is organised under the laws of the United Kingdom. The winding up petition was disposed of on consent on 27th April 1983 in the following terms:- "2. It is ordered that the said respondent Company do on or before the fifteenth day of May in the year one thousand nine hundred and eighty three pay Rupees Three lacs to the said applicant Company by Demand Draft on a Schedule Bank at Bombay or any other mode acceptable to the said applicant company and it is further ordered that Fifty thousand fully paid ordinary shares of pound one each in Angelo Rhodes Ltd. United Kingdom held by the said respondent Company are lying with the said applicant company as security for loan subject to permission of Reserve Bank of India and it is further ordered that the said Reserve Bank of India had originally rejected the proposed transfer but a fresh representation has been made by the said applicant company to the said Reserve Bank of India for reconsideration and it is further ordered that the said applicant company shall have the right to appropriate the said shares in their favour subject to permission by the said Reserve Bank of India being obtained And it is further ordered that in the event of the said Reserve Bank of India refusing the permission for transfer of the said shares the said respondent company shall pay to the said applicant company a sum of Rupees Two lacs by Demand Draft on a schedule Bank or in any other manner as may be desired by the said applicant company within fifteen days from the date of the communication of the refusal of the said Reserve Bank of India by the said applicant Company to the said respondent company and it is further ordered the respondent company shall however have the option for a period of Forty five days from the date hereof to take back the said shares subject to payment of the said sum of Rupees Two lacs to the said applicant company and it is further ordered that in default of payment of the said sum within the time as aforesaid by the said respondent company the entire sum of Rupees Twenty Seven lacs sixty nine thousand Seven hundred and eighty two and sixty six paise together with further interest at the rate of twenty one percent per annum from the sixteenth day of December in the year one thousand nine hundred and eighty two after deducting therefrom the amount upto the date of payment, shall become due and payable and the winding up proceedings shall be proceeded with And it is further ordered that the order for advertisement of the winding up petition as granted by the said order dated the twenty fifth day of March in the year one thousand nine hundred and eighty three shall remain stayed until further orders of this court and it is further ordered that the said applicant company shall be at, liberty to apply before this Court for further direction." A copy of the said order has been annexed to the affidavit in C.A. 187 of 2016, which is BCCL's application seeking dismissal of C.A. 715 of 2015, C.A. 97 and C.A. 131 of 2016. It has been pleaded in the affidavit taken out in support of Judge's Summons C.A. 715 of 2015 that 50,000 shares of Angelo Rhodes Ltd. was fraudulently transferred from ABL to BCCL on 20th June 1994, when these shares were to be in physical custody of the Official Liquidator. In paragraph 8 of the affidavit, the deponent thereof, being Nirmaljit Singh Hoon (NHS), has referred to further journey of these shares to another subsidiary of BCCL.
(2.) Judge's summons has been taken out in C.A. 715 of 2015 jointly by ABL and Hungerford Investment Trust Ltd. (HIT) primarily for declaration that the order-cum-decree dated 27th April 1983 is void ab initio as if non-est on the allegation of fraud. There are prayers also for certain other directions, inter alia, for issue of subpoena against 36 persons connected with BCCL, Angelo Rhodes Ltd, Turner Morrison and Co. Ltd. and a firm of solicitors and its partners in the Judge's Summons. The applicants also want to initiate prosecution under the provisions of Sections 539-544 against these persons. Further prayer of the applicants is for appointment of Receiver for taking physical charge of the 50,000 equity shares of Angelo Rhodes Ltd. freezing the voting rights thereof as also maintaining status quo on the affairs of the said company. There are certain other prayers of the applicants as well, but having regard to the points which I shall deal with in this judgment, I do not consider it necessary to reproduce all the prayers for which the Judge's Summons has been taken out. The applicants, whose locus to bring the action in C.A. 715 of 2015 as also C.A. 97 of 2016 and C.A. 131 of 2016 is questioned by the BCCL in C.A. 187 of 2016, initially appeared in person, through NHS. I have been informed by Mr. Khosla that said NHS has passed away in the month of March, 2016. The backsheet of the Judge's Summons, bears the following description to signify the person who would represent the applicants before the Court:- "Nirmaljit Singh Hoon Chairman Hungerford Investment Trust Ltd. Applicant Company/ie In Person 1-B, Judges Court Road Calcutta" This is followed by an address for service in Kolkata. Said NHS had affirmed the affidavit in support of the Judge's Summons on 14th November 2015, describing himself to be "Chairman of the applicant company/ies". On his death, one Rajinder Pal Khosla of D-328, Defence Colony, New Delhi, as Director of the applicant Company/ies has affirmed subsequent affidavits on behalf of the said applicants. Vakalatnama has been executed by him in favour of the Advocates-on-Record. At present, Mr. Surya Maity, Advocate, having his office at 6, Old Post Office Street, Kolkata 700 001 is acting as Advocate-on-Record for the applicants.
(3.) The applicant in C.A. No.187 of 2016 is BCCL and in the Judge's Summons taken out by it on 2nd March 2016, the following prayers have been made:- "a) C.A. No.715 of 2015, C.A. No.97 of 2016 and C.A. No.131 of 2016, all filed in C.P. No.575 of 1982 (In re Angelo Brothers Limited-and-Bennett Coleman and Company Limited) be dismissed; b) An order be passed directing and declaring that Mr. Nirmaljit Singh Hoon has no locus, right, or authority to represent Angelo Brothers Limited, a company in liquidation; c) An order be passed directing that Hungerford Investments Trust Limited has no locus, right or authority to make any application in C.P. No.575 of 1982; d) Stay of all further proceedings in C.A. No.715 of 2015, C.A. No.97 of 2016 and C.A. No.131 of 2016, all filed in C.P. No.575 of 1982 (In re Angelo Brothers Limited-and-Bennett Coleman and Company Limited) till the disposal of this application; e) Ad interim orders in terms of prayers above; f) Costs; g) Such further or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper." ;