Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1158 (CAL)

Victoria Jute Co. Ltd v. RDB Textiles Ltd

2011-08-24

PINAKI CHANDRA GHOSE, TAPAN KUMAR DUTT

body2011
Judgment : PINAKI CHANDRA GHOSE, J. This application has been filed by one R.D.B. Textiles Ltd. inter alia praying for following orders:- “(a) Leave be granted to the petitioner to make the instant application; (b) The Order dated 29th July, 2005 as corrected on 2nd September, 2005 passed by Their Lordship the Hon’ble Justice Pinaki Chandra Ghose and the Hon’ble Justice Narayan Chandra Sil and the Order dated 8th May, 2006 passed by Their Lordships the Hon’ble Justice Pinaki Chandra Ghose and the Hon’ble Justice Tapan Kumar Dutt be corrected in the manner as stated hereinabove; (c) Stay of the operation of the said orders dated 29th July 2006, 2nd September 2005 and 8th May, 2006 in so far as the same records dismissal of the above appeal; (d) Ad-interim Orders in terms of the prayers above; (e) Such further and/or other order or orders be passed and/or direction or direction be given as to this Hon’ble Court may deem fit and proper;” The facts leads to file this application are as follows:- On or about May, 1987, an application was filed before this Hon’ble Court being Company Petition No.253 of 1987 by one Ladhuram Shree Kumar, a partnership firm for winding up of the Victoria Jute Company Limited (hereinafter referred to as “the said company”). The said company petition was admitted by an order dated 7th September, 1987. On 16th February, 1988 a final order was passed in the said company petition directing for winding up of the said company. The Official Liquidator was directed to take possession of the said company. Subsequent thereto, the said order was stayed till 22nd February, 1988. An appeal was preferred by the said company being Appeal No. 98 of 1988. The Hon’ble Division Bench of this Hon’ble Court on 24th February, 1988 was pleased to pass an ad-interim order granting unconditional stay of the of the said order for a week and thereafter a conditional order for stay was granted for a further period of two weeks. It appears that the said order of stay was subsequently extended from time to time. It further appears that the said order of stay was vacated by an order dated 12th September, 1988. Since the appellant failed to fulfill the conditions imposed by the Hon’ble Court. It appears that the said order of stay was subsequently extended from time to time. It further appears that the said order of stay was vacated by an order dated 12th September, 1988. Since the appellant failed to fulfill the conditions imposed by the Hon’ble Court. In these circumstances the Workers’ Unions of the said company filed a special leave petition being SLP (Civil) No.12190 of 1988 from various orders passed by the Court from time to time including the orders passed by the Court on 12th September, 1988, 20th September, 1988 and 27th September, 1988 and the Hon’ble Supreme Court on 7th October, 1988 directed issuance of notice and staying the winding up of the said company until the High Court passed the appropriate order on the stay application. On 26th September, 1989 the Division Bench of this High Court was pleased to appoint a Special Officer for discharging certain duties and allowing the said company to run its business under the supervision of the said Special Officer. It is the case of the R.D.B. Textiles Ltd. that the management of the said company was unable to revive and to run the said company. There were defaults in disbursement of earned wages, bonus and other dues of the workmen and employees of the said company and the unions of the said company had approached R.D.B. Textiles Ltd. to extend its co-operation and support in the revival and running of the said business. On such approach on 26th September, 1995 a Memorandum of Understanding was entered into between the said unions and the said R.D.B. Textiles Ltd. Pursuant to the said agreement with the said company and with the consent and concurrence of the Workers’ Union the R.D.B. Textiles Ltd. took over the management and control of the said company on or about 13th October, 1995. By an order dated 16th July, 1998 the Division Bench of this High Court was pleased to allow the management of the said company to continue with the said agreement with the petitioner R.D.B. Textiles Ltd. On certain conditions stipulated in the said order dated 16th July, 1998. By the said order, R.D.B Textiles was allowed to run the management of the company on the petition that each and every month R.D.B. would deposit a sum of Rs.10 lakhs with the Special Officer. By the said order, R.D.B Textiles was allowed to run the management of the company on the petition that each and every month R.D.B. would deposit a sum of Rs.10 lakhs with the Special Officer. Various other directions were also passed by the Division Bench which the R.D.B was required to discharge under the said order for running the said company. The relevant portion and the said order dated 16th July, 1998 is reproduced herein below: “We allow the management of the company to continue for the present under the R.D.B Textiles Ltd. on the condition that each and every month R.D.B shall deposit a sum of Rs.10 lakhs with the Special Officer and from that money the Court will pass order for liquidating the dues of the creditors on pro rata basis from time to time. The said sum of Rs.10 lakhs will be deposited within 7th day of each month by month until further orders. R.D.B Textiles shall discharge all current liabilities and may incur such other liabilities as are necessary for the purpose of running of the company. R.D.B shall also take steps to see in respect of the land which has been mortgaged or charged and which are lying vacant that the unauthorized occupants cannot enter and encroach the said lands of the company which are remained unguarded and uncared and the R.D.B is given liberty to negotiate with the mortgagor and/or persons concerned for the charge for the purposes of disposal and inform the Special Officer to decide the same after obtaining leave from this Court. All the statutory and secured creditors are hereby directed to lodge their claim with the Special Officer along with all supporting documents. Liberty is given to the secured creditors to apply. Accordingly, the application filed by the Victoria Jute Co. is rejected with the aforementioned order.” It has been further submitted that the R.D.B had paid upto February, 2011 arrear wages, bonus and gratuity liability amounting to Rs.13.75 crores which also included the liability for the period prior to the said order dated 16th July, 1998 and had invested an aggregate sum of Rs.11.49 crores on account of balancing and modernization of the plant and machinery at the said jute mill. It is contended that in fact, because of the initiative of the petitioner, the installed capacity at the said jute mill has increased from 80 M.T. per day to 120 M.T. per day, and thereby increased the employment of labour from 3500 to 4500 per day. It was further contended that it would be evident from the order dated 28th March, 2000 passed by another Division Bench of this Court that the petitioner is in management and control of the said jute mill in terms of the Scheme framed by this Hon’ble Court. It would appear from the order of the Division Bench dated 28th March, 2000 that a Scheme was framed for payment of the dues on pro rata basis of all the creditors pursuant to the directions passed earlier by the said Division Bench on 16th July, 1998. It appears from the said order that the Scheme submitted in terms of the order dated 16th July, 1998 for payment to all the statutory creditors, secured creditors and unsecured creditors and also to the workmen on pro-rata basis was accepted by the Division Bench. The Division Bench also observed that since the payment had already been made to the Special Officer by the licensee of the company, namely, R.D.B under a scheme framed by the Court. The Division Bench by its order dated 16th July, 1998 had directed the payment on pro-rata basis to all the creditors and since the S.L.P against the same had been dismissed, in terms of the direction of the Division Bench, the Division Bench allowed the Scheme for pro-rata payment as modified and also allowed such scheme with the modifications. It is being contended that in terms of the said order, the Joint Special Officers had been disbursing the arrear liabilities of the said Company for the period prior to 16th July, 1998 and as on March, 2011, they had disbursed Rs.15.21 crore. The said Joint Special Officers are also filing audited accounts annually with the Registrar of this Hon’ble Court. It has been submitted that being aggrieved by the said order dated 28th March, 2000, the Provident Fund Authorities had preferred an appeal before the Hon’ble Supreme Court of India being Civil Appeal No.1758 of 2007 which was ultimately dismissed on 21st July, 2010. It has been submitted that being aggrieved by the said order dated 28th March, 2000, the Provident Fund Authorities had preferred an appeal before the Hon’ble Supreme Court of India being Civil Appeal No.1758 of 2007 which was ultimately dismissed on 21st July, 2010. On the aspect of being aware of the order dated 29th July, 2005 as corrected on 2nd September, 2005 it has been submitted that on 21st March, 2011, it was submitted that the advocate of the R.D.B informed one of the directors of the applicant that an application in connection with the said pending appeal being ACO No.25 of 2011 was appearing in the list of another Division Bench presided over by the Hon’ble Justice Kalyan Jyoti Sengupta. The said matter appeared in list of 21st March, 2011. Since no copy of the said application was served upon the petitioners, the said director immediately instructed the said advocate on record to intervene in the matter and to take steps to protect the interest of the petitioner. On the basis of the aforesaid, the said advocate on record intervened and it transpired during the course of hearing of the said application which appears to have been filed by several unions that the said appeal, namely, ACO No.8 of 1998 was disposed of on 29th July, 2005 and the fact of such disposal of appeal was also recorded in a subsequent order dated 8th May, 2006. The said director was further informed that on 21st March, 2011 the Division Bench of this Hon’ble Court after hearing the submissions made on behalf of the parties was pleased to give certain directions and to adjourn the matter till 29th March, 2011. On the basis of the direction passed on 21st March, 2011, the advocate on record of the petitioning creditor forwarded a compilation of certain orders passed by this Hon’ble Court which, inter alia, included the orders dated 29th July, 2005, 2nd September, 2005 and 8th May, 2006. It appears from a perusal of the order dated 29th July, 2005 as corrected on 2nd September, 2005, that the said order was passed in an application being ACO No.65 of 2004 made by one Krishna Pada Goswami. It appears from a perusal of the order dated 29th July, 2005 as corrected on 2nd September, 2005, that the said order was passed in an application being ACO No.65 of 2004 made by one Krishna Pada Goswami. From the said application being ACO No.8 of 1998, it appears that Krishna Pada Goswami was an employee of Victoria Jute Company Ltd. since 1968 and his grievance was that he did not receive the retirement dues, namely, provident fund, gratuity etc., after his retirement on 1st July, 1988. In the petition, it appears that the said Krishna Pada Goswami referred to the orders dated 16th July, 1998 and 28th March, 2000 and on the basis of such orders prayed for reliefs of such as payments. In the said application, the said erstwhile employee contended that although he had allowed his claim before the learned Special Officers but he did not receive any payment and accordingly he made the said application in which the said orders were passed. For the sake of convenience, the said orders were reproduced herein below: “ACO No.65 of 2004 ACO No.8 of 1998 APONo.98 of 1987 C.P.No.253 of 1987 IN THE HIGH COURT AT CALCUTTA ORIGINAL JURISDICTION “Plaintiff/Petitioner/Appellant : Krishna Pada Goswami Vs. Defendant/Respondent : The Victoria Jute co. Ltd & Anr. Present: The Hon’ble Justice Pinaki Chandra Ghose And The Hon’ble Justice Narayan Chandra Sil Dated: 29th July, 2005 Dictated Order The Court: It appears that the petitioner has already lodged his claim before the joint Special Officers. The Joint Special Officers shall proceed in the matter in accordance with the order already passed by the Hon’ble Division Bench and shall decide the claim of the petitioner within a month from date. If the petitioner is entitled to for the same. The appeals and the applications are thus disposed of. All parties are to act on a Xerox signed copy of this dictated order on the usual undertaking.” “ACO No.65 of 2004 ACO No.8 of 1998 APONo.98 of 1987 C.P. No.253 of 1987IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTIO (ORIGINAL SIDE) “Plaintiff/Petitioner/Appellant : Krishna Pada Goswami Vs. Defendant/Respondent : The Victoria Jute co. Ltd & Anr. All parties are to act on a Xerox signed copy of this dictated order on the usual undertaking.” “ACO No.65 of 2004 ACO No.8 of 1998 APONo.98 of 1987 C.P. No.253 of 1987IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTIO (ORIGINAL SIDE) “Plaintiff/Petitioner/Appellant : Krishna Pada Goswami Vs. Defendant/Respondent : The Victoria Jute co. Ltd & Anr. Present: The Hon’ble Justice Pinaki Chandra Ghose And The Hon’ble Justice Narayan Chandra Sil Dated: 02.09.2005 The Court: It appears that due to inadvertence the cause title number ‘APO No.98 of 1987’ between ACO no.8 of 1998 and C.P.No.253 of 1987 has gone down wrongly and it should be ‘APO No.98 of 1988’. Therefore, instead and place of ‘APO No.98 of 1987’ it should be read as ‘APO No.98 of 1988’. Let this correction be incorporated in the earlier order dated 29th July, 2005. All parties are to act on a signed copy of the minutes of this order on the usual undertakings.” It was submitted that the copy of the said application was never served upon R.D.B and as such R.D.B had no means to know that such order was passed disposing of the appeal. Moreover, R.D.B was also not a party in the said application. It was on the basis of the aforesaid facts that Mr. Aninda Kumar Mitra, the learned Senior Counsel appearing on behalf of the R.D.B Textiles submitted that the expression “appeals are thus disposed of” was a nothing but an unintentional mistake and the Appeal No.98 of 1988 was never heard at any point of time. It was submitted that this application is only for the purpose of correction of unintentional mistake in the orders dated 29th July, 2005 and 8th May, 2006. This can be clarified only by the Hon’ble Division Bench who had passed that order, that is why this matter is appearing on assignment before this Division Bench presided over by the Hon’ble Justice Pinaki Chandra Ghose and the Hon’ble Justice Tapan Kumar Dutt, who had passed the order dated 8th May, 2006. Unintentional mistake can be corrected by the Hon’ble Court and in fact, it is the duty of the Hon’ble Court to correct unintentional mistakes. In support of his contention he relied upon the decisions of Om Prakash Marwaha Vs. Jagdish Lal reported in 2009 (1) SCC 510 (para 15) and Master Construction Co. Pvt. Ltd. Vs. Unintentional mistake can be corrected by the Hon’ble Court and in fact, it is the duty of the Hon’ble Court to correct unintentional mistakes. In support of his contention he relied upon the decisions of Om Prakash Marwaha Vs. Jagdish Lal reported in 2009 (1) SCC 510 (para 15) and Master Construction Co. Pvt. Ltd. Vs. State of Orissa reported in AIR 1966 SC 1047 (para 7). The above judgments explain what is accidental slip. It is submitted that it is a case of unintentional mistake and accidental slip. Such mistake can be corrected, in fact, should be corrected by the Court suo motu. He further submitted that such correction can be made at any time. He also relied upon the decisions of Samarendra Nath Sinha Vs. Krishna Kumar Nag reported in AIR 1967 SC 1440 and AIR 1924 Cal 895. In this backdrop he submitted that the said orders should be recalled. Mr. P.C. Sen, learned Senior Advocate appearing on behalf of the Victoria Jute Company Limited accepted that undisputedly RDB Textile was not a party in the appeal. The RDB Textiles Limited has acted in terms of the order dated 16th July, 1998. According to him, RDB Textiles cannot be a party aggrieved by any order, if passed in the appeal nor he can participate in the proceedings. Therefore, R.D.B. Textiles has no legal right to ask for revival of the appeal. According to him, application is not for correction of any clerical mistakes under Section 152 of the Code of Civil Procedure. The Court directed to follow the scheme “for the present” cannot be converted to mean for eternity that is contrary to the rights of the rightful of owners. He further submitted that the appellant does not want to revive the appeal. No application has been filed by the appellant and the appellant does not want that the appeal should be restored to file. His further contention is that the petitioning creditor knew all along that the appeals had been disposed of. Therefore, there is no question to revive the appeal at this stage. He further pointed out that the learned Advocate for RDB made a categorically statement before the Court on 8th May, 2006 that the appeal had been disposed of and invited the Hon’ble Court to act on that statement. Therefore, there is no question to revive the appeal at this stage. He further pointed out that the learned Advocate for RDB made a categorically statement before the Court on 8th May, 2006 that the appeal had been disposed of and invited the Hon’ble Court to act on that statement. The Court after accepting the said submission and thereby give effect to it by its order passed by the Court. It was contended that the learned Advocate had given a change to some other learned Advocate but without any particulars thereof which would show that for the benefit of RDB that was followed by the Advocate on Record. The benefit of the delay would give an advantage to the RDB and none else. He further submitted that the whole scenario has changed after the order dated 29th March, 2011 passed by the other Division Bench presided over by Sengupta, J. He further submitted that the application has been filed only to bye pass the order passed by the said Division Bench. It is contended that if the appeal is restored, RDB will be benefited and none else. In these circumstances, Mr. Sen submitted that the status quo should be followed and no order should be passed. Per contra, it is contended that application is maintainable and the Court has power to correct the order so passed by the Court. It is also pointed out that the workers are also benefited by the said order passed by the Court directing RDB Textiles to run the Victoria Jute Mills Limited. From the record it is clear that when the Division Bench passed the order dated 29th July, 2005 which was subsequently corrected on 2nd September, 2005, the Division Bench was considering the application of the said erstwhile employee, namely, Krishna Pada Goswami. The said order is only confined to the application filed by the said applicant and by no stretch of imagination could be said to have passed in relation to disposing of the appeal. The Division Bench had no occasion as it would be clear from the order itself to go into the merits of the appeal. The recording of the appeal as disposed of is an unintentional mistake and a mistake committed by the Court. The Division Bench had no occasion as it would be clear from the order itself to go into the merits of the appeal. The recording of the appeal as disposed of is an unintentional mistake and a mistake committed by the Court. It was the duty of the parties appearing to draw the attention of the Court that the recording of “appeals…… disposed of” was clearly a mistake since on that day the Court had no occasion to dispose the appeal at all. In fact, it is not in dispute that even though it was recorded as “appeals……disposed of” R.D.B paid amount and the Special Officers received the amount and disbursed the said amount in terms of the scheme framed by the Division Bench of this Hon’ble Court by its earlier order. Such disbursement can only take place, provided the appeal survives. It is well-settled that mistake of a Court would not prejudice anyone (See 13 CLJ 467; 61 CWN 368). In our view it was an unintentional mistake committed by the Court and the Court can in all such situation recall and/or correct its order. The said power of the Court is undisputed and recognized by judicial authorities, namely, 2009(1) SCC 510 (Om Prakash) (Supra); AIR 1966 SC 1047 (Master Construction (Supra); AIR 1924 Cal 895 (Supra) and AIR 1967 SC 1440 (Somarendra Nath Sinha) (Supra). The R.D.B as a licensee was allowed to run the management of the same company in terms of various orders that were passed and the appeal is yet to be disposed of. In deciding the present application, the Court is only required to see as to whether on that day the Court was, in fact, hearing the appeal. From the order, it is very clear that the Court was hearing only the application of a retired employee and not the appeal. That has been the understanding of the parties also by reason of the subsequent conduct and it is not in dispute that R.D.B had paid substantial amount in terms of the Scheme even thereafter till the period in 2011 as mentioned hereinabove. The contention of the Victoria Jute Company Ltd. that R.D.B has no right to prefer this application cannot be accepted at this stage. The contention of the Victoria Jute Company Ltd. that R.D.B has no right to prefer this application cannot be accepted at this stage. Apart from the order dated 10th July, 1998 from the subsequent order which duly recorded the payment being made by R.D.B as under a scheme and at least when the said order was passed by the Court on 29th July, 2005, such payment was continued. We are not concerned at this stage on the merits of the appeal which need to be decided at the appropriate point of time when the appeal is being taken up for consideration by the appropriate Bench. We are also not concerned at this stage to decide the merits of the appeal. At this stage we are only concerned to find out whether on 29th July, 2005 there was, in fact, any order disposing of the appeal. Having regard to the facts disclosed in the petition and from perusal of the orders we are of the view that the said order is only confined to the application of Krishna Pada. The contention raised on behalf of the Victoria Jute Company Ltd. or the other parties objecting to recall all the said orders are on merits and it was nobody’s case that on that day the Court was in fact hearing the appeal. In view thereof we do not feel it necessary to go into those questions raised by the said parties and we confined ourselves only to the issue as to whether there has been a correct recording by us. Since we are not hearing the appeal on the said date, the word “appeals are thus disposed of” are mistake apparent on the record and accordingly, the said orders dated 29th July, 2005 as corrected on 2nd September, 2005 and order dated 8th May, 2006 are recalled in so far as it records that the appeals are, thus, disposed of. For the reasons stated hereinabove the application is disposed of on the above terms.