JUDGMENT : 1. By this judgment 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 installments. 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 installments was repaid by ABL along with interest of Rs.1,81,232.87, the former constituting three installments 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. 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 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 there from the amount up to 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 & 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”. 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.” 4. From the affidavit filed in support of the Judge’s Summons in C.A. 187 of 2016, there are averments to the effect that copies the applications in C.A.No.97 of 2016 and C.A.No.715 of 2015 have been served upon the BCCL, but not of C.A. 131 of 2016. In C.A. No. 97 of 2016, the same two applicants as in CA 715 of 2015 want subpoenas to be issued upon 29 persons. In C.A. No. 97 of 2016, the same two applicants as in CA 715 of 2015 want subpoenas to be issued upon 29 persons. The applicants also want a restraint order upon the counsel for BCCL to prevent them from taking a stand contrary to that taken in C.P. No. 90 of 1983 on the question of sole authority of the Official Liquidator to represent ABL. Further reliefs prayed for in this application include certain modification in the prayers of C.A. 715 of 2015. The applicants in C.A. 97 of 2016 want the consent order-cum-decree in C.P. 575 of 1982 to be recalled upon declaring it void, inter alia, on the principle of “cadit opus fundementalo sublato.” In C.A. 131 of 2016 also, prayers include issue of subpoenas to the same 29 persons named in C.A. 97 of 2016, as also seven individuals named in Annexure “P-14” to the affidavit taken out in support of the Judge’s Summons. The object of the subpoenas which the applicants want to be issued is for their deposition before this Court on being examined. 5. So far as ABL is concerned, as I have already observed, that company is subject of another winding up proceeding being C.P.No.90 of 1983. That proceeding has also been assigned before me and I am hearing several applications in C.P. 90 of 1983. There is dispute in that proceeding as to whether ABL ought to be treated at all as a company in liquidation or not. HIT along with NHS are applicants in various applicants taken out in connection with C.P. 90 of 1983, and stand of the HIT before the Court in those proceedings is that it is both a creditor as well as contributory in respect of ABL. On different grounds, to some of which I shall refer subsequently in this order, HIT has sought to make out a case that the ABL was never wound up in C.P. 90 of 1983. Alternative plea of HIT in that proceeding has been that if it was, then the order directing such winding up ought to be recalled and the company should be allowed to function in normal course through its Board of Directors. The creditor-applicant in that proceeding is one R.K. Trading & Co., but at present no one is representing it in C.P. 90 of 1983. That proceeding was instituted on or about 23rd February 1983. The creditor-applicant in that proceeding is one R.K. Trading & Co., but at present no one is representing it in C.P. 90 of 1983. That proceeding was instituted on or about 23rd February 1983. One of the material dates so far it relates to the proceedings in C.P. 90 of 1983, is 16th September 1983. On that date the matter was taken up for hearing by the Court and an order was passed recording that the said company had paid in Court Rs.4,654.84p by cheque bearing no. 533901 dated 9th September 1983 drawn on Grindlays Bank Ltd. in full and final settlement of the claim of the applicant firm. It was also ordered by the Court on that date that “the petition for winding up of the said company shall remain stayed permanently.” On 29th September 1983, however, the same Hon’ble Judge was pleased to recall the order of permanent stay. On 26th March 1984, order was passed to wind up ABL. The Official Liquidator was appointed as Liquidator and was directed to take possession of assets and records of the company but the order was stayed for six weeks to enable the company to settle the claim of the petitioning creditor and other creditors, whose petitions were pending. Those petitions were directed to be admitted and be treated as in support of the petition. There were subsequent orders through which revival of the company were explored but all these attempts had failed. On 1st October 1986, the Official Liquidator was directed to take possession of the assets and properties of the company. I have already referred to the main stand of HIT and NHS (which was taken during his lifetime) as regards status of ABL in C.P. 90 of 1983. Argument has been advanced on their behalf in that proceeding that the winding up order, inter alia, was void ab initio on the grounds that the Hon’ble Judge who recalled the order permanently staying the winding up did not have the jurisdiction or determination to pass such order and also the recalling order was void, being unreasoned. It was also urged that the Board of Directors stood revived. These points are being examined by me in course of hearing of C.P. 90 of 1983. 6. It was also urged that the Board of Directors stood revived. These points are being examined by me in course of hearing of C.P. 90 of 1983. 6. The ground primarily on which the applicant in C.A.No.187 of 2016 seeks dismissal of the aforesaid three applications is that none of the said two applicants is entitled to bring the applications in law and these applications are not maintainable. The applicants in C.A. 529 of 2016 are also ABL and HIT, and they seek dismissal of C.A. 187 of 2016. It is contention of BCCL that ABL, being in liquidation, no entity or person other than the Official Liquidator can bring any proceeding on its behalf, or represent that company. So far as locus of HIT is concerned, argument of Mr. Joydeep Kar, learned senior counsel appearing for BCCL is that HIT also cannot bring an action for recalling a decree which was passed on consent as it was not a party to the said winding-up proceeding. The prayers made in C.A. 187 have been reproduced in the earlier part of this judgment . The other point on which maintainability of the said three applications, and in particular that of C.A. 715 of 2015, is questioned is on the point of limitation. Case of BCCL on this point is that the application seeking recalling of that order or decree on consent ought to have been brought, if otherwise the same was maintainable, within three years from the date of passing of the same. Mr. Kar has submitted that even if recalling of the consent order is sought on the ground of fraud, in such a case also an application ought to have been taken out within three years from the date on which the applicants had notice of fraud. He has relied on certain materials forming part of records in C.P. 90 of 1983 to attribute to NHS knowledge of the said consent order and steps taken in consequence thereof, drawing my attention to Article 59 contained in the schedule to Limitation Act. His contention is that the recall petition was instituted beyond the prescribed period of three years from the date NHS could be said to have had acquired knowledge thereof. On his first submission, Mr. Kar has referred to the provisions of Rules 3 and 3A of Order 23 of the Code of Civil Procedure. His contention is that the recall petition was instituted beyond the prescribed period of three years from the date NHS could be said to have had acquired knowledge thereof. On his first submission, Mr. Kar has referred to the provisions of Rules 3 and 3A of Order 23 of the Code of Civil Procedure. It has also been urged by him that HIT in any event has not explained or described its interest in the subject-dispute, and its status as a contributory or creditor has not been spelt out in the pleadings of any of the applications which are being dealt with in this judgment. According to him, mere oral submission on this count ought not to be taken cognisance of by the Court. His argument is that HIT cannot be an aggrieved party to bring these actions. On the point of limitation, Mr. Kar has also taken me through the provisions of Section 17 thereof to contend that C.A.715 of 2015 and all consequential proceedings are time-barred. 7. Extensive argument has been advanced by the learned counsel for the parties on these points and parties have submitted their written notes on submissions. Mr. Khosla has submitted written notes on submissions in seven volumes on behalf of the applicants in C.A. No. 715 of 2015 and two other applications. In this judgment I would not be referring to the written submissions of the parties line by line, but, I shall deal with the legal and factual points highlighted in the written notes on submission to the extent I consider them material and relevant to examine rival submissions. Several decisions have been cited by the learned counsel for the parties in support of their respective submissions. As regards these decisions also, I shall refer to in this judgment those decisions only which I find relevant for determining the points in conflict. 8. Mr. Khosla has taken a point that the application of BCCL, registered as C.A.No.187 of 2016 is in the nature of a demurrer application and he wants me to hold that by taking out the demurrer application, the applicant shall be deemed to have accepted all the factual statements made in the three applications, being C.A. 715 of 2015, C.A. 97 of 2016 and C.A. 131 of 2016 to be true, irrespective of the fact as to whether his clients succeed in these applications or not. He has relied on a set of US authorities and also English principle to contend that a demurrer application by its very nature proceeds on the basis that the applicant seeking dismissal of an action by contesting it on demurrer accepts the facts contained in the pleadings of the opponent. The impact of this submission of Mr. Khosla is that even if BCCL succeeds in the application registered as C.A. 187 of 2016, the factual basis of substantive allegations contained in the three applications, whose dismissal is being sought for by BCCL shall stand established inter-partes. On the question of the proceedings being barred by limitation, Mr. Khosla’s submission is that his clients had no knowledge of the order or consent decree, and they have approached the Court after acquiring such knowledge within the prescribed timeframe. On the same point, it has been urged by Mr. Khosla that there was fraud on Court in obtaining the consent decree, and because of this factor, that decree must be declared to be void ab initio and in such a case, the law of limitation would not apply. Emphasis of Mr. Khosla on this issue is that the entire exercise beginning from institution of C.P. 575 of 1982 till passing of the consent decree was on the basis of fraudulent practise, and without knowledge of the Company, i.e. ABL itself or that of said NSH, who at the material point of time was in effective control of the said company. It has also been contended by him that BCCL had not disclosed the relationship between itself and ABL. His submission is that BCCL at the material point of time was controlling entity of another company, Turner Morrison & Co. Ltd., which was the dominant shareholder of ABL. He has also complained that the notice of the proceeding was not given at the registered office of the company but was sent to 11, Brabourne Road, even though affidavit-of-service pertaining to the said proceeding made by the Advocate-on-Record of BCCL showed service thereof to have had been made at 6, Ram Gopal Ghosh Road Kolkata. It is also his case that the statutory notice was never served upon ABL. He has advanced arguments on certain other factual issues which according to him would demonstrate that fraud was played on Court in obtaining the consent decree. 9. I shall first deal with the case of Mr. It is also his case that the statutory notice was never served upon ABL. He has advanced arguments on certain other factual issues which according to him would demonstrate that fraud was played on Court in obtaining the consent decree. 9. I shall first deal with the case of Mr. Khosla on demurrer, which submission is a novel one in the Indian context. But before I do so, I shall be briefly narrating the factual background in which Mr. Khosla’s clients brought the aforesaid three applications and the summary of their allegations. The consent order itself would reveal in what manner the dispute in C.P. 575 of 1982 was being resolved, assuming it was a valid resolution. So far as institution of the winding up proceeding is concerned, Mr. Khosla’s case is that the same was brought with fraudulent motive. The allegations in that regard have been made in a notice issued by Mr. Khosla on 2nd October 2015 addressed to the Board of Directors of BCCL. In this notice, it has been, inter alia, stated:- “14. Sometime in the 1980s, an ante-dated Promissory Note for a sum of Rs.35 lakhs, antedated to 25.02.1981, was forged and fabricated, purporting that my client (i.e. Angelo Brothers Ltd) had allegedly promised to pay M/s Bennett, Coleman and Co., Ltd (herein, “BCCL”) a sum of Rs.35 lacs on demand for value received, along with interest @ 21% per annum, with quarterly rests. 15. The fabrication of this alleged Promissory Note was done undoubtedly in criminal collusion with the persons then in charge, claiming to be in charge, of the affairs of Angelo Brothers Ltd. 16. Taking undue advantage of his strangle-hold over Turner Morrison’s affairs trustingly conferred upon him by absentee owner Mr. N. S. Hoon, the Board of Directors of BCCL orchestrated the filing of a collusive suit before the Hon’ble High Court of Calcutta against Angelo Brothers Ltd., solely based upon this forged and fabricated Promissory Note of Rs.35 lakhs. 17. Due to the collusive understanding arrived at, it was ensured that Mr. N. S. Hoon, the Board of Directors of BCCL orchestrated the filing of a collusive suit before the Hon’ble High Court of Calcutta against Angelo Brothers Ltd., solely based upon this forged and fabricated Promissory Note of Rs.35 lakhs. 17. Due to the collusive understanding arrived at, it was ensured that Mr. N. S. Hoon, Chairman of Angelo brothers Ltd, was not kept abreast of this development, and a so-called collusive defence was surreptitiously put up before the Court, which resulted in passing of a collusive consent decree against Angelo Brothers Ltd dated 27-04-1983, whereby it was directed to pay a sum of Rs.8 lakhs to BCCL in full and final satisfaction of all claims set out in the suit. 18. It had been further directed by the Hon’ble Court that upon payment of the aforesaid sum to BCCL, 50,000 shares of Angelo Rhodes Ltd (UK) owned by Angelo Brothers Ltd, and which were in the manipulated and illegal physical custody of BCCL allegedly till such time that the Promissory Note stood discharged, would be returned to Angelo Brothers Ltd. 19. Interestingly, at the same period, it had been orchestrated by Mr. Ashok Jain that a winding-up petition would be filed against Angelo Brothers Ltd by some other alleged creditors in February 1983, alleging non-payment of a grand and princely sum of Rs.4,564.84p. (This aspect will assume greater significance as further events set out in the present Legal Notice unravel, relating to “fraudulent preference”). 20. Reverting back to the collusive decree of 27-04-1983, in discharge of the alleged liability of Angelo Brothers Ltd, a sum of Rs.3 lakhs was paid to BCCL by an associate of Mr. N. S. Hoon [one M/s Minerals Syndicate (1960)] on account of the liability of, and on the request of my client, Angelo Brothers Ltd, vide bank draft No. PQW/119904 drawn on Punjab National Bank, Bombay. Receipt of the same was acknowledge by BCCL vide receipt dated 29-04-1983 issued by their Calcutta office. 21. Thereafter, Mr. Hoon contacted Executive Director and Secretary of BCCL (one Mr. P. R. Krishnamoorthy), in response to which the aforesaid individual sent the following telex to Mr. N. S. Hoon on 30-04-1983 at 1718 hours: “SERVICE TWENTY FIVE FOR CALCUTTA FROM P.R. KRISHNAMOORTHY TO SHRI N S HOON, CALCUTTA YOUR MESSAGE. PL DELIVER THE DRAFT TO BENNETT COLEMAN, CALCUTTA OFFICE WITH A COVERING LETTER FROM ANGELO BROS. LTD. P. R. Krishnamoorthy), in response to which the aforesaid individual sent the following telex to Mr. N. S. Hoon on 30-04-1983 at 1718 hours: “SERVICE TWENTY FIVE FOR CALCUTTA FROM P.R. KRISHNAMOORTHY TO SHRI N S HOON, CALCUTTA YOUR MESSAGE. PL DELIVER THE DRAFT TO BENNETT COLEMAN, CALCUTTA OFFICE WITH A COVERING LETTER FROM ANGELO BROS. LTD. AND SAYING THAT IT IS IN PAYMENT IN TERMS OF THE ORDER OF THE CALCUTTA HIGH COURT. YOU MAY ALSO REQUEST BENNETT TO ASSIGN AND TRANSFER THE PRO-NOTES HELD BY THEM IN FAVOUR OF THE PARTY FROM WHOM YOU HAVE TAKEN THE D/DRAFT. THERE IS NO NEED FOR ANY TRIPARTITE AGREEMENT. THE SHARES WILL BE APPROPRIATED BY BENNETT COLEMAN AND THE PRO-NOTE WILL BE ASSIGNED TO YOUR PARTY. THE PRO-NOTES FOR RS.35 LACS MINUS RS.15 LACS ALREADY RECEIVED EXCLUSIVE OF INTEREST. YOU MAY CONSULT MR. KHAITAN ALSO, SHOWING THIS MESSAGE TO HIM. BOM. PLS ACK BOMBAY AAS 1718 HRS 30/4/83” A copy of that telex is not being annexed to this notice, as its contents have been reproduced above, verbatim, in their entirety. In any case, it forms a part of the court records before the Hon’ble High Court of Calcutta, inter alia, in APO No. 953 of 1993, and CP No. 33 of 1988. As BCCL and Turner Morrison are parties to the aforesaid proceedings, they are in possession of the copy, whose veracity and authenticity they have not rebutted. 22. In response to another message from Mr. N. S. Hoon, Mr. Krishnamoorthy sent another telex to Mr. N. S. Hoon on 03-05-1983, in which he stated as under: “REMTD TOI BOMBAY TLX NIL DATE 3.5.83 YR. MES. THERE IS NO QUESTION OF ANY AGREEMENT. I HAVE ALREADY TOLD YOU THE PRONOTES WILL BE ENDORSED. SIMILARLY THE SHARES WILL BE DELIVERED AS SOON AS PAYMENT OF RS.2 LAKHS IS MADE. CAPT. ANAND HAS NOT CONTACTED US AS INFORMED BY YOU. (END) DG/PL ACK.” Of crucial relevance in the above communication is the confirmation, by way of an admission as well as an acknowledgement, that the 50,000 shares of Angelo Rhodes Ltd belonging to Angelo Brothers Ltd but lying in the physical custody of BCCL would be delivered back to Angelo Brothers Ltd as soon as the balance payment of Rs.2 lakhs was made. A copy of that telex is not being annexed to this notice for the same reason, inter alia, that it is already known to you, and forms a part of court records, inter alia, in APO No. 953 of 1993, and CP No. 33 of 1988. 23. Thereafter, acting on instructions of Angelo Brothers Ltd, and in compliance with the requirements of BCCL as set out in the telex dated 03-05-1983, a letter was addressed on 08-06-1983 to BCCL by the aforesaid associate of Mr. N. S. Hoon [the aforesaid M/s Minerals Syndicate (1960)], forwarding two more bank drafts aggregating to the balance of Rs.2 lakhs, which was tendered by them in full and final settlement of the collusive court decree of 27-04-1983. 24. It was categorically stated in the letter as follows: “We shall be grateful if you send us the shares of Angelo Rhodes Ltd, and until delivered, hold the same in trust for us.” (Emphasis supplied.) 25. acting on the instructions of BCCL’s Mr. P. R. Krishnamoorthy, as set out in his telex dated 30-04-1983, these 2 bank drafts for the balance Rs.2 lakhs were delivered to M/s Khaitan & Co (Solicitors), acting in this particular transaction not as solicitors but as “agents”/ “attorneys” of BCCL. 26. According, M/s Khaitan and Company issued their formal receipt dated 08-06-1983 for an on behalf of BCCL, in which it was categorically stated and confirmed by them that they had received the sum “on account of Angelo Brothers Ltd, in pursuance of the order of the court dated 27 April, 1983”. 27. Thereafter, shockingly, in a letter dated 21-04-1984 signed by the same Mr. P. R. Krishnamoorthy to one Mr. M. J. Swallow, Director of Angelo Rhodes Ltd (UK), it was falsely stated that “so far as Angelo Brothers Ltd are concerned, they have transferred the shares to us, and transfer is pending only for Reserve Bank of India confirmation and, therefore, Angelo Brothers Ltd has no right whatsoever in respect of the shares in your company.” A copy of this letter is appended hereto, and is marked as Annexure 3 (page 40 of this Legal Notice) 28. It is extreme relevance to the present Notice to highlight that vide orders dated 13-04-1983/04-04-1983/13-06-1983 passed in CP No. 90 of 1983, it had been ordered by the Hon’ble High Court of Calcutta that M/s Angelo Brothers Ltd be wound up. 29. It is extreme relevance to the present Notice to highlight that vide orders dated 13-04-1983/04-04-1983/13-06-1983 passed in CP No. 90 of 1983, it had been ordered by the Hon’ble High Court of Calcutta that M/s Angelo Brothers Ltd be wound up. 29. From this, it is clear that even assuming without admitting that 50,000 shares of Angelo Rhodes Ltd owned by Angelo Brothers Ltd were transferred to BCCL (or some other nominee, say, Times Center for Business Studies, though the letter dated 21-04-1984 from BCCL’s Mr. P. R. Krishnamoorthi to Mr. M. J. Swallow, the word used as “transferred to ‘us’ …”), this was attempted to have been done by BCCL sometime after 08-06-1983 [which is when it received the letter dated 08-06-1983 from the aforesaid associate, M/s Minerals Syndicate (1960) pursuant to instructions issued by BCCL’s Mr. P. R. Krishnamoorthi vide telex sent on 03-05-1983] and 21-04-1984 (when it wrote the aforesaid letter to Mr. M. J. Swallow), as would be indicated from the following words in the letter dated 21-04-1984 signed for and on behalf of BCCL by Mr. P. R. Krishnamoorthy (emphasis supplied): “…..so far as Angelo Brothers Ltd are concerned, they have transferred the shares to us, ….” 30. Firstly, by this alleged transfer, BCCL and its Management, by virtue of letter dated 08-06-1983 written by Minerals Syndicate (1960), appointing BCCL as trustee in physical custody of 50,000 shares of Angelo Rhodes Ltd, is in “criminal breach of trust committed by an agent”, which offence is punishable under Section 409 of the Indian Penal Code with life imprisonment. 31. Secondly, even assuming without admitting that these shares are allegedly transferred to BCCL, the person who allegedly has signed the transfer papers on behalf of Angelo Brothers Ltd has done it without any lawful authority by virtue of the fact that the company, pursuant to orders passed in CP No. 90 of 1983, had been ordered to be wound up. This being so, and as per the argument taken by your Group itself in CA No. 579 of 1989 executed on 02-09-2015 and filed in CP No. 90 of 1983 by one Mr. Sanket Agarwal, Director of Sahu Jain Ltd, once a company has been ordered to be would up by a court, Its Board Of Directors, its management, et cetera all are functus officio. Sanket Agarwal, Director of Sahu Jain Ltd, once a company has been ordered to be would up by a court, Its Board Of Directors, its management, et cetera all are functus officio. A copy of the aforesaid CA No. 579 of 2015 is appended to this notice, and is marked as Annexure 4 (pages 41-57 of this Legal Notice) 32. This being so, it is not only clear that the transfer papers could not have lawfully been signed by such person, but also that this legal impediment is a fact known to you also. 10. The present set of proceedings arise out of a petition for winding-up, and jurisdiction this Court is exercising while hearing these applications is that of the Company Court under the provisions of the Companies Act, 1956 (the 1956 Act). Such jurisdiction is guided by the Companies (Court) Rules, 1959. So far as practise and procedure of the Companies Court is concerned, Rule 6 of the 1959 Rules provides:- “R.6 Practice and Procedure of the Court and provisions of the Code to apply.-Save as provided by the Act or by these rules the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the Court.” 11. There is no specific provision under the 1959 Rules stipulating the procedure to be followed for recalling a consent decree or order passed in a winding up petition or in respect of petitions taken out for dismissal of an application filed in connection with liquidation or winding up proceedings. This would bring in provisions of the Civil Procedure Code, 1908, following the 1959 Rules. Under the aforesaid Code also there is no specific provision for instituting applications of these nature. But neither the 1959 Rules nor the Code bar filing of such applications. In such context, what would be the guiding principle on the basis of which Court shall deal with such an application? In my view, the inherent power of the Court, recognized in Rule 9 the 1959 Rules would be applicable in such a context, and the principles guiding Section 151 of the Code would apply for determining the contours of such inherent power. In my view, the inherent power of the Court, recognized in Rule 9 the 1959 Rules would be applicable in such a context, and the principles guiding Section 151 of the Code would apply for determining the contours of such inherent power. Said Rule 9 Stipulates:- “R.9. Inherent powers of Court.-Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 12. I shall deal with submissions of Mr. Khosla on the demurrer issue in this legal background. In C.A. No.187 of 2016, the expression “demurrer” has not been used and what the applicant has sought for is dismissal of the three applications being C.A. No.715 of 2015, C.A.No.97 of 2016 and C.A. No.131 of 2016 primarily on the ground that these applications are not maintainable in law. Mr. Kar, in course of his submissions, however, emphasised that his client’s application (C.A. 187 of 2016) is in the nature of demurrer, and advanced his arguments on that basis. Mr. Kar wants this Court to treat that application as if is was an application under Order 7 Rule 11 of the Code. Mr. Khosla on the other hand contends that this is not an application in the nature of Order 7 Rule 11 of the Code as the applicant BCCL has applied for dismissal of the petition, whereas under the aforesaid provision of the Code, the term employed is rejection of plaint. Mr. Kar has specifically referred to Clause (d) of Rule 11 of Order 7, and has contended that it is that provision which should guide this Court for dealing with C.A. 187 of 2016. Mr. Kar has specifically referred to Clause (d) of Rule 11 of Order 7, and has contended that it is that provision which should guide this Court for dealing with C.A. 187 of 2016. Rule 11 of Order 7 provides:- “The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. …. ….;” Mr. Kar has submitted is that even if the said application fails, the applicant’s right to contest the opponent’s case on merit would not stand forfeited, and such demurrer point should not result in admission of what is stated in the application of the opponent. 13. In two major common law jurisdictions, the U.K. and the U.S., practise for bringing motion for demurrer has been abandoned. When such a practise subsisted, it constituted proceeding on admission of facts. BLACK’S LAW DICTIONARY (Ninth Edition) has the following meaning for this term:- “A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer…” As per Concise Oxford English Dictionary (Eleventh Edition), “Demurrer means:- “an objection granting the factual basis of an opponent’s point but dismissing it as irrelevant or invalid…” In volume 11(3) of Halsbury’s Laws of England (Fourth Edition 2006 Reissue), the expression “Demurrer” has been explained as:- “Demurrer. A defendant arraigned on indictment may object to an indictment by demurrer, that is, by alleging in writing that, admitting the matters of fact put against him to be true, the indictment is not sufficient in law; a plea of not guilty may be combined with a demurrer. In practice demurrers have for many years been regarded as obsolete.” Mr. Khosla has also referred to a large body of U.S. decisions which gives similar construction to this expression. These decisions are:- (i) Bissell Vs. Spring Valley Township [124 U.S. 225 (1888)], (ii) Aurora City Vs. West [74 U.S. 7 Wall. 82 (1868)] (iii) Alley Vs. Nott [III U.S. 472 (1884)] (iv) Tyler Vs. Hand [48 U.S. 573 (1849)] (v) Slocum Vs. New York Life Insurance Company [228 U.S. 364 (1913)] (vi) Fowle Vs. Common Council of Alexandria [24 U.S. 320 U.S. 320 (1826)] vii) Mireless Vs. Waco [502 U.S. 9 (1991)] (viii) Smalis Vs. Pennysalvania [476 U.S. 140 (1986)] (ix) Nalle Vs. Oyster [230 U.S. 165 (1913)] (x) Davis Vs. Tileston [47 U.S. 114 (1848)] (xi) Scott Vs. Sandford 60[U.S. 393 (1856)] (xii) Gould Vs. Evansville & Grawfordsville R. Co. [91 U.S. 526 (1875)] I am not repeating the passages cited by Mr. Khosla from these judgments of the Courts in the US because these decisions uniformly hold that seeking dismissal on demurrer plea would bind the applicant for dismissal to the facts pleaded in the plaint of petition. In a Bench decision of the Bombay High Court in the case of Sowkabai Pandharinath Rajapurkar Vs. Sir Tukojirao Holkar [ILR LVI (Bombay) 224], there is reference to the “demurrer” Rule in England. There is observation in that judgment to the effect that Rule 2 of Order XIV of the Code may be applied to introduce that practise in this country, but the opinion of the Bench in that decision was that under Order XIV, the Court does not have power to frame something in the nature of preliminary issue of fact. Mr. Khosla’s further submission in this context is that the doctrine of non-traverse, as embodied in Rule 5 of Order VIII ought to become operational so far as C.A. 715 of 2015 is concerned as BCCL, by taking out C.A. 187 of 2016 in demurrer shall be deemed to have admitted the facts stated in C.A. 715 of 2015. Mr. Khosla’s further submission in this context is that the doctrine of non-traverse, as embodied in Rule 5 of Order VIII ought to become operational so far as C.A. 715 of 2015 is concerned as BCCL, by taking out C.A. 187 of 2016 in demurrer shall be deemed to have admitted the facts stated in C.A. 715 of 2015. His argument is that without referring to the provisions of Order VII Rule 11, and upon specifically taking stand before the Court that C.A. 187 of 2016 was an application in the nature of demurrer, BCCL cannot be permitted to invoke the principles of Order 7 Rule 11 to keep open its chance to contest the recall petition along with the other petitions even if its dismissal plea in respect of the aforesaid three applications fail. 14. Mr. Kar in course of hearing before me has indeed taken a stand that his application is in the nature of demurrer, but his case is that in Indian jurisprudence, an application in the nature of demurrer retains the characteristic of an application for rejection of plaint, and the import of the noun “demurrer” in the Indian legal context cannot be given the same meaning it has in the U.S. or English jurisdiction. His further submission is that the provisions of Order VIII of the Code could apply only after filing of written statement or when the defendant foregoes the right to file written statement, but in this case his client has assailed the recall petition on the ground of maintainability alone and has not abandoned its right to contest the applications on merit. On this point, he has relied on a judgment of the Supreme Court in the case of Ramesh B. Desai & Ors. Vs. Bipin Vadilal Mehta and Ors. [ (2006)5 SCC 638 ]. 15. Ramesh B. Desai (supra) was a case in which a company petition was filed in the year 1988 seeking rectification of register of the company. An application for dismissal of that petition was filed after seven years, in 1995 on the ground that the original petition was barred by limitation. In this case, the Supreme Court treated the application for dismissal of the company petition as a plea in the nature of demurrer, as would be evident from the first three sentences of paragraph 14 of that Report:- “14. In this case, the Supreme Court treated the application for dismissal of the company petition as a plea in the nature of demurrer, as would be evident from the first three sentences of paragraph 14 of that Report:- “14. The plea raised by the contesting respondents is in fact a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further…” 16. In the aforesaid judgment, the Supreme Court applied the principles of Order 7 Rule 11 in relation to the petition for dismissal, but allowed the appeal against judgment of the High Court by which the dismissal plea was upheld. The High Court was directed to hear the company petition afresh. In paragraph 16 of the Report, referring to another judgment of the Supreme Court in the case of Popat and Kotecha Property Vs. State Bank of India Staff Assen [(20057 SCC 510], it was held and observed:- “16. It was emphasised in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application or Order 7 Rule 11 CPC. The principle, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the company petition was barred by limitation has to be examined by looking into the averments made in the company petition alone and any affidavit filed in reply to the company petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the company petition cannot at all be looked into.” 17. The point of demurrer has been used interchangeably with motion for dismissal of a suit on preliminary issue in a judgment of a Coordinate Bench of this Court in the case of Himungsu Kumar Basu Vs. Sudhangsu Kumar Basu ( AIR 2004 Cal 217 ). In paragraph 10 of the Report, a learned Single Judge of this Court held:- “…Even I have no doubt or hesitation in my mind about such principle by whatever name it may be called. Similarly I do believe that the explanation as made by Mr. Bagchi in this case is not very clear. The principal point is demurrer as a preliminary issue can be decided as the earliest when there is no need of investigation of fact. Such analytical aspect of the judgment has to be appreciated. The real import is that when there is availability of two possibilities the point of demurrer can be taken as a point of law and it has to be determined as a preliminary point.” 18. Saleem Bhai and Ors. Vs. State of Maharashtra & Ors. [ (2003)1 SCC 557 ] is an authority for the proposition of law that an application under Order 7 Rule 11 of the Code can be taken out at any stage of the suit. The Bombay High Court also has taken the same view in P. R. Sukeshurla Vs. Dr. Devadatta V. S. Kerkar ( AIR 1995 Bom 227 ). In Ramesh B. Desai (supra), it was held that for examining whether a plaint is barred under law, the averments made in the plaint alone have to be seen and they have to be assumed correct. Same view was taken by the Supreme Court in the cases of Man Roland Druckimachinen AG Vs. Multicolour Offset Ltd. & Anr. In Ramesh B. Desai (supra), it was held that for examining whether a plaint is barred under law, the averments made in the plaint alone have to be seen and they have to be assumed correct. Same view was taken by the Supreme Court in the cases of Man Roland Druckimachinen AG Vs. Multicolour Offset Ltd. & Anr. [ (2004)7 SCC 447 ] as also Popat and Kotecha Property (supra). In the case of ABNAMRO Bank -vs- Punjab Urban Planning and Development Authority (AIR 2000 P & H44), a view was taken that under Order 7 Rule 11, there is no concept of partial rejection of plaint. Ratio of that authority is not applicable in the facts of these proceedings. None of these authorities lay down the ratio that an application referred to as a “demurrer” constitutes admission of facts in the suit or application whose dismissal is asked for. The principles contained in the aforesaid Rules of Order VIII cannot be implanted in a case of this nature, in which dismissal of an application is sought for on maintainability point, without adverting to merits of the case. Mr. Kar, on the other hand, has cited a judgment of the Bombay High Court in the case of Globex Financial Services Ltd. Vs. Bakulesh T. Shah and Ors. [2000(2) ALL MR 419]. Submission on this very point was rejected by a learned Single Judge of the Bombay High Court in this case, and it was held in the context of that case that when the defendant proceeded on demurrer, it would only mean that they are denying the contentions of the plaintiffs as raised in the plaint and in their view assuming without conceding that those contentions were to be gone into, the Court did not have the pecuniary jurisdiction. 19. The opinions expressed in these authorities do not lay down the law that a motion for dismissal of a plaint or petition on a preliminary point in India forfeits the right of the applicant to contest the case later or such a procedure results in admission of facts pleaded in such plaint or petition whose dismissal is sought for. On the other hand, in the case of Ramesh B. Desai (supra), the Supreme Court examined an application seeking dismissal of a company petition applying the principles of Order 7 Rule 11 of the Code. On the other hand, in the case of Ramesh B. Desai (supra), the Supreme Court examined an application seeking dismissal of a company petition applying the principles of Order 7 Rule 11 of the Code. In the judgment of a Coordinate Bench in the case of Himungsu Kumar Basu (supra), the learned Judge has dealt with the concept of demurrer interchangeably with an application for rejection of plaint under Order 7 Rule 11 of the Code. Mr. Khosla urged before me that there was material difference between an application under Order 7 Rule 11 of the Code and the character of C.A. 187 of 2016 in that the former provision contemplates rejection of plaint whereas in the latter BCCL has sought for dismissal of the recall petition. But to make such a distinction in my view would be a mere exercise in semantics. In fact, there is an old authority, Tulsidas alias Nirmal Das & Ors. Vs. Diala Ram (AIR 1943 Lahore 176), being judgment of a Full Bench of Lahore High Court, in which the plea for making such distinction had been rejected:- “10. With regard to the particular case, in which the reference has arisen, two subsidiary points have been raised. It is urged that the Assistant Collector, Mr. Kayani, did not ‘dismiss’ the former petition but merely ‘rejected’ it and for this reason Section 18, which speaks of the ‘order of dismissal’ is inapplicable. This contention had found favour with the District Judge who has observed that the Assistant Collector had acted on the analogy of Order 7, Rule 11 and ‘rejected’ the petition, because, on his finding, it disclosed no cause of action. It is, however, clear from Mr. Kayani’s order that no such nice distinction was present to his mind and he used the word ‘rejected’ loosely. The words ‘rejected’, ‘dismissed’, consigned to the record room’, etc are used interchangeably in reference to applications, appeals and other proceedings and, as pointed out in Somasundaram Chettiar v. Alamelu Achi (37) 1937 M.W.N. 480, their effect has to be ascertain ed with reference to the attendant circumstances and not merely from the form of the order. In the present case, the order was clearly one of ‘dismissal’ and the mere use the word ‘rejected’ at the end does not make any difference.” 20. In the present case, the order was clearly one of ‘dismissal’ and the mere use the word ‘rejected’ at the end does not make any difference.” 20. I accordingly hold that the expression demurrer, when used in connection with an application seeking dismissal of a petition on a preliminary or maintainability point shall not imply automatic admission of facts contained in the plaint or petition whose dismissal is sought for by opposing party. The principles of Order 7 Rule 11 would apply in relation to such petitions, and if it is found that adjudication of such motion involves mixed questions of fact and law, then adjudication of that question would stand deferred, and those points would be left to be determined on trial. Though there does not appear to be a clear Indian authority on this point as yet, from the decisions to which I have referred to earlier, it is apparent that the practise followed in England and the US had never been accepted as a part of Indian jurisprudence. The term “demurrer” in the Indian context has been construed to have connotation wider than the dictionary meaning, and motions for dismissal of a proceeding on a preliminary point has been commonly referred to as applications “in demurrer”. Otherwise, no statutory reference to this term has been brought to my notice. The U.S. and English principle on demurrer does not apply in the Indian context. Law in India proceeds on a different trajectory on this point, and I do not find any reason to adopt a different course though such a course would be compatible with the US and the English principles.. 21. The next question I shall address is the plea of limitation raised by BCCL, assuming both ABL, in the manner represented and HIT otherwise have the locus to bring the application, which has been registered as C.A.715 of 2015. Contention of Mr. Kar has been that NSH all along knew of the consent order and even acted on it and such knowledge ought to be attributed to both HIT and ABL at the pre-winding up stage. He has pointed out in course of his submissions that in the recall petition there is no pleading as regards the date on which cause of action arose for seeking declaration that the consent decree is void. Mr. He has pointed out in course of his submissions that in the recall petition there is no pleading as regards the date on which cause of action arose for seeking declaration that the consent decree is void. Mr. Kar has taken me through Article 59 of the schedule to the Limitation Act which provides for limitation period for cancelling or setting aside a decree and this Article stipulates:- 59. To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. He has also referred to Section 17 of the Limitation Act which provides:- “Effect of fraud or mistake (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; The period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document or compelling its production: PROVIDED that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which- (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: PROVIDED that such application is made within one year from the date of the discovery of the fraud of the cessation of force, as the case may be.” 22. Submission on behalf of the BCCL is that there are enough contemporaneous materials to demonstrate knowledge of NSH of the consent decree and the same was acted upon. In this regard, he has referred to a copy of a report of Sri Ashit Das Gupta, Chief Judge, City Civil Court, Calcutta, dated 30th November, 1998. The said report was given pursuant to an order of a Division Bench of this Court. This report has been made Annexure “A” to the application, being C.A.715 of 2015. He has also referred to other annexures to C.A.715 of 2015 through which he sought to attribute knowledge or notice of transactions between ABL and BCCL. In the notice referred to in paragraph 9 of this judgment , there is reference to certain transactions, which according to Mr. Kar, reflect NSH’s knowledge of the winding-up proceeding (C.P. 575 of 1982) as well as the consent order or decree. On the point of limitation Mr. Khosla has advanced two-fold submissions. His first submission is that the consent decree was obtained on playing fraud upon Court and is a nullity. To efface out the effects of such decree which was void abinitio, principle of limitation is not applicable. He also submitted that the term decree referred to in Article 59 would actually refer to an administrative decree and not decree passed by a Court of law. In this regard, he drew my attention to Section 44 of the Evidence Act which stipulates:- “SECTION 44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. He also submitted that the term decree referred to in Article 59 would actually refer to an administrative decree and not decree passed by a Court of law. In this regard, he drew my attention to Section 44 of the Evidence Act which stipulates:- “SECTION 44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. –Any Party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40,41 or 42, and which has been proved by the adverse Party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.” The other provision he referred to is sub-section (2) of Section 17 of the Limitation Act itself, where the terms “decree” and “order” have been used in close association. His submission on this point has been that in Article 59 the term decree does not have the same meaning as decree of a Court of law. He has referred to a judgment of the Supreme Court in the case of Gurdev Singh Vs. State of Punjab ( AIR 1992 SC 111 ). In this case, it has been held that if an act is void or ultra vires, it is enough for the Court to declare it so and it would collapse automatically and there is no need to set aside the void act. But this case is not an authority for the proposition that the limitation statute does not apply to such an act. On the other hand, it has been held in this case:- “It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.” Mr. Kar has also referred to the decision of the Supreme Court in the case of M.P. Steel Corporation Vs. Commissioner of Central Excise [(2015)7 SCC58] to non-suit the applicants in C.A. 715 of 2015 on the ground of their applications are barred under the provisions of the Limitation Act, 1963. 23. Main thrust of Mr. Kar has also referred to the decision of the Supreme Court in the case of M.P. Steel Corporation Vs. Commissioner of Central Excise [(2015)7 SCC58] to non-suit the applicants in C.A. 715 of 2015 on the ground of their applications are barred under the provisions of the Limitation Act, 1963. 23. Main thrust of Mr. Khosla’s submission is that the said consent decree was obtained upon playing fraud on Court and there is no limitation on bringing an action in such a situation because such a decree obtained on playing fraud upon Court would constitute nullity or a void act. On this point he relied on a judgment of the Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors., [ (1994)1 SCC 1 ]. In this judgment , it has been held:- “The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused.” 24. The same principle of law has been laid down in case of A.V.Papayya Sastry and Ors. Vs. Government of A.P & others [ AIR 2007 SC 1546 ] and in the case of Bishunath Tewari vs. Mst.Mirchi [AIR 1955 Patna 66]. Elaborate arguments had been advanced before me on this point by the learned counsel for the parties. On behalf of BCCL, stress has been given on finality of a judgment and the authorities relied upon on this point are State of Uttar Pradesh Vs. Brahm Datt Sharma [ (1987)2 SCC 179 ], State of Haryana Vs. Babu Singh [ (2008)2 SCC 85 ], Indian Council for Enviro-Legal Action Vs. Union of India & Ors. [(2001)8 SCC 161], State of Punjab Vs. Gurdev Singh (supra) and Om Prakash Verma Vs. State of Andhra Pradesh & Ors. [ (2010)13 SCC 158 ]. It is also the stand of BCCL that the statute of limitation would operate even in cases of fraud. In this regard, Mr. Kar has referred to the judgments of Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. Gurdev Singh (supra) and Om Prakash Verma Vs. State of Andhra Pradesh & Ors. [ (2010)13 SCC 158 ]. It is also the stand of BCCL that the statute of limitation would operate even in cases of fraud. In this regard, Mr. Kar has referred to the judgments of Meghmala & Ors. Vs. G. Narasimha Reddy & Ors. [ (2010)8 SCC 383 ] for explaining what would constitute fraud, and it has been argued drawing my attention to paragraph 35 of the Report that detection/discovery of commission fraud at a much belated stage may not be sufficient to set aside to set aside a judgment procured by perjury. Reliance was also placed on a Bench decision of this Court in the cases of Mohandra Nath Bagchi & Ors. Vs. Gour Chandra Ghosh (XXII CWN 860) and Ambikamoni Dasi Vs. Khettra Ghosai & Ors. (30 CWN 59) by Mr. Kar. In latter judgment, it has been held:- “……A transaction tainted with fraud is voidable and not void. A decree obtained by fraud, collusion or any other unlawful means is a pronouncement of a Court of Justice and it cannot be treated as a waste paper. The only objection that can be made to a decree as being void or a nullity must be on ground that it was passed without jurisdiction or that the Court which passed it had no territorial or pecuniary jurisdiction over the subject-matter of the suit.” 25. Mr. Khosla’s submission that Article 59 of the Limitation Act, 1963 relates to administrative decree and not judicial decree cannot be accepted by this Court. Md. Noorul Hoda Vs. Bibi Raifunnira and Ors. [ (1996)7 SCC 767 ], a suit was instituted for a declaration that a preliminary and final decree passed in an earlier suit for partition were illegal, collusive and did not bind the plaintiff in the second suit. The dispute ultimately reached the Supreme Court, one of the points which was dealt with by the Supreme Court was the point of limitation. Question arose in that case as to whether Article 59 or Article 113 of the Schedule to the Act would apply to the facts in that case. The Supreme Court held that Article 59 would govern any suit to set aside a decree either on fraud or any other ground. 26. Question arose in that case as to whether Article 59 or Article 113 of the Schedule to the Act would apply to the facts in that case. The Supreme Court held that Article 59 would govern any suit to set aside a decree either on fraud or any other ground. 26. While dealing with the question of maintainability of the recall petition in relation to challenge of BCCL on the ground of the same being time barred, three factors would require to be considered. First would be the question as to whether in a proceeding for setting aside a decree on the ground of fraud, the law of limitation would apply or not. In both Gurdev Singh (supra) and Md. Noorul Hoda (supra), this question stands answered in the affirmative. Mr. Khosla, however, has sought to counter this point basing his arguments on two planks. First, he has argued that his clients did not have knowledge of the consent decree when the same was passed, and they acquired such knowledge at a much later date. Secondly, he has submitted that it was a case in which fraud was played on Court, and the consent decree obtained on playing fraud on Court is a nullity, and law of limitation would not apply to a proceeding instituted to declare such decree as nullity. But to adjudicate on these points, I will have to come to a finding as to whether BCCL had obtained the decree playing fraud on Court or not, initially by instituting the winding up proceeding and thereafter, on entering a consent decree. Even if I proceed on the basis that it was a case of fraud on the party, in this case the party being ABL, the question as to which point of time NSH or HIT or ABL had acquired knowledge or notice of such consent decree or for that matter the proceeding itself would have to be determined. Mr. Kar’s submission is that NSH, and by extension ABL and HIT had such knowledge all along. In course of hearing I had asked Mr. Khosla to specify the date, which according to him would constitute date of knowledge but no specific response was given. Mr. Kar’s submission is that NSH, and by extension ABL and HIT had such knowledge all along. In course of hearing I had asked Mr. Khosla to specify the date, which according to him would constitute date of knowledge but no specific response was given. So far as law of limitation is concerned, my opinion is that there is no limitation on bringing an action for declaring a void decree as void on the ground that such decree was obtained playing fraud on Court. The Bench decision of this Court in Ambikamoni Dasi (supra) lays down too narrow a parameter for a decree being declared void. The principle enunciated in this judgment on that proposition is no more good law, having regard to the decisions of the Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra), Hamza Haji Vs. State of Kerala ( AIR 2006 SC 3028 ), Union of India & Ors. Vs. Ramesh Gandhi [ (2012)1 SCC 476 ] and A.V. Papayya Shastri (supra). In the S.P. Chengalvaraya Naidu (supra), however, the issue of limitation was not directly addressed to. In the A.V. Papayya Shastri (supra), limitation point was not directly dealt with, but question arose as to whether revisional power could be exercised by a statutory authority to undo something effected by fraud after 13 years was reasonable time or not. This question was answered in the affirmative. It was held in the judgment:- “22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order – by the first Court or by the final Court–has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.” The different authorities cited by Mr. Kar, being the cases of Brahm Datt Sharma (supra), Babu Singh (supra), Indian Council for Enviro–Legal Action (supra), M.P. Steel Corporation (supra), Meghmala and others (supra), Gurdev Singh (supra) and Md. Noorul Hoda (supra) did not specifically deal with the question of fraud on Court. Mr. Kar, being the cases of Brahm Datt Sharma (supra), Babu Singh (supra), Indian Council for Enviro–Legal Action (supra), M.P. Steel Corporation (supra), Meghmala and others (supra), Gurdev Singh (supra) and Md. Noorul Hoda (supra) did not specifically deal with the question of fraud on Court. Mr. Khosla has also referred to the provisions of Section 44 of the Evidence Act, 1872 in support of his argument that there can be no limitation on bringing an action to declare a decree obtained upon playing fraud on the Court as void. His case is that law provides that such decree can be questioned in a different proceeding without even bringing an action independently to invalidate it. I am of the opinion, considering these authorities, that in the event it is a fraud on Court, the principle of limitation would not apply as a decree obtained on playing fraud on Court would be nullity. If the result of an act by itself is nullity, then passage of time would not confer legitimacy on such act. In the light of ratios of the decisions Supreme Court in the cases of S.P. Chengalvaraya Naidu (supra) and A. V. Papayya Shastri (supra), Article 59 of the Limitation Act, 1963 would not apply in such a situation, as the decree in such a situation shall never be deemed to have come into existence. But an order of the Court would be necessary to formally extinguish such a decree, as has been held in the case of State of Punjab Vs. Gurdev Singh (supra). 27. I have referred to the nature of allegations of Mr. Khosla’s clients on which their plea for fraud is founded. I have also indicated in the earlier part of this judgment the basis of BCCL’s case for dismissal of the three explanations. So far as the point of limitation is concerned, it would require adjudication on the issue of fraud. If it is held to be fraud on the party, the date on which the applicants of the said three applications acquired knowledge of alleged fraud would have to be determined. I shall have to examine if the fraud alleged constituted fraud the parties or fraud on Court. On that basis, whether law of limitation would apply or not would have to be directed. Determination of these questions would require leading evidence. I shall have to examine if the fraud alleged constituted fraud the parties or fraud on Court. On that basis, whether law of limitation would apply or not would have to be directed. Determination of these questions would require leading evidence. Now the question arises if these questions could be addressed to in C.A. 715 of 2015. I would have to deal with these questions having regard to the objection taken on locus of the two applicants, ABL and HIT. ABL’s right to be represented by any person other than the Official Liquidator has been raised by the BCCL. So far as HIT is concerned, objection is on the ground that it is a stranger to the proceeding, in which the consent decree was entered in 1982. On this point, Mr. Kar’s objection, inter alia, is founded on Order 23 of the Code. 28. Mr. Kar has also argued that the consent decree which the applicants in C.A. 715 of 2015 wants to be declared as void was in the nature of a contract between the parties to the proceeding and cannot be recalled by application of one of the parties only. The authorities relied upon on this point are Mulchand Jhoomar Vs. G. R. Martindale (AIR 1928 Cal 756) and another Bench decision of this Court delivered in A.O.P. No. 411 of 2011 on 12th July 2013 (Castron Technologies Ltd. Vs. Castron Mining Ltd.). In none of these cases, however, the very basis of the consent decree was called into question and there was no allegation that the consent decree was fraudulently obtained without service to a party, but representation of such party was fraudulently shown. Ratio of these two authorities does not apply in the facts of this case. 29. The next point I shall turn to now is as to whether petition of ABL could be presented by NHS as a co-petitioner, in C.A. 715 of 2015 and the two other applications. Mr. Kar’s submission, so far as ABL is concerned, is that a company in liquidation cannot bring any proceeding represented by its erstwhile Director or Directors. This argument has been advanced citing C.P. 90 of 1983 which is pending before this Court. Mr. Kar’s submission, so far as ABL is concerned, is that a company in liquidation cannot bring any proceeding represented by its erstwhile Director or Directors. This argument has been advanced citing C.P. 90 of 1983 which is pending before this Court. Sub-Sections (3) and of Section 445 of the 1956 Act contemplates that on filing of a certified copy of the winding up order, and upon the Registrar making a minute thereof in his books relating to the company, and on notification being issued in the Official Gazette that such an order has been made, such order shall be deemed to be notice of discharge to the officers and employees of the company, except when business of the company is continued. Section 2(30) defines “officers” of a company, which term includes Directors. Section 457 of 1956 Act vests the Official Liquidator with power to institute or defend any suit, prosecution or other legal proceeding, civil or criminal, in the name of the company, with the sanction of the Court. He has also referred to the provisions of Sections 449 and 460(4) of the 1956 Act to emphasise such exclusive authority of the Official Liquidator. It is in this perspective Mr. Kar has contended that the recall petition of ABL, to the extent the same is presented by NHS is not maintainable. Mr. Kar has also taken me through the orders of the Court passed in C.P. 90 of 1983 passed on 27th August 1984, 3rd April 1985, 1st October 1986 and 7th May 2010. 30. Mr. Khosla’s argument on this point is that a Director, if available, can continue to exercise his power even after winding up. In this regard, he brought to my notice sub-Section (1) of Section 445 of the 1956 Act. The said provision makes every officer of the company in default liable for penalty. Relying on the said provision, submission of Mr. Khosla is that the Directors are not divested of all their power upon a company being directed to be would up. On 20th March 1984, the Company was directed to be wound up. The said provision makes every officer of the company in default liable for penalty. Relying on the said provision, submission of Mr. Khosla is that the Directors are not divested of all their power upon a company being directed to be would up. On 20th March 1984, the Company was directed to be wound up. The records reveal that on 4th May, 1984 the following order was passed by the Court:- “The Official Liquidator is directed to take formal possession of the company and make an inventory of the assets and records of the company and the books of the company will be initiated by the Official Liquidator. The company and the workmen who are both present today in Court, state that they will assist the Official Liquidator in the matter of making inventory. Save as aforesaid the Official Liquidator will not take any further steps for winding up of the company. After the inventory is completed, the Official Liquidator will apply to Court for further directions on notice to the company. It is made clear that the company in the meantime will be at liberty to negotiate with the Government of West Bengal workmen and other creditors. Liberty to apply. The Official Liquidator and all parties to act on a signed copy of the minutes of this order.” 31. I also find from records that there were certain orders directed at revival of the company. On 27th August 1984 the Official Liquidator was directed to take formal possession of the assets and records of the company. This order was passed after a Special Officer earlier appointed with the direction to run the company had apprised the Court that it was not possible for him to run the company any more inasmuch as the possession of the factory of the company had been taken over by some unauthorised persons and neither the Special Officer nor the Official Liquidator retained any control over the company. Further attempts at revival of the company was made. But ultimately, by an order passed on 1st October 1986 the revival scheme was put to an end. As regards present status of the company, Mr. Further attempts at revival of the company was made. But ultimately, by an order passed on 1st October 1986 the revival scheme was put to an end. As regards present status of the company, Mr. Kar brought to my notice an order passed by an Hon’ble Single Judge of this Court on 7th May, 2010, in which it has been, inter alia, held:- “After prolonged enquiry and various orders passed from time to time, I have been able to ascertain that on 29th September, 1983 the order permanently staying the application was recalled by the Hon’ble Justice D. K. Sen (as His Lordship then was). This has appeared from the Minute Book which was produced before me. I have also allowed inspection of this semi-ancient document by Mr. Hoon whose reaction is that this is a forged entry made in the Minute Book subsequent to my order dated 1st December 2009.” Stand of BCCL is that there is conclusive finding on 7th May 2010 that the order permanently staying the winding up order stood recalled. 32. I am in seisin over the proceedings in C.P. 90 of 1983 and the main issue I am hearing in connection with that proceeding is whether the company is actually in winding up or not. As regards Mr. Khosla’s submission that the Board of Directors stood revived with the revival scheme of the company, such revival admittedly came to an end with the Court directing the Official Liquidator to take actual possession of the assets and further directing winding up of the company. Before me in C.P. 90 of 1983 argument is being advanced mainly on jurisdiction of the Hon’ble Judge to recall the order by which winding up order was permanently stayed. Other points have also been raised, which are being addressed to in different proceedings brought in C.P. 90 of 1983. Though C.P. 90 of 1983 is a different proceeding, I am referring to certain particulars of that winding up petition in this judgment because ABL’s locus has been questioned by Mr. Kar on the basis of that proceeding only. Thus unless I come to a finding in C.P. 90 of 1983 that the company was not formally wound up subsequent to the order staying the winding up action, one has to proceed on the basis that ABL is a company in liquidation. Kar on the basis of that proceeding only. Thus unless I come to a finding in C.P. 90 of 1983 that the company was not formally wound up subsequent to the order staying the winding up action, one has to proceed on the basis that ABL is a company in liquidation. As held in the case of State of Punjab Vs. Gurdev Singh (supra), at paragraphs 6 and 8 of the Report, even if an order is not valid, the order would have at least a de facto operation unless and until it is declared void or nullity by a competent body or Court. It is not enough to say that the order of winding up was nullity. On this question, the passage from Ambikamoni Dasi (supra), which I have referred to earlier lays down the position of law. This proposition of law, in my opinion still holds the field, and stands confirmed by the Supreme Court in the case of Gurdev Singh (supra). 33. Mr. Khosla’s submission is that the authority or right of a director of a company to bring an action to invalidate a fraudulent consent decree passed in pre-winding up stage still remains. In this regard he cited judgment of Federal Court in the case of Dr. Satya Charan Law and Others v. Rameshwar Prosad Bajoria and Others [(1950) 20 C-C 39]. In that case, the right of majority shareholders to institute a proceeding in the name of the company under certain circumstances was upheld. But in Dr. Satya Charan Law (supra), the company concerned was not in liquidation. He has relied on the decision of the Delhi High court in the case of Vivek Kumar Vs. Pearl Cycle Industries Ltd. [(1983) 54 Company Cases 77 (Delhi)]. In that case, to a limited extent the right of a member of the family which had controlling interest over a company-in-liquidation in the pre-liquidation stage to question execution of decrees issued prior to the period the company went into liquidation was sustained. Pearl Cycle Industries Ltd. [(1983) 54 Company Cases 77 (Delhi)]. In that case, to a limited extent the right of a member of the family which had controlling interest over a company-in-liquidation in the pre-liquidation stage to question execution of decrees issued prior to the period the company went into liquidation was sustained. In this judgment, it has been held:- “It must, however, be pointed out that while none of the applicants has the locus standi to challenge the decrees or their executability and their Applications are not maintainable u/s 446 of the Act or under any other provision of the Companies Act, Surender Kumar is certainly interested in the proceedings for the realisation of the amount by the Bank by the disposal of the assets of the Company because on the amount realised would depend the quantum of the shortfall which he would be bound to make good by virtue of the personal decree passed against him as a guarantor. He is, therefore, certainly interested in the securities sought to be proceeded against in execution getting the best possible price and if there is anything in the manner in which execution proceedings are carried out which may affect the quantum of realisation, he would certainly have the locus standi to approach the Court either u/s 446(2)(d), or the execution Court, seized of the execution proceedings, for appropriate directions with a view to ensure that the securities are not only fully protected under disposal but also that they fetch the maximum possible price.” Ratio of this judgment also does not aid Mr. Khosla’s clients on this point. There was likelihood of the applicant in that case being personally held liable in the event assets of the company in execution of the decree failed to satisfy the decretal amount, as the applicant was a guarantor. In the subject proceeding, the person claiming to be interested has brought the proceeding in the name of the company, which is impermissible in the given facts. That was not the case in Pearl Cycle (supra). 34. Mr. Khosla has further argued that since the aforesaid acts, which according to him are illegal and void, this Court ought to take suo motu action. On this point, he has referred to an order passed by me in C.P. 90 of 1983 on 3rd September 1983. That was not the case in Pearl Cycle (supra). 34. Mr. Khosla has further argued that since the aforesaid acts, which according to him are illegal and void, this Court ought to take suo motu action. On this point, he has referred to an order passed by me in C.P. 90 of 1983 on 3rd September 1983. That was a situation in which the right of an individual to take out Judge’s Summons was opposed by NSH, but I had observed that in a winding up proceeding, it would be duty of the Court to consider materials coming from any source. He also points out that the power of Official Liquidator to act on behalf of the company is circumscribed and the Official Liquidator can act only upon obtaining sanction of the Court. 35. I have referred to different provisions of the 1956 Act which deal with the status of the Directors of a Company in liquidation. A combined reading of Section 2(30) with Section 445 (3) of the 1956 Act leads to inevitable conclusion that the Directors stand divested of their power to act on behalf of the company except for the limited purpose provided in sub-Section (1) of Section 445. I do not accept Mr. Khosla’s submission that different meanings have been attributed to the term “Officer” in different provisions of the Act, and in appropriate cases the Directors of a company-in-liquidation could retain the right or power to sue in the name of the company. Such power has been vested with the Official Liquidator, and this power in my opinion would extend to bringing an action to invalidate something which occurred prior to the time the company went into liquidation, if such action is called for in the interest of the company. Question may come up as to what would be the course if the Official Liquidator does not act to protect the interest of the company. In such a situation also, the proper course would for the parties interested to bring the issue before the Company Court hearing the winding up proceeding and obtain appropriate directions. I, accordingly hold that the application of the ABL, not being presented by the Official Liquidator is not legally sustainable. 36. I shall address now the question as to whether HIT independently could bring C.A. 715 of 2015 and the other two applications. I, accordingly hold that the application of the ABL, not being presented by the Official Liquidator is not legally sustainable. 36. I shall address now the question as to whether HIT independently could bring C.A. 715 of 2015 and the other two applications. HIT’s contention is that it has the locus as a contributory to a company in liquidation to institute proceedings for invalidation of a consent order obtained upon playing fraud on the Court. I have already observed, while dealing with the issue of limitation that it is not possible at this stage on the basis of materials available to determine the question as to whether there was any fraud played in obtaining the aforesaid consent order or not. Thus the question of as to whether there was fraud on Court also cannot be adjudicated on the basis of materials available before me at this stage. The point involved is whether a contributory, assuming HIT fits that character, can be said to have locus to apply for setting aside the consent decree or order, which according to it was obtained by fraud. Mr. Kar’s objection is based on Rules 3 and 3A of Order 23 of the Code, and the authorities relied upon by him on this issue are Pushpa Devi Bhagat Vs. Rajinder Singh [ (2006)5 SCC 566 ] and Smt. Suraj Kumari Vs. District Judge & Ors. (AIR 1991 Allahabad 75) and Santosh Kumar & Anr. Vs. Hacchu & Ors. ( AIR 2011 MP 21 ). In this respect, Mr. Kar has also submitted that the compromise decree having attained finality, a third party cannot reopen the issue already settled. Mr. Khosla has argued that the order is nullity and a third party having interest in the subject-matter is within its right to make such application. He has relied on a judgment of the Supreme Court in the case of Kiran Singh Vs. Chaman Paswan ( AIR 1954 SC 340 ). In the case of Pulavarthi Venkata, Subba Rao Vs. Valluri Jagannadha Rao ( AIR 1967 SC 591 ), however, it has been held by the Supreme Court that a compromise decree is not really a decision by the Court and the principle of res judicata would not apply in respect of such a decree. The same principle of law has been laid down in the case of Gram Panchayat of Village Naulakha Vs. The same principle of law has been laid down in the case of Gram Panchayat of Village Naulakha Vs. Ujagar Singh [ AIR 2000 SC 3272 (1)]. 37. It is Mr. Khosla’s specific submission is that the Court should not be fettered by the form in which a petition for recalling a consent decree obtained by fraud is brought and the Court can examine the question in exercise of its jurisdiction conferred on it under Article 215 of the Constitution. On this point he has relied on the cases of (i) Shri Ram Phal v. Shri B. S. Bhalla (2004 CRI. L. J. 4274) (ii) Dr. Subramanian Swamy v. Arun Shourie [Contempt Petition (Crl.) No. 11 of 1990 decided by the Supreme Court on 23rd July 2014] (iii) Delhi Development Authority v. Skipper Construction Company (P) Ltd. [ AIR 1996 SC 2005 (1)] and (iv) Union of India & Ors. v. Ramesh Gandhi [ (2012)1 SCC 476 ]. Mr. Khosla also wants to equate the jurisdiction of this Court in entertaining the application of HIT similar to that vested in the Court under Section 340 of the Code of Criminal Procedure, 1973 as well as Order 1 Rule 8A of the Code of Civil Procedure. In this regard the judgment relied upon him is the case of N. Natarajan Vs. B. K. Subbarao ( AIR 2003 SC 541 ). Citing the judgment of Andhra Pradesh High Court in the case of P. Satyanarayana Vs. Land Reforms Tribunal ( AIR 1980 AP 149 ) he has reiterated his submission that the Court has inherent powers to recall orders obtained by practising fraud on it at the instance of a party of the proceedings. Drawing my attention to Section 44 of the Evidence Act he submits that the term “proceeding” employed therein would include a recall petition as well. Mr. Khosla also stresses on the fact that in this case the main victim to the act of fraud, that is ABL, is in liquidation and the Official Liquidator not having brought any action HIT, as a contributory should be permitted to agitate the grievance of ABL, and I should act on the information furnished by the applicants to invalidate the decree upon conducting enquiry suo motu. Mr. Mr. Khosla wants this Court to exercise jurisdiction under Article 215 of the Constitution of India as well as Section 340 of the Code of Criminal Procedure, 1973. 38. Three authorities have been relied upon by Mr. Kar to contend that the consent decree cannot be varied at the instance of who is not a party to such decree these are (i) Mulchand Jhoomer Vs. G. R. Martindale (AIR 1928 Cal 756) (ii) M/s. Nanalal M. Vunna & Co. (Gunnies) P. Ltd. Vs. Gordhandas Jerambhai & Ors. (AIR 1965 Calcutta 547) (iii) Castron Technologies Ltd. Vs. Castron Mining Ltd. (MANU/West Bengal/0324/2013). On the right of a contributory to bring an application, Mr. Kar has cited the judgment of Sonajuli Tea & Industries Ltd. Vs. Ashkaran Chatter Singh & Ors.. So far as the controversy involved in the three proceedings on Order 23 of the Code are concerned, in Pushpa Devi Bhagat (supra) it has been held that the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the Court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. Ratio of this authority does not apply as HIT was not a party to the consent decree. In the case of Sonajuli Tea & Industries (supra) the application of a contributory in an appeal preferred by the company itself against an order of winding up was held to be not maintainable. But that judgment appears to have been passed in the circumstances of that case and does not lay down any absolute proposition of law. The decision of the Madhya Pradesh High Court in the case of Santosh Kumar (supra) is a ratio for the authority that if a person is not a party to the decree and the decree is void, a suit is maintainable at the instance of such a party and bar of Order 23 Rule 3A should not be applicable in that case. 39. The judgment of the Allahabad High Court, Smt. Suraj Kumari Vs. District Judge, Mirzapur & Ors. ( AIR 1991 All 75 ) has been cited by Mr. Kar in support of his submission that a stranger to a proceeding cannot maintain an application for setting aside a consent decree. In this judgment it has been held:- “22. 39. The judgment of the Allahabad High Court, Smt. Suraj Kumari Vs. District Judge, Mirzapur & Ors. ( AIR 1991 All 75 ) has been cited by Mr. Kar in support of his submission that a stranger to a proceeding cannot maintain an application for setting aside a consent decree. In this judgment it has been held:- “22. The petitioner’s second submission regarding the applicability of O. 23, R. 3-A of the Code of Civil Procedure is misconceived the provision is confined only to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree, which affects his rights is not barred by the said provision. Order 23, Rule 3-A of the Code of Civil Procedure cannot be read dehors its earlier provision of the same chapter. The said provision is only a part of the entire Chapter of Order 23 of the Code of Civil Procedure which prescribes provisions for with drawl and adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read together, makes it clear that a party to the suit is debarred from filing suit for setting aside compromise decree on the ground of being unlawful. Such a party has remedy by moving appropriate application before the Court concerned which has passed the compromise decree.” 40. None of the three decisions lay down as absolute proposition of law that a stranger, who was not a party to a suit or proceeding which was disposed of by a consent decree or order cannot apply to the same Court for recalling that decree on the ground of fraud or collusion. The decisions cited by Mr. Kar that a compromise decree gets insulated from future proceeding assailing the same on the principle of res judicata cannot apply in a situation where allegation is that such decree has been entered fraudulently. Mr. Kar has also cited certain authorities and argued that a party must have a grievance giving rise to cause of action to maintain an action. I am not referring to these authorities as I accept this argument to be founded on well established principle of law. Mr. Mr. Kar has also cited certain authorities and argued that a party must have a grievance giving rise to cause of action to maintain an action. I am not referring to these authorities as I accept this argument to be founded on well established principle of law. Mr. Khosla’s response to such submission is that his clients have sought to bring the Court’s notice certain instances of fraud played on the Court and the Court has power or jurisdiction under Article 215 or Rules 8A and 10A of Order 1 to hear any individual or any question of law. I have referred to the decisions cited by him on this point. But to apply the aforesaid provisions to assume jurisdiction on the issue of legality of a consent decree or order, fraud must be palpable and clear. 41. On the question of right of third party to seek invalidation of a consent decree, my opinion is that in appropriate cases a third party, if such party can demonstrate sufficient interest in the subject-matter of a proceeding can apply for invalidation of a decree obtained by playing fraud upon Court invoking Section 151 of the Code of Civil Procedure. In A.V. Papayya Shastri (supra), it has been held that a judgment , decree or order obtained by playing fraud on the Court has to be treated as nullity and it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceeding. Under Order 23, there is no bar on interested party to seek declaration that a decree obtained by playing fraud on Court in void. But to follow this course, fraud on Court should be ex facie and outrageous. I have referred to in some detail the allegations of Mr. Khosla’s clients on the basis of which he seeks to avoid the decree. These allegations have been spelt out in paragraph 9 of this judgment . I do not think from plain reading of these allegations, it would be possible for me to come to a finding straightaway that the entire proceeding from institution and compromise of the winding up proceeding was a fraudulent exercise. 42. In this case, in my view, on the basis of materials placed before me, it is not possible for me to conclude at this stage that the consent decree was obtained by playing fraud upon Court. 42. In this case, in my view, on the basis of materials placed before me, it is not possible for me to conclude at this stage that the consent decree was obtained by playing fraud upon Court. BCCL must have opportunity to meet HIT’s challenge to the decree on such allegations through a proper adjudicatory process. A recall petition, which is usually decided following summary procedure for such purpose is inadequate instrument. For the same reason, in my opinion, initiation of contempt action or a proceeding under Section 340 of the 1973 would not be proper course in the facts of this case at this stage. One hurdle HIT might face if it is to bring fresh action, would be the fact that ABL is at present a company in liquidation. But in the event HIT contemplates any action involving ABL, it can always apply for leave of the Court hearing C.P. No. 90 of 1983. It can also bring these allegations to the notice of the Court in C.P. 90 of 1983 and seek appropriate direction upon the Official Liquidator. I also make it clear that I have not determined to locus of HIT to bring any action. That question, along with other questions founded on the principle of limitation and fraud would be examined if a fresh proceeding, is instituted. 43. As regards protection of ABL’s interest in its own assets, in C.A. 572 of 2016 taken out in connection with C.P. No. 90 of 1983, I have asked for a report from the Official Liquidator as regards asset position of BCCL. I propose to examine the issue raised in these proceedings relating to 50,000 shares in Angelo Rhodes Ltd. while hearing C.P. 90 of 1983, after receiving the report. 44. So far these proceeding are concerned, I hold:- (a) The application being C.A. 715 of 2015 taken out by BCCL is akin to an application under Order 7 Rule 11 of the Code, and ought to be dealt with in the same manner. It shall not have the same import of the abandoned practise relating to demurrer applications in two major common law jurisdictions, the USA and the UK. (b) Applying the principle of Order 7 Rule 11, it is not possible at this stage to finally determine HIT’s claim to have the consent decree in C.P. 575 of 1982 declared void and non-est. (b) Applying the principle of Order 7 Rule 11, it is not possible at this stage to finally determine HIT’s claim to have the consent decree in C.P. 575 of 1982 declared void and non-est. (c) ABL, being a company in liquidation could not be and cannot be represented by NSH or any other officer barring the Official Liquidator. The applications being C.A. 715 of 2015, C.A. 97 of 2016 and C.A. 131 of 2016 shall stand dismissed as against ABL. (d) HIT’s claim in the same line in the three applications, being C.A. 715 of 2015 would have to be adjudicated in proper forum, and HIT’s applications shall also stand disposed of, with liberty to it to apply before the appropriate forum for the same or similar set of reliefs. (e) C.A. 187 of 2016 taken out by the BCCL stands disposed of in the same terms. (f) C.A. 529 of 2016 shall also stand disposed of in the same terms.