JUDGMENT M.N. Bhandari, J. - These applications have been filed under section 446 of the Companies Act, 1956 (for short 'the Act of 1956') read with Rules 6 and 9 of the Companies (Court) Rules, 1959 (for short 'the Rules of 1959') to seek leave of this Court for confirmation of sale of the properties of ACE Laboratories Limited. Brief Facts of the Case : 2. The Magma Fincorp Limited filed a suit before Calcutta High Court against ACE Laboratories Limited. The suit was decreed on 28th September, 1999. A Receiver was appointed vide order dated 21st December, 1999 for execution of decree. The Receiver took physical possession of the property. The Calcutta High Court passed an order on 8th February, 2000, 19th September, 2002 and 14th January, 2003 for sale of property by way of public auction. 3. On the other hand, a winding up petition against ACE Laboratories Limited was presented by the creditors before the Rajasthan High Court, Jaipur Bench on 21st December, 2002. 4. In the meanwhile, two advertisements were issued by Receiver appointed by the Calcutta High Court to invite bids of the properties of ACE Laboratories Limited. The auction was made wherein the applicant company remained highest bidder. A Sale Certificate was issued on 28th July, 2003 by the Receiver and possession of plot was also given. The Receiver sent a letter on 02nd September, 2003 to the Rajasthan State Industrial Corporation Ltd.' (RSICL) to record the name of auction purchaser in their record. 5. On 28th November, 2003, the Rajasthan High Court passed an order for winding up of ACE Laboratories Limited. On 10th March, 2005, the Official Liquidator of the Rajasthan High Court wrote a letter to Receiver in regard to sale of properties The Receiver informed about sale of property vide its letter dated 10th May, 2005. The applicant company, in the meanwhile, sold the property to Shree Shakun Agro Products on 12th February, 2007. The Rajasthan High Court dismissed the application preferred by the applicant company vide its order dated 15th March, 2007. The order passed by the Rajasthan High Court was challenged by Shree Shakun Agro Products by maintaining a special appeal, but, it was dismissed by the Division Bench of this Court vide order dated 25th January, 2011. The Rajasthan High Court dismissed the application preferred by the applicant company vide its order dated 15th March, 2007. The order passed by the Rajasthan High Court was challenged by Shree Shakun Agro Products by maintaining a special appeal, but, it was dismissed by the Division Bench of this Court vide order dated 25th January, 2011. The Special Leave Petition preferred by Shree Shakun Agro Products was also dismissed by the Apex Court on 08th July, 2011. The present applications to seek leave have been filed by the applicant company - Padmawati Sugars Limited (earlier known as Kosi Management Limited) for registration of Conveyance Deed. Grounds to Support the Application under Section 446 of the Act of 1956: 6. Learned counsel for the applicant company submits that the properties in question were auction d pursuant to a decree in favour of the Magma Fincorp Limited in a suit filed against ACE Laboratories Limited. The applicant company remained highest bidder, therefore its bid was accepted followed by confirmation of sale on payment of entire consideration. The applicant company became absolute owner of the property in question. The auction took place prior to filing of winding up petition before the Rajasthan High Court. A Deed of Conveyance was also executed in favour of the applicant company, thereby, the applicant became bonafide purchaser of the property. 7. A Sale Certificate was also issued before order dated 28th November, 2003 by the Rajasthan High Court on winding up petition. As per the Order 21, Rule 94 of Code of Civil Procedure, 1908 (for short 'CPC'), the sale become absolute in favour of the applicant company. The Official Liquidator was also bound by the decree of Calcutta High Court and sale of property through Receiver followed by confirmation of sale. The Official Liquidator did not accept the sale, rather, Single Bench of the Rajasthan High Court passed an order adverse to the applicant company on its application. It is, however, with an observation that sale is without leave under Section 446 of the Act of 1956. In view of the aforesaid, the application to seek leave for sale of property has been filed. The application may be accepted in the light of the observation made by this Court. 8. It is, however, with an observation that sale is without leave under Section 446 of the Act of 1956. In view of the aforesaid, the application to seek leave for sale of property has been filed. The application may be accepted in the light of the observation made by this Court. 8. The order passed therein does not operate as res-judicata because the issue in reference to Section 446 of the Act of 1956 was not raised and decided. In view of the above, the company application to seek leave for sale of property may be accepted. 9. A reference of the judgment of the Apex Court in the case of Sajjadanashim Sayed Md. v. Musa Dadabhai Ummer reported in 2000 WLC (SC) Civil 170 : (2000) 3 SCC 350 has been given apart from the judgment reported in (1952) 2 All ER 767 . A further reference of the judgment of the Apex Court in the case of Madhvi Amma Bhawani Amma & Ors. v. Kunji Kutty Pillai Meenakshi Pillai & Ors. reported in 2000 WLC (SC) Civil 396 : (2000) 6 SCC 301 as well as in the case of Erach Boman Khavar v. Tukaram Shridhar Bhat reported in 2014(1) WLC (SC) Civil 174 : (2013) 15 SCC 655 have been given to show that doctrine of res judicata would not apply in this case. 10. It is also stated that the judgment in the case of Erach Boman Khavar (supra) squarely applies to these cases. It was held that prior to grant of leave under Section 446 of the Act of 1956 is not a condition precedent for sale of property. The leave under Section 446 of the Act of 1956 can be obtained even after initiation of the proceedings for transfer of property. It is further held that to attract the doctrine of res judicata, it is manifest to have a conscious adjudication of the issue. The plea of res judicata would not apply unless an issue is raised followed by expression of an opinion on the merit. It is, accordingly, urged that the earlier order of this Court on the application filed by the applicant company would not constitute as res judicata to an application under Section 446 of the Act of 1956 to seek leave of the Court for confirmation of sale. 11. It is, accordingly, urged that the earlier order of this Court on the application filed by the applicant company would not constitute as res judicata to an application under Section 446 of the Act of 1956 to seek leave of the Court for confirmation of sale. 11. This Court can grant leave under Section 446 of the Act of 1956 retrospectively. Reference of various judgments of different High Courts has been given to support the arguments. 12. A reference of Order 21, Rule 94 of CPC has also been given. It is submitted that on issuance of Sale Certificate, the sale become absolute. A further reference of the judgment of the Apex Court in the case of B. Arvind Kumar v. Government of India & Ors. reported in (2007) 5 SCC 745 has been given apart from the judgment in the case of Shanti Devi L. Singh v. Tax Recovery Officer reported in (1990) 3 SCC 605 . 13. It is also stated that there is no period of limitation to maintain application under Section 446 of the Act of 1956. It is moreso when, leave under Section 446 of the Act of 1956 can be obtained retrospectively. Accordingly, the application/s under Section 446 of the Act of 1956 read with Rules 6 and 9 of the Rules of 1959 deserves to be allowed. 14. Learned counsel appearing for the Official Liquidator has opposed the application. Referring to the facts of the case and earlier order of this Court, an issue of constructive res judicata has been raised. 15. It is submitted that a detailed order passed by the Rajasthan High Court on 15th March, 2007 on an application filed by the applicant company in winding up petition against ACE Laboratories Limited. The facts pertaining to auction of the properties pursuant to decree passed by the Calcutta High Court were considered in detail. The application filed by the applicant company, earlier known as M/s. Kosi Management Limited, was dismissed. It was held that the applicant herein is not entitled to claim title over the property, which was not registered in its name on the date of passing of the order on winding up petition. The application filed by the applicant company, earlier known as M/s. Kosi Management Limited, was dismissed. It was held that the applicant herein is not entitled to claim title over the property, which was not registered in its name on the date of passing of the order on winding up petition. It was also held that Receiver is not entitled to get the sale registered in the name of the applicant company without leave of this Court when ACE Laboratories Limited was wound up vide than order dated 28th November, 2003. The judgment thereupon was confirmed by the Division Bench on an appeal filed by the subsequent purchaser of the property from the applicant company. The Division Bench observed that the applicant herein joined hands with subsequent purchaser, though, they were knowing about winding up petition before this Court. The judgment of the Division Bench was subsequently upheld by the Apex Court vide its order dated 08th July, 2011. The present application has now been filed after lapse of eight years from initial order dated 15th March, 2007 thus it is hit by laches as delay remains unexplained and, otherwise, the application under Section 446 of the Act of 1956 is not even maintainable, as it is hit by constructive res judicata. 16. A reference of the judgment of the Apex Court in the case of Ferro Alloys Corpn. Ltd. & Anr. v. Union of India & Ors. reported in (1999) 4 SCC 149 has been given. The earlier application of the applicant company was dismissed by the Company Court and it has become final in absence of its challenge by them. If the leave is now granted then it would amount to nullifying the earlier order of this Court dated 15th March, 2007 when it has become final. It is also stated that the property in question is having higher value then it has been purchased by the applicant company thus even it is not equitable to grant leave, rather, the Official Liquidator should be allowed to auction the property where the applicant company can also participate. 17. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 18. 17. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully. 18. It is a case where prior to the present application under Section 446 of the Act of 1956, the applicant company preferred an application before this Court in the year 2005 and was decided by the Single Bench of this Court vide order dated 15th March, 2007. The facts pertaining to the decree and order of Calcutta High Court in execution petition followed by auction of the property were considered for exclusion of the property in question from the liquidation. The applicant company made a prayer for leave of the Court to give effect to auction of the property and for execution of Conveyance Deed. The transaction was said to be bonafide under the order of Calcutta High Court. It was also stated that an irreparable loss would cause to the applicant company. This Court, however, dismissed the application. The order therein was not challenged by the applicant company. It was, however, challenged by subsequent purchaser of the property from the applicant company. The special appeal therein was dismissed by the Division Bench followed by dismissal SLP by the Apex Court. In view of the above, the order dated 15th March, 2007 has become final against the applicant company, as it was not challenged by them and, otherwise, confirmed by the Division Bench and the Apex Court. 19. Learned counsel for the applicant company submitted that an application under Section 446 of the Act of 1956 can be maintained even subsequent to the transaction and as per the prayer for leave was not earlier made and considered by this Court, order dated 15th March, 2007 would not operate as res judicata. 20. The argument aforesaid has been made in ignorance of the arguments made before this Court on their earlier application decided vide order dated 15th March, 2007. Paras Nos. 7 and 8 of the order dated 15th March, 2007 are quoted hereunder for ready reference to show the plea raised by the applicant company : "7. The learned counsel for Kosi Management filed short notes of arguments. It is stated that the sale process had been initiated long before the winding up order was passed. The order of sale was passed in Feb, 2000. The learned counsel for Kosi Management filed short notes of arguments. It is stated that the sale process had been initiated long before the winding up order was passed. The order of sale was passed in Feb, 2000. The property has also been sold in auction and the sale was confirmed in May and July, 2003 much prior to the winding up order on November 28, 2003. It was submitted that since the auction sale has been concluded, the aforesaid transaction does not come within the purview of sections 536 or 537 of the Companies Act. The inclusion of the . said property by the Official Liquidator in the list of properties of the Company in liquidation will therefore be unjustified and wrongful. The company in liquidation and, that the Official Liquidator cannot have any right in respect of the property as the same has been sold in auction pursuant to orders passed by the Calcutta High Court. The contract was concluded prior to passing of the winding up order and therefore the transaction does not come within the purview of sections 536 or 537 of the Companies Act, 1956. Reliance has been placed on 27 Company Cases 581 and 74 Company Cases 89. 8. The learned counsel further submitted that in the event this Hon'ble Court is of the opinion that the transaction comes within the purview of sections 536 or 537 of the Companies Act, 1956 then the applicant prayed for leave from this Court for giving effect to the transaction. It was submitted that the transaction is a bona fide transaction and has been conducted under order of the Calcutta High Court. The consideration money has already been paid by the applicant and receiver by the decree holder without any knowledge of any winding up proceeding. It was submitted that unless leave is granted by this Court, the applicant will suffer irreparable loss, prejudice and injury as it has purchased the said property in an auction sale conducted under orders of another High Court. It was submitted that unless leave is granted by this Court, the applicant will suffer irreparable loss, prejudice and injury as it has purchased the said property in an auction sale conducted under orders of another High Court. That court has the jurisdiction to grant leave as has been held in reported cases 1980 Taxation Law Reports (NOC) 72 (Calcutta), 2002(2) Company Law Journal 71, 65 Calcutta Weekly Notes 1060, 39 Company Cases 1023 and unreported decision in the case of Shree Ambica Jute Mills Ltd. in C.A. No. 96 of 1997 judgment date May 12, 1997 of Hon'ble Justice Altamas Kabir." 21. The perusal of para 7 of the order dated 15th March, 2007 reveals an argument in reference to Sections 536 and 537 of the Act of 1956 and, thereupon, in para No. 8, a prayer for leave of the Court to give effect to the transaction. The leave prayed therein cannot be under any other provision than Section 446 of the Act of 1956. The judgments cited therein were on the aforesaid issue itself. An argument regarding bonafide transaction under the order of Calcutta High Court was also raised. The counsel for the petitioner therein stated that the petitioner company has already paid due money and, otherwise, the receiver had no knowledge about winding up proceedings. It was also stated that if leave is not granted for the transaction to come out from Sections 536 and 537 of the Act of 1956, an irreparable loss would be caused to the company. The arguments were not accepted by this Court. It is not a case where the issues raised herein were not raised earlier. 22. The order dated 15th March, 2007 makes a reference of the arguments raised therein. It has been raised again in this application thus doctrine of res judicata would apply. The manner of raising the issue is not relevant. If an argument was raised and has not been accepted then it cannot be taken again in the subsequent proceedings. 23. If for the sake of arguments, it is assumed that a prayer for leave was-not made in the earlier litigation, the doctrine of constructive res judicata would apply. The manner of raising the issue is not relevant. If an argument was raised and has not been accepted then it cannot be taken again in the subsequent proceedings. 23. If for the sake of arguments, it is assumed that a prayer for leave was-not made in the earlier litigation, the doctrine of constructive res judicata would apply. It is for the reason that the applicant company was knowing about consequences in reference to Sections 536 and 537 of the Act of 1956 and, yet, prayer for leave, available to them at the time of first application, if not made, would operate as constructive res judicata. It is moreso when, they had even touched the issue of leave and made prayer for it. 24. The view aforesaid is supported by the judgment of the Apex Court in the case of Ferro Alloys Corpn. Ltd. & Anr. (supra). Relevant para of the said judgment is quoted hereunder for ready reference : 28. It is no doubt true that principle of constructive res judicata can be invoked even inter se Respondents, but it is well settled that before any plea by contesting Respondents could be said to be barred by constructive res judicata in future proceedings inter se such contesting Respondents, it must be shown that such a plea was required to be raised by the contesting Respondents with a view to successfully meet the case of the appellant, then such a plea inter se contesting Respondents would remain in the domain of an independent proceedings giving an entirely different cause of action inter se the contesting Respondents with which the appellants would not be . concerned. Such pleas based on independent causes of action inter se Respondents cannot be said to be barred by constructive res judicata in the earlier proceedings where the lis is between the appellants on the one hand and all the contesting Respondents on the other. In other words, when the appellants are not concerned with the inter se disputes between the contesting Respondents such inter se disputes amongst Respondents would not give rise to a situation wherein it can be said that such contesting Respondents might and ought to have raised such a ground of defence or attack for decision of the Court. In this connection, it would be profitable to refer to a decision of this Court in the case of Iftikhar Ahmed and Ors. In this connection, it would be profitable to refer to a decision of this Court in the case of Iftikhar Ahmed and Ors. v. Syed Meharban Ali and ors. [1974]3 SCR 464 , dealing with the principle of res judicata which obviously would include also the question of constructive res judicata between the co-defendants. K.K. Mathew J. speaking for the Court in that case made the following pertinent observations : "13. Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that (1) there was a conflict of interest between co-defendants (2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit and (3) that the Court actually decided the question. 14. In Chandu Lai v. Khalilur Rahaman , Lord Simonds said : 'It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had noticed that the relevant question was in issue and would have to be decided. 15. We see no reason why a previous decision should not operate as res judicata between co-plaintiffs if all these conditions are mutatis mutandis satisfied. 15. We see no reason why a previous decision should not operate as res judicata between co-plaintiffs if all these conditions are mutatis mutandis satisfied. In considering any question of res judicata we have to bear in mind the statement of the Board in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh that the rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time' and that the application of the rule by the Courts 'should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.' The raison d'etre of the rule is to confer finality on decisions arrived at by competent Courts between interested parties after genuine contest: and to allow persons who had deliberately chosen a position to reprobate it and to blow hot now when they were blowing cold before would be completely to ignore the whole foundation of the rule.' (see Ram Bhaj v. Ahmed Said Akhtar Khan AIR (1938) Lah. 571 )." The aforesaid principle would squarely get attracted while considering the question of constructive res judicata between the appellant on the one hand and the contesting Respondents on the other who were all corespondents before this Court in TISCO and IDCOL's appeals. Considering the basic requirements of the principle of constructive res judicata amongst co-respondents in TISCO and IDCOL's appeals, it has to be found out whether inter se those co-Respondents the question of correct assessments of present appellant's need for chrome ore was necessary to be agitated by the present appellant for enabling the Court to give appropriate relief to TISCO and IDCOL in their appeals before this Court. It becomes absolutely clear on the facts of the present case that the grievance of the appellant in the present proceedings regarding the alleged error in the assessment of its requirement for chrome ore and the question whether such assessment was required to be revised upwards, which may be relevant for deciding the appellant's independent claim against the Central Government as well as the State of Orissa and also vis-a-vis other contesting claimants being three other Respondents had nothing to do with the question of granting relief to the appellants TISCO and IDCOL in the said earlier proceedings. As this important condition was not satisfied for attracting the bar of constructive res judicata against the appellant, it is not possible to agree with the contention of learned Counsel for the Respondents that the appellant's grievance in the present proceedings was also barred on the ground of constructive res judicata, in the light of the earlier decision of this Court in TISCO's case (supra)." 25. The case in hand is covered by the principle laid down in the judgment supra. The judgments referred therein apply to this case. It is not only that the plea to seek leave for confirmation of sale was available to the applicant company in earlier proceedings, but, was raised, as is coming out from para 8 of the order dated 15th March, 2007. The judgments cited by learned counsel for the applicant company would not therefore apply to the facts of this case. The applicant company even raised the issue of bonafide purchaser of the property. The order dated 15th March, 2007 was not challenged by the applicant company, though, challenged by the subsequent purchaser. It was, however, confirmed by the Division Bench followed by dismissal of appeal by the Apex Court. 26. The argument in reference to the provision of CPC has been given. The rights claimed by the applicant company were decided by this Court in the.earlier application. The plea of even bonafide purchaser was not accepted. The application under Section 446 of the Act of 1956 is not otherwise for determination of civil rights, thus the plea in reference of the provision of CPC cannot be accepted. 27. In view of the discussion made above, the company applications cannot be accepted and are accordingly dismissed. A copy of this order be placed in each connected file.