TMI Blog2000 (12) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible for the custodian to proceed against the property comprised in Units 3 and 4 belonging to the appellant-company also by means of an appropriate execution application as and when he choose to do so. So far as the challenge based on the want of registration under section 17(1)(b) is concerned the same is neither genuine nor has any merit whatsoever or capable of being countenanced at our hands. - CIVIL APPEAL NO. 2770 OF 2000 - - - Dated:- 6-12-2000 - B.N. KIRPAL, DORAISWAMY RAJU AND BRIJESH KUMAR, JJ. Dr. Rajeev Dhavan, Vimal Chandra S. Dave for the Appellant. Shiraz Rustomjee, A. Subba Rao, Ms. Kumud Singh and Bhargava V. Desai for the Respondent. JUDGMENT Raju, J. - The appellant before us was the unsuccessful applicant in Miscellaneous Application No. 2 of 1999 before the Special Court [Trial of offences relating to transactions in securities] at Bombay (called for convenience as the Special Court ). The appeal has been filed under section 10 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 ( the Act ) against the order of the Special Court dated 16-2-2000, whereunder the relief sought to set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estern Press Pvt. Ltd. (formerly known as Jayakrishna Pvt. Ltd.) is the owner of the premises admeasuring approximately 2030 sq. ft. and described in Schedule A-3 hereunder written. The said premises are used and occupied by the Respondent Nos. 2 and 3 along with the said Western Press Pvt. Ltd. The Respondent Nos. 2 and 3 declare and undertake to this Hon ble Court that they will not claim any right, title or interest in the said premises mentioned in Schedule "A-3". The respondent Nos. 2, 3 and the said Western Press Pvt. Ltd. undertake to this Hon ble Court that pending satisfaction of the decree the Respondent Nos. 2, 3 and the said Western Press Pvt. Ltd. will not alienate, encumber or part with possession of or create third party right, title or interest in the said property described in Schedule A-3 hereto or any part thereof, till the decree herein is marked satisfied. 12. In the event of the decree herein becoming executable against the Respondent Nos. 1 and 2 or 3, the Respondent No. 2 and the Companies listed in Schedule "C" as well as the said Western Press Pvt. Ltd. and the said employee occupying the flat as per Schedule A-2, undertake to this Hon ble Court that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel or was ever been put on notice of the orders to be passed affecting its rights/interest, ( f ) that the appellant is neither a judgment debtor nor it claims through a judgment debtor, ( g ) that it neither agreed to give guarantee nor stand as surety for the payment of the debts of the judgment debtor and consequently the properties of the appellant cannot be attached or proceeded against in any manner for realisation of the dues under the decree in question. 6. The Special Court, after a careful consideration of the respective contentions of parties, held that the minutes of the order dated 5-7-1995 covered also units 3 and 4 belonging to the appellant and it would be open to the custodian to prefer an appropriate application for execution, as was done in the case of units 2, 5 to 8 as and when required. The Special Court also held that the said two units of the appellant also constituted an integral part of the compromise. As regards the ground based upon want of registration, the Special Court was of the view that the minutes of the order stood excepted from compulsory registration and that in any event in of view of section 41 of the Maharashtra Co-operative Societi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under challenge to substantiate their respective stand. 8. We have carefully considered the submissions of the learned counsel appearing on either side. In our view, apart from the lack of merits in the challenge made to the well considered order of the Special Court, the appellant s case does not merit countenance in our hands for another reason also. The parties before the special court having consented and invited the Court to pass the order dated 5-7-1995 and obtained benefits by giving undertaking of their own and on behalf of the appellant-company, ought not to be allowed to take shelter under technicalities to overreach the Court, which believed the parties and counsel appearing on their behalf and acted in good faith by accepting the terms suggested by the parties themselves. 9. The questions, which loom large for consideration in this appeal, are as to what are the legal consequences flowing from the consent order of the Special Court dated 5-7-1995 and the affidavit filed by Mr. Milan Dalal on 28-7-1995 as the Chairman of the appellant-company? and do they suffer any legal infirmities such as want of registration, want of authority and mistake of fact so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y CIFCO Ltd. and CIFCO Finance Ltd., it has been stated in unmistakable terms in paragraphs 2 and 3 as follows : "2. In terms of the Minutes of the order dated 5th July, 1995, passed by the Hon ble Special Court, Western Press Pvt. Ltd., do hereby undertake that not to alienate, encumber or part with possession of or create third party right, title or interest in the aforesaid premises till the decree is marked satisfied. 3. On behalf of the Company, I hereby undertake to this Hon ble Court that in the events happening as provided in Clauses 12 and 13 of the said Minutes, the company undertake to vacate the premises in their occupation." 11. Though for fixing liability as such the mere fact that the judgment debtor companies and the appellant-company being part of the same group of companies completely controlled by Dalal family and its group concerns may not be sufficient as such, the said factual information indicating that the cluster of companies is a mere cloak for these groups will be a just and relevant piece of material in appreciating the foul play and attempts on the part of the Directors of the appellant and their opportunistic stands adopted, as it suits them, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y manner warranting our interference. Consequently, it would be permissible for the custodian to proceed against the property comprised in Units 3 and 4 belonging to the appellant-company also by means of an appropriate execution application as and when he choose to do so. The plea of lack of authority in Milan B. Dalal to bind the appellant needs mention only to be rejected even for the simple reason that the directors of the appellant-company, who allowed Milan B. Dalal a free hand as Chairman of the appellant-company to deal with the matter, cannot be permitted to blow hot and cold as it suits them. Equally untenable is the pretended mistake of fact which, in our view, is nothing but a self-serving attempt found to be made as a pure afterthought to wriggle out of the lawful commitments made and retrace the position in which the directors of the company have allowed themselves to be landed in. 13. So far as the challenge based on the want of registration under section 17(1)( b ) is concerned, we are of the view that the same is neither genuine nor has any merit whatsoever or capable of being countenanced at our hands. The reasons assigned by the Court below to reject the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y event, in a matter like the one before us where the consent order which came to be passed on agreement as well as the undertaking given in pursuance thereof, was an undertaking to the Court, the words subject-matter of the suit need not be confined to the subject-matter of the plaint or subject-matter of the dispute alone, but would include all that which is made to become part of the proceedings in order to finally and effectively settle all the disputes between the parties. Shorn of all these unnecessary controversies now raised, we are also of the view that in a case where an item of property is referred to in an undertaking given to the Court as one which can be proceeded against in the event of the judgment-debtor failing to pay the decretal amount within the stipulated time, the immovable property does not get ipso facto affected or suffer in anyone of the manner envisaged under section 17(1) so as to require compulsory registration. 14. That apart, the provisions contained in section 145 CPC also would enure to the benefit of the Court as well as the custodian to proceed against the appellant in enforcement of the undertaking given to the Court and there are no mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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