TMI Blog2009 (7) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1999. The consent or concession on the part of the applicants that is evident from the order appears to be a voluntary relinquishment of a known right and merely because the implication of the order dawned on them after they had consented thereto is not good ground for the order being recalled despite their repeated incantation of fraud. Appeal dismissed. - G. A. NO. 3151 OF 1999 IN W. P. NO. 2098 OF 1998 - - - Dated:- 30-7-2009 - SANJIB BANERJEE, J. Soumen Sen, S.K. Dutt and Ms. Piyali Sengupta for the Applicant. Dhruba Ghosh and S.S. Khanra for the Petitioner. JUDGMENT Sanjib Banerjee, J. Two of the respondents to a writ petition disposed of by an order dated July 5, 1999, have applied for recalling the order on the ground that they had been misled into conceding to the arrangement recorded in the order. The National Securities Clearing Corporation Ltd., and the National Stock Exchange of India Ltd. (NSE) claim that a fraudulent petitioner had deceived the applicants into believing that a particular state of affairs existed when subsequent disclosure by the petitioner in terms of the order showed otherwise. 2. W. P. No. 2098 of 1998 was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aphs 10 and 18 thereof : "10. With reference to paragraph 6 of the petition, I state that respondents Nos. 2 and 3 are not aware of the transaction that the petitioner had with respondents Nos. 5 and 6. However, the petitioner vide its letter dated December 31, 1997, wrote to respondent No. 2 that he had submitted some shares with respondent No. 5 for bad delivery and/or on the ground of objection of the company. Respondent No. 3 vide its letter dated April 7,1998, wrote to the petitioner asking him to send the copies of Member-Constituent Agreement and contract notes issued by respondent No. 5. The petitioner in turn vide its letter dated October 13, 1998, informed that he is in receipt of copies of BDCIA (form for lodge of bad delivery of shares where company objects to register transfer) and Form No. 6B (form for bad delivery for other reason). However, the delivery number on Form No. 6B was not legible. The petitioner was asked by respondent No. 3 to intimate the delivery number in respect of 300 shares of ITC Ltd., being subject-matter of the instant petition. The petitioner, however, did not inform the same to these respondents, (emphasis 1 supplied) 18. Since the deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Securities and Exchange Board of India issued on November 19, 1996, that advised members of stock exchanges to prefix "CLI" for client account orders and "PRO" for orders of member brokers for self transactions. Such identification codes had to be recorded at the time of entering the order on the trading system. The applicants say that the 300 bad delivery shares and the 100 company objected to shares had been purchased by the fifth respondent broker by marking the transactions as "PRO". The applicants contend that the relevant transactions were, in fact, entered into by the broker for itself and not in its capacity as a broker acting on the instructions of any client. 8. The applicants say that the receiving member code in the relevant forms bear the number 06639 which is the unique identity number of the fifth respondent broker and it was evident, in such circumstances, that a defaulting broker registered with NSE had devised a scheme by using the petitioner as a front for fraudulently obtaining the rectification or return of certain shares from the NSE with knowledge that if it had applied itself the NSE would not rectify or return the shares since the stock exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties agreed on the rent for the first five years of the new tenure and contracted that the quantum of rent would be reviewed at the end of the fifth and the tenth years of the term. The new indenture of lease which had been drawn up by the landlords made no provision as to the quantum of rent in default of agreement between the parties. At the time of execution of the deed, an officer of the tenants noticed that the review clause was altered but did not bring it to the attention of the landlords. At the end of the fifth year the parties were unable to agree on the revised rent and the landlords brought an action for the rectification of the lease. The claim was decreed upon it being declared that the rent in review periods should be the market rent and requiring the lease to be rectified to provide for the revised rents, in default of agreement, to be determined by an arbitrator. In affirming the decree in regard to the rectification but deleting the declaration relating to payment at market rate, the Court of Appeal held that where a party to a document was aware that the document did not give effect to the common intention of the parties due to a mistake on the part of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kerjee ) , a consent order was recorded by a learned judge in chambers for the issue of a commission to examine witnesses on behalf of the defendant. On the following day the plaintiff mentioned for revision of the order on the ground that the plaintiff's attorney had not had before him full and sufficient facts bearing on the matter at the time of consenting to the order. Such prayer was rejected. Shortly thereafter, a formal application was made for striking out certain words from the consent order as to the place of the examination of one of the witnesses. The plaintiff had sought such deletion upon his perception of the manifold difficulties of access to and accommodation at the place specified in the consent order. The learned judge agreed with the plaintiffs perception and was satisfied that the plaintiffs attorney had consented to the order under a misapprehension. It is the following passage from the judgment that the applicants here rely on (page 230) : "That an order by consent can be revised or varied in circumstances showing that the consent had been given under misapprehension or mistake is well-settled and it is unnecessary for me to deal at length with the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." 14. The applicants refer to a judgment reported at (99 CWN 897) ( Chittarnjan Das v. Durgapore Project Ltd ) where the suppression of a document which had a material bearing on the matter was seen as conduct amounting to fraud. Paragraphs 64 and 65 of the report are relevant : "64. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation. 65. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent-company would be bound thereby." 15. The petitioner suggests that the dispute between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all and at any rate by the highest courts in the States in the country. It does not, in our view, require any extraordinary exercise to hold that the memorandum and terms of the compromise in this case became part of the orders of the High Court itself when the earlier writ petition was finally disposed of on February 13, 1991, in the terms noticed supra, notwithstanding that there was no verbatim reproduction of the same in the order. The orders passed in this regard admit of no doubt or give any scope for controversy. While so, it is beyond one's comprehension as to how it could have been viewed as a matter of mere contract between the parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. As long as the earlier order dated February 13, 1991, stood, it was not permissible to go behind the same to ascertain the substance of it or nature of compliance when the manner, mode and place of compliance had already been stipulated with meticulous care and detail in the order itself. The said decision was also not made to depend upon any contingencies beyond the control of parties in the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to the petition dealt with the contents of paragraph 12 of the petition at paragraph 15 of the affidavit and the contents of paragraph 14 of the petition at paragraph 16 of the affidavit, but did not deal with the averments contained in paragraph 13 of the petition. Copies of such letter had been marked to both the NSE and to the Securities and Exchange Board of India. The petitioner wrote another letter on March 10, 1998, reminding the applicants of the petitioner's earlier complaint. The applicants' affidavit dealing with the writ petition claimed at paragraph 16 that the investor grievances cell of NSE replied on April 7, 1998, asking for a copy of the member-constituent agreement and the "contract note issued by respondent No. 5 ... for verification". A grievance was thereafter made in the applicants' earlier affidavit that the applicants could not discern the delivery number relating to the transactions. 20. The applicants, on their showing, were aware of the identity of the broker involved and the only reservation expressed was with regard to the delivery number. The delivery number could only enable the stock exchange or its clearing-house to locate and identify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve itself applied and the applicants in their wisdom may have allowed the transactions. There was no compulsion on the applicants to concede or consent to the order; at least no submission has been made to such effect. If the applicants volunteered to acquiesce in a state of affairs which was within their authority to do, their shouting fraud would not permit the undoing of the consent order. 23. Though the word fraud has been mentioned a few times in the application, no particulars of fraud have been furnished. The application refers to the codes "CLI" and "PRO" without mentioning as to whether it was possible for the applicants to ascertain the true beneficial owner of the shares on the basis of the documents already available with them prior to the order dated July 5, 1999. The consent or concession on the part of the applicants that is evident from the order appears to be a voluntary relinquishment of a known right and merely because the implication of the order dawned on them after they had consented thereto is not good ground for the order being recalled despite their repeated incantation of fraud. 24. G. A. No. 3151 of 1999 is dismissed, but without any order as to c ..... 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