9911796707
TMI Blog2012 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... t was made without prejudice to the applicant's contention: the intention of the court at such stage being to postpone a decision on the desirability of the non-party being heard in course of the present application to the final stage. The scheme of arrangement, sanctioned by an order of May 31, 1993 provided for, inter alia, certain properties of Fort Gloster Industries Limited being parked with Gloster Limited (then known as Gloster Jute Mills Limited). The property which is relevant for the purpose of the present application is known as the North Mill and is referred to as such herein. At the time that the scheme was sanctioned, or even when the first application to ultimately obtain the sanction of the scheme of arrangement was lodged in court, possession of the North Mill had been made over by Fort Gloster to one Hooghly Mills Company Limited under an agreement for sale and a substantial part of the consideration received by Fort Gloster. The agreement for sale required certain statutory formalities - primarily, permission under the Urban Land (Ceiling and Regulation) Act, 1976 - being obtained. It is not in dispute that such formalities were not complied with within any reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 211 of 2010 asserting an arbitration agreement of March 24, 1988 and claiming that, despite the applicant's effort, the mechanism for securing a reference under the arbitration agreement had failed. The applicant asserted that it was entitled to have the arbitral tribunal put in place by the Chief Justice of this court or his designate. The eo nomine parties to the March 24, 1988 matrix contract which contained the arbitration clause were Fort Gloster and Hooghly Mills. The applicant herein claimed in the request under Section 11 of the 1996 Act that the North Mill, which was the subject of the agreement for sale of March 24, 1988, stood transferred to and vested in the applicant in pursuance of the scheme of arrangement that was subsequently sanctioned by the order of May 31, 1993. The applicant asserted, or should be understood to have asserted, that upon the North Mill being vested in it, the rights and obligations of Fort Gloster qua Hooghly Mills in the agreement of March 24, 1988 stood transferred by operation of law to the applicant. It claimed, in course of the request under Section 11 of the 1996 Act, that disputes had arisen between it and Hooghly Mills in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the order made on May 31, 1993, the definition of "jute division" in the scheme and the clause under which the "jute division" was to stand transferred to and vested in the transferee company under the scheme. Such vesting clause recorded, in its material part, that "the Jute Division of the said transferor company with all its properties, rights and interests of the said transferor company and specified in the first, second and third parts of the schedule B hereto be transferred from the said transfer date and be vested without further act or deed to the said transferee company..." The order rejecting the applicant's request under Section 11 of the 1996 Act noticed that the relevant schedule did not refer to the North Mill but it included "a part of the properties of the jute division" and specified such properties. The order of December 16, 2010 then proceeded to consider whether the order sanctioning the scheme as drawn up implied the transfer and vesting of only such of the properties that were included in the schedule. Form 42 of the Companies (Court) Rules, 1959 and Rule 84 thereof were referred to and it was observed that "these orders are submitted in draft to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stuck to its guns and went ahead full-steam with its assertion that the North Mill did pass to it. This, the applicant proclaimed on the basis of the order sanctioning the scheme as drawn up and despite it being in a seemingly unsatisfactory form. In choosing such course of action, the applicant made a conscious decision. The applicant did not consider then that the order sanctioning the scheme as drawn up contained any mistake. It is irrelevant today, upon a decision having been rendered on an issue that squarely arose in the previous proceedings, as to whether there was, indeed, a mistake in the order sanctioning the scheme as drawn up. Quite apart from the minor points of prejudice that it is a long-standing practice in this court that advocates representing the companies which are parties to the scheme hand over a draft of the order sanctioning the scheme as it is to be drawn up or, at any rate, are present to settle the drawn-up order and, ordinarily, there is no adversarial flavour in course of the drawing up of an order sanctioning a scheme of merger or demerger, upon the issue arising in the previous proceedings as to whether the North Mill had passed to the applicant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since the question of mistake had never been urged or considered, there is no issue estoppel. The applicant asserts that no element of acquiescence or waiver or estoppel or such other tenuous concept would apply for its present request to be stultified. The applicant exhorts that for a person carrying a grievance to a court, particularly that such person has been prejudiced by an act of court, the court will not shut its doors on the applicant on any judicial perception or suspicion that the applicant is not entitled to urge the ground without assessing the merits of the matter. If the principles of res judicata and issue estoppel do not apply in terms to the matter, the applicant submits, there cannot be any estoppel against a mistake of the court, or any element of the applicant acquiescing in such a mistake, or any deemed waiver of its right to bring such mistake to the notice of the court. Nebulous as the principles analogous to res judicata or issue estoppel or waiver or acquiescence or estoppel may appear to the applicant, there is also a cardinal rule that a party may not approbate and reprobate. In the applicant having insisted in the previous proceedings that it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant would be deemed to have stepped into the shoes of Fort Gloster in the agreement for sale of March 24, 1988. Such success would then give the applicant a toehold to assert that it is a party to the arbitration clause contained in the agreement of March 24, 1988 and entitled to a reference thereunder. It would then undo, almost by a side-wind, the exercise undertaken by a competent forum in adjudicating a matter and reaching a conclusion thereon. That would be clearly impermissible and, more importantly, opposed to the public policy that the apparently imprecise shades of the aforesaid principles profess to serve. Even though the primary legal mooring of this order is in the conduct of the applicant and the principle - hazy, as the applicant may reckon - that a party may not approbate and reprobate, an ancillary juridical ground may exist that would warrant that the present application does not progress to the merits but is nipped in the bud. For the doctrine of res judicata or the principle of issue estoppel or any legal ground analogous thereto to be attracted (though the applicant maintains that there is only the direct application of either principle and there can be no j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n intention either being bona fide or even a veiled attempt to prejudice some other. It would matter little, then, as to the stand taken by an eo nomine party to the scheme upon the other making an assertion as this applicant has. The assessment in such a case would be confined to the records pertaining to the scheme and the papers filed in course thereof. A subsequent agreement between the parties to the scheme or a disagreement between them as to what passed thereunder would scarcely weigh with the court on receiving an application to correct a mistake said to have been committed by the court in how the order sanctioning the scheme had been drawn up. It would then follow that an issue is sometimes capable of being decided irrespective of the stand of the other party to the proceedings and despite it. As a corollary, the identity of the parties to the two actions may not be an absolute imperative for the operation of the underlying sentiment embodied in the rule in res judicata. It is possible that a decision on an issue in a particular matter may not operate as res judicata in a subsequent matter, on the perception of the dissimilarity in the scopes of the two sets of proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LJ 278 (Howrah Trading Company P. Ltd v. Smt. Pramila Jalan) need not be noticed in any great detail. It must, however, be said that it was possible for the applicant to prosecute its request under Section 11 of the 1996 Act with a caveat, that the order sanctioning the scheme as drawn up carried a mistake in the North Mill not having been specifically included in the schedule to the scheme, on the argument that, despite such mistake, the surrounding circumstances made it obvious that such property had passed to the applicant under the sanctioning order. The order on the request under Section 11 of the 1996 Act may then have been without prejudice to the applicant's contention that the order sanctioning the scheme was mistaken or left unaffected the applicant's right to urge such ground at a subsequent stage. Only then would the present application and the plea urged by the applicant have been maintainable despite the rejection of the request under Section 11 of the 1996 Act. Upon the applicant not having requested a postponement of the decision on its request under Section 11 of the 1996 Act till its plea as to mistake was assessed, which petition the applicant might and ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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