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Bijay Kumar Agarwal And Ors. Versus Ratan Lal Bagaria And Ors.

1998 (12) TMI 620 - CALCUTTA HIGH COURT

Dated:- 18-12-1998 - A Lala,J. ORDER 1. This application is made by one company naming thereby M/s. Murphy Food Specialities Private Limited having registered office at 203, M. G. Road, Calcutta-700007 (earlier No. 227, A.J.C. Bose Road, Calcutta-700020), under Section 41 of the Arbitration Act, 1940, praying inter alia, leave to the petitioner company to intervene in the present proceedings and to add party respondent there in along with prayer for recalling and/or setting aside the order dated .....

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2. One of such contesting parties was Sri Bijay Kumar Agarwal, happened or happens to be the Director of this applicant company. 3. This Court had come to the ultimate finding on 26th March, 1998 upon hearing the parties on numerous occasions and after passing several interim orders which are all available in the record. Even the order dated 26th March, 1998 was also modified thereafter as on 23rd April, 1998 at the instance of said Sri Bijoy Kumar Agarwal but no prayer is made herein to recall .....

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o such dispute. 6. The petitioner herein contended that teas which were directed to be sold are of the applicant company. Therefore their right was interfered with by such order without hearing them. 7. This Court cannot shutout it's eyes without observing very much existence of the said Sri Bijoy Kumar Agarwal at the time of hearing or passing order or orders in the erstwhile application, at the time of making modification application and also at the time of presenting this application in t .....

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stries Ltd. having registered office at New Delhi whose name cannot be disclosed for fear or reprisal. Said employee of the above company provided with the pleadings and order in the G.A. No. 3109 of 1997 to them. 9. The respondents jointly contended that the order passed on 26th March, 1998 is not the original order for sale hut order of implementation of order for sale originally passed by a Single Bench of this Court on 17th August, 1993 at the instance of this applicant company being M/s. Mu .....

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ge of hearing and passing order by this court from a so called employee of a company having registered office at New Delhi and even his or her name cannot be disclosed. Therefore it is clear that the applicant company has not come with clear hands which is the basic element for the purpose of recalling and setting aside the original order. 11. Thirdly, the company having warehouse issued ownership certificate on 28th August, 1992 about invoice number, grade, chest, in all, quantity of the tea in .....

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thinkable in trade and merchandise. 13. Incidentally it was submitted that this application for recalling and setting aside order is made by one Sabyasachi Mukherjee claiming to be Director/Principal Officer of the applicant company but without any affidavit of competency. 14. However, 1 am briefly on the point as to whether appropriate party represented the case and whether the order passed caused prejudice to any alleged non-appearing party or not. 15. No doubt Sri Bijoy Kumar Agarwal, the key .....

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e with the submission made by the petitioner since order of sale was originally made by a Single Bench of this Court at the instance of the applicant company itself as far back as on 17th August, 1993 in the matter of Bijoy Kumar Agarwal when admittedly he had resigned from the company. It is also significant that even goods were stored by said Bijoy Kumar Agarwal on behalf of the aforesaid company as on 28th August, 1992 also after his date of resignation. Therefore now the separate representat .....

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nce of all the patties including Sri Bijoy Kumar Agarwal; b) Existence of Sri Bijoy Kumar Agarwal cannot be ruled out irrespective of his giving up directorship and shareholdings in the applicant 'company; c) The order of 26th March, 1998 is modified at the instance of said Sri Bijoy Kumar Agarwal but no such prayer is made to recall such order; d) Even, in merit, I found that in spite of several notices of the Joint Receivers said Sri Bijoy Kumar Agarwal did not attend the meeting tor the p .....

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way traffic. Therefore situation of each case has to be observed separately. In the instant case it appears that original dispute in arbitration is subsided by various interlocutory applications either under Section 41 of the Arbitration Act or in the nature of pro-inter se-suo on different occasions. If there is any dispute with regard to ownership of the goods and monetary claims in connection thereto, the same will be decided by an Arbitrator or Arbitrators but for the same warehouse of a th .....

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cation being factually distinguishable with the present case. 19. Mr. P. C. Sen appearing with Mr. Joy Saha contended that existence of an individual and existence of a company are distinct and different. Therefore, appearance of an individual or his group cannot be said to be appearance of the company. Therefore the order which was admittedly passed in absence of the company who's right has been infringed. This court sitting in hearing an application under Section 41 of the Arbitration Act .....

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ifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern. It is neither necessary nor desirable to enumerate the classes of cases where lifting the corporate veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, .....

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