Hungerford Investment Trust Ltd. vs Turner Morrision and Co. Ltd. and Others

Bijitendra Mohan Mitra, J.—The connected file has been placed before the undersigned at the lunch and recess of 23rd April, 1997 for the first time. After perusing contents of the connected file it appears that by an order dated 28-02-97 the learned Chief Justice has been pleased to place the matter before the division Bench. Thereafter, the same has been placed before the undersigned for doing the needful in the matter and for his comments. It appears to be preceded by an order dated 30-01-97 passed by V.K. Gupta, J. who on perusal of Clause 36 of the Letters Patent has been of the view that the conclusive portion of the judgments did not indicate the separate points of law on which the learned Judges differed and as such formulation of the points of difference is considered to be a mandatory requirement under Clause 36 of the Letters Patent. The concerned learned Judge not having been able to decipher the points of difference has been pleased to place it before the Hon''ble Chief Justice with a request to pass such a necessary order formulating the points of difference on point of law on which the matter in question is required to be referred to the third Judge under Clause 36 of Letters Patent. It appears from the reading of the judgment the penultimate observation of Batabyal, J. is on the score "Therefore it will be a risky adventure for this Court to go into the question of locus standi of the appellant company to file this appeal on the ground that all shares have been sold out by Tax Recovery Officer. this Court refuses to go into that aspect of the question". The undersigned in the concluding portion of his judgment has quoted the above observations of Batabyal, J. and in this context it is observed "this Court is of positive view that by keeping alive the question of locus standi of the appellant company to file the appeal, the appeal in question cannot be decided. The question of locus standi having been raised in this appeal, it is incumbent and within the ambit of his power to decide that question even as a court of limited jurisdiction as otherwise the question is being left open will percolate into the domain of the foundation of the appeal. Therefore, on perusing the language of the two judgments it appears from the reading of the conclusion that the judgments differ only on the score of the point of law as to whether appeal can be decided by keeping open the point of maintainability and question of locus standi of the appellant to proceed with the appeal. The short question thus emerges for determination is whether appeal can be finally disposed of on merit by keeping open the question of locus standi of the appellant to file the appeal and to proceed with the appeal." The instant order is passed elucidating the only point of difference as formulated above on which the judgments- differed for which a reference is made under Clause 36 of the Letters Patent.

All parties to act on a signed copy of the Operative portion of this judgment on the usual undertaking.

Nitish Kumar Batabyal, J.

I agree.