AI Structured Summary
Not yet generated for this judgment
Judgment
Nadira Patherya, J.—This is an application filed by the defendant No. 7 for modifying the judgment dated 10th May, 2006. The case of the applicant is that by judgment dated 10th May, 2006 the counter-claim of the defendant No. 7 was dismissed. The said came to the knowledge of the applicant when a copy of G.A. 2131 of 2010 was served on the applicant. In A.S. 20 of 2000, a Written Statement has been filed by the applicant herein and a, counter-claim though made was rejected by order dated 10th May, 2006. In the decree drawn up, pursuant to such order the said has not been mentioned. Therefore, the order dated 10th May, 2006 be corrected in keeping with the decree. The period of limitation for recall of the decree is three years. As the decree is dated 10th May, 2006 and the applicant came to know of such decree on receipt of G.A. 2131 of 2010 on 25.06.2010 and three years will expire in June 2013. In view of Mst. Nurnahar Bewa and Another Vs. Rabindra Nath Dev and Others, his application is maintainable. In the event, it is held that the same is beyond three years, the delay be condoned.
A.S. 20 of 2000 was filed by the plaintiffs therein to limit the liability u/s 352A of the 1958 Act. Accordingly, in view of section 352B of the 1958 Act a decree was passed on 10th May, 2006. Prior thereto on 27th June, 2001 an order was passed directing deposit of sums u/s 352C(6) of the 1958 Act. By virtue of Article 215 of the Constitution of India, the High Court is a Court of record. Section 151 of the CPC empowers the Court with inherent jurisdiction to amend a judgment u/s 152 of the Code of Civil Procedure, Therefore, the records be corrected as held in (2009) 5 SCC 791 paras 28 - 29. u/s 151 of the Code of Civil Procedure, the Court is empowered to also correct its decree as held in Ram Chandra Singh Vs. Savitri Devi and Others, and Maharaj Bahadur Singh and Others Vs. Surendra Narain Singh and Others, Chatrapat Singh and Others and Mr. A.H. Forbes and Others, The error which has crept in can also be corrected as held in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, be also considered. Any correction which has to be made under sections 151 and 152 of the CPC is not restricted by any laws of limitation as held in Bhuyan Shyam Sunder Mohapatra and Another Vs. Ch. Nilakantha Das and Others, , Bawa Singh and Others Vs. Babu Singh and Others,
The affidavit filed on behalf of the plaintiff be ignored as the plaintiff has been dissolved in 2004 and the relaxation of three years enjoyed by the plaintiff under Panamian laws expired in 2007, therefore, none is authorized to represent the plaintiff. The affidavit filed by the plaintiff has been verified by an Advocate who works in the office of M/s. Mukherjee & Biswas the applicant in G.A. 2131 of 2010 and in view of AIR 1993 Bombay 217 the said affidavit cannot be accepted. For the said proposition reliance is also placed on 86 Company Cases 371 page 396. Articles 85 to 89 must be read in conjunction with the preceding Articles and in view of 1991 WLR 1362, 1368 and 1369 so also 52 Company Cases 121 it is the Official Liquidator who is to represent the plaintiff as that is the law prevailing in India.
Opposing the said application it has been submitted on behalf of the plaintiff that notices were given to M/s. Victor Moses, Advocates of the defendant No. 7 at the time of drawing up of the decree. Therefore, knowledge of judgment will be calculated from the date of the decree drawn up or from the date of receipt of notice, which is in 2008. Therefore, limitation will also run on and from 2008.
Article. 123 of the Limitation Act, 1963 deals with judgments. The Admiralty Rules of this High Court and in particular Rule 51 makes the CPC applicable to all suit proceedings. Therefore, documents were discovered after filing of Written Statement by the defendant No. 7 but no step was taken by the applicant/defendant to prove the same. The counter-claim of the applicant has been rejected. Therefore, it has no locus standi to file this application, Oil and Natural Gas Commission Vs. Offshore Enterprises Inc., is distinguishable on facts. On reading of the order dated 10th May, 2006 the application of judicious mind is evident Maharaj Bahadur Singh and Others Vs. Surendra Narain Singh and Others, Chatrapat Singh and Others and Mr. A.H. Forbes and Others, is distinguishable on facts as therein amendment of decree was sought in a case of mis-description Ram Chandra Singh Vs. Savitri Devi and Others, was not a case of accidental error and therefore, is distinguishable as the Trial Court has rejected the counter-claim. Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, was a case in which the schedule in the plaint deferred from the schedule of the decree. Such is not the case here. Resolutions have been annexed to the opposition wherefrom it will appear that both Banerjee and Dutt were authorized to sign the vakalatnama in the name of M/s. Mukherjee & Biswas, Advocates. Therefore, Oil and Natural Gas Commission Vs. Offshore Enterprises Inc., have no application to the instant case. AIR 1991 WBLR 1362 will not apply on fact but the principles laid down therein cannot be disputed. In view of The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, is not good law. In Mst. Nurnahar Bewa and Another Vs. Rabindra Nath Dev and Others, the summons had been served and therefore, will have no application to the instant case and as there is a bar u/s 29(2) of the 1963 Act, (2009) 5 SCC 791 will not apply.
In reply counsel for the applicant submits that all that is being sought is to correct the order as per the decree. The claim is to be proved only after creation of limitation fund. As the High Court is a Court of record under Article 137 it has inherent jurisdiction to'' pass and correct the order. Therefore, orders as sought be passed.
7- Having considered the submissions of the parties the plaintiff filed A.S. 20 of 2000 to limit its liability as per the provisions of the 1958 Act. The defendant No. 7/applicant was made a party and a Written Statement was also filed by it wherein not only was creation of a liability fund-disputed but a counter-claim was also made. Initially the defendant No. 7/applicant was represented at the hearing but thereafter none appeared on its behalf at the time of hearing on 10th May, 2006. It is true that the plaintiff was allowed to create a limitation fund by depositing sums on the basis of self assessed loss incurred and therefore all further proceedings by the defendants was stayed by order dated 27th June, 2001.
By the decree dated 10th May, 2006 the limitation fund was limited by Court and all interim orders merged with the decree, Therefore to state that unless the fund was created the applicant was not required to establish its claim even if accepted, the applicant took no step to establish its claim either by proving its counter-claim or instituting a fresh suit and proving its claim. Admittedly by limiting the liability of the owners of Vessel M.V. Prime Value the decree dated 10th May, 2006 rejected the objection of the applicant to creation of the fund. No appeal was also filed from the decree, therefore all that was left to be done by the applicant was to prove its counterclaim which admittedly was not proved as u/s 352M of the 1958 Act payment can be made only if the claim is established.
In the order dated 10th May, 2006 the rejection of the counterclaim has been stated in no uncertain terms. The decree is drawn on the basis of the order passed, and is filed only after it is settled and completed. While drawing up of the decree notice is to be given under Chapter XVI Rule 29 of the Original Side Rules to the parties for settlement of the decree. In the instant case as will appear from the records, notice was given on 03.10.2007 to the advocates of the applicant M/s. Victor Moses & Co. and the same was also received by it on the same day, but no step was taken by the applicant''s advocate to appear before the Registrar in-Insolvency on 05.10.2007 being the date fixed for settling the decree. This will appear from the draft decree wherein against the name of the applicant''s Advocate ''A'' has been ascribed thereby meaning absent. The only parties present at the time of settling the draft decree were the plaintiff and the defendant No. 26.
The draft decree was finally approved on 05.10.2010 but till then no step was taken by the applicant for recall of decree.
In fact the applicant had knowledge of the decree since 2008 as G.A. 2530 of 2008 was filed for release of payment.
The plaintiff had by prayer (c) sought a direction on persons having a claim to be allowed to file a suit.
The applicant seeks correction of the order on the basis of the decree. The decree is drawn up and settled on the basis of the order and an error or omission in the decree due to a clerical mistake or an accidental slip is permitted. There is no accidental slip, arithmetical or clerical mistake or omission to warrant amendment of the decree, order or judgment. The decree follows the order and in case any correction is warranted it is that of the decree and not vice versa.
The only reason for rejecting the counter-claim is non-appearance. Ah application could have been filed for recall which has hot been done.
In the order the reasons for rejecting the counter-claim has been given and to correct the order as per the decree will amount to nullifying the reasonings therein when the decree is not under challenge.
There is no dispute with the proposition laid down in Mst. Nurnahar Bewa and Another Vs. Rabindra Nath Dev and Others, but the instant application is not for recall of decree or for restoration of a recall application but for correcting the order as per the decree and therefore the said decision is not applicable to the facts of the case.
Ram Chandra Singh Vs. Savitri Devi and Others, is hot a case of accidental slip or typographical errors and the Court refused to alter or modify the judgment in exercise of its inherent power, and therefore is not applicable to the facts of the case.
AIR (1915) PC 586 was a case of mis-description and therefore powers exercised u/s 152 of the CPC. Such is not the case here.
As held in AIR 1926 29 (Privy Council) an aggrieved person is entitled to seek correction of an error but where the error has crept into the decree, the decree ought to be corrected and not the order. For the same reasoning Bhuyan Shyam Sunder Mohapatra and Another Vs. Ch. Nilakantha Das and Others, will not aid the applicant.
Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, will not apply to the present case as it was a case of accidental slip and an inadvertent mistake as the Schedule in the Plaint differed from the Schedule in the decree. Such is not the case here.
Sunil Mukherjee Vs. Union of India (UOI), is not relevant to the issue at hand while (2009) 5 SCC 791 is distinguishable on facts as it was a case of bar u/s 29(2) of the 1963 Act.
The decision reported in Bawa Singh and Others Vs. Babu Singh and Others, are cases on limitation which is of no relevance in view of the finding above, In Latu Vs. Kalu and Another, it was the decree which was sought to be amended in conformity with the judgment. Therefore the decision is also distinguishable on facts.
As this application is not entertained the issue of whether the power of attorney holder or the Official Liquidator ought to represent the owners of vessel MV Prime Value and the decisions cited in respect thereof need not be considered for the purposes of this application or at this stage. Annada Prasad Mitra Vs. Sushil Kumar Mandal, though not good law in view of The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, , the reference to section 151 of the Code of Civil Procedure, 1908 was in passing and the powers vested therein does not call for exercise in the instant case.
For all the said reasons this application warrants no order and is dismissed.