IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1114 OF 2007 IN SUIT NO.937 OF 1974 Messrs.Hongkong Investment Co. Pvt.Ltd. ...Plaintiffs V/s. Alvaro Jose Elvino De Braganza & Anr. ...Defendants And Hongkong Investment Company Pvt.Ltd. (In Liquidation) ...Applicant And Maria Lalita Braganza & Ors. ...Respondents WITH COMPANY APPLICATION NO.464 OF 2007 IN COMPANY PETITION NO.141 OF 1989 WITH OFFICIAL LIQUIDATOR’S REPORT Kalawanti Shamsunder Advani ...Applicant Versus Lila Filomena & Ors. ...Respondents WITH COMPANY APPLICATION NO.37 OF 2008 IN COMPANY PETITION NO.141 OF 1989 Mr.Indresh Shamsunder Advani & Ors. ...Applicants Versus M/s.Hongkong Investment Co.Pvt.Ltd. (In liquidation) ...Respondents ...... Mr.Rajeev Ravi i/b M/s.Bilawala & Co. for Applicant/Official Liquidator. : 2 : Mr.Milind Sathe with Mr.Chirag Balsara i/b Junnarkar & Associates for Respondent No.2 in Chs/1114/2007. Mr.Satish Shah i/b Munir Merchant for Applicants in CA/37/2008. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. DECEMBER 15, 2008. DECEMBER 15, 2008. DECEMBER 15, 2008. P.C. 1. Heard Counsel for the parties. 2. Although all Respondents are served, only Respondent No.2 has appeared to oppose this Application. 3. The Applicants pray for following reliefs in the present Chamber Summons: "(a) that the abatement of the suit, if any, be set aside; (b) that the delay of about 17-1/2 years in making the present application be condoned; (c) that the Applicant be permitted to amend the plaint and proceedings as per the Schedule appended hereto and the : 3 : Applicant and Respondents be brought on record of the suit; (d) that costs of this Chamber Summons and of the orders to be made thereon be provided for; And (e) for such other and further reliefs as the nature and circumstances of the case may require be granted." 4. Insofar as prayer clause (a) is concerned, I am in agreement with the argument of the Plaintiffs that the same is redundant. This is so because in the proceedings such as the present one, provisions of Order 22 Rule 4 of the Code of Civil Procedure will have no application. 5. The question, however, is: whether the decree passed by this Court on 2nd March 1979 is a preliminary decree or can be treated as final decree. Relying on the operative part of the Judgment and Decree, Counsel for the Respondent No.2 submits that it is a final decree. The operative part reads thus : "There shall be a Decree in terms of Prayers (a), (c) and (d). As regards : 4 : rendition of the Accounts, the Suit is referred to the Commissioner for Taking Accounts. Costs and further orders reserved. At this stage, Mr.Mody applies for Appointment of Receiver. Order dictated separately." 6. Besides the reliefs already granted, the Plaintiffs have asked for further reliefs in the Suit in the following terms: "(b) that, in the alternative to prayer (a) above, the said Partnership firm of "Messrs.Shamkala Farms and Motels: between the Plaintiffs and the Defendants be dissolved by this Honourable Court as from the 14th day of September 1974, or the date of this suit, or from such other date as to this Honourable Court may seem just; (e) that the Defendants may be ordered and decreed to render a full true and complete account of their dealings and transactions with the properties and assets of the said firm including the said immoveable property more particularly described in Exhibit "A" here, and the produce, rents, incomes, and profits thereof as also of all amounts received or receivable by them for or in connection therewith on the footing of wilful default; (f) that the Defendants may be ordered and decreed to pay to the Plaintiffs the amounts that may be ascertained and/or found to be due and payable to the Plaintiffs at the foot of the said accounts with interest thereon at the rate of 6% (six per cent) per annum from the : 5 : fate of the suit till payment and/or realisation; (g) that for the purposes of prayers (a) to (f) above, all inquiries be made, accounts taken, directions given and Orders passed as to this Honourable Court may appear just and proper." 7. Going by the said pending reliefs read with the Judgment as a whole and in particular, the operative part of the decree reproduced hitherto, I have no hesitation in taking the view that the Judgment and Decree dated 2nd March 1979 is only a preliminary decree. If it is a preliminary decree, in the light of exposition of Division Bench of our High Court in the case of Dawarali Jafarali Saiyad Dawarali Jafarali Saiyad Dawarali Jafarali Saiyad vs. Bai Jadi & Ors. reported in A.I.R. 1940 Bom. vs. Bai Jadi & Ors. reported in A.I.R. 1940 Bom. vs. Bai Jadi & Ors. reported in A.I.R. 1940 Bom. 318 318 318, provisions of Order 22 Rule 4 will have no application. This settled legal position has been restated by the Apex Court in the case of Ratna @ Ratna @ Ratna @ Ratnavati (Smt.) vs. Syndicate Bank & Ors. Ratnavati (Smt.) vs. Syndicate Bank & Ors. Ratnavati (Smt.) vs. Syndicate Bank & Ors. reported in (1995) 1 SCC 407 reported in (1995) 1 SCC 407 reported in (1995) 1 SCC 407. Relevant part of Para 6 of the said decision reads thus: "6............ The preliminary decree declares rights of the plaintiff and liabilities of the respective defendants and they become final. The suit would not : 6 : abate between the date of preliminary decree and final decree. In this view of the matter, the question which emerges is whether it is not necessary for the decree-holder to make an application within the limitation prescribed under Article 120 of the Schedule to the Limitation Act, 1963 to have the legal representatives brought on record. Section 52 CPC adumbrates that a money decree passed against the legal representative of the deceased defendant, out of the property of the deceased in his hands, may be executed by attachment or sale of that property. If the legal representatives fail to satisfy the court that he duly applied the property to discharge the debt or the court is not satisfied of his so doing, the court would proceed against the legal representatives personally and to apply the property by sale to satisfy the decree debt. At the time when the application for passing the final decree is filed, it is enough if the legal representatives are impleaded, all or any of the legal representatives or one of the LRs of the deceased defendant judgment-debtor to represent the estate of the deceased. If death of defendant takes place pending passing of final decree they may be brought on record under Section 151 CPC or Order 1 Rule 10 CPC." (emphasis supplied) 8. There is one more decision on which reliance is rightly placed by the Counsel for the Plaintiffs in the case of Bhusan Chandra Mondal vs. Bhusan Chandra Mondal vs. Bhusan Chandra Mondal vs. Chhabimoni Dasi reported in A.I.R. (35) 1948 Cal. Chhabimoni Dasi reported in A.I.R. (35) 1948 Cal. Chhabimoni Dasi reported in A.I.R. (35) 1948 Cal. 363. 363. 363. As aforesaid, the Judgment and Decree dated 2nd March 1979 is only a preliminary decree, for which reason, provisions of Order 22 Rule 4 will : 7 : have no application. It necessarily follows that relief in terms of prayer clause (a) is unnecessary. 9. Insofar as prayer clause (b) is concerned, the matter has been contested by the Respondent No.2 on the assertion that the original Plaintiffs were fully aware about the death of concerned Defendants as back as in 1982 itself. In any case, the Official Liquidator became aware of that fact in the year 1990. No explanation is offered as to why steps have not been taken immediately thereafter by the Official Liquidator. The argument though attractive at the first blush, however, deserves to be rejected. The Apex Court in the case of Ratna @ Ratnavati (supra) has observed that at the time when the Application for passing final decree is filed, it is enough if the legal representatives are impleaded. The Court went on to observe that if death of Defendant takes place pending passing of final decree, legal representatives can be brought on record under Section 151 of the C.P.C. or under Order I Rule 10 : 8 : of C.P.C. 10. To get over this position, Counsel for the Respondent No.2 submits that this decision of the Apex Court can be distinguished, keeping in mind provisions of Article 137 of the Limitation Act. This argument merely deserves to be stated to be rejected. If the exposition of the Apex Court is considered in proper perspective, it goes on to observe that the Suit which is pending for final decree cannot abate merely because the Defendant has died in the intervening period after the making of the preliminary decree. The Apex Court has considered the provisions of Article 120 of the Limitation Act as well as Section 52 of C.P.C. to take the view that it is enough if the legal representatives are impleaded before passing of final decree. If there is no question of abatement coupled with the fact that it is open to apply for impleadment of the heirs and legal representatives at the time of applying for passing of a final decree, the fact that the present Application has been filed after almost 17 years by the Official Liquidator, does not affect the merits of the : 9 : Application. Significantly, in the present case, Application for passing of the final decree is yet to be considered. In my view, it is indisputable that the final decree is yet to be passed. Indeed, according to the Respondent No.2 the decree passed by this Court itself is a final decree, which contention I have already rejected. If I were to hold that the said decree is a final decree, then obviously the question of entertaining the present Application would not have arisen. 11. In the circumstances, even if the present Application is filed after lapse of 17 years that would make no difference. For, that request can be entertained in exercise of powers under Section 151 of the C.P.C. or can be proceeded on the basis of Order 1 Rule 10 of the C.P.C. at any time while or before considering the Application for passing a final decree. Thus understood, the right to apply accrues at the time of considering the Application for passing a final decree. On this finding, the present Application is not hit by the provisions of Article 137 of the Limitation Act. In the fact situation of the present case, therefore, in the : 10 : interest of justice, I am inclined to entertain this Application since the Suit has not progressed even an inch after the passing of the preliminary decree dated 2nd March 1979. More so, the Official Liquidator is espousing the cause of the stakeholders of the Company which is in liquidation. The interest of stakeholders in the Company will have to be secured by the Official Liquidator in right earnest. Even for that reason, though this Application is filed after over 17 years, I am inclined to entertain the same in the interest of justice. 12. It is not necessary for me to elaborate on the stand taken by the Plaintiffs that the Respondents have withdrawn Suit No.46/82/A in the Court of Civil Judge, Senior Division, Panaji so as to frustrate the issues required to be addressed in considering Notice of Motion No.649 of 1982. I do not wish to consider the argument of the Plaintiffs about the conduct of the Respondents in the present Application. The same is left open to be considered at the appropriate stage. : 11 : 13. Counsel for the Respondent No.2 then contends that if the Court is inclined to ignore the delay of 17 and a half years and allow the Application in terms of prayer clause (c), may observe that the impleadment of the Respondents is for the limited purpose of passing the final decree, while it will always be open to the Respondents to challenge the preliminary decree, if so advised. Counsel for the Plaintiffs has invited my attention to the purport of Section 97 of the C.P.C. to counter this argument. However, it is not necessary to make any observation in that behalf in the present Application. Those questions, as and when are required to be addressed, will have to be considered on its own merits at the appropriate stage. 14. In the circumstances, Application is made absolute in terms of prayer clauses (b) and (c). Amendment be carried out within one week from today. 15. At this stage, Counsel for the Respondent No.2 submits that the said Respondent may question : 12 : the correctness of this order by way of appeal. For that reason, this order shall not be given effect to for a period of three weeks from today. 16. Place this Suit and other proceedings on 12th January 2009 under caption ‘directions’. A.M.KHANWILKAR, J.