Dayal D. Shahdadpuri vs C.N.A. Exports Pvt Ltd & Ors

,,,

Rajiv Shakdher, J",,,

I.A. No.4114/2020,,,

Preface: -,,,

This is an application filed on behalf of defendant nos. 1 and 2 under Section 44 of the Indian Evidence Act, 1872 [hereafter referred to as the",,,

“Evidence Actâ€​].,,,

1.1 Defendants nos. 1 and 2, thus, rely upon the provisions of Section 44 of the Evidence Act to seek, in brief, the following directions:",,,

i. Firstly, “ignore†the judgement of the Division Bench dated 30.07.2013, passed in FAO (OS) 57/2013 and FAO (OS) 60/2013, on the ground of",,,

lack of jurisdiction.,,,

ii. Secondly, “ignore"" the judgement of the learned Single Judge dated 03.01.2013, which was passed in I.A. No. 8812/11 in CS (OS) No. 118/2007,",,,

once again, on the ground of lack of jurisdiction.",,,

(ii) (a) It may be relevant to note that the learned Single Judge had, via judgement dated 03.01.2013, disposed of not only I.A. No. 8812/2011 but also",,,

I.A. Nos. 4985/2011 and 16842/2011.,,,

1.2 Alternate reliefs have also been sought in the captioned application.,,,

i. The first alternate prayer made is that order dated 03.01.2013, passed in I.A. No. 8812/2011, should be recalled on the ground that it was obtained",,,

by practicing fraud on this Court.,,,

ii. Second, recall the order dated 22.01.2007 via which summons were issued in the suit i.e. CS (OS) 118/2007 on the ground that it was founded on",,,

fraud practiced on this Court inasmuch as the suit was instituted, purportedly, by the Power of Attorney [in short “POAâ€] holder of the plaintiff",,,

namely Mr. Mangat Rai who had no such authority vested in him.,,,

1.3 Two other reliefs are also sought which are dressed up as consequential reliefs.,,,

i. First, recall all orders passed in CS (OS) 118/2007 post 22.01.2007 on the principle of “cadit opus fondamento sublatoâ€​",,,

ii. Second, reject the suit on the ground of limitation, lack of authority and want of demonstrable cause of action.",,,

Prefatory Facts: -,,,

Before I proceed further, let me etch out the broad contours of the suit which would be useful in appreciating the context in which the captioned",,,

application has been filed.,,,

The plaintiff before this court is one, Mr. Dayal D Shahdadpuri [hereafter referred to as “Mr. Dayalâ€]. Mr. Dayal has filed the instant suit for",,,

declaration and permanent injunction. The reliefs sought for by Mr. Dayal concern his rights as a shareholder and a member of defendant no. 1,,,

company i.e. C.N.A. Exports Pvt. Ltd. [hereafter referred to as “CNAâ€​].,,,

3.1 The other defendants in the suit, save and except, defendant no. 3 namely Mr. C.S. Batra [hereafter referred to as “Mr. Batraâ€], are",,,

members of the Datwani family. The patriarch of the family is one, Mr. Jamnadas Datwani [hereafter referred to as “Mr. Jamnadasâ€] who",,,

passed away on 09.07.2004. Defendant no. 5 is his wife Mrs. Jamna Datwani [hereafter referred to as “Mrs. Jamnaâ€​].,,,

3.2 Defendant no. 2 i.e. Mr. Anand Datwani [hereafter referred to as “Mr. Anandâ€], defendant no. 4 i.e. Mr. Kishore Datwani [hereafter",,,

referred to as “Mr. Kishoreâ€], defendant no. 6 Mr. Janak Datwani [hereafter referred to as “Mr. Janakâ€], defendant no. 7 i.e. Kishin",,,

Datwani [hereafter referred to as “Mr. Kishinâ€] and defendant no. 8 i.e. Ms. Nitya Bharany [hereafter referred to as “Ms. Nityaâ€] are the,,,

progenies of the deceased Mr. Jamnadas and Mrs. Jamna.,,,

Mr. Dayal i.e. the plaintiff is the brother-in-law of the deceased Mr. Jamnadas. It is Mr. Dayal’s assertion that he had purchased 2,500 shares",,,

in CNA and that these shares have been sold to him by Ms. Nitya for a total consideration of USD 6,000/-.",,,

4.1 It is averred by Mr. Dayal that approval, in this behalf, was obtained from the Reserve Bank of India [in short “RBIâ€]. The assertion made by",,,

Mr. Dayal with regard to payment of consideration to Ms. Nitya and approval accorded by RBI is sought to be supported by relying upon,,,

communication dated 27.05.1999 and the advice dated 08.07.1999 generated by UCO Bank, Hong Kong branch.",,,

4.2 The assertion that the shares were sold by Ms. Nitya in his favour is also sought to be supported by relying upon the written statement filed by her,,,

in CS (OS) 556/2008.,,,

As per the record, a common written statement has been filed on behalf of defendant nos. 1 to 3 i.e. CNA, Mr. Anand and Mr. Batra.",,,

As indicated at the outset, the captioned application has been filed by CNA and Mr. Anand, and, therefore, their stand in the written statement,",,,

insofar as it is necessary, for the disposal of this application, requires to be noticed.",,,

1 The stand taken is that Mr. Dayal’s claim that he is a shareholder in CNA is false. The documents that he has filed, in support of his plaint,",,,

that he is a shareholder are fabricated.,,,

6.2 There is no record available either with CNA or the Registrar of Companies [in short “ROCâ€] which would bear out the fact that he is a,,,

shareholder of CNA. In support of this assertion, the said defendants rely upon the annual return dated 30.12.1987 filed by CNA with the ROC. It is",,,

averred that Mr. Dayal has not placed on record any material in the form of share certificate and/or share transfer forms.,,,

6.3 It is, inter alia, averred that CNA was incorporated, in the first instance, with two shareholders i.e. one, Mrs. Sushma Ravidas and Mr. Ramesh",,,

S. No.,Name,No. of Shares,Amount per share

1,Mrs. Sushma Ravi Das,1500,100

2,"M r . Tikamdas K

Moolchandani",195,100

3,Mrs. Jamna Datwani,2555,100

4,Mr. Kishin Datwani,1500,100

5,Mr. Janak Datwani,1500,100

6,Mr. Anand Datwani,1500,100

7,Ms. Nitya Datwani,2500,100

8,"J.B. Overseas (Sales) Pvt

Ltd",.5,100

4.,Mr. Chander S. Batra,200,

stand of CNA, Mr. Anand, Mr. Batra and Mr. Kishore whereby amendment sought was opposed is recorded in paragraph 41, 42 and 44.",,,

2 In paragraph 44, the learned Single Judge adverted to the statement made by Ms. Nitya in Court on 16.11.2010 which, inter alia, alluded to the",,,

fact that she had sold 2,500 shares held by her in CNA to Mr. Dayal in 1999 for USD 6,000/-. Besides this, she also adverted to the fact that she had",,,

not executed any gift deed or sale deed in favour of any of her family members i.e. her brothers or mother.,,,

3 Furthermore, in paragraph 49, the learned Single Judge also takes notice of the CFSL report dated 17.09.2009 which was requisitioned based on",,,

an order based dated 29.05.2008 passed in FAO(OS) 253/2008.,,,

4 Thus, after taking note of the opinion rendered by CFSL, learned Single Judge goes on to record that since the purported signatures of Ms.",,,

Nitya, on the gift deed dated 10.01.1998, and the share transfer instruments dated 23.03.1998, did not match with the admitted signatures, the assertion",,,

made that Ms. Nitya could not have transferred the shares in 1999 in favour of Mr. Dayal as in January-March 1998 she had already transferred the,,,

same to her mother i.e. Mrs. Jamna was an aspect which had to be tested in a trial.,,,

5 The learned Single Judge, thus, allowed I.A. No. 8812/2011.",,,

Aggrieved by the same, CNA, Mr. Anand, Mr. Batra, and Mr. Kishore carried the matter in appeal to the Division Bench which was numbered as",,,

FAO (OS) 57/2013.,,,

11.1 Besides this, another appeal was filed i.e. FAO (OS) 60/2013 qua the very same order of the learned Single Judge i.e. order dated 03.01.2013",,,

whereby I.A. 737/2011 in CS (OS) 556/2008 was also disposed of.,,,

11.2 The Division Bench disposed of the appeals via judgement dated 30.07.2013.,,,

As a result, FAO (OS) 57/2013 was partly allowed and FAO (OS) 60/2013 was allowed in full. Insofar as FAO (OS) 57/2013 was concerned the",,,

Division Bench made the following observations in paragraph 9 and 10.,,,

“9. The two suits in this case, i.e. CS(OS) No. 118/2007 and CS(OS)No.556/2008 were instituted in two successive yearsS. o far as the",,,

appellants' challenge to the impugned order, to the extent it allows amendment with regard to the ownership of 2500 shares of Shahdadpuri",,,

is concerned, the Court is of the view that no exception can be taken as regards the approach of the learned Single Judge. The claim under",,,

the suit was for [a] declaration that the plaintiff is the owner and entitled to exercise his rights as such over the 2500 shares of the company,,,

in question, i.e. CNA Exports Pvt. Ltd. That the plaintiff did not fully describe how he came by the shares or even contracted himself into his",,,

present position from the earlier position, where he claimed to be the original allottee, might raise issues; however, this Court is of the",,,

opinion that at the stage of amendment the position of law being what it is, that the Court should be liberal in its approach, the impugned",,,

judgment cannot be faulted. As far as the second question, i.e. transfer of 2500 shares to Janak Datwani by the plaintiff in",,,

CS(OS)No.556/2008, this Court is of the opinion that the learned Single Judge overlooked the fact that this was a subsequent event and",,,

impinged upon Mr.Janak Datwani's title to the shares. Concededly, Janak Datwani has preferred at least three original substantive",,,

proceedings, i.e. suit CS(OS)No. l113/2007, 1798/2011 and 2444/2013. It is for him to agitate the manner in which he came by shares -",,,

whether by transfer or by some other means, as claimed by Janak Datwani. Moreover, if the plaintiff Shahdadpuri's version were to be",,,

ultimately accepted, Janak Datwani's title, which is based on subsequent events, would in any event be secured.",,,

In these circumstances, the Court, is of the opinion that the Single Judge fell into the error in permitting the amendments to the suit to this extent.",,,

The said amendments, proposed by para 5(F) and additional prayer (h) of the application 8812/2001 are consequently not allowed; the impugned order",,,

is, therefore, set aside to such extent.“",,,

[Emphasis is mine],,,

12.1 To be noted, the transposition of Mrs. Jamna as a defendant in CS (OS) 556/2008 by the learned Single Judge was set aside. Resultantly, Mrs.",,,

Jamna continued as plaintiff in CS (OS) 556/2008.,,,

12.2 At this juncture, for the sake of completion of narration, it would be relevant to note that in paragraph 47 and 50 of the learned Single Judge’s",,,

order dated 03.01.2013, there is a reference to the argument advanced on behalf of CNA, Mr. Anand, Mr. Batra, and Mr. Kishore that the suit was",,,

instituted by one, Mr. Mangat Rai on behalf of Mr. Dayal based on a POA which was defective. Since this aspect has been adverted to in the",,,

captioned application i.e. I.A. 4114/2020 it would be relevant to note the observations made in paragraph 47 and 50 of the order dated 03.01.2013,,,

passed by the learned Single Judge.,,,

“ 47. Mr.Sandeep Sethi, leamed Senior counsel appearing in behalf of Anand Datwani argued that the application filed by the plaintiff is",,,

totally misconceived. It is filed with malafide intention. He further argued that replication has been filed by the plaintiff after the expiry of,,,

three years and a different stand has been taken by the plaintiff by stating now that he was not an original allottee but had purchased 2500,,,

shares from Nitya Bharaney purportedly in 1999. It is also the submission of Mr.Sethi that the plaintiff was signed by one Mr.Mangat Rai,,,

who was not a validly authorized person and power of attorney of the plaintiff. The present applicant for amendment is filed as a counter-,,,

blast to the application filed by defendant No.2 under Order X CPC, being LA. No.4985/2011, to record the statement of the plaintiff in",,,

order to ascertain the exact nature of his case. The plaintiff has no interest in the matter but the suit is being proceeded with by Mr.Mangat,,,

Rai at the instance of defendant No. 6.,,,

xxx xxx xxx,,,

It is true that there are inconsistent statements made by the Plaintiff in his plaint and in the present application whereby amendments,,,

are sought and also in the replication filed by plaintiff after the expiry of 3 year's. It might also be possible that the application which has,,,

been filed by the plaintiff is a counter-blast to the application filed by Mr. Anand Datwani but the fact of the matter is that the two versions of,,,

family groups have to be determined by the Court who wants that the truth must come out. The Plaintiffs counsel during the course of,,,

hearing has shown the unsigned power of attorney issued by the plaintiff in favour of Mangat' Rai. Therefore, without deciding as to",,,

whether Mrs.Nitya Bharaney has signed the transfer instrument as alleged by Mr.Anand Datwani or she has transferred her shares to the,,,

plaintiff in 1999, the application being LA. No.8812/2011 is allowed. I am of the opinion that the amendment sought by the plaintiff in",,,

CS(OS) No. 118/2007 is necessary for a complete adjudication of the issues involved in the suit. The amended plaint is taken on record.,,,

Three weeks tune is granted to the contested defendants to file their amended written-statements.,,,

[Emphasis is mine],,,

Submissions on behalf of the applicant/CNA and Mr. Anand: -,,,

Given the aforesaid background, Mr. Deepak Khosla who appeared on behalf of the applicants i.e. CNA and Mr. Anand argued that the order of",,,

the Division Bench was void in law as it had permitted amendments to the plaint concerning material facts after the period of limitation had expired.,,,

1 It was also sought to be argued that Mr. Dayal had practiced fraud on both the learned Single Judge and the Division Bench in having the,,,

amendments allowed [to the extent indicated in the order of the Division Bench].,,,

2 It was further submitted that since the amendments had been allowed beyond the period of limitation and, therefore, they were without",,,

jurisdiction, this Court could “ignore†the said judgements by taking recourse to the provisions of Section 44 of the Evidence Act. In other words,",,,

according to Mr. Khosla, if a judgement is passed by a Court which is not competent to deliver the judgement or, has been obtained by fraud, it ought",,,

to be ignored by this Court.,,,

13.3 Such a stand, according to Mr. Khosla, can be taken even in collateral proceedings and that no separate action needs to be filed in that behalf.",,,

13.4 Mr. Khosla sought to emphasize the difference between a void and a voidable judgement. Mr. Khosla contended that if the judgement of the,,,

learned Single Judge and the Division Bench had allowed amendments of only “material particulars†as against “material facts†then no fault,,,

could be found with them even if the amendment was allowed after the period of limitation had expired. However, if the contrary was true, the said",,,

judgements had to be ignored and a declaration, to that effect, would have to be made by this Court.",,,

13.5 In support of his plea, Mr. Khosla relied upon the following judgements.",,,

a) Charan Das vs. Amir Khan & Ors., (1920) 22 BOMLR 1370.",,,

b) L.C Hanumanthappa vs. H.B Shivakumar, (2016) 1 SCC 332.",,,

c) Leach vs. Skinner, AIR 1957 SC 357.",,,

d) State of Maharashtra vs. Hindustan Construction Co. Ltd., (2008) 2 SCC 728.",,,

e) T.L Muddukrishna & Anr. vs. Smt. Lalitha Ramchandra Rao., CRP No. 2246/93.",,,

f) T.N Alloy Foundry Co. Ltd. vs. T.N Electricity Board & Ors., (2004) 3 SCC 392.",,,

g) Vishwambhar & Ors. vs. Laxminarayan, (2001) 6 SCC 163.",,,

h) Chandigarh Administration vs. Johnson Paints & Varnish Co., (1996) 8 SCC 374.",,,

i) Kamini Jaiswal vs. Union of India, (2018) 1 SCC 156.",,,

13.6 Besides this, Mr. Khosla also argued that the suit had been filed on behalf of Mr. Dayal by one Mr. Mangat Rai by taking recourse to a defective",,,

POA. It was, based on this contention, that Mr. Khosla argued that the suit was filed without authority and, therefore, all orders including the first",,,

order issuing summons in the suit i.e. order dated 22.01.2007 and the orders that followed thereafter ought to be recalled.,,,

13.7 The purported defects concerning the POA executed by Mr. Dayal in favour of Mr. Mangat Rai are adverted to in paragraph 17 (a) to (h) of the,,,

captioned application.,,,

13.8 Briefly, the essence of his objections that the POA has not been notarized and, thus, there is no authentication of the signatures said to have been",,,

appended by Mr. Dayal. Therefore, according to Mr, Khosla the presumption which arises upon presentation of POA by virtue of Section 85 of the",,,

Evidence Act stands rebutted in this case and, thus, the onus of proving the POA will lie on the person relying upon the same.",,,

13.9 It was stressed that the POA is defective in law as it is not stamped as per Article 42 of the Indian Stamp Act, 1899 [in short “Stamp Actâ€]",,,

and, therefore, cannot be admitted as evidence as provided in Section 35 of the very same Act.",,,

Besides this, it is also averred that the POA does not bear the signatures of the donor i.e. Mr. Dayal on all pages. It was stated that though the",,,

month and year of execution is given; the date of execution is not provided in the POA rendering it inefficacious in law. The POA, it was submitted,",,,

had been witnessed by only one person. Furthermore, it was averred that the POA has not been apostilled.",,,

Submissions on behalf of the non-applicant/Mr. Dayal: -,,,

On the other hand, Ms. Neelima Tripathi, instructed by Ms. Mansi Sharma, who appears on behalf of Mr. Dayal says that the captioned",,,

application is an abuse of process of law as it invites this Court to ignore and, in effect, render nugatory the judgements of the learned Single Judge",,,

and the Division Bench, both of which have attained finality.",,,

1 Ms. Tripathi emphasized the fact that Section 44 of the Evidence Act would apply only to those judgements, orders and decrees which are",,,

relevant under Section 40, 41 and 42 of the very same Act and which are proved by an adverse party, in this case, CNA and Mr. Anand to have been",,,

delivered by a Court lacking in jurisdiction or as having been obtained by fraud or collusion.,,,

2 Ms. Tripathi also argued that this application was fraught with delay and latches and had been filed only to stymie the prosecution of the suit.,,,

3 Ms. Tripathi also contended that the applicants i.e. CNA and Mr. Anand could not assail the judgement of the Single Judge and the Division,,,

Bench on the ground of fraud as the same would require proof and, hence, such an issue, if struck, would have to be put to trial.",,,

4 Besides this Ms. Tripathi submitted that the assertions made in the captioned application were only a regurgitation of the averments made before,,,

the learned Single Judge in the earlier round and hence did not merit consideration. In this behalf, reference was made to paragraphs 41 and 47 of the",,,

order dated 03.01.2013 passed by the learned Single Judge to emphasize the point that the assertions made by Mr. Khosla concerning limitation and,,,

defects in POA relied upon by Mr. Mangat Rai were raised in the earlier round as well.,,,

15.5 This apart, Ms. Tripathi, insofar as the aspect concerning the defect in the POA was concerned, relied upon two separate POAs bearing the",,,

same date i.e. 09.12.2011 executed by Mr. Dayal in favour of Mr. Mangat Rai and Mr. Janak.,,,

15.6 Ms. Tripathi pointed out that the POA dated 09.12.2011 executed in favour of Mr. Mangat Rai should, in the very least, prima facie establish,",,,

ratification of the steps taken by Mr. Mangat Rai including institution of the suit based on the earlier POA of October 2006.,,,

15.7 Besides this, Ms. Tripathi emphasised that the suit, contrary to the contention made on behalf of CNA and Mr. Anand, was not bereft of cause",,,

as had been noted by this Court in its order dated 14.05.2007.,,,

15.8 In support of her contentions made hereinabove, Ms. Tripathi has relied upon the following judgements.",,,

a) Sunita Davendra Deshprabhu And Ors. vs. Sitadevi Deshprabhu And Ors., 2016(6) Bom Cr 567/MANU/MH/2374/2016.",,,

b) K.K Swaminathan vs. Srinivasagam, (2003) MLJ 556/ MANU/TN/ 1518/2003.",,,

c) National Projects Construction Corporation vs. Royal Constructions Co. Pvt. Ltd., 2017 IX AD (Delhi)1/MANU/DE/388/2017.",,,

d) T.R Verma vs. Union of India, (1969) ILR Delhi 587/MANU/DE/0226/1968.",,,

e) Talluri Venkata Seshayya & Ors. vs. Thadikonda Kotiswara Rao & Ors., AIR 1937 PC 1/MANU/PR/0035/1936.",,,

Submissions on behalf of the non-applicants/Mr. Janak & Mr. Kishin: -,,,

Insofar as Mr. Abhimanyu Mahajan and Mr. Vivek Sharma were concerned who appeared for Mr. Janak and Mr. Kishin respectively, they",,,

supported the stand taken by Ms. Tripathi.,,,

They joined Ms. Tripathi to contend that the captioned application was an abuse of process of law and, hence, should be dismissed. Mr. Sharma, in",,,

fact, went further and submitted, given the fact that CNA and Mr. Anand are in the habit of filing meritless applications one after the other which not",,,

only impedes the smooth progression of the suit but also has the effect of financially debilitating the contesting parties, the application ought to be",,,

dismissed by this Court with substantial costs.,,,

Analysis and Reasons: -,,,

Having heard learned counsel for the parties and perused the record and rather prolix pleadings, in a nutshell, CNA and Mr. Anand have sought a",,,

declaration that the judgement of the Single Judge dated 03.01.2013 and that of the Division Bench dated 30.07.2013 should be declared as having no,,,

effect in law and/or should be ignored as they permitted amendment of the plaint beyond the period of limitation.,,,

Based on this submission, it was argued that these judgements were void in law and, therefore, this plea could be raised in any proceeding",,,

including the present suit.,,,

During the course of the arguments, Mr. Khosla did concede that if the amendments concerned material particulars and not material facts then",,,

this principle would not apply. The judgements cited by him, which have been noted hereinabove, broadly, articulate the same principle.",,,

1 The record shows that it has always been the stand of Mr. Dayal [even prior to the amendments being allowed] that he had purchased the,,,

shares from Ms. Nitya for a valuable consideration i.e. USD 6,000/-.",,,

20.2 That this transaction had the approval of RBI and consideration had flowed from Mr. Dayal to Ms. Nitya as was noted by this Court in its order,,,

dated 14.05.2007 while dismissing his application preferred under Order XXXIX Rule 1 and 2 of the CPC.,,,

20.3 It was precisely for this reason that via the very same judgement, the Court dismissed I.A. no. 3013/2007 filed by the very same defendants",,,

under Order VII Rule 11, with an observation that it could not be said that the suit was bereft of a cause of action.",,,

20.4 The only reason why the interim reliefs [i.e. the rights which ordinarily flow to a shareholder] were denied was on account of the fact that there,,,

was no material to show at that point in time that Mr. Dayal’s name had been entered in the Register of shareholders/members maintained by,,,

CNA. Therefore, the aspect as to whether Mr. Dayal had, in fact, purchased the shares from Ms. Nitya, as claimed, had to be put to trial according to",,,

the learned Single Judge.,,,

20.5 These were, thus, material facts which not only are embedded in the original plaint but also form an intrinsic part of the action. Particulars as to",,,

when these shares were purchased were sought to be amplified by way of the amendments sought by Mr. Dayal via I.A. no. 8812/2011.,,,

20.6 As noted above, learned Single Judge, vide order dated 03.01.2013, allowed the amendment application of Mr. Dayal in its entirety while the",,,

Division Bench vide judgement dated 30.07.2013 truncated the amendments which adverted to the fact that Mr. Dayal via a gift deed dated,,,

08.03.2008, had devolved his interest in 2,500 shares purchased from Ms. Nitya, in favour of Mr. Janak.",,,

20.7 The Division Bench was of the view that Mr. Janak had instituted three original substantive proceedings i.e. CS (OS) 1113/2007 1798/2011 and,,,

2444/2013 to agitate his rights in those actions and, therefore, the Single Judge need not have allowed amendments on that score.",,,

20.8 That both the Single Judge and the Division Bench had the power to pass the said judgements cannot be doubted. [1 See: L.C. Hanumanthappa,,,

v. H.B. Shivakumar, (2016) 1 SCC 332 : (2016) 1 SCC (Civ) 310 : 2015 SCC OnLine. [Also see paragraphs 20 and 25]",,,

20.9 Therefore, in my view, it cannot be said that the judgements which were passed, lacked jurisdiction, whether related to the pecuniary value,",,,

territory or the subject matter.,,,

There can be no doubt that a judgement passed by a Court which lacks jurisdiction is a nullity and, therefore, this objection can be raised whenever",,,

such judgement is sought to be enforced or relied upon. Such an objection can be raised even at the stage of execution and/or in collateral,,,

“19. …The respondents in that case resisted the said plea for amendment, stating that a suit based on this new cause of action would be barred by",,,

limitation. This Court, while allowing the said amendment, stated that no change needs to be made in the material facts pleaded before the court all of",,,

which were there in support of the amended prayer. In any case, the prayer in the plaint as it originally stood was itself general and merely claimed",,,

damages. Thus, all the allegations which were necessary for sustaining a claim of damages for breach of contract were already there in the plaint.",,,

The only thing that was lacking was the allegation that the plaintiffs were in the alternative entitled to claim damages for breach of contract. In the,,,

facts of the said case, this Court held: (L.J. Leach case [1957 SCR 438 : AIR 1957 SC 357] , SCR p. 450 : AIR p. 362, para 16)",,,

“16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation",,,

on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered,",,,

and does not affect the power of the court to order it, if that is required in the interests of justice.â€â€ Proceedings [See: Kiran Singh & Ors. vs.",,,

Chaman Paswan & Ors., (1955) 1 SCR 117.].",,,

21.1 That being said, a distinction has to be drawn between absence of jurisdiction and the exercise of jurisdiction by the concerned Court. Section 44",,,

of the Evidence Act contemplates circumstances which, if proved, would render inefficacious the evidentiary effect of judgements which are",,,

otherwise admissible in the circumstances contemplated under Sections 40, 41 or 42 of the said Act.",,,

21.2 Section 40 adverts to judgements obtained inter partes while Section 41 alludes to judgements obtained in probate actions. Likewise, Section 42",,,

refers to relevancy and effects of judgements related to issues concerning public matters. Therefore, a rival party can set up a viable challenge qua a",,,

judgement sought to be relied upon by the opposite party only if such party satisfies the following conditions.,,,

(i) First, the judgement should be one which falls within the periphery of Section 40, 41 and 42.",,,

(ii) Second, the judgement should have been passed by a Court lacking in competence or is obtained by fraud or collusion.",,,

21.3 Therefore, a Court when called upon to deal with such an issue, in my view, should bear in mind the distinction between exercise of jurisdiction",,,

[which in a given case could be erroneous in law or in fact] and existence of jurisdiction. Therefore, it cannot be said, as has been contended by Mr.",,,

Khosla, that a decision which is erroneous in law or for that matter has overlooked some procedural rule could be rendered nugatory on the ground",,,

that the Court lacked jurisdiction or was incompetent to deliver such a decision.,,,

21.4 Thus, assuming for a moment that the amendments which were allowed in the instant case were permitted at a point in time when limitation had",,,

expired, would not, in my view, denude the Court of its jurisdiction or could be categorized as a judgement that the Court was not competent to deliver.",,,

[See: Mungul Pershad Dichit vs. Grija Kant Lahiri Chowdhry, 1881 SCC OnLine PC 13 : (1880-81) 8 IA 123.] This conclusion is reached by me",,,

dehors my finding set forth hereinabove that the amendments allowed concerned material particulars and not material facts.,,,

“… He, whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to",,,

dismiss the suit, or to decree for the Defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he",,,

decrees for the Plaintiff, his decree is valid, unless reversed upon appeal; and the Defendant cannot, upon an application to execute the decree, set up",,,

as an answer that the cause of action was barred by limitation. Suppose the order for attachment of the 8th of October, 1874, had been affirmed on",,,

appeal by the High Court, upon the ground that it was not barred by limitation, it is clear that the Judge of the original Court, when the application for a",,,

sale of the property attached under it was made, could not have rejected the application upon the ground that the decree was barred on the 5th of",,,

September, 1874, or on the 8th of October, 1874, when the order was made, upon the ground that the decree was dead when the petition upon which",,,

the order was made was presented. Yet the order when affirmed upon appeal could have no greater binding effect than the order itself so long as it,,,

remained unreversed. Here the judgment-debtor, so far from appealing against the order for the attachment, acknowledged its validity, and presented",,,

the petition of the 25th of January, 1875, by which he prayed that the sale under the attachment might be stayed for three months, and the execution",,,

case struck off for the present, with the attachment remaining in force. Upon that petition being presented, the creditor agreed to have the execution",,,

stayed in accordance with the petition, “the attachment on the property attached continuing.†It appears to their Lordships impossible to hold that,",,,

if immediately after the expiration of the three months the execution creditor had made the present application, it could, in the face of the order of the",,,

8th of October, 1874, and the subsequent proceedings, have been reversed, upon the ground that the decree was dead on the 5th of September, 1874,",,,

or on the 8th of October, 1874. The present application, having been made within three years after the order of the 8th of October, 1874, is as valid as",,,

if it had been made immediately after the expiration of the three months.…â€​,,,

Also See: Ishan Chandra Banikya vs. Moomraj Khan, 1926 SCC OnLine Cal 72 : (1925-26) 30 CWN 940 : AIR 1926 Cal 1101.",,,

21.5 Likewise, in order to seek setting aside of a judgement, order or a decree on the ground of fraud, the party alleging fraud is required to",,,

demonstrate that the fraud alluded to is extrinsic to the said judgement, order or decree. In other words, the aspect on which fraud is pivoted should",,,

not be one that has been dealt with or adverted to by the Court, albeit, mistakenly. However, where a party misleads the Court by employing fraud and",,,

thereby obtains a judgement, order or decree, such judgement, order or decree shall stand vitiated being a nullity in the eyes of law.",,,

21.6 In this case, as can be noticed upon perusal of the record, that the POA of October 2006 was available to the Court. Arguments were raised",,,

before the learned Single Judge with regard to the purported defects contained therein. Therefore, this was not a case where the Court was misled by",,,

Mr. Dayal, as was sought to be portrayed by Mr. Khosla in the course of his arguments. Thus, in my view, none of the requirements of Section 44 of",,,

the Evidence Act are satisfied in this case.,,,

21.7 The argument that the said judgements were passed courts not competent to deliver the same, or were obtained by Mr. Dayal by playing a fraud",,,

on the Court, to my mind, is baseless and is, hence, rejected. If a person or entity alleges fraud, it is incumbent on such a party to back the allegation",,,

with requisite proof and cogent evidence.,,,

21.8 Defects in the POA of the kind adverted to in the application cannot be classified as a fraud on the Court. It is not as if the original plaintiff i.e.,,,

Mr. Dayal has taken the stand that he never ever executed the October 2006 POA in favour of Mr. Mangat Rai.,,,

21.9 In fact, the execution of the subsequent POA dated 09.12.2011 only goes on to demonstrate, in substance, that Mr. Dayal seeks to ratify the",,,

actions taken by Mr. Mangat Rai on his behalf in connection and/or in relation with the 2,500 shares said to have been bought by him from Ms. Nitya.",,,

Furthermore, as is noted hereinabove by me, and rightly pointed out by Ms. Tripathi, defendant nos. 1 to 4 [i.e. CNA, Mr. Anand, Mr. Batra and",,,

Mr. Kishore] had contended in the earlier round, albeit without success, that the amendment was beyond the prescribed period of limitation and that",,,

the action itself was unsustainable as it was instituted by a person who was not validly authorized. [See paragraphs 47 and 50 of the order dated,,,

03.01.2013, passed by the learned Single Judge, as extracted in paragraph 12.2 above.]",,,

To my mind, submissions made in this round are nothing but a regurgitation of the same issues which were raised in the earlier rounds before the",,,

Court.,,,

In any event, in my opinion, insofar as the aspect concerning the authority of Mr. Mangat Rai to institute the suit is concerned, it would have to be",,,

tried, especially, in view of the fact that Mr. Dayal has executed a fresh POA in his favour dated 09.12.2011 which, facially, seeks to ratify the",,,

actions taken by Mr. Mangat Rai under the earlier POA of October 2006.,,,

Conclusion: -,,,

Thus, for the foregoing reasons, I find that the captioned application is meritless and borders on abuse of process of Court.",,,

The same is, accordingly, dismissed with costs quantified at Rs. 15,000/-.",,,

The costs will be remitted, albeit on a pro rata basis, within ten (10) days from today to the plaintiff i.e. Mr. Dayal, defendant no. 6 i.e. Mr. Janak",,,

and defendant no. 7 i.e. Mr. Kishin.,,,