Gauhati High Court
CRP/94/2024 on 14 July, 2025
GAHC010193132024
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
CRP No. 94/2024
M/s Doloo Tea Co. (India) Ltd.,
Registered Office - Doloo Tea Estate,
PO Dalu - 788111, Dist.-Cachar, Assam,
And Head Office at CF 366, Salt Lake City,
Kolkata-700064.
......Petitioner.
-Versus-
M/s Manish Tea Company,
A proprietorship concern, represented by its sole proprietor
Shri Binod Kumar Bengani,
S/o Shri Budhmal Bengani,
Having his place of business at M.S. Road,
Fancy Bazar, PO-Guwahati, 781001, Assam.
......Respondent.
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. P. Khataniar,
……Advocate.
For the Respondent : Mr. J.C. Gaur. ……Advocate.
Date of Hearing : 05.05.2025
Date of Judgment :- 14.07.2025
CRP 94/2024 Page 1 of 14
Judgment& Order (CAV)
Heard Mr. P. Khataniar, learned counsel for the petitioner and also
heard Mr. J.C. Gaur, learned counsel for the respondent.
2. In this civil revision petition, under Section 115 of the Code of Civil
Procedure, the petitioner has challenged the judgment and order dated
09.08.2024, passed by the learned Civil Judge (Sr. Division) No.1,
Kamrup (M), Guwahati. It is to be noted here that vide impugned
judgment and order dated 09.08.2024, the learned Civil Judge (Sr.
Division) No.1, Kamrup(M), Guwahati (hereinafter referred to as the
‘Executing Court’) has dismissed the petition filed under Section 47 of the
CPC.
3. The background facts leading to filing of the present revision
petition is briefly stated as under:-
“The respondent/decree holder had filed a summary suit
against the petitioner/judgment debtor No.1 herein, and against
the Ambalal Properties & Investments (judgment debtor No.2)
for recovery of a sum of Rs.54,98,800/-. The said suit is based
on an agreement entered into by the respondent and the
judgment debtor No.2. In the said summary suit, the learned
Civil Judge No.1, Kamrup(M), Guwahati, vide order dated
23.12.2005 had decreed the suit ex-parte, without taking any
evidence. Thereafter, the respondent herein as decree holder,
filed a Money Execution Case, No.1/2006, and thereby, put the
decree dated 23.12.2005, in execution. Though, at first, the
respondent sought the decree to be executed against the
landed property of the judgment debtor No.2/defendant No.2,CRP 94/2024 Page 2 of 14
later on, the respondent got an order of attachment of
Rs.1,45,54,237.98 belonging to the petitioner/judgment debtor
No.1, on 18.05.2022, behind their back and only at that stage
the petitioner/judgment debtor No.1 company for the first time
came to know about the decree/order dated 23.12.2005. And
thereafter, they have filed an objection under Section 47 of the
Code of Civil Procedure on 14.06.2022, upon which the learned
Executing Court has registered the Misc.(J) Case No.492/2022,
on the ground that the decree sought to be executed is a nullity
and to be declared as null and void and non-executable being
passed in contravention of the provision of Section 293(1)(d) of
the Companies Act, 1956 and also in violation of the provision
of Section 7(d) of the Assam Money Lenders’ Act, 1934.
Thereafter, vide impugned judgment and order dated
09.08.2024, the learned Executing Court had dismissed the
petition, filed under Section 47 of the Code of Civil Procedure.
4. Being aggrieved, the petitioner/judgment debtor No.1 has
approached this Court by filing the present petition, mainly on the
following grounds amongst others:-
(i) That, the respondent herein has fraudulently obtained the
decree and the learned Executing Court misread and
misinterpreted facts and the evidence on record and arrived
at a perverse finding.
(ii) That, the learned Executing Court has committed gross error
in law in holding that the period for limitation for filing a
petition under Section 47 CPC ought to be governed by
Article 137 of the Limitation Act, entailing a three years
limitation period, whereas it provides for only starting point
CRP 94/2024 Page 3 of 14
of limitation from the date from which right to apply accrues
and that the cause of action for filing the objection under
Section 47 of the CPC arose on 02.06.2022, when the
petitioner/judgment debtor No.1 for the first time came to
know about the decree under execution and also about the
order dated 18.05.2022.
(iii) That, the bar of limitation and also the principle of res
judicata would not come as the petitioner had taken the
specific plea that the decree was obtained by fraud and it
could be discovered only in the year 2022.
(iv) That, though the learned Executing Court in the impugned
judgment and order, held that against the decree dated
23.12.2005, one Assistant Manager Mr. Rana Das had applied
for setting aside the ex-parte decree, yet, he was not the
employee of the company and he was not authorized to
make such an application.
(v) That, the learned Executing Court has committed error in law
in holding that the petition filed under Section 47 CPC is
barred by constructive res judicata and not maintainable in
view of the dismissal of the application under Order 37 Rule
4 read with Order 9 Rule 13 CPC.
(vi) That, the learned Executing Court, while deciding the Issue
Nos.4, 5, and 6, had failed to appreciate the fact that the
order dated 23.12.2005, was based on two documents i.e.
declaration dated 24.09.2003 and the agreement dated
24.09.2003 and though the name of petitioner was
mentioned as sister concern of the respondent/judgment
debtor No.2, the said fact is incorrect and that the
CRP 94/2024 Page 4 of 14
respondent/judgment debtor No.2 itself is a non-existent
company and merely mentioning of the name of the
petitioner in the agreement, wherein the petitioner/judgment
debtor No.1 was not a party, the agreement was not binding
on the third party i.e. petitioner/judgment debtor No.1 and
no decree could have been passed against judgment debtor
No.1.
(vii) That, the learned Executing Court has also failed to consider
that there is no legally enforceable debt against the
petitioner/judgment debtor No.1 and that the decree
obtained on the basis of documents i.e. Exhibits-JD/3 and
JD/4 are void ab initio and nullity and not binding upon the
petitioner and that Exhibit-JD/4 was fraudulently executed by
misrepresenting the fact and the agreement dated
24.09.2003, is not binding upon the petitioner/judgment
debtor No.1. It is binding only upon the
respondent/judgment debtor No.2 and that the learned
Executing Court had failed to consider that the
transaction/document were made in total violation of Section
293(1)(d) of the Companies Act, 1956 and also Article 58, 65
and 67 of the Article of Association and that the decree so
obtained is null and void and the learned Executing Court
had committed gross illegality and that the execution petition
is not maintainable in view of Section 7(d) of the Assam
Money Lenders’ Act, 1934 as amended up to date.
5. Mr. Khataniar, learned counsel for the petitioner submits that the
respondent herein had obtained the decree fraudulently and there was no
resolution of the company to obtain loan by the petitioner company and
CRP 94/2024 Page 5 of 14
the decree was granted against the registered firm, which is not at all
maintainable and that the learned Executing Court has misinterpreted
Article 137 of the Limitation Act and held that the limitation period is
three years, but the said Article provides that when the limitation starts.
Mr. Khataniar also submits that when fraud is pleaded, no period of
limitation will apply. Mr. Khataniar further submits that the decree sought
to be executed not against the present petitioner and that the petitioner
came to know about the two documents only in the year 2022. Mr.
Khataniar further submits that there must be resolution of the Board of
Directors to borrow money. Further, submission of Mr. Khataniar is that
the petitioner/judgment debtor No.1 cannot borrow money without
approval of the Board of Directors and the Directors have no authority to
take loan in view of Section 293(1)(d) of the Companies Act and also
under Article 58, 65 and 67 of the Article of Association, and that the
learned Executing Court has failed to consider this aspect and in support
of his submission, Mr. Khataniar has referred following decisions in
support of his submission:-
(i) A. Lakshmanaswami Mudaliar & Ors.(Dr) v. Life
Insurance Corporation of India & Anr., reported in
AIR 1963 SC 1185; and
(ii) Chiranjilal Shrilal Goenka (Deceased) Through
LRS. vs. Jasjit Singh & Ors., reported in (1993) 2
SCC 507.
(iii) Paramjit Kaur and Others vs. Teja Singh and
Others reported in SCC OnLine Del 6516.
6. Mr. Khataniar, learned counsel for the petitoiner also submits that
the suit is barred by Section 7(d) of the Assam Money Lenders’ Act. Mr.
Khataniar has also referred to a decision of Hon’ble Supreme Court inCRP 94/2024 Page 6 of 14
Kiran Singh & Ors. vs. Chaman Paswan & Ors., reported in AIR
1954 SC 340.
7. Per contra, Mr. Gaur, learned counsel for the respondent submits
that the entire case of the respondent depends upon the Exhibit-3 and 4
i.e. the deed of declaration and agreement and that the
petitioner/judgment debtor No.1 is a proprietorship firm and the
judgment debtor No.2 was a guarantor and he is the managing partner of
the aforementioned firm and there is also one criminal case under N.I.
Act, being Complaint Case No. 65C/2005 was filed before the Court of
learned Sub-Divisional Judicial Magistrate (Sadar) No. 1 at Guwahati for
the cheques, for a sum of Rs.42,00,000/- being dishonored by the bank
on presentation. Mr. Gaur, further submits that the petitioner herein has
also approached this Court for quashing of the said proceeding but the
same being Criminal Revision No. 615 of 2005 and Criminal Revision No.
710 of 2005 was dismissed by this Court vide judgment and order dated
24/05/2007. Further, Mr. Gaur submits that the petitioner also
approached the Hon’ble Supreme Court, but the Hon’ble Supreme Court
has also rejected their petition and that they have filed one application
under Order 9 Rule 13 of the CPC, after the ex-parte decree being
passed. But, the same was dismissed by the Court and that the decree
was passed against both the defendants and the principle of res judicata
will come into play in this case, as similar petition was earlier dismissed
by the learned Executing Court and under such circumstances, Mr. Gaur
contended to dismiss the petition. In support of his submission, Mr. Gaur
has referred the following decisions:-
(i) Manmath Kumar Kar v. Md. Sirat Ali, reported in 1990
(2) GLJ 236; andCRP 94/2024 Page 7 of 14
(ii) S.P. Chengalvaraya Naidu (Dead) By LRS. v.
Jagannath (Dead) By LRS., reported in (1994) 1 SCC 1.
8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the petition and the documents
placed on record and also the impugned judgment and order, dated
09.08.2024, passed by the learned Executing Court.
9. It appears that while dealing with the petition under Section 47
CPC filed by the petitioner, the learned Executing Court has framed the
following issues:-
(i) Whether there is any cause of action for filing application
under Section 47 of CPC by the petitioner?
(ii) Whether the petition filed under Section 47 of CPC is barred
by law of limitation?
(iii) Whether the petition filed under Section 47 of CPC is
maintainable in view of dismissal of application filed in the
year 2006 by the petitioner?
(iv) Whether the judgment and decree passed in Summary Suit
No.196/2005 is null and void?
(v) Whether the judgment and decree passed in Summary Suit
No.196/2005 was obtained by playing fraud?
(vi) Whether the judgment and decree passed in Summary Suit
No.196/2005 by the Court without jurisdiction?
(vii) Whether the petitioner is entitled to get any reliefs as prayed
for?
9.1. And thereafter, considering the evidence adduced by the petitioner
and the documents so exhibited, the learned Executing Court had decided
CRP 94/2024 Page 8 of 14
the Issue No.1 in favour of the petitioner, Issue No.2 in favour of the
respondent, Issue No.3, 4, 5, 6 and Issue No.7 against the petitioner.
The learned Executing Court, while deciding issues No. 4, 5, 6 had held
that the burden to prove that the judgment and decree was obtained by
playing fraud is upon the petitioner and the petitioner had failed to
discharge the said burden, and on the other hand, it was argued by the
respondent that Judgment Debtor No.2 representing Judgment Debtor
No.1 had entered into the agreement and executed a deed of declaration
on 24th September 2003, acknowledging the loan amount and issuing
cheque, totaling 42 lacs and that the respondent had not made any false
representation to the court in obtaining the judgment and decree in the
Money Suit No. 196/2005. The learned Executing Court had arrived at a
conclusion that the suit was properly filed and that the loan was legally
recoverable. It had also found that Exhibit-3 is the copy of declaration
dated 24.09.2003 and Exhibit-4 is a copy of agreement, dated
24.09.2003, and Exhibit 3 and 4 reveals that Hashmukh R. Patel as the
Managing Director of Judgment Debtor No.1, acquired a loan of
Rs.40,00,000/ from the decree holder and issued five number of cheques
and Exhibit-4 reveals that an agreement was signed between Hashmukh
R. Patel representing Ambalal Properties and Investment with the decree
holder at the time of mortgaging the property in favour of decree holder.
And at the time of preparing Exhibit-3 and 4 Hasmukh Patel was the
Director of Daloo Tea Estate and the evidence so adduced reveals that he
possess the capacity to secure the loan given the role as a Director.
10. Having carefully examined the finding, so recorded by the learned
Executing Court, in the impugned judgment and order dated 09.08.2024,
in the light of the facts and circumstances on the record, this Court finds
that the petitioner herein fails to establish that the decree in Summary
CRP 94/2024 Page 9 of 14
Suit No.196/2005, was passed by a Court having no jurisdiction. It was
passed by the Court of Civil Judge No.1, Kamrup(M), who had both the
pecuniary jurisdiction as well as territorial jurisdiction, to try the suit
summarily. In that view of the matter, the judgment and decree cannot
be branded as nullity and non-est in the eye of law. And as such, the
decision referred by Mr. Khataniar, learned counsel for the petitioner in
Chiranjilal Shrilal Goenka (Deceased) Through LRS (supra)
would not advance his argument. Further, I find that nothing is placed on
record to show that the decree was obtained by fraud.
11. Though Mr. Khataniar, learned counsel for the petitioner submits
that Annexure-3 and 4 are obtained by fraud, yet, the submission of Mr.
Khataniar left this Court unimpressed. It is the deed of declaration
(Exhibit-JD/3) dated 24.09.2003 and the agreement (Exhibit-JD/4) dated
24.09.2003 between the parties and the same had duly been exhibited
and proved and also the same were part of the Summary Suit,
No.196/2005 and that being so, it cannot be said that the judgment and
decree in the summary suit, is null and void.
12. Further, it appears that in the year 2006, the petitioner has filed
one petition, under Order 37 Rule 4, read with Order 9 Rule 13 of the
CPC, to set aside the judgment and decree dated 23.12.2005, in
Summary (Money) Suit No.196/2005, upon which Misc. Case No.52/2006
was registered and in the said petition, it is clearly stated that the
Assistant Manager of petitioner/judgment debtor No.1 visited the
Revenue Department of the Deputy Commissioner, Cachar, Silchar,
regarding land acquisition matter on 23.05.2006 and came to know about
the ex-parte judgment and decree and that being so, the claim of the
petitioner that he came to know about the judgment and decree only in
the year 2022, itself indicates that he has not been telling the truth and
CRP 94/2024 Page 10 of 14
approached the court with clean hand. And on this count alone the case
of the petitioner can be thrown out, as held by Hon’ble Supreme Court in
the case of MCD v. State of Delhi, reported in (2005) 4 SCC 605,
wherein it has been held that a person whose case is based on falsehood can
be summarily thrown out at any stage of the litigation. It has also been held
that a person whose case is based on falsehood has no right to approach the
court and he can be summarily thrown out at any stage of the litigation. In the
instant case, suppression of aforesaid fact that the Assistant Manager of
petitioner/judgment debtor No.1 visited the Revenue Department of the
Deputy Commissioner, Cachar, Silchar, regarding land acquisition matter
on 23.05.2006 and came to know about the ex-parte judgment and
decree, tantamount to playing fraud on the Court. A litigant who approaches
the court is bound to produce all documents which are relevant to the litigation.
If he withholds a vital document in order to gain advantage on the other side
then he would be guilty of playing fraud on the court as well as on the opposite
party. And by reason of such conduct, the petitioner disentitled himself from
getting any relief or assistance from this Court.
13. And further, the petition under Order 37 Rule 4 read with Order 9
Rule 13 of the CPC being filed, the subsequent petition, under Section 47
CPC appears to be barred by the principle of constructive res-judicata.
Besides, filing of the petition under Section 47 CPC, in view of Article 137
of the Limitation Act is three years from the date when right to sue
accrues. For the reason aforesaid, this Court is unable to record
concurrence to the contention of the petitioner that it was unaware of the
judgment and decree until 2022. I have gone through the decision of
Delhi High Court in Paramjit Kaur (supra) referred by Mr. Khataniar,
learned counsel for the petitioner in this regard, wherein it has been held
that if the document is void then in fact there is no issue of limitation for
filing of a suit to challenge the void document. But, for the reason
CRP 94/2024 Page 11 of 14
discussed above this decision would not advance the argument of Mr.
Khataniar.
14. Notably, the order of the learned Trial Court in respect of Misc.
Case No.52/2006, under Order 37 Rule 4 read with Order 9 Rule 13 CPC,
had already attained finality having not been challenged before any of
the Court of law. Under such circumstances, this Court finds that there is
no merit in this petition and the same is liable to be dismissed.
15. Though a contention is being made by Mr. Khataniar, learned
counsel for the petitioner that the suit is barred by Section 7 (d) of the
Assam Money Lender’s Act, 1934 yet, registration under the said section
is required only when the lender carry on business of lending. Mr. Gaur,
the learned counsel for the respondent has rightly pointed this out during
the course of hearing and the decision so referred by him in Manmath
Kumar Kar(supra) also strengthened his submission. A money lender
is not required to register if he does not carry on business of money
lending. It is not the case of the present petitioner that the respondent
carries on business of money lending. That being so, the argument so
advanced, appears to be a misplaced one.
16. That, as regard the contention of the petitioner that the judgment
and decree is to be declared as null and void and non-executable for
being passed in contravention of the provision of Section 293(1)(d) of the
Companies Act, 1956 it appears that said section stipulates that the
Board of Directors of a public company, or of a private company which is
a subsidiary of a public company, shall not, except with the consent of
such public company or subsidiary in general meeting, borrow moneys
after the commencement of this Act, where the moneys to be borrowed,
together with the moneys already borrowed by the company (apart from
temporary loans obtained from the company’s bankers in the ordinary course of
CRP 94/2024 Page 12 of 14
business), will exceed the aggregate of the paid-up capital of the company and
its free reserves, that is to say, reserves not set apart for any specific purpose;
or that the Board of Directors could not borrow money exceeding the
Company’s paid up capital and free revenue without the consent of the
Company in a general meeting.
17. But, perusal of the Exhibit-3 it appears that at the relevant time
Hasmukh Patel was the Managing Director of the Doloo Tea Company
(India) Ltd. and he was authorized by a resolution of the Board of
Directors to receive a sum of Rs.40,00,000/ being the loan amount, from
Manish Tea Company, the respondent herein, though however, the date
of resolution was kept blank there. Exhibit -3 also indicates that five
numbers of cheques were issued for a sum of Rs.42,00,000/ lacs by
Doloo Tea Company (India) Ltd. towards repayment of the loan amount.
Further it appears that the cheques were presented to the bank for
encashment but all were dishonored. Then a complaint case, being
Complaint Case No. 65C/2005 was filed before the Court of learned Sub-
Divisional Judicial Magistrate (Sadar) No. 1 at Guwahati where in
summons were issued after taking cognizance of the offences under
Section 138 of the Negotiable Instrument Act. And the said proceeding
was unsuccessfully challenged in Criminal Revision No. 615 of 2005 and
Criminal Revision No. 710 of 2005 before this Court and this Court vide
judgment dated 24/05/2007, was pleased to dismiss the same. In the
given factual background, this Court unable to agree with the submission
of Mr. Khataniar, learned counsel for the petitioner that the judgment and
decree so passed was nullity for being obtained fraudulently.
18. I have also carefully gone through the decisions referred by Mr.
Khataniar, learned counsel for the petitioner. There is no quarrel at the
Bar about the proposition laid down in the aforementioned cases. But, in
CRP 94/2024 Page 13 of 14
the given facts and circumstances, the said proposition would not be
applicable in all force to the facts and circumstances of the present case.
Therefore, detail discussion is found to be not necessary to decide the
issue in present petition.
19. In the result, I find no merit in this petition and accordingly, the
same stands dismissed. The learned Executing Court has taken note of all
the issues in detail and thereafter, arrived at a finding, which are based
on the materials placed on record.
20. In terms of above, this civil revision petition stands disposed of.
The parties have to bear their own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
CRP 94/2024 Page 14 of 14
[ad_1]
Source link