AMIN TRADERS Vs. TEXTILE LABOUR ASSOCIATION

JUDGEMENT

(1.) Present is an appeal by M/s.Amin Traders, alleged tenant, being dissatisfied and aggrieved by the Order dated 22nd February, 2005 passed by the learned Company Judge in Company Application No.300 of 2003 in Company Petition No.79 of 1989, directing the appellant to vacate the disputed premises of the Mills Company (in liquidation).

(2.) For proper appreciation of the facts, which are little chequered, the history of the matter is required to be looked into. (1) After M/s. Vijaya Mills Limited was taken in liquidation, directions were issued by this Court to the Official Liquidator to take possession of the property. The Official Liquidator went to take possession of the property and reached the spot on 3rd February, 1994. As many as eleven persons were present on the spot, including the Official Liquidator, when they proceeded to take possession, they found that at the main entrance, one Reeling Contractor was holding possession of the premises. On being asked, Shri Brahmbhatt (a representative of the Company - Ex Management)informed the Official Liquidator that the said Reeling Contractor was holding the possession of the said premises since last ten years. One Mr.Babubhai, owner of M/s.Amin Traders, informed the Official Liquidator that "they were doing reeling contract with the Mills Company and he was provided the premises on monthly _ _ _" (there is a blank space in the spot memo prepared by the Official Liquidator) "of Rs.100 only and the same was paid upto 31st December, 1987". The said Babubhai also informed the Official Liquidator that the rent beyond 31st December, 1987 could not be paid since the Mills Company was closed and no management was on record. Based upon these informations, the Official Liquidator submitted a report before the Court. (2) It is to be seen that one of the secured creditors, namely, Central Bank of India, submitted Company Application No.205 of 1994 with the prayers that the premises in possession/occupation of one Babubhai Mansuri, trading under the name and style of M/s.Amin Traders, and Shri Rameshbhai Parikh, trading under the name and style of M/s. Comat Dyestuff Pvt. Ltd. be evicted. It appears that the present appellant, M/s.Amin Traders, took an objection to the application submitted by the Central Bank of India and submitted to the Court that in view of the spot memo and the report of the Official Liquidator, they cannot be evicted. Placing reliance upon certain documents, which were submitted by the present appellant, and the report of the Official Liquidator, the learned single Judge, while disposing of Company Application No.205 of 1994, in his Order dated 31st January, 1996 observed that the said Babubhai was in possession of the premises and from the Report dated 6th October, 1994 submitted by the Official Liquidator, it would clearly appear that the present appellant was trading in the premises and he was in possession of the same since last many years; he paid the rent regularly upto a particular period. The Court, vide its Order dated 31st January, 1996, rejected the prayer of the Central Bank of India, making the observations in favour of the present appellant. (3) The Textile Labour Association, which came into picture subsequently, took out Judges Summons somewhere in June-2003 for the following prayers:

(3.) Mr.Saurabh Soparkar, learned Senior Counsel for the appellant, submitted that the learned single Judge was absolutely unjustified in observing that the first order was based on a fraud and was a result of suppression of material facts. He submitted that unless some party before the learned single Judge made a request or submitted some application that the first order deserved to be recalled, the order could not be set aside, recalled or ignored. Contending contrary to these submissions, learned Counsel " Mr. R. M. Desai, Mr. D.S.Vasavada, Mr. Navin Pahwa with Mr. B. C. Dave submitted that once the Court records a finding that the first order was obtained by playing a fraud upon the Court, then, the trite law that fraud vitiates everything right from the inception would come into operation and the learned single Judge was absolutely justified even in not recalling the first order or setting aside the same but ignoring the same. It is submitted by them that the order passed by the learned single Judge is perfectly justified and does not call for any interference.