Академический Документы
Профессиональный Документы
Культура Документы
JUDGMENT
D.A. Mehta, J.
1 . This suit has been presented by the plaintiff seeking arrest of defendant No. 1-
Vessel, i.e., M.V. 'San Fransceco Di Paola' in the following circumstances :
2 . The case of the plaintiff is that the plaintiff, a Limited Company, incorporated
under the laws of United Kingdom and having its address as stated in the cause title,
is the owner of defendant No. 1-Vessel. It is stated that the said vessel was
purchased by the plaintiff from one Audrey ventures company on 27-6-2000. That
thereafter the plaintiff entered into a Memorandum of Agreement dated 1-7-2003 with
defendant No. 2 for sale of vessel for a consideration of US $ 4,00,000 and defendant
No. 2 paid 10% of the said consideration. The expected time of delivery of the vessel
was 7-7-2003. However, according to the plaintiff, as defendant No. 2 had not paid
the entire balance consideration, no delivery was given by the plaintiff. It is further
averred that defendant No. 1 - vessel was laid up at the port/Harbour of Oostende
Port, Belgium since 27-6-2000 and hence, there was no crew on board. The case of
the plaintiff is that defendant No. 2 clandestinely removed the vessel from the closed
basin and sailed the vessel out of the Oostende Port without paying the balance
consideration of US $ 3,60,000. That for this purpose, it is averred, the defendant
No. 2 utilized a forged bill of sale dated 30-6-2003 and obtained a certificate of
registration dated 6-11-2003 issued by the Belize Ship Registry.
3. In the circumstances, the plaintiff seeks declaration to the effect that the plaintiff
is the sole owner of the vessel and title vests with the plaintiff, that defendant No. 2
or any person claiming through the said 2nd defendant does not have any right, title
or interest in the vessel and the vessel is required to be restored in lawful possession
of the plaintiff. Over and above such a declaration, the plaintiff has also sought a
mandatory injunction against defendant No. 2 or any other person claiming through
the 2nd defendant and being in possession of the vessel, directing them to hand over
22. Recently this Court by an order dated 3-9-2003 in Ram Preeti Yadav v.
U.P. Board of High School & Intermediate Education
MANU/SC/0683/2003held : (SCC pp. 316-317, paras 13-15)
'13. Fraud is a conduct either by letter or words, which induces the
other person or authority to take a definite determinative stand as a
response to the conduct of the former either by words or letter.
Although negligence is not fraud but it can be evidence on fraud.
(See Derry v. Peek).
14. In Lazarus Estates Ltd. v. Beasley [1956] 1 All ER 341 the Court
of appeal stated the law thus : (All ER p. 345 C-D).
'I cannot accede to this argument for a moment. No court in this land
will allow a person to keep an advantage which he has obtained by
fraud. No judgment of a Court, no order of a minister, can be
allowed to stand if it has been obtained by fraud. Fraud unravels
everything. The Court is careful not to find fraud unless, it is
distinctly pleaded and proved; but once it is proved it vitiates
judgments, contracts and all transactions whatsoever;'
15. In S.P. Chengalvaraya Naidu v. Jagannath MANU/SC/0192/1994
this Court stated that fraud avoids all judicial acts, ecclesiastical or
temporal.'
2 3 . An act of fraud on Court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of the others in relation to a
property would render the transaction void ab initio. Fraud and deception are
synonymous.
** ** **
29. In Chittaranjan Das v. Durgapore Project Ltd. [1995] 2 Cal.L J 388 it has
been held : (Cal LJ p. 402, paras 57-58).
'57. Suppression of a material document which affects the condition
of service of the petitioner, would amount to fraud in such matters.
Even the principles of natural justice are not required to be complied
with in such a situation.
58. It is now well known that a fraud vitiates all solemn acts. Thus,
even if the date of birth of the petitioner had been recorded in the
service returns on the basis of the certificate produced by the
15. The law in our country is very different. Here the winding up precedes
the dissolution. There is no statutory provision vesting the properties of a
dissolved company in a trustee or having the effect of abrogating the law of
escheat. The shareholders or creditors of a dissolved company cannot be
regarded as its heirs and successors. On dissolution of a company, its
properties, if any, vest in the Government...." (p. 850)
39. In so far as applicability of order VI Rule 14 of the Code of Civil Procedure is
concerned : the moot question is : does the non existent company own any property?
The legal position is now well settled : on dissolution, properties of a company vest
in the Government. As can be seen hereinafter, by virtue of Section 654 of the 1985
Act, even if the property of the company is not sold (as per the plaintiff), the
property has vested in the Crown. Then there is no question of any person, including
a shareholder, staking a claim to the property; and, thus, filing a plaint by self or
through a power of attorney holder,
4 0 . In light of the fact that the entire case of the plaintiff rests on the effect of
restoration of the name of the company to the register it is necessary to examine,
however briefly, the provisions in relation to restoration. At the same time it is
necessary to bear in mind that the present proceedings are not for the purpose of
restoration and this Court is not called upon to decide any such issue but so as to
appreciate the contentions raised on behalf of the plaintiff it is necessary to look at
the provisions dealing with the restoration.
41. Section 651 of the 1985 Act pertains to power of Court to declare dissolution of
company void. Under Sub-section (1) of Section 651, the Court may at any time
within two years from the date of dissolution, where a company has been dissolved,
make an order, on such terms as the Court thinks fit, declaring dissolution to be void,
on an application made for the purpose by liquidator of the company or by any other
person (appearing to the Court to be interested). Sub-section (2) of Section 651
states that thereupon such proceedings may be taken as might have been taken as if
the company had not been dissolved. Under Sub-section (3) a person making
application is required within seven days after the making of the order by the Court
to deliver to the Registrar of the Companies an office copy of the order. Therefore,
under this section only the liquidator of the company or a person who appears to the
Court to be interested can move the Court; and once the Court declares the
dissolution to be void thereupon such proceedings may be taken as might have been
taken as if the company had not been dissolved.
4 2 . In the present case admittedly there being no winding up order a liquidator
stands ruled out. Then question that requires to be looked into is whether the plaintiff
or shareholder can be termed as a person who appears to the Court to be interested.
It is not necessary for the present purpose to determine this question as, on behalf of
the plaintiff, it is an accepted position that the plaintiff does not seek restoration
under Section 651 of the 1985 Act.
4 3 . Section 652 of the 1985 Act provides powers to the Registrar to strike off a
defunct company off the register. Sub-sections (1) and (2) of Section 652 pertain to
the procedure to be adopted. Sub-section (3) provides that if the Registrar either