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Kamal Kumar Mitra, Deceased Vs. Taxation Services Syndicate Pvt. Ltd. - Court Judgment

SooperKanoon Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberG.A. Nos. 3908 of 2007 and 533 of 2008 and T.S. No. 88 of 1993
Judge
Reported in(2008)3CALLT47(HC),2008(3)CHN384
ActsIndian Succession Act, 1925 - Sections 263 and 283; ;Limitation Act, 1963 - Sections 3 and 5 - Schedule - Articles 58, 113 and 137; ;Companies Act, 1956 - Section 220; ;Code of Civil Procedure (CPC) - Sections 47, 151 and 152
AppellantKamal Kumar Mitra, Deceased
RespondentTaxation Services Syndicate Pvt. Ltd.
Appellant AdvocateAbhrajit Mitra, ;Anirban Roy and ;Sarvopriya Mukherjee, Advs.
Respondent AdvocatePratap Chatterjee, Sr. Adv., ;Moloy Kumar Ghosh, ;Satyabrata Chakroborty and ;Niloy Sengupta, Advs.
Cases Referred(Shakila Abdul Gatar Khan v. Vasant Raghunath Dhoble
Excerpt:
- sanjib banerjee, j.1. the application for condonation of delay has been filed as an afterthought and, ostensibly, by way of abundant caution. the petitioner had proceeded before that in the conviction that there was no delay on its part and, consequently, there was no need to proffer any explanation as to why the prayer for revocation of the grant of probate was not made earlier.2. the petitioner is a company, of which brothers subramanyan - sharad and vasant - appear to be the effective, if not the only, shareholders. no large corporate or business activity of the company is attempted to be demonstrated and it appears safe to conclude that its principal interest is in its alleged leasehold rights in respect of the first floor of premises no. 13/1, promotesh barua sarani, calcutta-700019.....
Judgment:

Sanjib Banerjee, J.

1. The application for condonation of delay has been filed as an afterthought and, ostensibly, by way of abundant caution. The petitioner had proceeded before that in the conviction that there was no delay on its part and, consequently, there was no need to proffer any explanation as to why the prayer for revocation of the grant of probate was not made earlier.

2. The petitioner is a company, of which brothers Subramanyan - Sharad and Vasant - appear to be the effective, if not the only, shareholders. No large corporate or business activity of the company is attempted to be demonstrated and it appears safe to conclude that its principal interest is in its alleged leasehold rights in respect of the first floor of premises No. 13/1, Promotesh Barua Sarani, Calcutta-700019 that affords its shareholders to keep company of distinguished occupants in a plush upmarket part of town. The petitioner claims to be a lessee of the premises for 99 years, obtained under a deed of October 21, 1992 executed by Reba Mitra who as widow would have been the only intestate heir of testator Kamal Kumar Mitra.

3. The petitioner claims that the testator, in fact, died intestate whereupon the entire estate devolved upon his widow who had authority to grant the lease in the petitioner's favour. The petitioner relies on Reba Mitra having executed and registered a Will in 1992 by which she appointed Sharad Subramanyan as one of the executors and wherein she recorded having leased out, as owner, the said premises to the petitioner. The petitioner portrays a picture of having been unaware of any Will of Kamal Kumar Mitra having been discovered subsequent to the execution of the lease and of such Will having been probated in common form. The petitioner asserts that it was only upon letters of August 28, 2007 and September 5, 2007 being received by it from the administrator pendente lite to the estate of Kamal Mitra that the petitioner came to know of Kamal Mitra's Will. According to the petitioner, subsequent discovery by the petitioner revealed that Kamal Mitra was said to have executed a Will on March 19, 1991, about six months prior to his death in September of that year; of the probate being granted of such Will on May 4, 1993; and, of the fraudulent conduct of the propounder in not citing the petitioner. The petitioner says that as transferee of a property by the intestate heir, the petitioner had sufficient caveatable under Section 283 of the Indian Succession Act, 1925 to be cited. The petitioner insists that it is, in any event, entitled to maintain an application for revocation of the grant under Section 263 of the Act. The petitioner argues that a valuable right acquired by it has been sought to be set at naught behind its back and it is possible that the entire exercise has been engineered to denude the petitioner of its rights under the lease without the authenticity of the Will being established in the petitioner's presence.

4. As to the petitioner's knowledge and the accrual of its right to apply, the petitioner cites the first letter that it received from the administrator pendente lite and suggests that the petition for revocation of the grant has been made well within the time afforded to such an applicant under the residuary Article 137 of the Schedule to the Limitation Act, 1963. The petitioner says that it is only upon the litany of charges levelled against it in the affidavit-in-opposition filed by the propounders of, or the beneficiaries under, the Will that the petitioner thought it fit to bring an application under Section 5 of the Limitation Act in the event the Court felt that the petitioner was required to explain the apparent delay between the grant of probate in the summer of 1993 and its application for revocation thereof in the autumn of 2007.

5. The legatees suggest that the present endeavour of the petitioner is a scandalous abuse of process to give a false impression and resurrect a lis that had been concluded in their favour upon the Supreme Court judgment reported at : AIR2006SC1993 (Sharad Subramanyan v. Soumi Mazumdar). The legatees assail the petitioner's conduct, its feigned naive case brought to Court and, most prejudicially, the petitioner's access to all documents that had been seen, deciphered and interpreted in the three earlier rounds before the trial Court, the Division Bench and the Supreme Court. The petitioner, emphasise the legatees, is the alter ego of Sharad Subramanyan who had crudely devised a second round of skirmish after having failed in Calcutta and Delhi to cling on to his real estate windfall in Ballygunge.

6. It appears from the Will of Kamal Mitra that the widow had only a life interest in the immovable property that formed the major part of Kamal Mitra's estate and it was to pass on to the named heirs in the testator's father's branch of the family.

7. There is an attractive case that the petitioner brings as to its right to question the grant on it not being cited but the resolution of the present matter probably lies elsewhere than in seeking the petitioner's locus to assail the grant. The legatees' indignation at the Subramanyan's conduct is understandable. They claim that whether it is Sharad or Vasant or the petitioner, the Court has to view all three as one entity which has been deviously presented in a dressed-up distinction.

8. The legatees say that Sharad had fought tooth and nail to dislodge Kamal Mitra's Will and failed. In Sharad's knowledge, the legatees claim, the petitioner derived knowledge and it would be unfair to subject the legatees to a fresh round of litigation on the same substance. The Supreme Court papers have been handed up by the legatees to show that the deed of lease of October 21, 1992 formed part of the papers and that apart from Sharad claiming a right to challenge Kamal Mitra's Will as one of the executors of the widow's Will, Sharad had espoused his company's - the present petitioner's - cause in the previous round of proceedings. According to the legatees, to recognise the petitioner's independent right to seek revocation of the grant of probate of Kamal Mitra's Will would now be a travesty of justice and the reopening of questions that have been conclusively answered in the legatees' favour by superior fora.

9. The prayer for condonation of delay is challenged both for the unexplained period leading up to the issuance of the letter of August 28, 2007 by the administrator pendente lite and in the petitioner's attempt at reopening a challenge that had been scoffed at In the earlier proceedings. The substance of the legatees' argument is that Sharad cannot now be permitted to don the petitioner's hat to launch the same challenge that he was unsuccessful at in the previous round. The legatees insist that Sharad and the petitioner is but the same person and refer to a document that the petitioner has relied upon to show that notwithstanding the petitioner's feigned ignorance of all matters relating to Kamal Mitra's Will prior to receipt of the first letter issued by the administrator pendente lite, in the petitioner's acknowledgement in a declaration furnished to a statutory authority that Sharad was one of its key personnel there is admission of Sharad and the petitioner company being one and the same. For, a corporate person as the petitioner needs a controlling mind and Sharad has been admitted by the petitioner to have been its controlling mind together with brother Vasant.

10. The document that the legatees refer to is a declaration in Form 23AC that the petitioner was required to file pursuant to Section 220 of the Companies Act, 1956. The balance sheet and annual accounts of the petitioner company for the year ended March 31, 2006 appears to have been appended to such form. Three principal heads of operating and administrative expenditure appear in one of the schedules to the accounts. For the year ended March 31, 2006, the petitioner claims to have expended Rs. 1,92,000/- on account of directors' salary; Rs. 1,92,000/- on account of managerial salary and Rs. 2,00,000/- on account of salaries and wages including bonus. These three heads make up nearly 40 per cent of the annual operating and administrative expenditure of Rs. 13,92,000/-. At the foot of the schedules to the annual accounts is the disclosure that is now required to be made by a company. Vasant and Sharad Subramanyan are shown as the key management personnel of the petitioner. Some murmurs have been made on behalf of the petitioner that there are differences between Vasant and Sharad and that Sharad was the majority shareholder (by one share or thereabouts) in the petitioner company till or about the year 2002.

11. The legatees have also relied on the deed of October 21, 1992 and show therefrom that at the time of registration of the document, Sharad had presented it on behalf of the petitioner. The legatees also question as to how the petitioner could have obtained a copy of the certified copy of the grant of probate and the documents that appear between pages 28 and 33 of the petition. These documents, the legatees say, have been bodily lifted from the papers used in the earlier round of litigation and, the prejudice aspect aside, it would go to show that there is no real distinction between Sharad and the petitioner.

12. The petitioner has relied on a judgment reported at 13 Bom LR 38 [DigambarKeshav Shrotri v. Narayan Vithal Ashtekar) for the proposition that a transferee of a property obtained from an heir in intestacy may maintain an application for revocation of the grant. What is held by the Full Bench of the Bombay High Court in such decision is that there are compulsory citations and discretionary citations. It is only upon failure to cite a person who was compulsorily required to be cited that the grant would be void but the failure to cite other persons would not be fatal. The decision reported at : AIR1932Cal734 (Nabin Chandra Guha v. Nibaran Chandra Biswas and Ors.) is next cited by the petitioner where the Court held that a transferee of property from an intestate heir may oppose the grant of probate or letters of administration.

13. The decisions reported at ILR 4 Cal 360 (Komollochun Dutt and Ors. v. Nilruttun Mundle) and ILR 6 Cal 460 (Nobeen Chunder Sil and Ors. v. Bhobosoonduri Dabee) are pressed into service by the petitioner to assert the petitioner's locus standi to maintain these proceedings and to seek revocation of the grant. The Komollochun Dutt case was rendered when the procedure as to the grant of probate or letters of administration had not been settled. This Court opined that if a person was interested by assignment in the estate of the deceased, and if there was no Will he would have a good title, such person could apply to revoke the probate. In the Nobeen Chunder Sil case this Court was of the view that the mortgagee-appellants would stand substantially in the same position as the plaintiff In the Komollochun Dutt case as the mortgagee-appellants were purchasers pro tanto and assignees of the immovable estate of the deceased. The Court also found that if such a person is recognised to be entitled to apply to revoke the probate that has issued, it would follow that such person may also enter caveat and oppose the grant.

14. But the locus standi of the petitioner to seek revocation of the probate is a matter that needs to be assessed after the petitioner has a look in.

15. The petitioner refers to the judgment of a single Judge of this Court reported at 2003 AIHC 2148 (Jyotsna Rajgarhia v. Dipak Kumar Himatsingka and Anr.). At paragraph 24 of the report it has been held that as to whether an application for revocation of grant is barred by time has to be judged on the facts obtaining in the matter. The bar of limitation may not be applied in strict sense when it leads to an absurd result particularly in a case where probate has been obtained without citing a person entitled to citation and when the fact of the probate is kept concealed for a long time. The judgment reported at 1990 (supp) SCC 89 (I) (L/Naik Mahabir Singh v. Chief of Army Staff) is placed for the proposition that the Court may accept even an oral prayer for condonation of delay. That in appropriate cases an oral prayer for condonation may be received is not open to dispute, but in the context of a written application having subsequently been made, the point loses all significance in the present case.

16. The petitioner seeks to compare Article 137 of the Schedule to the Limitation Act to Article 58 thereof. The petitioner submits that whereas in Article 137, the expression is, 'where the right to apply accrues', in Article 58 the expression is, 'where the right to sue first accrues'. The petitioner submits that Courts generally construe the grey area, if there is any in the matter, in favour of the party applying for condonation so that the merits can be addressed and the assertion of a right is not left stillborn.

17. The petitioner relies on the judgment reported at : 2004(164)ELT375(SC) (Union of India v. West Coast Paper Mills Ltd.) and places paragraphs 21, 26 and 41 thereof:

21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when 'the right to sue first accrues', in terms of Article 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose.

26. Despite the rigours of Section 3 of the Limitation Act, 1963, the provisions thereof are required to be construed in a broad-based and liberal manner. We need not refer to the decisions of this Court in the matter of condoning delay in filing appeal or application in exercise of its power under Section 5 of the Limitation Act.

41. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court, and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject-matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit.

18. It appears that the Supreme Court recognises that a liberal view of the matter is to be taken and if it is found that the right was in flux, the Court would not construe that the right to sue or apply arose when such right remained confused or undetermined. This would support the petitioner's argument that the grey area would belong to the party applying for condonation.

19. Several cases have been placed for the proposition that the knowledge of a shareholder or even a director would not amount to the knowledge of the company in which such person holds shares or of which he is a director. The petitioner asserts that the knowledge of a shareholder or a director will not bind the company concerned unless a duty was imposed on the shareholder or the director to inform the company. The judgment reported at (1904)2 Ch 608 (Young v. David Payne & Co. Limited) is relied upon first for the purpose. A director of a company was also interested in another company. The second company proposed to borrow money for a purpose outside the scope of its business objects and induced the first company to advance the money against security. The money was applied in the manner proposed and no other director of the first company, except the person who was the director of the second company, knew how the money was to be applied and that such application was ultra vires the second company's objects. It was held by the Court of Appeal that such director's knowledge ought not to be imputed to the first company as the director owed no duty to the first company either to receive or to disclose information as to how the borrowed money was to be applied.

20. In the next case to the same effect, an earlier decision reported at (1902) 1 Ch 507 (In re: Fenwick, Stobart & Co. Ltd.) is placed by the petitioner where Buckley, J. held that where a man holds a double character, it is not necessary that he should write a letter from himself in one character to himself to inform himself in another character. The substance of the principle is that it would depend upon the circumstances relating to a particular case as to whether knowledge in one capacity would amount to knowledge in the other.

In the decision reported at (1896)2 Ch 743 (In re: Hampshire Land Co.), Vaughan Williams, J. raised the following question:

Where is the line to be drawn, or what is the test to be applied in order to say whether or not in each case the knowledge of the common officer is the knowledge of each company employing him?

21. His Lordship's answer to the question was that unless the common officer had some duty imposed upon him to communicate that knowledge to the other company, and had some duty imposed on him by the company which is alleged to be affected by the notice to receive the notice, knowledge of the one company would not be imputed to the other company only by virtue of the officer with knowledge being common to both companies.

22. The petitioner submits that it was not necessary for it to seek condonation of any delay as there has been no delay on its part to bring this action. The petitioner suggests that even if the petitioner be affixed with knowledge of the earlier round of challenge, the time covered by Article 137 would begin to run when there is an immediate cause. The immediate cause that the petitioner here refers to is the letter of August 28, 2007 issued by the administrator pendente lite to the estate of Kamal Mitra. The petitioner relies on the judgment reported at : AIR1993SC136 (Balwant Singh v. Gurbachan Singh) and places paragraph 5 thereof where the Supreme Court recognised that the time for applying in that particular case would begin to run only when there was actual threat of dispossession.

23. In that case, in execution of a decree for pre-emption on July 13, 1963 symbolic possession of certain land was made over to the degree-holder. A declaratory suit was filed by the Judgment-debtor was decreed but no relief of injunction was granted as the judgment-debtor continued to remain in possession of the land. A suit for partition was filed by the original decree-holder in 1973 claiming not only the land on which he had obtained actual physical possession but also on the land on which he had been granted symbolic possession. On the objection petition under Sections 47, 151 and 152 of the Code of Civil Procedure, the executing Court rectified the mistake and directed restitution of the land. The Supreme Court held, in such context, that the judgment-debtor's right to apply commenced when there was actual threat of dispossession, that is on the decree-holder taking proceedings for partition in 1973 and not from the date of execution of the pre-emption decree in 1963.

24. The judgment next placed by the petitioner is one reported at : AIR1999SC1734 [Electronics Corporation of India Limited v. Secretary Revenue Department, Government of Andhra Pradesh) where the Supreme Court construed a distinction between the company and its hundred per cent share holder. From the days of Salomen v. Salomen, such distinction has remained and except in exceptional circumstances and for greater cause, a one-man company is not equated with the company. But it does not necessarily follow that the knowledge of the only shareholder of a one man company will never be the knowledge of the company.

25. The legatees refer to the Supreme Court judgment rendered in the earlier round reported at : AIR2006SC1993 (Sharad Subramanyan v. Soumi Mazumdar) and particularly rely on paragraphs 3, 5 and 6 thereof.

3. Kamal Kumar Mitra entered into an agreement dated 22-5-1988 with T.K. Ramasubramanyan (father of Sharad Subramanyan, hereinafter 'the appellant') by which a tenancy was created in respect of the ground floor flat of certain premises situated at 13/1, Promothesh Barua Sarani, Kolkata (hereinafter 'the suit property') at a monthly rental of Rs. 5000. A further agreement dated 1-11-1988 was made between Kamal Kumar Mitra and the present appellant Sharad Subramanyan for providing to the tenants the fittings and fixtures on the ground floor at a monthly charge of Rs. 750. On 24-2-1989, there was a third agreement between Kamal Kumar Mitra and the appellant Shared Subramanyan and a fourth on 28-4-1989, by which the former agreed to lease the whole of terrace of the existing construction of the suit property to enable the appellant to construct at his cost an additional floor. The demise was for a period of twenty-one years commencing from 1-4-1989 with a renewal clause for a further period of twenty-one years after expiry of every period of twenty-one years. Though the agreement created a lease for such a long period with a renewal clause, it was not registered.

5. On 21-10-1992, Reba Mitra executed a lease deed in respect of the suit property granting certain rights to the appellant. Reba Mitra died on 27-11-1998. The appellant produced a will dated 21-10-1992 claiming that he had been granted certain rights under the will. A second will dated 14-5-1993 and a third will dated 14-12-1997 were produced by the parties each of whom claimed that the will in his/her favour was the genuine will.

6. On 17-8-2001, Reba Mitra's will dated 14-12-1997 was granted probate by the District Judge, Alipore. The appellant had been appointed as one of the executors under the will of Kamal Kumar Mitra. Soumi Mazumdar and Shantanu Bose (Respondents 1 and 2, respectively), the legatees under the said will, by their letter dated 16-4-1999, called upon the appellant and Subir Kumar Deb, joint executors, to give assent to the legacy under the will of Reba Mitra, hand over vacant possession of the first floor of the suit property and also distribute all the income of the estate in terms of the will of the late Kamal Kumar Mitra. On 30-4-1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the will of Kamal Kumar Mitra. On 4-5-1999, the appellant wrote back alleging that Reba Mitra had demised the first floor of the suit property in the year 1992 in his favour. The appellant also stated that he was going through the various legal implications to examine the demand for disbursement of the income.

26. The legatees seek to rob the petitioner's case of most of its merit by referring to the reliefs sought. It is not that the petitioner seeks an injunction on the dispossession that the administrator pendente lite threatens it with; the petitioner seeks revocation of the grant. The legatees attempt to distinguish the two possible causes of action and assert that if it is the latter, the time under Article 137 would only begin to run when the threat is received, but if it is the former the time begins to run from the moment of the grant and an attempt at explanation has to be made for the period beginning the moment following the grant and leading up to the receipt of the first letter issued by the administrator pendente lite. The legatees say that the petitioner has no right to ward off the threat conveyed by the letter issued by the administrator pendente lite without first seeking revocation of the grant.

27. The legatees implore that the Court should not see Sharad and the petitioner as two distinct entities and, if necessary, should apply the doctrine of lifting the corporate veil to assess as to whether Sharad is the controlling mind lurking behind the veil. The legatees go back in time in referring to the judgment reported at : [1964]6SCR885 (Tata Engineering and Locomotive Co. Limited v. State of Bihar) and trace how the Supreme Court has carried the principle much further in recent times. The judgment reported at : (2001)IILLJ1087SC (Steel Authority of India Limited v. National Union Water Front Workers) is placed and the view of Krishna Iyer, J. quoted at paragraph 115 of the report is placed. In similar vein, the judgments reported at ( : (2003)IIILLJ31SC (Kapila Hingorani v. State of Bihar); : (2006)7SCC756 (Jat Narain Parasurampuria v. Pushpa Devi Sharaf) and : 2003CriLJ4548 (Shakila Abdul Gatar Khan v. Vasant Raghunath Dhoble) are referred to. What emerges from the discussions in the various judgments is that it is imperative for the Court to do justice and for such purpose disregard the structure of an entity to garner the meat of the matter.

28. The concept of a company and the jurisprudence that follows it was alien in the Indian context. The sanctity of the structure attached to a corporate entity in English law may not always be applicable in the Indian context. As much as companies have been set up in India to carry any business venture, the corporate facade has been put up time and again to shield the humans behind it. Corporate jurisprudence is no longer in its initial stage for it to be regarded as a bride for the veil to be removed. Courts are more prone now than ever before to disregard the veil and go straight at the controlling mind without stopping to question the propriety or necessity of piercing the veil.

29. In the synopsis relating to the petition for special leave to appeal before the Supreme Court filed by Sharad, there is more than passing reference to the lease of October 21, 1992 said to have been created by Reba Mitra in favour of the petitioner. At pages F and G of the synopsis. Sharad asserted that he received a letter of April 16, 1999 from the legatees that he was in Illegal possession of the first floor of premises No. 13/1, Promotesh Banua Sarani to which he replied that he 'was not in possession of the first floor of the said premises as alleged.' In such assertion Sharad did not deny that he was not in possession but merely denied that he was in possession as alleged. It would not be outlandish to infer that what Sharad left unsaid was that he may have physically been in possession, but such possession was by virtue of his association with the petitioner which was in de jure possession of the first floor of the premises. The special leave petition papers contain an affidavit affirmed by Sharad on February 8, 2000. In such affidavit in response to a petition for removal of the joint executors on the allegations of misappropriation of funds and usurpation of the estate, Sharad insisted that there was no estate of Kamal Mitra in existence as all his assets had devolved upon his widow as legatee on the assent given by her as the first executrix. In such affidavit Sharad referred to the deed of October 21, 1992 by which a lease was granted in favour of the petitioner and the copy of the registered deed was appended to his affidavit. In the order passed on the application for removal of the joint executors, a learned single Judge appointed an administrator pendente lite and also directed eviction of one of the occupants at premises No. 13/1, Promotesh Barua Sarani. Sharad's appeal failed except that the appellate Court held that no occupier could be evicted except under due process of law.

30. It appears that the entire basis of Sharad's argument was that notwithstanding Kamal Mitra's Will, it was his widow on whom his entire estate devolved and the widow was free to deal with the estate that had become her own. It was such contention that did not find favour with this Court in the two stages here and with the Supreme Court in the appeal resulting from the special leave petition.

31. It is necessary to go into such aspect to assess whether it would be appropriate to permit the same issue to be raised again. For, if the delay in the petitioner applying for revocation of the probate is condoned, and the petitioner's apparent right to seek revocation is recognised, the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication. The matter is not, as the petitioner simplifies and puts it, of the Court being liberal in the matter of condonation of delay to allow a right to be canvassed. Equally, the principal issue is not, as the legatees' suggest, to affix the petitioner with the knowledge that Sharad had and to consequently find the petitioner's explanation of the delay to be unmeritorious. It is the recognition of the fact that a settled position would be undone if by an apparently gracious act of condonation of delay, an undesirable second round of the same challenge is unleashed. Even if the petitioner is permitted to take the challenge forward, it can progress no more upon it being recognised that the only possible issue has been conclusively pronounced upon by the Supreme Court, albeit in proceedings where the petitioner was not a co nominee party.

32. In assessing the impact of Sharad's knowledge on the company, the first point of note is that neither of the Subramanyans had any conflict of interest with the petitioner. It is also of singular importance that the effect of what the petitioner now seeks to establish is, willy-nilly, for the present benefit of Sharad or Vasant in course of their association with the petitioner. It is not a point of technicality on which a petitioner is denied justice by not being permitted to assert a right on grounds of delay, it is the warding off of a technical argument of distinction between a corporate entity and one of the principal persons in control thereof to avoid abuse of process.

33. Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad's place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied upon the petitioner's lease to assert that notwithstanding Kamal Mitra's Will his estate passed to his widow, would also show that Sharad was aware that he was also fighting his company's cause.

To ignore all that has gone on before and to accept the petitioner's simple case and apparent innocence would lead to gross injustice and undoing the finality that is attached to the result on the substance of the dispute following the Supreme Court verdict.

34. The result is that the petitioner's application for condonation of delay I fails as the petitioner is deemed to have had notice for a period much prior to the receipt of the administrator pendente life's first letter of August 28, 2007 which the petitioner has chosen to ignore for want of any plausible explanation. As a consequence, the petitioner's application for revocation of the grant is not taken on board, but even if it were it would have to be dismissed for the only issue therein having been decided in favour of the legatees in the earlier proceedings.

The petitioner will pay costs assessed at 2000 GMs.

Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.


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