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T. No.

_____________ of 2015

W.P. No. 69 of 2015


IN THE HONBLE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF :
An application under Article 226 & 227
of the Constitution of India;
AND IN THE MATTER OF :
The Calcutta High Court (Original Side)
Rules, 1914
AND IN THE MATTER OF :
Section 34 of the Advocates Act, 1961
IN THE MATTER OF :
MR. DEEPAK KHOSLA & ORS.
.PETITIONERS
Versus
HONBLE HIGH COURT OF CALCUTTA &
ORS.
.RESPONDENTS
Group : IX

Heads : -

of the Classification List.


DATE : 22-01-2015
PLACE:KOLKATA

Sd/.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
D - 367 Defence Colony
NEW DELHI 110 024
Tel : 099 530 96650
deepak.khosla@gmail.com
Also at :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

T. No. _____________ of 2015

W.P. No. 69 of 2015


IN THE HONBLE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF :
MR. DEEPAK KHOSLA & ORS.
.PETITIONERS
Versus
HONBLE HIGH COURT OF CALCUTTA
& ORS.
.RESPONDENTS
INDEX
Sl.
No.

Particulars

Page No.

1.

Group Index.

2.

Index

3.

List of dates.

13

4.

Points Involved.

46

5.

Proforma.

6.

Writ Petition under Articles 226 and 227 of the


Constitution of India, alongwith affidavit.

8 80

7.

Annexure 1: Chapter I of the Calcutta High Court


(Original Side) Rules, 1914.

81 86

8.

Annexure 2 : Letter dated 09-01-2015 filed by Mr.


Deepak Khosla, with Ld. Registrar (Original Side),
seeking insertion of his name in the Register of
Advocates.
Annexure 3 : Letter dated 09-01-2015 filed by Mr.
Deepak Khosla with Ld. Registrar (Original Side),
placing on record the infractions of law by Khaitan &
Co, seeking action in accordance with law.

87 89

9.

10.

Annexure 4 : Letter dated 16-01-2015 from Ld.


Registrar (Original Side) to Mr. Deepak Khosla,
confirming the lack of eligibility of M/s Khaitan &
Company to act on the Original Side of this Hon'ble
Court.

90 131

132

11.

Annexure 5 : Letter dated 19-01-2015 addressed by


Mr. Deepak Khosla to Honble the Chief Justice,
reporting the inaction of Ld. Registrar (Original
Side) against Khaitan & Co.

133

12.

Annexure 6 : Application dated 13-01-2015 seeking


intiation of criminal contempt proceedings against
Khaitan & Co for misleading the court (awaiting
filing).

134 192

13.

Annexure 7 : Application dated 13-01-2015 seeking


prohibition against certain persons appearing in CP
No. 33 of 1988 (awaiting filing).

193 269

14.

Annexure 8 : Letter dated 20-01-2015 filed by Mr.


Deepak Khosla with Ld. Registrar (Original Side),
placing on record the manipulations being resorted
to by Khaitan & Co, seeking action in accordance
with law.

270 297

15.

Annexure 9 : News article in Legally India on


Khaitan.

298

16.

Annexure 10 : Rules of the Karnataka High Court,


framed under Section 34 of the Advocates Act.

299 302

17.

Annexure 11 : Website page of Khaitan & Company.

303

18.

Annexure 12 : Letterhead of Khaitan & Co. as of


2008.

304

19.

Annexure 13 : List of Senior Advocates designated


by the Hon'ble High Court of Calcutta w.e.f. 30-062014 vide Notification dated 09-06-2014.

305

20.

Annxure 14 : Typical filing by Khaitan & Co., having


no signature of the person signing the same.

306

DATE : 22-01-2015
PLACE:KOLKATA

Sd/.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
D - 367 Defence Colony
NEW DELHI 110 024
Tel : 099 530 96650
deepak.khosla@gmail.com
Also at :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

1
IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF:
DEEPAK KHOSLA & ORS.

.PETITIONERS
Vs.

HONBLE
CALCUTTA HIGH COURT, & ORS.

RESPONDENTS

SYNOPSIS, & LIST OF DATES


1.

1861 : The Calcutta High Court came into being, by virtue of Indian High
Courts Act, 1861, followed by the Letters Patent of 1862.

2.

1879 : The Legal Practitioners Act was enacted.

3.

1914 : The Hon'ble High Court of Calcutta promulgated the Calcutta High
Court (Original Side) Rules, 1914, (presumably) in exercise of the relevant
empowering Clause in its Letters Patent and / or Section 122 of the Code of
Civil Procedure, 1908. These Rules defined the credentials and basis for
advocates desirous of practicing on the Original Side.

4.

1908 : The Code of Civil Procedure (1908) was enacted.

5.

1926 : The Bar Council of India Act (1926) was enacted.

6.

1961 : The Advocates Act (1961) was enacted, creating a unified Bar for
India, whereby many provisions of the Legal Practioners Act were repealed.

7.

09-01-2015 : The petitioner No. 1 (Mr. Deepak Khosla, Advocate), citing the
notifying of Section 30 of the Advocates Act (1961) with effect from 15-062011, filed his application with Ld. Registrar (Original Side), seeking
insertion of his name in the Register maintained by him under Rule 2 of the
aforesaid Rules. He categorically stated that his request was without
prejudice to his rights to challenge that aforesaid archaic Rule, as it was not
only redundant after the notifying of Section 30 of the Advocates Act, but
was patently contrary to the aforesaid Act, and hence, an unreasonable
restriction that abrogated the Constitutional mandate enshrined in Article
19(1)(g) of the Constitution of India.

8.

09-01-2015 : Respondent No. 5, 6 and 7, citing the Original Side Rules,


hotly objected to Petitioner No. 1 appearing before the Court of Hon'ble Mr.
Justice Anirudh Bose, arguing that he had no right appear on the Original
Side, as his name had not been inserted in the Register maintained under
Rule 2 of the Original Side Rules.

9.

11-01-2015 : The petitioner No. 1 filed his objections with Ld. Registrar
(Original Side), placing on record the numerous violations of the Calcutta
High Court (Original Side) Rules, 1914 by Khaitan & Company, and some
advocates who claimed right of audience on the strength of their alleged
engagement to plead by Khaitan & Co. He urged him to take action against
them in accordance with law as mandated by Rule 16, as they were
committing criminal contempt of court in the very proceedings that he was
appearing in. (Rule 16 makes it mandatory for the Registrar to issue such
offender a Show-Cause Notice, returnable to Ld. Judge in chambers, as to

3
why the offending advocate or law firm should not be debarred from
practicing, including appearing, on the Original Side.)

10. 22-01-2015 : The Ld. Registrar (Original Side) rejected the application of
the Petitioner No. 1 for insertion of his name in the Register maintained
under Rule 4, on the sole grounds that he is not registered with the Bar
Council of West Bengal. But he continues to take no action against
Respondent No. 4, 5, 6 and 7 for their infraction of the Original Side Rules,
consequent to which infractions they cease to be eligible to practice on the
Original Side.

11. 22-01-2015 : Hence, this petition is filed before this Hon'ble Court, seeking
parity / equal treatment for all, but more so that the criminal contempt of
court that is taking place, inter alia, in CP No. 33 of 1988 at the behest of
Respondent No. 4 to 7 is immediately arrested, as proccedings are not going
forward, or are going forward in gross violation of law, thereby creating a
loop-hole for the Respondents or their clients to demand a very damaging
roll-back, which would be extremely prejudicial, inter alia, to Petitioner Nos.
2 and 3, the latter individual being as much as 93 years old, and entitled to a
fair and speedy resolution of his grievances in his lifetime.
Sd/DATE : 22-01-2015
PLACE:KOLKATA

.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

4
IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF:
DEEPAK KHOSLA & ORS.

.PETITIONERS
Vs.

HONBLE
CALCUTTA HIGH COURT, & ORS.

RESPONDENTS

POINTS INVOLVED
This petition raises several substantial questions of law of constitutional and
public importance as they concern the protection of fundamental rights of the
petitioner, which may be summarized as follows:

Question 1 : Whether any person or firm not registered to practice as an


advocate in the Register maintained by the Ld. Registrar (Original Side)
under Rule 2 of the Calcutta High Court (Original Side) Rules, 1914 can be
permitted by this Hon'ble Court to practice on the Original Side ?

Answer of the petitioner : The Rules on the Original Side are very clear. The
Respondents themselves have invoked the Rules to seek restraint against
others. Therefore, since, in law, what is sauce for the goose is sauce for the
gander, means that it is the Respondents own case that all persons who
do not qualify by these Rules, even if it be themselves, must be denied
permission by the Ld. Registrar (Original Side) from acting, including
appearing, on the Original Side, as set out in Rule 8.

5
Question 2 : Whether an advocate otherwise eligible to practice as an
advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm ?

Answer of the petitioner : No.

Such advocate would be in breach of

multiple provisions of law.

Question 3 : Whether an advocate otherwise eligible to practice as an


advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm but not
accepted by him?

Answer of the petitioner : No.

Such advocate would be in breach of

multiple provisions of law, as no contract or representation has been


executed by him. By the doctrine of election, an advocate can elect
whether to practice as an advocate in independent practice, or elect to
practice as a Partner of a law firm. But there is no provision for an
advocate to be a non-partner employee of a law firm, and then act as if is
the advocate engaged by the client, merely because the client, attracted by
the partners of the firm, has appointed the firm to act for him.

Question 4 : Whether an advocate otherwise eligible to practice as an


advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm and accepted
by him ?

6
Answer of the petitioner : No. Such a vakalatnama would be a nullity in
law, as the contract of representation (under the laws relating to agency)
can come into being only when accepted by a duly-authorised Partner.

Question 4 : Whether a law firm may be permitted to use a name that


does not reveal who its Partners are ?
Answer of the petitioner : No. Such firm would be in breach of the letter as
well as the spirit of Rule 9 (c) of the Calcutta High Court (Original Side)
Rules, 1914.

Question 5 : Whether a law firm may be permitted the use of the phrase
& Company in its name ?
Answer of the petitioner : No, this would be in violation of Rule 9 (c), as
well as Rules of other High Courts which also would apply here, mutatis
mutandis. And if at all Respondent No. 2 has approved the name of a firm
with the phrase & Company as a suffix in it, as his act, undoubtedly
inadvertent, would be a nullity in law, as it would have been without any
jurisdiction / competence / or authority in his hands to do so.
Sd/DATE : 22-01-2015
PLACE:KOLKATA

.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
D - 367 Defence Colony
NEW DELHI 110 024
Tel : 099 530 96650
deepak.khosla@gmail.com
Also at :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

7
IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF:
DEEPAK KHOSLA & ORS.

.PETITIONERS
Vs.

HONBLE
CALCUTTA HIGH COURT, & ORS.

RESPONDENTS
PROFORMA

Sd/DATE : 22-01-2015
PLACE:KOLKATA

.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
D - 367 Defence Colony
NEW DELHI 110 024
Tel : 099 530 96650
deepak.khosla@gmail.com
Also at :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

8
T. No. _____________ of 2015
W.P. No. _____________ of 2015
IN THE HONBLE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF :
An application under Article 226 & 227
of the Constitution of India;
AND IN THE MATTER OF :
The Calcutta High Court (Original Side)
Rules, 1914
AND IN THE MATTER OF :
Section 34 of the Advocates Act, 1961
AND IN THE MATTER OF :
The Contempt of Courts Act (1971), read
with Article 215 of the Constitution of
India
AND IN THE MATTER OF :
Inaction and/or
refusal
of
the
Respondents in not suittably restraining
Respondent No. 4 (Khaitan & Co) from
practicing in the Hon'ble High Court of
Calcutta on its Original Side despite
their multiple violations of the aforesaid
Rules.
AND IN THE MATTER OF :
Discriminatory inaction (by way of
turning of the proverbial Nelsons Eye)
to blatant infractions of the law by a
powerful firm of advocates, thus,
indicating intent by the powers-that-be
to shield and protect offenders from the
punishment legally due to them only
owing to the size, clout and prominence
of the offenders.
AND IN THE MATTER OF :
Facilitation and / or abetment by the
High Courts Registry officials of conduct
by Khaitan & Co that squarely constitutes
criminal contempt of court.
IN THE MATTER OF :
1. MR. DEEPAK KHOSLA
An advocate, having his office at Suite

9
No. 408, 4th Floor, Center Point, 21
Old Court House Stret (now known as
Hemant Basu Sarani), KOLKATA 700
001 and permanent residence at D367 Defence Colony, New Delhi 110
024
2. M/s HUNGERFORD INVESTMENT
TRUST LTD
(in voluntary liquidation), a Company
registered in, and under the laws of,
Singapore, having its Regd. Office :
36, Tanjong Penjura, Singapore, and
also at 1-B Judges Court Road,
Kolkata 700 027, acting through its
Chairman, Mr. Nirmal Jit Singh Hoon
3. MR. NIRMAL JIT SNGH HOON
aged about 93 years, a PIO citizen of
UK, resident (when in India) of 10/3
NRI Colony, Greater Kailash-IV, New
Delhi, presently at 1-B Judges Court
Road, Kolkata 700 027.
.PETITIONERS
Versus
1. HONBLE HIGH COURT OF
CALCUTTA
(In its administrative capacity)
Acting through its Ld. Registrar
General, KOLKATA 700 001
2. LD. REGISTRAR (Original Side)
Honble High Court of Calcutta,
KOLKATA 700 001
3. LD. REGISTRAR (Appellate Side)
Honble High Court of Calcutta,
KOLKATA 700 001
4. KHAITAN & CO
A partnership firm claiming to be a
firm of advocates, having their office
at Emerald house, Old Post Office
Street, KOLKATA 700 001
5. MR. RATNESH RAI
An advocate working with Khaitan &
Co, having its office at Emerald
house, Old Post Office Street,
KOLKATA 700 001
6. MR. UTPAL BOSE

10

An advocate (now a Senior


Advocate), claiming to be briefed by
Mr. Ratnesh Rai and/or Khaitan &
Co. in CP No. 33 of 1988, having its
office at Emerald house, Old Post
Office Street, KOLKATA 700 001
7. MR. JOY SAHA
An advocate claiming to be briefed by
Mr. Ratnesh Rai and/or Khaitan & Co.
in CP No. 33 of 1988, having its office
at Emerald house, Old Post Office
Street, KOLKATA 700 001
8. BAR COUNCIL OF WEST BENGAL
Acting through its Secretary
c/o High Court, Kolkata
9. BAR COUNCIL OF INDIA
Acting through its Secretary
Rouse avenue
Instituitonal area
IP Estate
New Delhi
.RESPONDENTS
PETITION

UNDER

ARTICLE

226

AND

227

OF

THE

CONSTITUTION OF INDIA SEEKING, INTER ALIA, ISSUANCE OF A


WRIT OF MANDAMUS TO LD. REGISTRAR (ORIGINAL SIDE),
SEEKING PERFORMANCE OF HIS STATUTORY DUTIES IN
ACCORDANCE WITH LAW, AS STIPULATED IN RULE 16 THE
CALCUTTA HIGH COURT (ORIGINAL SIDE) RULES, 1914.
To,
The Honble Chief Justice Dr. (Ms.) Manjula Chellur,
and
her Companion Judges of the
Honble High Court of Calcutta at Kolkata.
The Humble petition on behalf of the Petitioners above named:MOST RESPECTFULLY SHOWETH :

11
1.

The instant writ petition is filed under Article 226 and 227 of the
Constitution of India for enforcement of the fundamental rights of the
petitioners, and for uniform enforcement of the law against a large and
powerful law firm (vis. Respondent No. 4, Khaitan & Company), for its
multiple infractions of the law de hors the preceding factors, which are
wholly irrelevant in the unblinking and impartial eyes of the Law, before
whom all are equal.

2.

The petitioner No. 1 is a citizen of the country, and hence, eligible to


invoke the jurisdiction of this Hon'ble Court under the powers conferred
upon by it by Article 226 of the Constitution of India against entities that
are State. He is an advocate within the meaning of the word as defined
in the Advocates Act (1961), and is duly registered under the aforesaid Act
with the Bar Council of Karnataka, and practices in many locations all over
India, having clients / matters in Karnataka (Bengaluru), Delhi, H. P.,
Uttrakhand, Maharashtra (Mumbai), West Bengal (Kolkata), etc. Petitioner
Nos. 2-3 are his clients, who have litigation pending before this Hon'ble
Court. (Petitoner Nos. 1-3 are collectively referred to herein as
petitioner.) By virtue of notifying of Section 30 of the Advocates Act as
operative with effect from 15-06-2011, petitioner No. 1 now has a
fundmental right guaranteed to him by Article 19(1)(g) of the Constitution
of India to practice his profession of advocacy anywhere in India, with a
corresponding right of audience before any Court across the country.

3.

The petitioner is aggrieved by the fact that the Calcutta High Court is still
purporting to operate under the Calcutta High Court (Original Side) Rules,
1914 (hereinafter referred to as the Original Side Rules), some of whose

12
provisiuons he has challenged separately. However, till such time as the
challenge is entertained and succeeds, those Rules are very much law,
which bind all concerned persons. The grievance in the present petition is
on account of the discriminatory treatment meted out to Petitioner No. 1
(at the instigation and prompting of Respondent Nos. 4-7) while taking no
action against Respondent No. 4 7, whose infractions / non-compliance
of the same Rules is much larger, even heinous, leading to the polluting of
judicial proceedings in which Petitioner 2 and 3 are participants, and in
which Petitioner No. 1 is desirous of acting as an advocate, and has been
engaged by Petitioner 2-3 for that very purpose, but is being obstructed in
that endeavor by the acts of criminal contempt being committed therein
by Respondent Nos. 4,-7, and also, by Respondent No. 2 [vis. Ld. Registrar
(Original Side)] at the prompting and instigation of Respondent No. 4 and
its partners and / or associates.

A copy of the Calcutta High Court (Original Side) Rules (1914), as amended
up to date, are appended hereto, and is marked as Annexure 1.

DECLARATION ON IMPLEADMENT OF ALL AFFECTED PARTIES :

4.

That to the best of the understanding of the petitioner, all the persons /
bodies / institutions likely to be affected by the orders sought in the
present writ petition have been impleaded by him as Respondents, and
that to best of the knowledge as well as understanding of the petitioner,
that to the extent that they are practically impleadable, no other persons /
bodies / institutions are likely to be adversely affected by the orders
sought in the writ petition.

13

Nonetheless, if any such body / person / institution exists, the petitioner


has no hesitation in their seeking impleadment in the same, as the
petitioner shall not, and hereby undertakes that he shall not, oppose the
prayer of any person who seeks impleadment in the present matter as a
Respondent so long as the motives for doing so are not with intent to
delay the due course of judicial proceedings, or such-like motivated
reasons.

5.

That the Respondent Nos. 1-3 all are State (or public servants deemed
as State) within the meaning of Article 12 of the Constitution of India, and
hence, are amenable to the ordinary jurisdiction of this Honble Court
provided by Articles 226 of the Constitution of India for any act or acts
being illegal or improper or inappropriate, more particularly in case of
illegal, or discriminatory, or unreasonable, or arbitrary, or other acts of
the Respondents Nos. 1-3 not being in accordance with both the letter of
the law as well as its spirit, where the word acts used herein includes
those of commission or even of omission1.

6.

That the Respondents are further elaborated upon below, the inclusion of
each being arrayed as a party in the present writ petition so as to not let
the petition suffer, or risk to suffer, for a non-joinder of parties.

They have been arrayed either because they are necessary parties in the
present proceedings (because in their absence, no order can be made
effectively, or because the orders sought directly affect their rights or
1

Please see Section 32 of the Indian Penal Code omissions are as punishable as acts of commission.

14
vitally affect them, and therefore, by the principles of natural justice, no
order ought to be passed by this Hon'ble Court behind their backs), or
because they are proper parties (because in their absence, an effective
order, though perhaps possible to be made, would obstruct, or not
facilitate, a complete and final decision on the questions involved in the
proceeding), or both.

The inclusion of these Respondents is in light of the criteria spelt out, inter
alia, by a 4-Judge Bench of the Hon'ble Supreme Court in the case of Udit
Narayan Singh vs. Board of Revenue, Bihar (AIR 1963 SC 786), read with
the views of a Full Bench of the Hon'ble Supreme Court expressed in the
case of Prabodh Verma vs. State of Uttar Pradesh (AIR 1985 SC 167).

It is to be respectfully stated that the necessity for their inclusion in the


present proceedings is at great incremental cost to the petitioner (in
terms of being required to serve that many additional copies, in terms of
being required to read, analyze and study that many more counteraffidavits, in terms of having to prepare that many more rejoinder
affidavits, etc), but who has volunteered to suffer this additional cost and
burden only in order to comply with the dicta of the Hon'ble Supreme
Court in regard to what ought to be a proper and complete array of
parties ; hence, despite this burden of additional cost adversely affecting
the petitioners interests, these Respondents have been arrayed by him
also as necessary parties as any view taken by this Hon'ble Court based
on the response from the other State Respondents on the issues raised
herein, including general civil consequences of the writs of certiorari or
mandamus requested herein, as well as / or potential culpability and/or

15
consequences thereof that will or may ensue, will undoubtedly affect the
position of some of these Respondents also. Hence, all these Respondents
deserve an opportunity of being heard before any decision is taken by this
Hon'ble Court on the issues set out herein.

The Respondents are as follows :

a) Respondent No. 1 is the Hon'ble High Court of Calcutta, acting in its


administrative capacity, acting through its Ld. Registrar General. It is
arrayed as reliefs are sought against it, and its Rules on the Original
Side are sought to be enforced.

b) Respondent No. 2 is the Ld. Registrar (Original Side) of the Hon'ble


High Court of Calcutta. He is arrayed as the onus to issue a Show-Cause
Notice in terms of Rule 16 of the Original Side Rules to Respondent No.
4 to 7 to show cause to Hon'ble Judge in chambers why they should not
be debarred from practicing on the Original Side is on him, but who is
not issuing the same, even though their reprehensible breaches are
writ large on the face of the record, and have been complained of
formally by Petitioner No. 1 as far back as on 09-01-2015.

c) Respondent No. 3 is the Ld. Registrar (Appellate Side) of the Hon'ble


High Court of Calcutta. He is arrayed as certain directions are required
to be issued to him in relation to the Rules.

d) Respondent No. 4 is M/s Khaitan & Co, allegedly a partnership firm,


that claims the right to practice in such an avatar on the Original Side

16
of this Hon'ble Court as an advocate. However, they do not qualify so,
and despite service of the letter dated 09-01-2015 addressed to Ld.
Registrar (Original Side) on them in open Court on 13-01-2015, have
still insisted on doing so. Furthermore, they describe themselves as &
Company in their name even though the use of the phrase and
Company is prohibited by many High Courts under Rules framed by
such High Courts under Section 34 of the Advocates Act, including the
Hon'ble High Court of Karnataka, at whose principal city (Bengaluru)
Respondent No. 4 also has an office, and impermissibly and illegally
practices there also as, and under the name and style of, Khaitan &
Co..

e) Respondent No. 5 is one Mr. Ratnesh Rai, allegedly an advocate. He


allegedly works with Respondent No. 4 (Khaitan & Co.), but as per
informal reports gleaned by the petitioner, is not a partner of the
aforesaid firm. This being so, he has no right to practice on the Original
Side of this Hon'ble Court. Even otherwise, it appears after making
informal inquiries from the office of Respondent No. 2 that he has not
obtained insertion of his name in the Register maintained by
Respondent No. 2 [Ld. Registrar (Original Side)] under Rule 2 of the
Original Side Rules, as a consequence of which he, as per his own
argument put forth before Court No. 24 on 09-01-2015 and other
dates, has no right to practice or seek audience on the Original Side.
Thus, certain directions are sought to be issued to him, so that he does
not interfere in the due course of judicial proceedings, and in the
adminstration of justice.

17
f) Respondent No. 6 is one Mr. Utpal Bose, allegedly an advocate, now
reported to have been designated by this Hon'ble Court vide
Notification No. 2852-A dated 09-06-2014 as a Senior Advocate
within the meaning of the phrase as used in Section 16 of the
Advocates Act (1961) with effect from 30-06-2014. He has been
appearing in CP No. 33 of 1988 since about 2005 or thereabouts,
claiming right to do so as he allegedly has been briefed by Respondent
No. 4 (Khaitan & Co.) / Respondent No. 5 (Mr. Ratnesh Rai), but as per
informal reports gleaned by the petitioner, did not ever file a
vakalatnama to entitle him to so appear in those proceedings. This
being so, his appearance and arguing full-blown pleadings (i.e. other
than ministerial pleadings) is totally illegal. Also, prior to his being
designated as a Senior Advocate, he has not sought correction of
various Court orders passed in various matters, in which he has been
described by the Honble Court concerned (perhaps erroneously) as
Senior Counsel, or senior advocate, even though he had a duty to do
so, so as to not have it alleged against him that he had fraudulently laid
claim to a professional status that he did not possess. He has been
appearing in CP No. 33 of 1988 in January 2015 onwards as Senior
Advcoate being briefed by Khaitan & Company / Mr. Ratnesh Rai, even
though he well knows that they have no right to audience on the
Original Side, meaning that he, too, therefore, by the well-settled
principle of cadit opus fondamento sublato2, would have no right of
audience himself on the Original Side in this particular matter. Even
otherwise, it appears after making informal inquiries from the office of
Respondent No. 2 [Ld. Registrar (Original Side)] that he has not
2 When the foundations falls, the structure falls.

18
obtained insertion of his name in the Register maintained by
Respondent No. 2 under Rule 2 of the Original Side Rules, as a
consequence of which, as per his own argument put forth before Court
No. 24 on 09-01-2015 and other dates, he has no right to practice or
seek audience on the Original Side.

g) Respondent No. 7 is one Mr. Joy Saha, allegedly an advocate. He has


been appearing in CP No. 33 of 1988 since about 09-01-2015, claiming
right to do so as he allegedly has been briefed by Respondent No. 3
(Khaitan & Co.) / Respondent No. 4 (Mr. Ratnesh Rai), but as per
informal reports gleaned by the petitioner, did not ever file a
vakalatnama to entitle him to so appear. This being so, his appearance
and arguing full-blown pleadings (i.e. other than ministerial
pleadings) is totally illegal. He has been appearing in CP No. 33 of 1988
as non-Senior Advocate being briefed by Khaitan & Company / Mr.
Ratnesh Rai, even though he well knows that they have no right to
audience on the Original Side, meaning that he, too, therefore, by the
well-settled principle of cadit opus fondamento sublato, would have no
right of audience himself on the Original Side, at least in the
aforementioned proceeding. Even otherwise, it appears after making
informal inquiries from the office of Respondent No. 2 [Ld. Registrar
(Original Side)] that he has not obtained insertion of his name in the
Register maintained by Respondent No. 2 under Rule 2 of the Original
Side Rules, as a consequence of which he, as per his own argument put
forth before Court No. 24 on 09-01-2015 and other dates, has no right
to practice or seek audience on the Original Side.

19
h) Respondent No. 8 is the Bar Council of West Bengal. They have been
arrayed as the licence of the advocates who are partners, associates,
employees of Khaitan & Co to practice the law is sought to be cancelled
for gross professional misconduct, by taking suo motu cognizance of
the vile acts of reprehensible professional misconduct committed by
them. (However, owing to the high possibility of misplaced loyalties of
Respondent No. 8, as back-up, Respondent No. 9 also is arrayed for the
reasons set out alongside its name.)

i) Respondent No. 9 is the Bar Council of India. It is arrayed as


directions are sought to it to transfer the case of professional
misconduct from the Bar Council of West Bengal to itself under Section
35 of the relevant Rules for disciplinary proceedings, because owing to
the clouot Respondent No. 4 and its partners enjoy in the State of West
Bengal, it is unlikely that any action, other than mere pro forma
(merely for public consumption) will be taken by Respondent No. 8
against Respondent No. 4.

HISTORICAL EVOLUTION OF THE LAW ON ADVOCATES RIGHTS AND


DUTIES

7.

The historical evolution of the law on the rights and duties of advocates
can be seen from the following events, presented chronologically below :
Sl.
No.

DATE

EVENT

1.

1772

By an Act of Settlement, the British Parliament

20
recognized the prerogative of the East India
Company to administer civil justice through
Sadar Diwani Adalats, in terms of the authority
so received by it from the Mughal Emperor.
2.

Prior to 1780

Justice was dispensed by Adalats, which were


assisted

by

Pandits

and

Maulvies.

Their

opinions were generally accepted by the Courts


while handing out a verdict.
3.

1774

The Supreme Court started functioning at


Calcutta. However, Indians were not allowed to
practice there, and it was only the preserve of
English Barristers. As a direct result of this
anomaly, its functioning was marred by the first
case itself (that of Maharaja Nanda Kumar, who
was defended by Thomas Farrer). As the British
Barristers did not know the local language, the
complications arising from such ignorance (and
even the law that was applicable) resulted in a
blatant miscarriage of justice in that case, which
smeared the first Court erected in India by a
statute of British Parliament.

4.

1780

Regulation of 1780 was passed by the East India


Company for the Sadar and Provincial Diwani
Adalats. In its 13th section, it spoke of vakeels who
could put questions to witnesses. Immediately

21
prior to this, the real job of lawyers was being
performed by Pandits and Maulvies.
5.

1793

When the Vakeels previously appeared in the


Adalats, no enquiries were made to ascertain
whether they were qualified to plead the cause. As
a result, many a time, trials were protracted
because of production of unnecessary exhibits, or
asking

of

irrelevant

questions,

etc.

The

authorities, therefore, decided that pleading of


causes should be made a distinct profession. It
was decided that no person should be admitted to
plead in the Courts unless he was a man of
character and education, and well-versed in the
Mohammedan or Hindu Laws, and in the
Regulations enforced by the Company.
Hence, Bengal Regulation No. VII of 1793 was
enacted. By its means, for the first time, a regular
legal profession for the courts was set up by the
East India Company. By its means, it also provided
for appointment of Native Pleaders in the Courts
of Civil Judicature for the Provinces of Bengal,
Bihar and Orissa. It was also decided that these
lawyers should be subjected to rules and
restrictions calculated to ensure to their clients a
diligent and faithful discharge of the trusts
reposed in them by their clients as well as by the

22
courts. The Regulation authorized the Sadar
Diwani Adalat to admit a suitable number of
vakeels, to issue them Charter to practice in
different courts, and to prescribe qualifications for
their enrolment. It also provided for disciplinary
jurisdiction of the Sadar Diwani Adalats on the
vakeels.
It is, perhaps, from this time onwards that the
phrase Officer of the Court is being used to
describe a pleader, as he had official sanction as
well as support of the specific court before whom
he practiced.
6.

1814

Regulation XXVII of 1814 brought about some


changes in the legal profession. It prohibited
practice of law by persons other than those
enrolled by the Sadar Diwani Adalats, and
restricted the profession to individuals of Hindu
and Mohammedan persuasion.

7.

1833

The

invidious

communal

provision

in

the

Regulation of 1814 was abolished by the


Regulation XII of 1833, and the office of
pleaders was made open to persons of all
religions or nationality. As a result, thereafter,
every qualified person became eligible to be
enrolled as a pleader of the Sadar Diwani Adalat.

23

8.

1861

The Indian High Courts Act of 1861 came to be


enacted.

9.

1862

The Letters Patent of 1862 was passed into law.


Clauses 7-10 of the Letters Patent empowered the
High Courts to admit 3 classes of practitioners :
advocates, vakeels and attorneys, and to exercise
disciplinary jurisdiction over them.

10.

1865

The Revised Letters Patent of 1865 was enacted,


whereby its Clause 9 authorised the High Courts
to approve, admit and enroll 3 classes of
practitioners

Advocates, Vakeels, and

Attorneys. Advocates in this sense meant


Barristers. The persons so admitted were
entitled to appear for the suitors of the High
Courts, and to plead or act according to the rules
framed by the High Courts, or directions issued to
them.
11.

1866

The Madras High Court allowed Vakeels who,


hitherto, were only allowed to appear on its
Appellate Side, to also appear on its Original Side.
(The logic of previously allowing them to appear
only on the Appellate Side was that the High
Court, in its Appellate jurisdiction, was an
extension of the Sadar Diwani Adalats.)

12.

1879

The Legal Practitioners Act of 1879 was enacted,

24
which made important changes in the law, namely
:
(a) the office of pleader was now thrown open to
all persons of any nationality or religion, so long
as they were duly certified by the Sadar Diwani
Adalat ;
(b) the definition of legal practitioner now
included 6 categories viz. advocate or vakil or
attorney of any High Court, and also, a pleader,
mukhtar or revenue agent.
(c) Attorneys and Barristers of Her Majestys
Courts (usually, Englishmen) who, thus far, were
not permitted to practice, as of right, in the Sadar
Diwani Adalats, were now allowed to plead in the
Adalats, subject to rules in force in such Adalats ;
(d) the pleaders were permitted to enter into
agreements with their clients for their fees for
professional services.
(e) For the first time, elaborate provisions were
made in respect of disciplinary jurisdiction over
the pleaders.
The consequence of this Act was that from now
on, though Barristers and Attorneys (usually,
Englishmen) were permitted to practice in the
courts erected by the East India Company (the

25
Sadar Diwani Adalats), however, an Indian legal
practitioner could not appear before the Supreme
Courts.
13.

1886

Under the amended Rules of the Madras High


Court, a law graduate was qualified to be admitted
as a Vakeel if he passed an examination in
procedure and underwent practical training with
a practicing lawyer for a year. Thus, from now on,
in the Madras High Court, there was no distinction
between Barristers, Vakeels and Attorneys insofar
as zone of practice was concerned, and under its
Rules, Vakeels and Attorneys could also act on its
Original Side.
However, this was not so, for example, with the
Bombay High Court, where vakeels still could not
act or plead on its Original Side.

14.

1899-1908

During the tenure of Chief Justice Jenkins of the


Bombay High Court, while there was institutional
persuasion to get talented Vakeels to start to
practice on its Original Side, however, this was
still subject to the limitation that the Advocates of
the Original Side, whether Barristers or nonBarristers, had to be instructed by an Attorney
before they could appear and plead on the
Original Side.

26

But in Calcutta, only the Advocates (i.e. the


Barristers of England and Ireland, and the
Advocates of Scotland) were entitled to appear
and plead on its Original Side, although on the
instructions of an Attorney. They were also
entitled to appear and plead on the Appellate Side.
However, Vakeels were not entitled to act or
plead before the High Court (successor to the
Supreme Court) on the Original Side, or even in
appeals from the Original Side, and could only act
and plead in the Sadar Diwani Adalats, and in
appeals before the High Court from matters
before the Sadar Diwani Adalats.
As a result, Advocates (Barristers) could only
appear and plead on the Original Side on the
instructions of an Attorney empowered to act on
the Original Side, whereas on the Appellate Side,
they were allowed both to act and plead, as in the
Sadar Diwani Adalats.
Thus, there came to be an invidious distinction in
the Calcutta High Court (which, then, was the
capital of the Indian Empire) between the rights of
Barristers, Vakeels and Attorneys, and it is from
this distinction that grew the practice on its
Original Side that pleading would be confined to

27
Barristers, and acting to Solicitors, whereas on
its Appellate Side, even vakeels could plead as
well as act, just as they did before the Sadar
Diwani Adalats.
15.

1908

The Code of Civil Procedure was enacted.


Keeping in mind the three distinct classes of legal
practitioners

in existence under The Legal

Practitioners Act of 1879 (i.e. Barristers, Vakeels


and Attorneys), and in order to render itself
harmonious with the then-prevailing practice of
the Chartered High Courts under the Letters
Patent of making provisions of who, under The
Legal Practitioners Act of 1879, could act, and
who could appear and who could plead,
provided in Order III Rule IV, a sub-Rule V, and
also, a proviso to the same.
The contents of the same are reproduced below,
because from a plain reading of these provisions,
it is clear that these provisions were inserted in
the Code to meet the legal exigencies of that time
as existing under The Legal Practitioners Act of
1879, but after enactment of The Advocates Act of
1961,

these

provisions

are

now

redundant, as well as contrary to law :

patently

28
(5) No pleader who has been engaged for
the purpose of pleading only shall plead on
behalf of any party, unless he has filed in
Court a Memorandum of Appearance
signed by himself and stating :-

(a) the names of the parties to the


suits,
(b) the name of the party for whom
he appears, and
(c) the name of the person by whom he is
authorised to appear :

Provided that nothing in this sub-rule shall


apply to any pleader engaged to plead on
behalf of any party by any other pleader
who has been duly appointed to act in
Court on behalf of such party.
The fact that the Code of Civil Procedures
provisions relating to pleaders were framed by
the contents of The Legal Practitioners Act of 1879
is self-evident from the Definition of pleader at
Section 2(15) of the Code, which is now totally
contrary to the Advocates Act of 1961, as it says as
follows :

29
2(15) "pleader" means any person entitled to
appear and plead for another in Court, and includes
an advocate, a vakil and an attorney of a High
Court;

This triple terminology has now been rendered


redundant by the Advocates Act of 1961, clearly
showing the need for re-visiting the Code, and
therefore,

also

re-visiting

the

real

and

concurrently-contextual meaning of Order III Rule


4s sub-rule (5) (especially including its proviso), if
not its very existence.
16.

1914

The Hon'ble High Court of Calcutta promulgated


the Calcutta High Court (Original Side) Rules, 1914,
(presumably)

in

exercise

of

the

relvant

empowering Clause in its Letters Patent and / or


Section 122 of the Code of Civil Procedure, 1908.
These Rules defined the basis and credentials for
advocates desirous of practicing on the Original
Side.
17.

1923

In November 1923, a private Bill was moved in


the Central Legislative Assembly to amend the law
as to legal practitioners, and to create an All-India
Bar. In consequence, the Government constituted
the

Indian

Bar

Committee

under

the

Chairmanship of Sir Edward Chamier who had

30
been the Chief Justice of the Patna High Court, and
then, the Legal Adviser and Solicitor to the
Secretary of State of India at London.
18.

1924

In February 1924, the Chamier Committee


submitted its report. It did not consider it feasible
to organize the Bar on an All-India basis, or to
constitute an All India Bar Council.
Instead, it suggested that :
a) in all the High Courts, there be established a
single grade of practitioners entitled to
plead, who should be called Advocates,
the only distinction being that if special
conditions are placed for admission to
plead on the Original Side, the distinction
within that single grade being those
entitled to appear on the Original Side, and
those not entitled to do so.
b) Subject to certain conditions being fulfilled,
Vakeels should also be allowed to plead on
the Original Side of the three Chartered
High Courts i.e. Calcutta, Madras and
Bombay.
c) Each High Court should constitute a Bar
Council, which should have the power to
enquire into matters calling for disciplinary

31
action against a lawyer ; and
d) The disciplinary powers should rest with
the High Court, but before taking any
action, it should refer the matter to the Bar
Council for enquiry and report.
19.

1926

To implement the recommendation of the


Chamier Committee, the Indian Bar Council Act
of 1926 was enacted, which to some extent
brought about the unification and autonomy of
the Bar. By this, it allowed the High Courts to
retain its power to prescribe who could appear on
its Original Side, and who could not. As a result,
advocates enrolled with other High Courts could
not, as a matter of right, appear in other High
Courts ; they could do only with prior permission
of the Chief Justice, which many a time was
denied.

20.

1949

The Bombay High Court took the first step of


doing away with two Bars, though it retained the
distinction that Advocates could still not act on
the Original Side unless instructed by Attorneys.

21.

1951

In response to persistent and wide-spread


demand for an All-India Bar, the Government of
India appointed the All-India Bar Committee
under the chairmanship of Justice Mr. S. R. Das of

32
the Supreme Court.
22.

1951

The Supreme Court Advocates (Practice in High


Courts) Act, 1951 was enacted.

23.

1952

On a challenge raised by Mr. Aswini Kumar Ghosh


(an Advocate practicing in the Supreme Court) to
the refusal of the Calcutta High Court to allow him
to appear there, in a majority 3:2 decision of a 5Judge Bench, it was held that an Advocate of the
Supreme Court was entitled as of right to appear
and plead as well as to act in all the High Courts.
(Justice Mr. S. R. Das, Chairman of the All-India
Bar Committee constituted in 1951, was one of
the two dissenting Judges.)

24.

1960

The Bombay High Court allowed that in limited


areas, an Advocate could appear and plead on the
Original Side without being instructed by an
Attorney, areas such as applications under Article
226 of the Constitution, and in taxation matters
such as those relating to Income Tax, Wealth Tax,
Gift Tax, etc.

25.

1961

Owing, inter alia, to rising costs for litigants on the


one hand by the dual system of Attorneys and
Advocates (Barristers), and objections from
within the profession on the other, the Advocates
Act of 1961 was enacted, which unified all the

33
four classes of legal practitioners existing hitherto
(i.e.

pleaders,

vakeels,

Advocates,

and

Attorneys), and from that date onwards, there is


only one single class of Advocate who is entitled
to practice the profession of law in India, from the
lowest to the highest court in the land.
Most significantly, by its Section 51, it stipulated
as follows :
51.

Rule of construction.- On and from the

appointed day, references in any enactment to an


advocate enrolled by a High Court in any form of
words shall be construed as references to an
advocate enrolled under this Act.
By its Section 50, it also repealed the following
enactments, including those of the Letters
Patent as specified therein :
50.

Repeal of certain enactments.- (1) On the

date on which a State Bar Council is constituted


under this Act, the provisions of sections 3 to 7
(inclusive), sub-sections (1), (2) and (3) of section 9,
section 15 and section 20 of the Indian Bar Councils
Act, 1926 (38 of 1926), shall stand repealed in the
territory for which the State Bar Council is
constituted.

34
(2)

On the date on which Chapter III comes into

force, the following shall stand repealed, namely:-(a)

sections 6, 7, 18 and 37 of the Legal

Practitioners Act, 1879 (18 of 1879), and so much


of sections 8, 9, 16, 17, 19 and 41 of that Act as
relate to the admission and enrolment of legal
practitioners;
(b)

sections 3, 4 and 6 of the Bombay Pleaders

Act, 1920 (Bombay Act 17 of 1920);


(c)

so much of section 8 of the Indian Bar

Councils Act, 1926 (38 of 1926), as relates to the


admission and enrolment of legal practitioners;
(d)

the provisions of the Letters Patent of

any High Court and of any other law in so far as


they relate to the admission and enrolment of
legal practitioners.
(3)

On the date on which Chapter IV comes into

force, the following shall stand repealed, namely:-(a)

sections 4, 5, 10 and 20 of the Legal

Practitioners Act, 1879 (18 of 1879), and so much


of sections 8, 9, 19 and 41 of that Act as confer on
legal practitioners the right to practice in any court
or before any authority or person;

35
(b)

sections 5, 7, 8 and 9 of the Bombay

Pleaders Act, 1920 (Bombay Act 17 of 1920);


(c)

section 14 of the Indian Bar Councils Act,

1926 (38 of 1926) and, so much of sections 8 and 15


of that Act as confer on legal practitioners the right
to practice in any court or before any authority or
person;
(d)

the Supreme Court Advocates (Practice in

High Courts) Act, 1951 (18 of 1951);


(e)

the provisions of the Letters Patent of

any High Court and of any other law conferring


on legal practitioners the right to practice in
any court or before any authority or person.
(4)

On the date on which Chapter V comes into

force, the following shall stand repealed, namely:-(a)

sections 12 to 15 (inclusive), sections 21 to

24 (inclusive) and sections 39 and 40 of the Legal


Practitioners Act, 1879 (18 of 1879), and so much
of sections 16, 17 and 41 of that Act as relate to the
suspension,

removal

or

dismissal

of

legal

practitioners;
(b)

sections 24 to 27 (inclusive) of the Bombay

Pleaders Act, 1920 (Bombay Act 17 of 1920);

36
(c)

sections 10 to 13 (inclusive) of the Indian

Bar Councils Act, 1926 (38 of 1926);


(d)

the provisions of the Letters Patent of

any High Court and of any other law in so far as


they relate to the suspension, removal or
dismissal of legal practitioners.
(5)

When the whole of this Act has come into

force-(a)

the remaining provisions of the Acts

referred to in this section which do not stand


repealed by virtue of any of the foregoing
provisions of this section (except sections 1, 3 and
36 of the Legal Practitioners Act, 1879) (18 of
1879) shall stand repealed;
(b)

the enactment specified in the Schedule

shall stand repealed to the extent mentioned


therein.
26.

1962

The Bar Council of India Rules were enacted


under the Advocates Act of 1961. As per the
definition set out in Part I (Definitions) (b), an
advocate means an advocate enrolled in any roll
under the provisions of the Advocates Act. Part VI,
Chapter II, Section II, Rule 19 of the Rules states
that : An advocate shall not act on the instructions

37
of any person other than his client or his
authorized agent. (Explanatory Note : Authorised
agent cannot include another pleader, since
Rule 2 has defined agents in Rule 2(a) and Rule
2(b),

and

furthermore,

Rule

also

has

contextually defined agent.)


27.

17-04-1962

28.

1973

The Bar Council of West Bengal came into being.


The Code of Criminal Procedure, 1973 was
enacted. It used a different meaning for the word
pleader. Its Section 2(q) reads as follows : 2(q) :
"pleader", when used with reference to any
proceeding

in

any

Court,

means

person authorised by or under any law for the time


being in force, to practise in such Court, and
includes any other person appointed with the
permission of the Court to act in such proceeding;
29.

1976

The Advocates (Amendment) Act was passed,


whereby the special provisions of Section 31
(relating to attorneys) were deleted.

30.

1992

In a judgment of the Bombay High Court in the


case of ONGC vs. Offshore Enterprises, Inc. (AIR
1993 Bomb 217), in a matter argued by many legal
luminaries (including Mr. A. P. Shah, as he was
then known, now Hon'ble Chairman of the Law
Commission, acting then as President of the

38
Maharashtra Bar Council, and Mr. G. E. Vahanvati,
etc), it was held that if a lawyer accepted a brief to
act as Attorney of a client (i.e. as his agent
within the meaning of Order III Rule 1), then he
could not act also simultaneously as his advocate
or pleader.
Therefore, if an advocate signs a Vakalatnaama in
favour of another advocate, means that he has
acted on his own Vakalatnaama as if he is the
agent or power-of-attorney of the client, rather
than his advocate.
This being the case, if one goes by the usual type
of language used in most Vakalatnaamas in Delhi
or Kolkata today, most advocates, if they actually
exercise the power shown therein (i.e. of engaging
another advocate) would have, perhaps, accepted
the brief to actually be the agents / power-ofattorney holder of their clients, and not as their
advocates.
The Bombay High Court, by virtue of its Rules
framed under Section 34(1) of the Advocates Act,
has specifically prescribed the Model Form of
Vakalatnaama for its Courts.
31.

15-06-2011

Section 30 of the Advocates Act was notified and


went into force. With this, all the provisions of the

39
aforesaid Act now stand as in force, thus,

by

virtue of Section 50(2)(d), Section 50(3)(e) and


Section 50(4)(d), repealing all contrary provisions
that may have evolved under, inter alia, Letters
Patent as well.

SPECIFIC FACTS OF THE PRESENT MATTER :


8.

That Petitioner No. 1 has been engaged by Petitioner Nos. 2-3 to act in
their matters which are pending before this Hon'ble Court. Accordingly, in
discharge of his professional duties, he came to the Calcutta High Court to
argue some matters relating to Petitioner No. 2 on 09-01-2015 i.e. CP No.
33 of 1988, a matter specially assigned to the Court of Hon'ble Mr. Justice
Anirudh Bose, and some other matters.

9.

That to his shock, during the hearing, instead of allowing the long-pending
matter to proceed on its merits, Respondent Nos. 5-7 tried their level best
to thwart his right to practice his profession, by raising all sort of frivolous
and vexatious objections to his appearance in the Court as an advocate.
Chiefly, they objected that as per Chapter I of the Original Side Rules, he
could not practice on the Original Side of this Hon'ble Court, on the
grounds that his name had not been inserted in the Register required to be
maintained by Respondent No. 2 [Ld. Registrar (Original Side)] under Rule
2 of the Original Side Rules.

10.

That as a consequence, they unreasonably urged the Honble Court to deny


the Petitioner No. 1 the right of audience, even though the Honble court,

40
by virtue of the proviso to Rule 5 of the Original Side Rules, is empowered
to allow audience to any other person to appear before it in a particular
cause. Leave is craved to produce copies of the orders passed in CP No. 33
of 1988 from 09-01-2015 to 15-01-2015 at the time of hearing, as they
reflect the stubborn insistence of these individuals that as per the Original
Side Rules, the Petitioner No. 1 could not appear on the Original Side of
this Hon'ble Court.

11.

That this objection was raised (and continued be raised) despite the
Petitioner No. 1 informing the Honble Court that Section 30 of the
Advocates Act had been notified with effect from 15-06-2011, and
consequently, he had a fundamental right guaranteed by Article 19(1)(g)
of the Constitution to practice before this Hon'ble Court. He further
pleaded that even otherwise, he had complied with the requirements of
Rule 4 of the Original Side Rules, no matter how unreasonable and
outdated as it may be. In evidence of his compliance, a copy of his letter
dated 09-01-2015 filed with Ld. Registrar (Original Side) was handed over
to the Honble Court, and a true typed copy of the same is appended
hereto, and is marked as Annexure 2.

12.

That the Petitioner No. 1 further urged the Honble Court that in order to
allow retention of focus on the main issue before the Honble court and
not allow diversionary tactics of Respondent Nos. 5-7 to rule the day, it
may be pleased to exercise its powers in terms of the proviso to Rule 5.
However, no headway could be made owing to the disruptive manner of
urging of their submissions by Respondent Nos. 5-7.

41
13.

That subsequently, pursuant to Petitioner No. 1 subjecting these Rules


cited by the Respondent Nos. 5-7 to obstruct Petitioner No. 1 from
discharging his professional duties both to the Honble Court as well as to
Petitioner No. 2 to 3 to closer scrutiny, the Petitioner No. 1 has found that
it is, in fact, Respondent Nos. 4-7 who are in blatant breach of the same
Rules that they attempted to enforce against Petitioner No. 1, even if it
meant obstructing his fundamental right granted to him by virtue of
Section 30 of the Advocates Act read with Section 50 of the same Act to
practice his profession before any Court in India, even before the Hon'ble
High Court of Calcutta.

14.

In fact, unlike their allegation of purely technical issues against the


Petitioner No. 1, their own breaches are of such a heinous nature that they
do not constitute merely a clerical omission or inadvertent oversight by an
otherwise law-abiding person any more, but constitute virulently-potent
criminal contempt of court that is being consciously and deliberately
committed day-in and day-out by Respondent No. 4 (Khaitan & Company)
in practically every court of the Hon'ble High Court of Calcutta.

15.

That in protest against such patently-illegal conduct by these


Respondents, Petitioner No. 1 caused a letter dated 09-01-2015 to be filed
with Respondent No. 2 [Ld. Registrar (Original Side)]. A copy of the same
is appended hereto, and is marked as Annexure 3.

16.

That vide means of this detailed letter, Petitioner No. 1 pointed out as
many as 7 gross violations of the Rules by Respondent No. 4, and by
Respondent No. 5 to 7, violations which are nit minor, or technical in

42
nature.

The petitioner craves leave to refer and rely upon each

submission made in the aforesaid letter as if reproduced herein in its


entirety, which is not being done so merely to maintain brevity in the
present petition, the onus being on the Respondents to deal with each and
every averment made therein so that they do not paint themselves into a
corner of evasive denial.

17.

That despite serving letter dated 09-01-2015 on Respondent No. 2 [Ld.


Registrar (Original Side)], pointing out the blatant, even unconscionable
violations of law by Respondent No. 4 and its associates, Respondent No.
2 [Ld. Registrar (Original Side)] has not seen it fit to take any action as yet,
except to issue a formal, written confirmation to Petitioner No. 1 vide
letter dated 16-01-2015 acknowledging, inter alia, that the persons
appearing for the aforesaid Khaitan & Co in CP No. 33 of 1988 (vis.
Respondent Nos. 5 to 8) are not partners of the firm. A copy of this letter
dated 16-01-2015 is appended hereto, and is marked as Annexure 4.

18.

That this inaction is shocking, since one of the areas of abuse is that Rule
9(g) stipulates as follows :
In every case when a partner of a firm of advocates acting on the
Original Side signs any document or writing on behalf of the firm, or
when a sole proprietor of a firm signs a document or writing on
behalf of the firm, he shall do in the name of the firm and shall
authenticate the same by affixing his own signature as a partner or as
a proprietor, as the case may be.

43
In blatant violation of this rule, it appears that Respondent No. 4, in order
to achieve its own convebience even if this be by deceiving the Hon'ble
courts, has been scribbling the phrase Khaitan & Co at the place where
the filing individual [who can only be a partner of the firm, and duly
registered as such as per Rule 2 read with Rule 9(d)] is supposed to affix
his own signature.

Therefore, it could very well be that it is Secretaries / Clerks / peons /


drivers of Respondent No. 4 who may have been signing the pleadings
filed before this Honble Court. This, apart from constituting criminal
contempt of court, also constitutes creation of false evidence, and the
pleadings as filed constitutes forgery in as much as it constitutes
creation of a false document within the meaning of the 2 words as used
in Section 463 and 464 of the Indian Penal Code, as they have purported to
create a document (the filing-eligible pleading) that meets the first
description of a false document as set out in Section 464 of the Indian
Penal Code, which says that a person is said to make a false document
when he dishonestly or fraudulently makes, signs, seals or executes a
document (or part of a document), or makes any mark denoting the
execution of a document, with the intention of causing it to be believed
that such document (or part of a document) was made, signed, sealed or
executed by (or by the authority of) a person by whom (or by whose
authority) he knows that it was not made, signed, sealed or executed,
or.

44
This would be clear from a sample filing done by Khaitan & Co in the
Hon'ble High Court of Calcutta, a copy of which is appended hereto, and
marked as Annexure 14.

In this regard, it is relevant to highlight even if an advocate working with


Khiatan & Company scrawled the phrase Khaitan & Company, a forgery
may have come into existence in light, inter alia, of Explanation I to
Section 464, which stipulates that A man's signature of his own name
may amount to forgery, read with its Illustration (a), which states that A
signs his own name to a bill of exchange, intending that it may be believed
that the bill was drawn by another person of the same name. A has
committed forgery.

This is because the signing advocate knows that the signature on the
pleading is that to be of a Partner only, and by executing the phrase
Khaitan & Co in his own handwriting in the pleading where the partner
is to sign, he has purported that the pleading has been signed by a Partner
of Khaitan & Co. in order to render the pelading or motion eligible to be
filed in this Hon'ble Court and placed for judicial consideration. That being
so, such reprehensible conduct squarely meets the definition of creation of
a false document within the meaning of Section 464 of the Indian Penal
Code, and therefore, of a forgery within the meaning of Section 463 of
the same Code, and both the executant and all the partners of Khaitan &
Company at the relvant time(s) are liable for criminal prosecution for this
reprehensible act of forgery, for a violatiom of the Indian Penal Code, as
well as for criminal contempt under the Contempt of Courts Act (1971)

45
read with Article 215 of the Constitution, as well as for blatant
professional misconduct under the Bar Council Rules.

The provisions of Section 463 and 464 of the Indian Penal Code are
reproduced for the ease of referral below :
463. Forgery.--Whoever makes any false document or part of a
document with intent to cause damage or injury, to the public or to
any person, or to support any claim or title, or to cause any person to
part with property, or to enter into any express or implied
contract, or with intent to commit fraud or that fraud may be
committed, commits forgery.
464. Making a false document.--A person is said to make a false
documentFirst.-Who dishonestly or fraudulently makes, signs, seals or executes
a document (or part of a document), or makes any mark denoting the
execution of a document, with the intention of causing it to be
believed that such document (or part of a document) was made,
signed, sealed or executed by (or by the authority of) a person by
whom (or by whose authority) he knows that it was not made, signed,
sealed or executed, or
Secondly.-Who,
without lawful authority,
dishonestly or
fraudulently, by cancellation or otherwise, alters a document in any
material part thereof, after it has been made or executed either by
himself or by any other person, whether such person be living or dead
at the time of such alteration; or
Thirdly.-Who dishonestly or fraudulently causes any person to sign,
seal, execute or alter a document, knowing that such person by reason
of unsoundness of mind or intoxication cannot, or that by reason of
deception practised upon him, he does not know the contents of the
document or the nature of the alteration.
Illustrations
(a) A has a letter of credit upon B for rupees 10,000, written by Z. A, in
order to defraud B, adds cipher to the 10,000, and makes the sum
1,00,000 intending that it may be believed by B that Z so wrote the
letter. A has committed forgery.
(b) A without Z's authority, affixes Z's seal to a document
purporting to be a conveyance of an estate from Z to A, with the
intention of selling the estate to B and thereby of obtaining from B the
purchase-money. A has committed forgery.

46

(c) A picks up a cheque on a banker signed by B, payable to bearer,


but without any sum having been inserted in the cheque. A
fraudulently fills up the cheque by inserting the sum of ten thousand
rupees. A commits forgery.
(d) A leaves with B, his agent, a cheque on a banker, signed by A,
without inserting the sum payable and authorizes B to fill up the
cheque by inserting a sum not exceeding ten thousand rupees for the
purpose of making certain payments. B fraudulently fills up the cheque
by inserting the sum of twenty thousand rupees. B commits forgery.
(e) A draws a bill of exchange on himself in the name of B without
B's authority, intending to discount it as a genuine bill with a banker
and intending to take up the bill on its maturity. Here, as A draws the
bill with intent to deceive the banker by leading him to suppose that
he had the security of B, and thereby to discount the bill, A is guilty of
forgery.
(f) Z's will contains these words-"I direct that all my remaining
property be equally divided between A, B and C." A dishonestly
scratches out B's name, intending that it may be believed that the
whole was left to himself and C. A has committed forgery.
(g) A endorses a Government promissory note and makes it payable to
Z< for his order by writing on the bill the words "Pay to Z or his order"
and signing the endorsement. B dishonestly erases the words "Pay to
Z or his order", and thereby converts the special endorsement into a
blank endorsement. B commits forgery.
(h) A sells and conveys an estate to Z. A afterwards, in order to defraud
Z of his estate, executes a conveyance of the same estate to B, dated
six months earlier than the date of the conveyance to Z, intending it
to be believed that he had conveyed the estate to B before he
conveyed it to Z. A has committed forgery.
(i) Z dictates his will to A. A intentionally writes down a different
legatee named by Z, and by representing to Z that he has prepared
the will according to his instructions, induces Z to sign the will. A has
committed forgery.
(j) A writes a letter and signs it with B's name without B's authority,
certifying that A is a man of good character and in distressed
circumstances from unforeseen misfortune, intending by means of
such letter to obtain alms from Z and other persons. Here, as A made a
false document in order to induce Z to part with property, A has
committed forgery.
(k) A without B's authority writes a letter and signs it in B's name
certifying
to A's character, intending thereby to obtain
employment under Z. A has committed forgery inasmuch as he
intended to deceive Z by the forged certificate, and thereby to induce Z
to enter into an express or implied contract for service.

47

Explanation I. - A man's signature of his own name may amount to


forgery.
Illustrations
(a) A signs his own name to a bill of exchange, intending that it may be
believed that the bill was drawn by another person of the same name. A
has committed forgery.
(b) A writes the word "accepted" on a piece of paper and signs it with
Z's name, in order that B may afterwards write on the paper a bill of
exchange drawn by B upon Z, and negotiate the bills as though it had
been accepted by Z. A is guilty of forgery; and if B, knowing the fact,
draws the bill upon the paper pursuant to A's intention, B is also guilty
of forgery.
(c) A picks up a bill of exchange payable to the order of a different
person of the same name. A endorses the bill in his own name,
intending to cause it to be believed that it was endorsed by the person
to whose order it was payable; here A has committed forgery.
(d) A purchases an estate sold under execution of a decree against
B. B, after the seizure of the estate, in collusion with Z, executes a
lease of the estate to Z at a nominal rent and for a long period and
dates the lease six months prior to the seizure, with intent to defraud
A, and to cause it to be believed that the lease was granted before the
seizure. B, though he executes the lease in his own name, commits
forgery by antedating it.
(e) A, a trader, in anticipation of insolvency, lodges effects with B for
A's benefit, and with intent to defraud his creditors; and in order to
give a colour to the transaction, writes a promissory note binding
himself to pay to B a sum for value received, and antedates the note,
intending that it may be believed to have been made before A was on
the point of insolvency. A has committed forgery under the first head
of the definition.
Explanation 2.-The making of a false document in the name of a
fictitious person, intending it to be believed that the document was
made by real person, or in the name of a deceased person, intending it
to be believed that the document was made by the person in his
lifetime, may amount to forgery.
Illustration
A draws a bill of exchange upon a fictitious person, and
fraudulently accepts the bill in the name of such fictitious person with
intent to negotiate it. A commits forgery.

48
19.

That seeing these Respondents using their good offices in influencing


officials of the Hon'ble High Court of Calcutta (as was self-evident from
the fact that no action or tardy action was being taken on his letter
dated 09-01-2015), the Petitioner No. 1 addressed a letter on 19-01-2015
to Honble the Chief Justice, urging her to issue suitable directions so that
the law may be enforced uniformly, but more so that the criminal
contempt taking place in CP No. 33 of 1988, as well as pleadings being
filed in numerous other proceedings, would be arrested. A copy of the
same is appended hereto, and is marked as Annexure 5.

20.

That thereafter, these persons continued to use their pernicious influence


at all levels in the Hon'ble High Court to see to it that 4 applications
drafted and being filed by Petitioner No. 1 on behalf of Petitioner No. 2 in
the Hon'ble Calcutta High Court were not being accepted on one frivolous
pretext or another since Friday, 16-01-2015, thus, to ensure that they
could not be listed on the next available Senior Citizens day, which is 2201-2015.

21.

That no doubt, part of the motivation for their obstructive tactics was
because 2 out of these 4 applications were extremely injurious to their
own position, one seeking initiation of criminal contempt proceedings (for
their reprehensible resort to approbate and reprobate on a point of law,
as counsels), and the 2nd seeking initiation of criminal contempt
proceedings against them, as well as debarring them from any right of
audience or practice at least in CP No. 33 of 1988, because of their
multiple infractions of the Original Side Rules. A copy of the former
application with its Judges Summons is appended hereto, and is colly.

49
marked as Annexure 6, and a copy of the latter application with its Judges
Summons is appended hereto and is colly. marked as Annexure 7. To the
former is appended a copy of Legal Notice issued by Petitioner No. 1 to
Respondent No. 4 and to its clients dated 11-01-2015, transmitted also by
email on 13-01-2015, which sets out the manner in which this law firm
has patently been acting in furtherance of a criminal purpose, and playing
a colossal fraud on the Courts, right up to the Hon'ble Supreme Court.

22.

That aggrieved by the behind-the-scenes manipulations being resorted


to by people associated with Respondent No. 4 in trying to obstruct listing
of these 4 applications, the Petitioner No. 1 addressed another letter dated
20-01-2015 to Ld. Registrar (Original Side), putting all these
developments on record. A copy of this letter is appended hereto, and is
marked as Annexure 8.

23.

That despite all these representations relating to the multiple infractions


of the law, Respondent No. 4-7 are continuing to practice (rather, are
being permitted to continue to practice) on the Original Side, even when
they patently have no right to do so.

24.

That their insisting on doing so is also an interference in the due course of


judicial proceedings, and also, an interference in the administration of
Justice, which constitute criminal contempt under the Contempt of Courts
Act and Article 215 of the Constitution.

RATIONALE BEHIND THE NECESSITY OF INCLUSION OF THE NAMES


OF ALL THE PARTNERS IN THE NAME OF A LAW FIRM

50

25.

That it gets worse : Respondent No. 4 is violating the very rationale of


why, even as per international norms followed world-wide even today, the
name of a law firm must be that of its partner(s). The rationale is that the
firm must be associated indelibly in the perception of the public with the
actual advocate(s) behind the firms name. The petitioner appends as
Annexure 9 a very recent news article, in which there is a reference to
Khaitan, but without setting out which particular Khaitan firm : whether
it is Khaitan & Co, or whether it is Khaitan and Khaitan, or whether
whether it is O. P. Khaitan & Co. Even though Petitioner No. 1 is a lawyer,
even he cannot figure it out automatically.

26.

That this incident, as an example of many other similar incidents, shows


how important it is to have the name of the firm associated with the
individual(s) behind it, as a deviation from this well-settled norm not only
misleads the public, but also, inter alia, enables one law firm to unduly
encash on the goodwill, reputation and frame of another, as well as vice
versa, whereby the disrepute brought upon one law firm may unfairly be
attached to another.

27.

That the latter aspect of the matter (i.e of one bringing disrepute to
another) is borne out from another incident, which has now come to be
known as the Choppergate Scam. In that incident, there has been
reported the recent arrest of one Mr. Gautam Khaitan. A very large
number of people believe this gentleman to be associated with
Respondent No. 4, and it is unknown even to petitioner No. 1 (who is in
the same profession) as to whether the aforementioned individual is

51
associated with Respondent No. 4, or with some other law firm with the
name Khaitan in it.
28.

That this is why, in the West, the name of the firm is usually the surname
of all the various partners, even if the name of the firm becomes long and
unwieldy. As an example, there is a law firm in the US which has the
following name, which has as many as 9 partners names in it : Ziffren,
Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman, Cook, Johnson, Lande
& Wolf. (http://blogs.wsj.com/law/2007/01/03/the-longest-law-firmname-ever-part-ii/). Another example : Butlwer, Wooten, Cheeley and
Peak LLP. (Source : http://www.butlerwooten.com/Car-Accidents/).
Another example : Wahn, Mayer, Smith, Creber, Lyons, Torrance &
Stevenson. (Source :

: http://www.slaw.ca/2010/06/13/law-firm-

names-the-long-and-the-short-of-it/.) Yet another example : Smith Lyons


Torrance Stevenson & Mayer.

29.

That even the name of the law firm set out in the famous Marx Brothers
story, in which there are 5 members of a family called Hungadunga, in
which 4 members were practicing law together in a law firm : their law
firm is called Hungadunga, Hungadunga, Hungadunga, Hungadunga, and
McCormack.

30.

That similarly, if a lawyer has the same surname as another well-known


lawyer, then the firm has to have his full name, and not just his surname.
For example, if there is an advocate by the name of, say, Ram Lal, so long
as there is no other lawyer by the name of Lal, merely putting Lal in
the name of the firm may perhaps suffice in terms of compliance with this

52
Rule. But if there is another Lal, then this Ram Lal would be required to
include his full name Ram Lalin the name of his firm, to distinguish it
from that of the other Lal.

31.

That the relevance of the foregoing submission is that in the legal


profession, there are at least 20 individuals with the name of Khaitan
practicing the law.

32.

That in light of this fact, the law requires that should any one or more of
them decide to partner with other persons to form a law firm, the name of
the law firm must carry the full name of that Khaitan individual(s) so as
to distinguish itself / himself from the other Khaitans who also are
active in the profession.

33.

That the relevance of the foregoing argument also is that in 2008, the
partners of Respondent No. 4 (Khaitan & Company) were apparently
the following 14 individuals, if one goes by the names printed on their
letterhead, a copy of which is appended hereto and is marked as
Annexure 12 :

1.

Pradip Kumar Khaitan

2.

Ram Niranjan Jhunjhunwala

3.

Purushottam Lal Agarwal

4.

Ravi Kulkarni

5.

Nand Gopal Khaitan

6.

Gouri Shankar Asopa

7.

Om Prakash Agarwal

53

34.

8.

Padam Kumar Khaitan

9.

Om Prakash Jhunjhunwala

10.

Rajiv Khaitan

11.

Arvind Kumar Khunkhunwala

12.

Aniket Agarwal

13.

Haigreve Khaitan

14.

Rabindranath Jhunjhunwala

Whereas, of these 14 names, only 2 names stood registered with Ld.


Registrar (Original Side) in February 1977, on which date this same firm,
as per its application filed with Respondent No. 2, had only 8 partners.

35.

That with the change of partners not having been informed to Respondent
No. 2, it is clear that this law firm is, itself, in very material breach of Rule
9 (d) of the Original Side Rules.

36.

This being so, this firm has ceased to comply with the Rules framed by this
Hon'ble Court, thus, warranting action against it under Rule 16, including
debarring them from practice on the Original Side forthwith.

37.

That action is warranted all the more, given that this firm has seen it fit to
interfere with the right of another advocate under the umbrella of these
very Rules, speciously arguing that Rule 2(i) prevailed over Section 30 of
the Advocates Act, 1961.

38.

That the purpose of recounting the stand of the Respondents in CP No. 33


of 1988 is not so as to foolishly enable them to get a handle against the
Petitioner No. 1, by alleging spite and/or vendetta against him as the

54
prime motivation(s) for filing the present petition, but to submit that if
they are so conscious of the Rules, to the extent where they, as selfanointed Guardian of those Rules, have attempted to unreasonably
interfere with the fundamental right of another advocate by citing those
Rules, then this constitutes their own admission that those Rules apply,
proprio vigore, against them also. In other words, before pointing their
own learned fingers at others, they would have done well to have
remembered the old adage, namely, that one must be careful before
pointing a finger at another, lest three of your own fingers point back at
you.
39.

That Respondent No. 4, and Respondent No. 5 to 7 have forgotten that the
burden of lawful conduct is higher on Members of the Bar as compared to
ordinary citizens. Being one of the more prominent law firms in the
country, in which position they should be setting examples for others to
emulate, instead, it is wrecking the system from within.

40.

That from a conversation amongst advocates over-heard by Petitioner No.


1 in the corridors of the the Hon'ble Calcutta High Court on 13-01-2015,
he has been given to understand, and which he verily believes, that even
the oaths sworn by their clients are false inasmuch as, invariably, the
execution is never at the Court House, even though the Oath
Commissioner has certified that it has been Sworn Before me in the
Court House. This can very easily be probed by extracting the CCTV
footage opposite to where the Oath Commissioner sits for those dates that
Respondent No. 4 has filed pleadings in the Hon'ble High Court of Calcutta
(especially allegedly - for CESC), and comparing them with the CCTV
footage of that day. It has been overheard by the petitioner that invariably,

55
the person who has purported to have executed the affidavit in the Court
House was never present in the Court House at the time of doing so. All
this shows a tendency to cock a snoot at the law, as if to project the
premise that the law applies only to others.

RATIONALE BEHIND THE PROHIBITION AGAINST USE OF THE


PHRASE & COMPANY IN THE NAME OF ANY LAW FIRM

41.

That by advocacy Rules, it is prohibited to use the phrase & Company in


the name of a law firm, and for many reasons.

Firstly, it is misleading, as it indicates some sort of business activity, and


not a profession, or indicates something more than a profession.

Secondly, it does not indicate with any clarity as to who are, or the number
of, the advocates in the firm ; rather, it misleads, inter alia, the general
public, as a firm with just 2 partners may use it, as also a firm with 22
partners.

Thirdly, by the very same reasoning of there being a need for the name of
all the partners to be in the name of the firm, the phrase and Company
cannot replace the need to place the names of all the partners.

42.

That this is why a practice of such a downright commercial and


misleading nature is specifically prohibited by the Rules framed, inter alia,
by the Hon'ble Karnataka High Court (Rule 8(d)] and also the Hon'ble
Kerala High Court under Section 34 of the Advocates Act. A copy of the

56
Rules of the Karnataka High Court are appended hereto, and is marked as
Annexure 10.

43.

That the purpose of annexing the Rules of the Hon'ble High Court of
Karnataka to the present writ petition is to show that as per Rule 8(d) of
those Rules, it is expressly forbidden to use the phrase .and Company
as part of a law firms name.

44.

That in other words, even the Registrar of the concerned High Court does
not have their power / authority/ jurisdiction to allow a law firm to use
that phrase as a suffix in its name.

45.

This being so, and since Respondent No. 4 (Khaitan & Co) have an office in
Bengaluru, and where they are using the same name Khaitan & Company
at Bengaluru (as is self-evident from their website, whose print out is
appended hereto and marked as Annexure 11) means that even though
there may be no such express / explicit prohibitory provision in the rules
framed by the Honble High Court of Calcutta, nonetheless, were the
Hon'ble Calcutta High Court to consider allowing them to use the suffix
& Company in their name when that constitutes a blatant violation of
the Rules of Practice of another High Court, would mean a shocking state
of a Constitutional High Court condoning, or being expected to condone,
the very acts that constitute illegal conduct before another sister
Constitutional High Court, if not outright encouragement of such illegal
conduct.
QUESTIONS RAISED :

57

46.

This petition raises several substantial questions of law of constitutional


and public importance as they concern the protection of fundamental
rights of the petitioner, which may be summarized as follows:

Question 1 : Whether any person or firm not registered to practice


as an advocate in the Register maintained by the Ld. Registrar
(Original Side) under Rule 2 of the Calcutta High Court (Original
Side) Rules, 1914 can be permitted by this Hon'ble Court to practice
on the Original Side ?

Answer of the petitioner : The Rules on the Original Side are very
clear. The Respondents themselves have invoked the Rules to seek
restraint against others. Therefore, since, in law, it is settled that
what is sauce for the goose is sauce for the gander, means that it is
the Respondents own case that all persons who do not qualify by
these Rules, even if it be themselves, must be denied permission by
the Ld. Registrar (Original Side) from acting, including appearing,
on the Original Side, as set out in Rule 8.

Question 2 : Whether an advocate otherwise eligible to practice as


an advocate but not a Partner of a law firm be permitted to act on
the strength of a vakalatnama executed in the name of the firm ?

Answer of the petitioner : No. Such advocate would be in breach of


multiple provisions of law.

58
Question 3 : Whether an advocate otherwise eligible to practice as
an advocate but not a Partner of a law firm be permitted to act on
the strength of a vakalatnama executed in the name of the firm but
not accepted by him?

Answer of the petitioner : No. Such advocate would be in breach of


multiple provisions of law, as no contract or representation has
been executed by him. By the doctrine of election, an advocate can
elect whether to practice as an advocate in independent practice, or
elect to practice as a Partner of a law firm. But there is no provision
for an advocate to be a non-partner employee of a law firm, and
then act as if is the advocate engaged by the client, merely because
the client, attracted by the partners of the firm, has appointed the
firm to act for him.

Question 4 : Whether an advocate otherwise eligible to practice as


an advocate but not a Partner of a law firm be permitted to act on
the strength of a vakalatnama executed in the name of the firm and
accepted by him ?

Answer of the petitioner : No. Such a vakalatnama would be a


nullity in law, as the contract of representation (under the laws
relating to agency) can come into being only when accepted by a
duly-authorised Partner.

Question 4 : Whether a law firm may be permitted to use a name


that does not reveal who its Partners are ?

59

Answer of the petitioner : No. Such firm would be in breach of the


letter as well as the spirit of Rule 9 (c) of the Calcutta High Court
(Original Side) Rules, 1914.

Question 5 : Whether a law firm may be permitted the use of the


phrase & Company in its name ?

Answer of the petitioner : No, this would be in violation of Rule 9 (c),


as well as Rules of other High Courts which also would apply here,
mutatis mutandis. And if at all Respondent No. 2 has approved the
name of a firm with the phrase & Company as a suffix in it, as his
act, undoubtedly inadvertent, would be a nullity in law, as it
would have been without any jurisdiction / competence / or
authority in his hands to do so.

47.

The importance of adherence to principles of natural justice (or which


equality before law is an intrinsic and fundamental part) has, time and
again, been reiterated by the courts in India. The Honble Supreme Court,
in Canara Bank & Ors vs. Shri Debasis Das & Ors. [AIR 2003 SC 2041],
stated as under :

17. The adherence to principles of natural justice as recognized


by all civilized States is of supreme importance when a quasijudicial body embarks on determining disputes between the
parties,

or

any

administrative

action

involving

civil

consequences is in issue. These principles are well settled. The first

60
and foremost principle is what is commonly known as audi alteram
partem rule. It says that no one should be condemned unheard. Notice
is the first limb of this principle. It must be precise and unambiguous.
It should appraise the party determinatively the case he has to meet.
Time given for the purpose should be adequate so as to enable him to
make his representation. In the absence of a notice of the kind and
such reasonable opportunity, the order passed becomes wholly
vitiated. Thus, it is but essential that party should be put on notice of
the case before any adverse order is passed against him. This is one of
the most important principles of natural justice. It is after all an
approved rule of fair play. The concept has gained significance and
shades with time. When the historic document was made at (sic) in
1215, the first statutory recognition of this principle found its way
into the "Magna Carta". The classic exposition of Sir Edward Coke of
natural justice requires to "vacate interrogate and adjudicate'. In the
calibrated case of Cooper v. Wandsworth Board of Works 1963 (143)
ER 414, the principle was thus stated: "Even God did not pass a
sentence upon Adam, before he was called upon to make his
defense.Adam" says God, "where art thou has thou (sic) not eaten of
the tree whereof I commanded thee that though should not eat".

19. Principles of natural justice are those rules which have been
laid down by the Courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that
may be adopted by a judicial, quasi-judicial and administrative
authority while making an order affecting those rights. These

61
rules are intended to prevent such authority from doing
injustice.

48.

The significance of citing natural Justice (of which equality before law is
an integral part) is because an act of ommission is as relevant in the eyes
of law as an act of commission. Therefore, an act of omission which results
in a violation of equality before law is as much subject to judicial review
as is a positive act violating the same principles. The significance of
natural Justice in the scheme of things is so much that any order passed
contrary to the principles of natural justice is a nullity in law. This is the
established position, amply evident from the judgment of the Honble
Delhi High Court in the case of Parmod Bagga vs. State [ 2008 CriLJ 792],
in which the court, relying on various Constitution Bench judgments, has
firmly and unequivocally ruled that any order passed contrary to the
principles of natural justice would be a nullity in law. The Honble Court
stated:

12. The right of the applicant on being heard which is her valuable
right is, accordingly, denied to her. The order would, therefore, be in
violation of principle of natural justice. Such an order, as per wellestablished principles is to be treated as void. There are innumerable
decisions of the Supreme Court and High Courts wherein it is settled
that an order passed in violation of the principle of natural justice is
void in law.

DISCRIMINATORY TREATMENT VIS--VIS RULE OF LAW :

62
49.

It is humbly submitted that discriminatory treatment is a sure sign of an


arbitrary exercise of power. Whereas, the negation of arbitrarily-exercised
power is the first essential of the Rule of Law upon which the Indian
constitutional system is based. It is a basic principle of the Rule of Law
that the exercise of power by the Executive or any other Authority must
not only be conditioned by the letter of the Constitution, but must also be
in accordance with the spirit of the Law.

The Supreme Court in P.

Sambamurthy v. State of A.P. [(1987) 1 SCC 362] held that Rule of Law
is a basic structure and an essential feature of the constitution. The
Honble Supreme Court, in Secretary, State of Karnataka & Ors vs.
Umadevi and Ors [AIR 2006 SC 1806] stated as follows :
34. While answering an objection to the locus standi of the Writ
Petitioners in challenging the repeated issue of an ordinance by the
Governor of Bihar, the exalted position of Rule of Law in the scheme of
things was emphasized, Chief Justice Bhagwati, speaking on behalf of
the Constitution Bench in Dr. D.C. Wadhwa and Ors. v. State of
Bihar and Ors. [1987]1 SCR 798 stated:
The Rule of Law constitutes the core of our Constitution of
India and it is the essence of the Rule of Law that the
exercise of the power by the State whether it be the
Legislature or the Executive or any other authority should
be within the constitutional limitations and if any practice
is adopted by the Executive which is in flagrant and systematic
violation of its constitutional limitations, petitioner No. 1 as a
member of the public would have sufficient interest to
challenge such practice by filing a writ petition and it would be

63
the constitutional duty of this Court to entertain the writ
petition and adjudicate upon the validity of such practice.
Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the Rule
of Law is the core of our Constitution, a Court would certainly be
disabled from passing an order upholding a violation of Article 14 or
in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that unless
the appointment is in terms of the relevant rules and after a proper
competition among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual basis, the same
would come to an end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the expiry of his
term of appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for a time
beyond the term of his appointment, he would not be entitled to be
absorbed in regular service or made permanent, merely on the
strength of such continuance, if the original appointment was not
made by following a due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who by the

64
very nature of their appointment, do not acquire any right. High
Courts acting under Article 226 of the Constitution of India, should
not ordinarily issue directions for absorption, regularization, or
permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme. Merely because,
an employee had continued under cover of an order of Court, which
we have described as 'litigious employment' in the earlier part of the
judgment, he would not be entitled to any right to be absorbed or
made permanent in the service. In fact, in such cases, the High Court
may not be justified in issuing interim directions, since, after all, if
ultimately the employee approaching it is found entitled to relief, it
may be possible for it to mould the relief in such a manner that
ultimately no prejudice will be caused to him, whereas an interim
direction to continue his employment would hold up the regular
procedure for selection or impose on the State the burden of paying
an employee who is really not required. The courts must be careful in
ensuring that they do not interfere unduly with the economic
arrangement of its affairs by the State or its instrumentalities or lend
themselves the instruments to facilitate the bypassing of the
constitutional and statutory mandates.

50.

The purported acts and conducts of the Respondents as complained of


hereinabove are wholly without jurisdiction and/or authority of law, mala
fide, arbitrary, capricious, unreasonable, unconstitutional, illegal, null and
void on the grounds afore-mentioned which are, without prejudice to each
other, summarized hereinafter :

65
GROUNDS

I.

BECAUSE if advocates claiming right to various privileges as


Officers of the Court (meaning, Officers tasked to assist the Courts)
and the corresponding right to guide and advise others on what is
the law of the land themselves do not know, or worse, if they know
but deliberately and consciously abuse, the law relating to their
own coveted and privileged position as Officers of the Court, and
refuse to acknowledge or understand the accompanying tandem of
rights-and-mirrored-duties, they can hardly be trusted by the
Courts as its Officers to honestly and faithfully act to protect the
rights of others without further abusing the trust reposed in them
by the Courts, thereby severely prejudicing the due course of
judicial procedings, and causing unconscionable interferences in
the administration of justice.

II.

BECAUSE it is, admittedly, the own case of the Respondents Nos.


4-7 that the right to practice in the Hon'ble High Court of Calcutta
on its Original Side is subject to strict prior compliance with the
Calcutta High Court Rules (Original Side), 1914. They have
vehemently argued before Court No. 24 on 09-01-2015, 13-012015, 14-01-2015 and 15-01-2015 that the right to practice on the
Original Side is subject to prior insertion of the name of the
advocate or the law firm, as the case may be, in the Register
maintained by the Ld. Registrar (Original Side) in accordance with
Rule 2, and ensuing compliance of other applicable Rules.
Respondent No. 4 law firm (M/s Khaitan & Company), presently

66
(as of 2008) composed of 14 Partners whose names are listed on
its letter-head of 2008 (information is subject to conmfirmatiom
by Respondent No. 4), have not complied with, and / or are in
flagrant violation of, Rule 2, Rule 5, Rule 6, Rule 8, Rule 9(a), Rule
9(b), Rule 9(c), Rule 9(g), Rule 9(f), Rule 9(g), Rule 14, Rule 17,
and so on.

III.

BECAUSE if any person or firm does not comply, or ceases to


comply, with the aforesaid Rules, by virtue of Rule 16, Respondent
No. 2 [Ld. Registrar (Original Side)] is mandatorily obliged by the
aforesaid Rules to issue him (or it) a Show-Cause Notice,
returnable to the Hon'ble Judge in Chambers, seeking him (or it)
to Show Cause why he or it should not be debarred from acting on
the Original Side.

IV.

BECAUSE Rules of High Courts require the name of a law firm to


be that of its partners, and consequently, prohibit the use of the
phrase & Company as a suffix in the name of any law firm. Yet, in
blatant defiance of this Rule, Respondent No. 4 (Khaitan and
Company) continue to use that suffix, which is misleading, as also
illegal, if not downright fraudulent.

V.

BECAUSE the name Khaitan & Company (apart from the


argument that use of the suffix & Company in their name is
illegal) is deceivingly similar to that of at least 2 other large law
firms (viz. Khaitan & Khaitan, or O. P. Khaitan & Co), not to
mention similar to around 20 other individuals practicing law in

67
the country under the name Khaitan. Therefore, by their doing
so, they are in blatant violation of the letter as well as spirit of the
law, as it misleads the courts, the general public, other advocates
intending to brief them, the statutory authorities, the regulatory /
investigative authorities, etc.

VI.

BECAUSE the law requires that unless permitted otherwise, the


name of the law firm must bear the name of its partners, from
which it follows that even if it is unsaid in explicit terms, it is
clearly understood in implicit terms that if the surnames of the
partners are similar to other advocates or that of individuals in
other law firms, then they will have to further distinguish the
intended name of their law firm from those other individuals /
firms.

VII.

BECAUSE Respondent No. 5 (Mr. Ratnesh Rai) cannot effect


appearance in CP No. 33 of 1988, as he is not a Partner of
Respondent No. 4, and therefore, cannot accept any vakalatnama
issued in favour of the firm. This being so, in absence of filing of a
vakalatnama, he cannot act in a given matter on the Original Side.

VIII.

BECAUSE Respondent No. 5 (Mr. Ratnesh Rai) cannot effect


appearance in CP No. 33 of 1988 also because he has reportedly
not accepted the vakalatnama that has allegedly been filed by
Respondent No. 4.

68
Put in other words, because the vakalatnama is not in his favour
(by name).

IX.

BECAUSE Respondent No. 5 (Mr. Ratnesh Rai) cannot effect


appearance in CP No. 33 of 1988 also because he has not filed a
duly-executed vakalatnama on the lines of the principles settled by
the Hon'ble Supreme Court in the case of Uday Shankar Triyar vs.
Ram Kalewar Singh (AIR 2006 SC 269).

X.

BECAUSE Respondent No. 6 (Mr. Utpal Bose) cannot effect


appearance in CP No. 33 of 1988, as he is being briefed by Khaitan
& Co, who themselves have no right of audience on the Original
Side in general, but in CP No. 33 of 1988 in particular. Thus, by the
principles of cadit opus fondamento sublato, when his briefing
principal has no right of audience, he himself has no right of
audience.

XI.

BECAUSE Respondent No. 7 (Mr. Joy Saha) cannot effect


appearance in CP No. 33 of 1988, as he is being briefed by Khaitan
& Co, who themselves have no right of audience on the Original
Side in general, but in CP No. 33 of 1988 in particular. In addition,
he is not a Senior Advocate within the meaning of Section 16 of
the Advocates Act (1961), and hence, cannot take it upon himself to
argue full-blown pleadings when the client has not expressed
confidence in him, as evidenced by the lack of issuance of a dulyexecuted vakalatnama in his favour.

69
XII.

BECAUSE if Respondent No. 7 claims that he has been engaged to


argue by Respondent No. 5 / 4 on the strength of the power-ofattorney / vakalatnama issued to them, then this would transform
the status of Respondent No. 5 / 4 into that of an attorney of
their client, and not their clients advocate. In the former status,
Respondent No. 5 / 4 would then lose all rights of acting before
this Hon'ble Court as an advocate in this, or any, matter,
including no right of audience.

XIII.

BECAUSE Rule 9 (g) of the Calcutta High Court (Original Side)


Rules (1914) stipulates that In every case when a partner of a firm
of advocates acting on the Original Side signs any document or
writing on behalf of the firm, or when a sole proprietor of a firm
signs a document or writing on behalf of the firm, he shall do in the
name of the firm and shall authenticate the same by affixing his own
signature as a partner or as a proprietor, as the case may be.
In blatant violation of this rule, it appears that Respondent No. 4,
in order to deceive the courts, has been scribbling the phrase
Khaitan & Co at the place where the filing individual is supposed
to affix his own signature.

Therefore, it could very well be that it is Secretaries / Clerks /


peons / drivers of Respondent No. 4 who may have been signing
the pleadings filed before this Honble Court. This, apart from
constituting criminal contempt of court, also constitutes creation
of false evidence, and the pleadings as filed constitutes forgery

70
in as much as it constitutes creation of a false document within
the meaning of the 2 words as used in Section 463 and 464 of the
Indian Penal Code.

XIV.

BECAUSE a closer reading of Rule 9 (g) makes it crystal-clear that


only a partner of a law firm duly registered under Rule 9(d) can
sign a pleading or motion filed before this Honble court. From this,
it follows that only a partner can accept a Vakalatnama. From this,
it further follows that an advocate taking employment in a law
firm but who is not a partner of the law firm cannot (i) accept a
Vakalatnama in the name of the firm ; (ii) cannot sign any pleading
or motion filed in court on behalf of the firm ; and (iii) cannot act
in any matter pending in court, including lack of entitlement in law
to to claim any right of audience before the court.

XV.

BECAUSE Respondent No. 7 has no right of audience in CP No. 33


of 1988 if it be to plead other than ministerially, partly because
his alleged principal himself has no right of audience, and partly
because he cannot plead full-blown pleadings in absence of filing
of a vakalatnama in his own name, dulu executed byhis client. This
has very serious implications, inter alia, for Section 209 of the
Indian Penal Code (viz. making false claims in Court), read with
Section 193 of the same Code (viz. false evidence).

XVI.

BECAUSE justice is no cloistered virtue.

71
XVII.

BECAUSE justice should never allowed to be a cloistered virtue, no


matter how powerful or well-connected a person may be.

XVIII.

BECAUSE no matter how powerful or well-connected a person, yet


the Law is above him. Respondent No. 4 cannot be permitted to
claim a special status before this Hon'ble Court, or before any
Court.

XIX.

BECAUSE OF ANY OTHER GROUND contained in, or arising from


the pleadings, even if not specifically and / or formally couched
separately as a ground.

XX.

BECAUSE OF ANY OTHER GROUND the petitioner, with due leave


of this Hon'ble Court, may wish to add in the pleadings.

XXI.

BECAUSE OF ANY OTHER GROUND the petitioner, with due leave


of this Hon'ble Court, may wish to add during oral arguments.

51.

The Petitioner Nos. 2 and 3 and the respondents have their place of
residence or their offices in Kolkata. A substantial part of the cause of
action has arisen within the territorial jurisdiction of this Hon'ble Court.

52.

The petitioner has paid the requisite court fees on this petition.

53.

The petitioner has no other alternative efficacious remedy but to approach


this Honble court for the reliefs prayed for herein, and if the same are
granted, they shall be complete, and would afford complete redress.

72

54.

In the facts and circumstances of this case, any further demand for justice
would be an idle and empty formality.

55.

That the petitioner has not filed any such writ petition either before the
Honble Supreme Court or before this Honble Court or before any other
Honble High Court for the same or similar reliefs on the issues raised
herein.

56.

The records of the case are lying at the office of the Ld. Registrar (Origial
Side) and, as such, are within the Original Side Jurisdiction of this Honble
Court.

57.

Unless orders as prayed for herein are made before the next date of listing
of CP No. 33 of 1988 (which is 10-02-2015), your petitioners would suffer
irreparable loss and injury.

58.

That since some / many of the Honble Judges of the Honble High Court of
Calcutta are, reportedly, either from the chamber of Respondent No. 4, or
have relatives there, or have relatives who have become Judges from this
chamber, or have good personal relations with the principals of this firm,
or have attended proceedings in the High Court premises that have
honoured or otherwise eulogised this firm and/or its Partners, or have
been briefed by this firm prior to their elevation as Honble Judges and
have been asked to appear even if this be in violation of this very Rule, the
petitioner reserves all his rights to withdraw the writ petition without
adjudication, and proceed to the Hon'ble Supreme Court for appropriate

73
reliefs, or pray that the writ petition be adjourned till a Transfer Petiton is
filed before the Honble Supreme Court, seeking transfer of the present
writ petition to some other Hon'ble High Court for adjudication (so that he
dos not lose his valuable rights of appeal).

59.

That in this matter, Petitioner No. 1 is duly authorised to sign and verify
the present petition on behalf of Petitioner No. 2 and Petitioner No. 3
also, who have appointed him as their attorney for the limited and express
purpose of raising their grievances as set out in this petition only. Leave is
craved to file eveidenc thereof, if so required by this Hon'ble Court.

60.

This application is bona fide and made in the interest of justice.

61.

Your petitioners, therefore, humbly pray Your Lordships for an order that:

a)

Formalities as to service of the application as


per Rule 26 of the Writ Rules of the Original
Side of this Honble Court be dispensed with;

b)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose

effect

would

be

to

compel

the

Respondent No. 1-3 to ensure that no filing is


accepted in the name of Khaitan & Company
(Respondent No. 4) on the Original Side from
the date of institution of this petition, if they be
purporting to act as filing solicitors, and any

74
such filing, if at all accidentally accepted to be
filed, being an error and a violation of law, is
returned by the Registry without placement
before the Honble Court concerned on the
judicial side.

c)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose

effect

would

be

to

compel

the

Respondent No. 1-3 to place full details of all


filings in the name of Khaitan & Company
(Respondent No. 4) on the Original Side
effectuated

since

01-01-1988

before

the

Honble Court concerned for initiation of


criminal contempt proceedings against the
advocate(s) who signed and/or appeared for
Khaitan & Company, if he / they not be one of
its partners duly registered with the Registrar
(Original Side) in accordance with the Calcutta
High Court (Original Side) Rules (1914) as on
the date of effecting such filing.

d)

Issue a writ in the nature of a prohibition, or


such other suitable writ, order or direction,
whose

effect

would

be

to

compel

the

Respondent No. 4 to (viz. Khaitan & Company)


to cease and resist from using the phrase ..&

75
Company as part of their name for any
activities that are exclusively reserved by
statute for an advocate as defined so under
the Advocates Act (1961), if carried out within
the jurisdiction of this Hon'ble Court.

e)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose effect would be to declare compel the
Respondent No. 2 [Registrar (Original Side)] to
initiate proceedings for criminal contempt
under Article 215 of the Constitution against
Respondent Nos. 5-7 if they have acted in any
proceedings from 09-01-2015 onwards (such
as, but not limited to, CP No. 33 of 1988
pending for adjudication in Court No 24) as
advocates as defined so under the Advocates
Act (1961), if on the strength of a vakalatnama
executed allegedly by their (alleged) client in
the name of R-8 (viz. Khaitan & Company).

f)

Issue a writ in the nature of a prohibition, or


such other suitable writ, order or direction,
whose effect would be to prohibit the
Respondent

No.

5-7

from

effecting

any

appearance in any proceeding as advocates as


defined so under the Advocates Act (1961), if

76
on the strength of a vakalatnama executed
allegedly in the name of R-8 (viz. Khaitan &
Company).

g)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose effect would be to declare compel the
Respondent No. 1-3 [Registrar (Original Side)]
to ascertain from all filings effected by
Respondent No. 4 in the last, say, 20 years
(including disposed-off matters) whether the
same was signed by its duly-registered Partner
or not, and by affixation of the partners own
signature (while signing as partner for Khaitan
& Co.), or whether the name of the firm
Khaitan & Co was affixed across the pleading
by hand as if to purport it to be a signature, and
if the latter, to ascertain the name of the person
who abusively signed the same, and to bring all
such instances to the attention of the Honble
Courts concerned to enable them to dismiss all
such

pleadings,

and

initiate

suo

motu

proceedings for criminal contempt against all


the offenders, which would include such
signatory, as well as all the partners of Khaitan
& Co. at the relevant time.

77
h)

Initiate proceedings for criminal contempt


under Article 215 of the Constitution against
Respondent Nos. 5-7 if they have acted in any
proceedings from 09-01-2015 onwards (such
as, but not limited to, CP No. 33 of 1988
pending for adjudication in Court No 24) as
advocates as defined so under the Advocates
Act (1961), if on the strength of a vakalatnama
executed allegedly by their (alleged) client in
the name of Respondent No. 4 (viz. Khaitan &
Company), or if instructed to do so by
Respondent No. 5 (Mr. Ratnesh Rai), who is not
a partner of Khaitan & Co.

i)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose

effect

would

be

to

compel

the

Respondent No. 8 (Bar Council of West Bengal)


to examine the conduct of Respondent No. 4,
and Respondent No. 5 to 7, and acting suo motu,
take cognizance of gross and vile professional
misconduct on their part, to lead to cancellation
of licence of all the advocates who are partners,
associates, employees of Khaitan & Co to
practice the law, and pending cancellation of
their licences, they all be suspended from the
Council from the date of filing of the present

78
petition, or from such other date this Hon'ble
Court may deem fit.
j)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose

effect

would

be

to

compel

the

Respondent No. 9 (Bar Council of India) to


exercise its power and act under Section 35 of
the

Disciplinary

Proceedings

Rules,

and

consequently, call to itself the disciplinary


proceedings

for

professional

misconduct

initiated / to be initiated by Respondent No. 8


against Respondent No. 4 and Respondent No.
5 to Respondent No. 7.
In the alternative :
k)

Issue a writ in the nature of a mandamus, or


such other suitable writ, order or direction,
whose effect would be to transfer the
disciplinary

procedings

for

professional

misconduct against Respondent No. 4 to


Respondent No. 7 from Respondent No. 8 (Bar
Council of West Bengal) to Respondent No. 9
(Bar Council of India) in accordance with
Section 35 of the Disciplinary Proceedings
Rules.

79
l)

Rule NISI in terms of all the prayers above;

m) If no cause or insufficient cause be shown, the


Rule NISI be made absolute;

n)

Ad interim prayers in terms of all the above.

o)

Costs of and incidental to this application be


paid

and/or

compensated

adequately,

efficaciously by the respondents, in line with


the norms laid down by the Honble Supreme
Court in the case of Salem Advocates Bar
Association.

p)

Adequate efficacious compensation be directed


to be given by Respondents to make up/adjust
all consequent losses fully as suffered by the
petitioner in any manner.

q)

Such further and/or other order or orders be


made and/or direction or directions be given as
to this Honble Court may seem fit and proper.

AND YOUR PETITIONERS, AS IN DUTY BOUND, SHALL EVER PRAY.

80

I, Deepak Khosla, Petitioner No.1 and having my chamber at Suite No. 408, 4th
Floor, Center Point, 21 Old Court House Street (also known as Hemant Basu
Sarani), Kolkata -700 001, and residence at D 367 Defence Colony, New Delhi
110 024, presently at Kolkata, do hereby solemnly affirm and say that the
statements made in paras 1-60 of the foregoing petition are partly true to my
knowledge and those contained in para 1-60 are partly based on documents,
correspondence, and/or records and/or informations received from statutory
bodies and colleagues which I verily believe to be true and those contained in
paras 1-60 are partly based on information received from the Office of Calcutta
High Court and/or records of or correspondence with Calcutta High Court which
I verily believe to be true and those in paras 1-60 and rest of the foregoing
petition are partly my humble submissions to this Honble Court.
Solemnly affirmed by
Deepak Khosla on this day
of

sd/-

January, 2015 in the

Court House at Calcutta.

Before me.

Sd/COMMISSIONER

87 | P a g e

Deepak Khosla
Advocate
Bangalore Office :

New Delhi Office :


D 367 Defence Colony
NEW DELHI 110 024
INDIA
Tel : +91 11 4109 9467
Fax : +91 11 4109 9467
Email : deepak.khosla@gmail.com;
Cell : +91 99 530 96650

No.114 (Ground Fl`oor),


Kempaiah Building,
First Main, First Cross
Karekal
Kamakshipalya
Old Gurupriya Kalyana Mantapa Road
BANGALORE 560 079
KARNATAKA * INDIA

January 09th, 2015

WITHOUT PREJUDICE

Ld. Registrar (Original Side)


Hon'ble High Court of Calcutta
B. B. D. Bagh
KOLKATA
WEST BENGAL 700 001
SUBJECT

COMPLIANCE WITH CHAPTER I, RULES 2 &


3(i) OF THE CALCUTTA HIGH COURT
(ORIGINAL SIDE) RULES, 1914

Dear Sir,
I am an Advocate duly registered under the Advocates Act (1961)
with the Bar Council of the State of Karnataka, and am addressing
you this communication in pursuance of my intention to act in the
Hon'ble High Court of Calcutta, both on the Original Side, as well as
on the Appellate Side, as well as in the subordinate courts below.
Please note that by virtue of Section 30 of the Advocates Act (1961),
and which Section has been notified by the Central Government from
around 11-06-2011, I have a right to practice my profession
throughout the territories to which the aforesaid Act extends.
Therefore, by definition, this would include the State of West Bengal.
For your ease of referral, the provisions of Section 30 of the
Advocates Act (1961) are reproduced below :
30. Right of advocates to practise

-87-

88 | P a g e

Subject to the provisions of this Act, every advocate whose name


is entered in the State roll shall be entitled as of right to
practise throughout the territories to which this Act extends,-(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to
take evidence; and
(iii) before any other authority or person before whom
such advocate is by or under any law for the time being in
force entitled to practise.
As you would appreciate, the Advocates Act (1961) is substantive
legislation approved by the Parliament of the Union of India. Thus, it
may be termed as superior legislation as compared to the rules of
procedure framed, inter alia, by the Hon'ble High Court of Calcutta in
1914.
Though, with the advent of the Advocates Act (1961), especially with
the notifying of its Section 30 from around 11-06-2011, I am under
no obligation to comply with any provision of any (especially)
subordinate legislation that is, or appears to be, in conflict with the
aforesaid provisions, or places a road-block in the smooth
implementation of the same, nonetheless, purely out of deference to
the provisions still purported to be in vogue in the Hon'ble High
Court of Calcutta, I tender my compliance with Rule 2 and 3(i) of
Chapter I of the Original Side Rules (albeit, under protest).
COMPLIANCE WITH RULE 2
I am registered with the Bar Council of Karnataka. My enrolment No.
is KAR 1280/2013. In evidence thereof, my Bar Enrolment
Certificate is attached herewith.
COMPLIANCE WITH RULE 4
My 2 addresses relating to discharge of my professional duties
connected with the Hon'ble High Court of Calcutta shall be as under :
Mr. Deepak Khosla
Advocate
At :

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Suite No. 408, 4th Floor


Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001
Also at :
1-B Judges Court Road
And at :
2nd floor
7-C Kiran Sankar Roy Road
KOLKATA 700 001
I crave leave to file evidence of these addresses, should you require
me to do so.
I hereby confirm that any notice, writ, summons, order or other
document required to be served on me as an advocate acting on the
Original Side, shall, if served upon me at any one of the above 2 office
addresses, shall be deemed to have been properly served if served at
the above addresses, or if left at the above addresses (in the unlikely
event of my refusal to accept service of the same).
You are requested to effectuate inclusion of my name in the relevant
Register maintained by your office, as provided by Rule 2 of Chapter
I of the Original Side Rules, 1914.
As stated above, this compliance is under protest, as the Original
Side Rules, in these respects, are in conflict with the Advocates Act,
1961, and the burden I have attempted to discharge by means of the
present letter is without any legal obligation to do so.
Yours faithfully,

DEEPAK KHOSLA
ADVOCATE

Encl. : As above.

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office, despite this being a mandatory requirement by virtue of


Rule 2. This being so, the inclusion of those persons in the
partnership of these 14 names, to the extent that such person has
not had his name entered in the Register, results in the firm
violating Rule 9(b).
Under the circumstances, you are requested to kindly issue
suitable instructions to the filing counter to, hereafter, refuse any
filing in the name of Khaitan & Company, as the Vakalatnama
appended to any such filing would constitute a violation of this
Honble Courts own Rules, and hence, a fraud on this court in
terms of allowing such persons to act before the Honble High
Court who are, as per the Rules of the Honble High Court, not
qualified to act on its Original Side.
2nd TYPE OF VIOLATION
Rule 9(c) : Advocates acting on the Original Side forming a
partnership will be entitled to carry on the business of the
partnership firm in such name or names or as they may choose to
have for the said firm, provided, however, that if the partners choose
to carry on the business of the firm in any name other than the
names of the partners, or any of them, whether in their first name or
in the surname, they shall obtain prior approval of the Registrar in
writing to the use of such name if the intent to carry on the business
of the partnership.
Violation : As you will note from the letterhead of Khaitan &
Company, their partners include names like Choudhury, Agarwal,
Jhunjhunwala, Asopa, etc.
This being so, since the name of the partnership firm is other than
the name of the partners, your office stands precluded from
accepting any filing by the aforesaid firm unless they produce a
copy of the approval issued by your office to use a name that does
not include the names of all the partners.
This is all the more relevant, since there are multiple firms with
the name Khaitan in the city as well as the country, including
offshoots from this very firm, leading to extreme confusion in the
professional fraternity, as well as amongst litigants.

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In view of the above, you requested to kindly issue suitable


instructions forthwith to the filing counter to refuse any filing in
the name of Khaitan and Company.
3rd TYPE OF VIOLATION
Rule 9(d) : All partnership firms of Advocates acting on the Original
Side shall be registered with the Registrar. The names and addresses
of the partners all such firms, as well as any change in the
composition of such firms, shall be intimated by the Advocate acting
on the Original Side concerned to the Registrar.
Violation : It is my understanding, which I verily believe, that the
persons purporting to claim right to be partners of Khaitan &
Company neither stand registered with your office as Advocates
entitled to act on the Original Side, and moreover, whenever such
change in the partnership has taken place, your office has not been
taken into confidence to determine, inter alia, whether the
incoming partner was qualified to act on the Original Side, or
whether he was an undesirable person, and so on.
This being so, since the name of the partnership firm is other than
the name of the partners, your office stands precluded from
accepting any filing by the aforesaid firm unless the produce a
copy of the approval issued by your office to use a name that does
not include the names of all the partners.
In view of the above, you requested to kindly issue suitable
instructions forthwith to the filing counter to refuse any filing in
the name of Khaitan and Company.
4th TYPE OF VIOLATION
Rule 9(g) : In every case, when a partner of a firm of Advocates
acting on the Original Side signs any document or writing on behalf
of the firm, or when the sole proprietor of a firm signs a document
or writing on behalf of the firm, he shall do it in the name of the
firm, and shall authenticate the same by affixing his own signature
as a partner or as a proprietor, as the case may be.
Violation : I enclose herewith a copy of a filing done by Khaitan
company on behalf of its client, CESC Ltd. as you would observe
from the same, instead of affixing the signature of a partner

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(meaning, the partner executing the document, say, Mr. Ram Lal
being required to sign the document with his usual signature as
Ram Lal and affixing the suffix partner so that the signature
reads as Ram Lal, Partner), merely scribble Khaitan & Co
where the signature is required to be affixed.
By this ruse, your office has no way of knowing whether or not a
partner of the firm has, indeed, signed and executed the document
being filed, or whether it is been signed, say, by the jamaadar or
driver of the firm, or even perhaps by a total outsider.
I have been informed by my colleagues (who I refuse to name)
that many times, they have seen the filing Clerks themselves
scribbling Khaitan & Company (where signature of the executing
advocate or advocates firm is required to be affixed) on the
pleadings and motions being filed in the Honble High Court.
This being so, since your office is empowered to accept a filing on
behalf of a partnership form provided a partner of the firm has
signed his name for the firm, delineating himself as partner, , your
office stands precluded from accepting any filing by the aforesaid
firm unless they comply with the relevant provisions of law.
In view of the above, you requested to kindly issue suitable
instructions forthwith to the filing counter to refuse any filing in
the name of Khaitan and Company if not signed by a partner of the
firm, and which partners must have complied with the other the
relevant rules of the original side.
5th TYPE OF VIOLATION
Rule 6 : An Advocate acting on the Original Side shall, upon filing a
Memorandum of Appearance on behalf of a party accompanied by a
Vakalatnama duly executed by the party in his favor, he entitled to
act as well as to plead for any party or parties in the court in any
suit, matter and proceeding, including appeals, and to conduct and
to prosecute the same in the court, and to do all acts and things in
all proceedings in connection with the said suit, matter, proceeding
and appeal, and to deposit and pay money on behalf of the said
party if the court authorizes the said Advocate to receive such
money.

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Violation : Rule 6 would need to be read with Rule 9(a), (c) and
(d). Meaning, the only person from the side of a law firm duly
qualified under Rule 9 to act on the original side and make a filing
and appear in the court in a particular matter would be a qualified
partner of the law firm.
In blatant violation thereof, I append hereto a copy of CA No. 139
of 2013 filed in CP No. 33 of 1988 by one Mr. Ratnesh Rai
(Advocate) while purporting to act on behalf of Khaitan and
Company, who - to the best of my understanding, and which I
verily believe - is not a partner of the aforesaid law firm.
This being so, he could not have effected this filing under any
circumstances whatsoever, and in fact, his doing so reflects
criminal contempt of court, as it is, patently, an attempt to
interfere in the administration of Justice.
This being so, you are requested to bring this blatant violation to
the attention of Hon'ble Mr. Justice Anirudha Bose, because now
that you are armed with this information, failure on your part to
do so may be construed as an attempt to shield and protect an
offender from the punishment lawfully due to him
6th TYPE OF VIOLATION
Rule 6 : An Advocate acting on the Original Side shall, upon filing a
Memorandum of Appearance on behalf of a party accompanied by a
Vakalatnama duly executed by the party in his favor, he entitled to
act as well as to plead for any party or parties in the court in any
suit, matter and proceeding, including appeals, and to conduct and
to prosecute the same in the court, and to do all acts and things in
all proceedings in connection with the said suit, matter, proceeding
and appeal, and to deposit and pay money on behalf of the said
party if the court authorizes the said Advocate to receive such
money.
Violation : If an advocate is appearing for an individual, it is one
thing ; however, the position changes if an advocate is appearing
for a party other than the signatory of the Vakalatnama.
For example, such a case would be that of an advocate appearing
for a juristic entity like a company, society, etc.; it could also be an

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advocate appearing for a person acting through his lawfully


constituted attorney.
Therefore, the phrase duly executed has great relevance in
context of Vakalatnamas filed by Advocates purporting to act on
behalf of a juristic entity like a company. In such a case, the
Vakalatnama has to be accompanied by a copy of the Board
resolution passed by the Board of Directors of the company,
empowering the individual who has signed the Vakalatnama to
represent the company.
This is a mandatory requirement laid down by 3-Member Bench
of the Honble Supreme Court set out in Uday Shankar Triyar vs.
Ram Kalewar Singh (AIR 2006 SC 269), which judgment has
resulted in a similar judgment of a Division Bench of the Honble
Delhi High Court passed on 8-10-2009 in CWP No. 7651 of 2009
directing the Registrar to frame Rules in that regard, which
judgment has further resulted in Practice Direction No.
13/Rules/DHC dated 26-10-2009 issued by the Hon'ble Delhi
High Court.
In the present case, in all the filings in CP No. 33 of 1988, though
Khaitan & Company have purported to act for Turner Morrison
Ltd, in no case has a filed a copy of any Board resolution
empowering the prospective deponent/signatory to act for the
company.
Since in that particular company petition allegations are flying fast
and thick between the parties regarding forgery of company
documents of Turner Morrison Ltd, this is especially not some
kind of idle or pro forma requirement.
You are requested to kindly issue instructions to the filing counter
not to accept any filing by the aforesaid firm when purporting to
act on behalf of the juristic entity unless such filings are
accompanied by the requisite Board resolution.
And as regards CP No. 33 of 1988, requested to bring this act of
criminal contempt to the attention of the Honble company court
hearing the petition.
7th TYPE OF VIOLATION

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Rule 6 : An Advocate acting on the Original Side shall, upon filing a


Memorandum of Appearance on behalf of a party accompanied by a
Vakalatnama duly executed by the party in his favor, he entitled to
act as well as to plead for any party or parties in the court in any
suit, matter and proceeding, including appeals, and to conduct and
to prosecute the same in the court, and to do all acts and things in
all proceedings in connection with the said suit, matter, proceeding
and appeal, and to deposit and pay money on behalf of the said
party if the court authorizes the said Advocate to receive such
money.
Violation : Rule 6 would need to be read with Rule 9(a), (c) and
(d). Meaning, the only person from the side of a law firm duly
qualified under Rule 9 to act on the original side and make a filing
and appear in the court in a particular matter would be a qualified
partner of the law firm, and one of such persons from the entire
list of partners who has been chosen so by the client, the choice of
the client being reflected in the name of such chosen partner being
specified in the Vakalatnama.
Put differently: suppose of law firm has 5 partners, called A, B C, D
and E. Suppose further that the client X, because he has great faith
in the ability or the law firm in general to handle complex law
issues, logistics, national network, etc., Which is to use this law
firm, but has no faith in partner E because partner E, either prior
to his induction in the firm, or even when he was partner in the
firm, has acted for one of the opponents of X, or because X does
not agree with the ethics of X.
For this reason, when client X engages the aforesaid law firm, in
recognition of the fact that he is only authorized partners A, B, C
and D of the law firm to act for him, he would specify the names of
such partners in his Vakalatnama.
As an example, I append herewith to Vakalatnamas executed by
the clients of the largest law firm in the country i.e. M/s
Amarchand Mangaldas & Company.
In the first Vakalatnama even though the law firm, just in its New
Delhi office, has around 25 partners, the client only authorized 10
out of those 25 partners to act for him in a particular matter, and
in proof thereof, names of the chosen 10 partners has been set out
by him specifically in the Vakalatnama.

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In the second Vakalatnama, the example again relating to the same


law firm, the client has only chosen 2 advocates in that law firm to
act for him i.e. one Me. Tejas Karia (Partner), and one Mr. Karan
Mehra, who is not a partner of that law firm. (In Delhi, there is no
requirement that the designated advocate, if in a law firm, must
also be a partner of that law firm). Accordingly, the Vakalatnama
has been executed by the client in the name of the firm, but
accepted only by 2 persons i.e. one being a partner, and the other
not.
Therefore, no Vakalatnama executed by any client in the name of
Khaitan & Company would have any legal sanctity unless, in the
Vakalatnama, the selected names of the partners from the entire
list of partners has been specified by the client.
In the above view the matter, you are requested to kindly direct
your filing counter not to accept any filing by Khaitan & Company
unless the name of the chosen partner is included in the
Vakalatnama, and each of such chosen partners has duly signed
the Vakalatnama, acknowledging his acceptance of the mandate
cast by the client.
Should the registry place any filing for judicial consideration when
the filing observes the above requirement in breach, that would be
an act of criminal contempt on the part of the concerned registry
official.
CONCLUSION : In light of the above patent to breaches of law, the
High Court (Original Side) Rules require your office to issue a
formal Show-Cause notice to Khaitan and Company why they
should not be debarred from acting on the Original Side.
This is in terms of Rule 16, whose provisions are reproduced
below for your ease of referral:
Rule 16. In case of an Advocate or a firm of Advocates acting
on the Original Side ceases to fulfill the conditions laid down
in Rule 4 or in other Rules in this Chapter, a notice shall be
issued by the Registrar to such Advocate or such firm of
Advocates requiring him or it to show cause before the Judge
in chambers on a date to be fixed, as to why he should not be
debarred from acting on the Original Side.

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You were kindly requested to act in accordance with law, without


fear or favor. Merely because it is a very large law firm is no
reason that they can be allowed to break the law with impunity.
As a matter of fact, many of their filings would constitute
criminal contempt of court, and you are requested to bring all
such instances to the attention of the Honble courts concerned.
Put differently: this firm should be directed to state the name of
the authorized partner who has signed every matter filed by this
law firm in the Hon'ble High Court of Calcutta in the last at least 5
years. At the result of the directive, if it emerges that some matters
have been filed by a person other than a partner, criminal
contempt proceedings should immediately be initiated against the
law firm, and perjury proceedings (Section 197-198 IPC) should
be initiated against the signatory.
To not pursue this path would be tantamount to Officers of the
High Court shielding and protecting offenders from the
punishment lawfully due to them.
Yours faithfully,

DEEPAK KHOSLA
ADVOCATE

Encl. : As above.

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AIR SUPREME COURT 1950-2010

AIR 2006 SUPREME COURT


269(1)
(From : 2003 (4) Patna L. J. R. 745)
Mrs. RUMA PAL, Dr. A. R. LAKSHMANAN
AND R. V. RAVEENDRAN, JJ.
Civil Appeal No. 6701 of 2005 (arising out of SLP
(C) No. 22578 of 2003), D/- 10 -11 -2005.
Uday Shankar Triyar v. Ram Kalewar Prasad
Singh and Anr.
(A) Civil P.C. (5 of 1908), O.41, R.1, O.3, R.4 Appeal - Memorandum - Signing of, by
appellant or his pleader - Is mandatory - But it
is a procedural provision - Non compliance does
not entail automatic rejection of appeal without
giving opportunity to rectify defect.
The requirement that the appeal should be signed
by the appellant or his pleader (duly authorized by
a Vakalatnama executed by the appellant) is, no
doubt, mandatory. But it does not mean that non
compliance should result in automatic rejection of
the appeal without an opportunity to the appellant
to rectify the defect. If and when the defect is
noticed or pointed out, the Court should, either on
an application by the appellant or suo motu, permit
the appellant to rectify the defect by either signing
the memorandum of appeal or by the furnishing the
vakalatnama. If the pleader signing the
memorandum of appeal has appeared for the party
in the trial Court, then he need not present a fresh
Vakalatnama along with the memorandum of
appeal, Vakalatnama in his favour filed in the Trial
Court will be sufficient authority to sign and
present the memorandum of appeal having regard
to R. 4(2) of O. 3, CPC, read with Expln. (c)
thereto. In such an event, a mere memo referring to
the authority given to him in the trial Court may be
sufficient. However, filing a fresh Vakalatnama
with the memo of appeal will always be convenient
to facilitate the processing of the appeal by the
office.
(Para 15)
(B) Interpretation of statutes - Procedural
provision - Should not be allowed to defeat
substantive rights or to cause injustice Exceptions to principle stated.
Procedure, a hand-maiden to justice, should never
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

be made a tool to deny justice or perpetuate


injustice, by any oppressive or punitive use. The
well recognised exceptions to this principle are :(i) Where the statute prescribing the procedure,
also prescribes specifically the consequence of non
compliance; (ii) Where the procedural defect is not
rectified, even after it is pointed out and due
opportunity is given for rectifying it; (iii) Where
the non compliance or violation is proved to be
deliberate or mischievous; (iv) Where the
rectification of defect would affect the case on
merits or will affect

AIR SUPREME COURT 1950-2010

@page-SC270
the jurisdiction of the Court; (v) In case of
Memorandum of Appeal, there is complete absence
of authority and the appeal is presented without the
knowledge, consent and authority of the appellant.
(Para 17)
(C) Civil P.C. (5 of 1908), O.41, R.1 - Appeal Memorandum - Defect in signing - Rejection of
appeal - Eviction suit against tenant and a
committee to whom it was sub-let - Suit decreed
- Appeal filed by tenant and committee - Memo
of appeal showing that committee was
represented by the tenant as its former
President - Vakalatnama filed was signed by
tenant as individual only - Objection of
improper presentation not raised by landlord or
registry - Plea of improper presentation raised
only when deletion of name of tenant was sought
on his death by (Committee) sub-tenant and
substitution of words 'former President' by
working President was sought - Rejection of
substitution on ground of improper appeal
without an opportunity to rectify defect was
wrong - Moreover committee was represented
by counsel of tenant in trial Court - Appeal was
filed by same counsel - Vakalatnama granted by
sub-tenant (Committee) in favour of said
counsel in trial Court was sufficient
authorization.
(Paras 18, 19, 20)
(D) Civil P.C. (5 of 1908), O.3, R.4 Vakalatnama - Defects routinely found
enumerated - Need to issue appropriate
instructions to Registries to properly check and
verify Vakalatnama emphasised.
(Para 21)
Cases Referred :
Chronological Paras
AIR 1982 SC 60 : 1984 Supp SCC 597 (Rel on Pt
A)
11
AIR 1966 SC 1119
12
AIR 1945 Ondh 200
13
AIR 1920 Pat 581 : (1920)55 Ind Cas 271 (Disting
PtA)
7, 14
(1884)26 Ch D 700
13
Sunil Kumar, Sr. Advocate, A. P. Shay, Ms. Anita
Kanungo and Mrs. Sarla Chandra, Advocates with
him for Appellant; K. V. Mohan, Advocate, for
Respondents.

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

Judgement
R. V. RAVEENDRAN, J. :- Leave granted. This
appeal by the landlord (plaintiff in Eviction Suit
No.2 of 1989 on the file of Munsiff, First,
Samastipur, Bihar) is against the judgment dated
28-7-2003 passed by Patna High Court in MA No.
300/2002.
2. The appellant-plaintiff filed the said eviction suit
against one Anugraha Narayan Singh and the
District Congress Committee (I), Samastipur,
(referred to as 'A.N. Singh' and 'DCC' respectively)
on the following three grounds : (i) that the suit
premises (house) was let out to A. N. Singh for his
personal residential occupation and the said A.N.
Singh had unauthorisedly sub-let a portion of the
suit premises to DCC; (ii) that A.N. Singh had
committed default in paying the rent and electricity
charges; and (iii) that the suit premises was
required for his personal use.
3. The defendants resisted the suit. They denied the
allegation that the suit premises was let out
personally to A.N. Singh for his residence. They
contended that the premises was let out to A.N.
Singh in his capacity as President of DCC for
being used as the office of DCC, on a monthly rent
of Rs.200/- (inclusive of electricity charges), and
there was no default in paying the rent. They also
denied the claim of the landlord that the suit
premises was required for his own use.
4. The trial court decreed the suit by judgment and
decree dated 6-6-1998 directing eviction and
payment of arrears of rent and electricity charges.
It held that A.N. Singh took the premises on rent in
his personal capacity and not on behalf of DCC;
and that a portion of the suit premises was sub-let
to DCC without the consent of the landlord. The
trial court also held that A.N. Singh had committed
default in paying the rents and electricity charges.
5. Feeling aggrieved, A.N. Singh and DCC filed
Eviction Appeal No.4 of 1998 on the file of the
Additional District Judge, Samastipur (referred to
as the 'appellate court'). In the memorandum of
appeal, the second appellant DCC was shown as
being represented by its 'former President'. On an
application made by the appellants, the Appellate
Court granted stay of eviction. During the

AIR SUPREME COURT 1950-2010

pendency of the appeal, on 23-8-2000, the first


appellant (A.N. Singh) died. His legal heirs did not
come on record. However, one Ram Kalewar
Prasad Singh, claiming to be the 'Working
President' of DCC, filed an application to delete the
first appellant

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

AIR SUPREME COURT 1950-2010

@page-SC271
and show DCC as the sole appellant and also to
substitute the words 'Working President' in place of
'former President' as the person representing DCC.
The said application for substitution was opposed
by the landlord.
6. On hearing the said application for substitution,
the learned Additional District Judge, by order
dated 27-4-2002, dismissed the appeal. He found
that even though A.N. Singh and DCC were
arrayed as appellant Nos. 1 and 2 respectively, the
Vakalatnama accompanying the memorandum of
appeal was signed only by A.N. Singh and no
Vakalatnama had been filed on behalf of DCC. He,
therefore, rejected the request of Ram Kalewar
Prasad Singh for substitution on the following
reasoning :"Appellant No. 1 died on 23-8-2000 and his legal
heir has not come for substitution and as such
appeal has abated as against appellant No.1; and no
appeal was filed on behalf of District Congress
Committee (I), Samastipur and present appeal on
behalf of appellant No.2 is nullity in the eye of law
and hence liable to be dismissed. Accordingly the
entire appeal is dismissed."
The said order of the appellate court was
challenged by Ram Kalewar Prasad Singh and
DCC, in Misc. Appeal No. 300 of 2002. A learned
single Judge of the Patna High Court allowed the
said appeal by order dated 28-7-2003. The High
Court reasoned that the appeal against the eviction
decree had been filed both by A.N. Singh and DCC
which was a separate juristic person (described
accordingly in the plaint by the landlord); that
while it was true that a former President could not
represent DCC in the appeal and DCC had not
granted a vakalatnama, neither the landlord
(respondent in the said appeal) nor the Office had
raised any such objection; and that as the juristic
person (DCC) was already on record, the person
entitled to represent such juristic person ought to
have been permitted to come on record, and thus
rectify the defect relating to improper
representation. The High Court, therefore,
permitted DCC represented by its 'Working
President' to come on record and pursue the appeal
before the appellate court. The High Court,
however, kept open the question relating to the
right of the working President to represent DCC, to
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

be decided in the appeal.


7
.The said order of the High Court is challenged
contending that the High Court has failed to
note that there was no 'appeal' by DCC before
the District Court, in the eye of law, for two
reasons. Firstly, though DCC was arrayed as
the second appellant in the memorandum of
appeal, it was shown as represented by its
'former President', and a former President
could not represent DCC. Secondly, the
Vakalatnama in favour of the pleader was
executed only by A.N. Singh and not by DCC.
It is submitted that the appeal was, therefore, in
effect, only by A.N. Singh, and as his L.Rs. did
not come on record on his death, the appeal
abated. Reliance is placed on an old decision
of the Patna High Court in Sheikh Palat v.
Sarwan Sahu [1920 (55) IC 271] wherein it
was held that presentation of a memorandum
of appeal by a Vakil without any authority in
the shape of a Vakalatnama is not a valid
presentation.

AI
R
19
20
Pa
tn
a
58
1

8. On the other hand, learned counsel for the


respondents submitted that the order of the High
Court did not suffer from any error. He pointed out
that DCC had been impleaded as the second
defendant in the eviction suit; that DCC was
represented by its President A.N. Singh in the suit;
and that by the time the appeal against the eviction
decree was filed, A.N. Singh had ceased to be its
President, but as he had represented DCC in the
suit, the appeal was filed by A.N. Singh on behalf
of himself and on behalf of DCC as its former
President. It is submitted that failure to mention in
the Vakalatnama that A.N. Singh was executing the
Vakalatnama not only as the first appellant, but
also on behalf of the second appellant (DCC), was
due to oversight. It is submitted that DCC being
represented in the appeal by a 'former President'
was also a curable defect. It is contended that if
either the landlord or the office had pointed out the
said defect/omission, it would have been rectified
immediately, and, therefore, the application filed
by the working President for substitution was
rightly allowed by the High Court.
9. Two questions, therefore, arise for our
consideration : (i) whether the appeal by DCC
against the eviction decree was defective or invalid

AIR SUPREME COURT 1950-2010

and (ii) whether such defect could be permitted to


be rectified ?
10. Order 41, Rule 1, CPC requires every appeal to
be preferred in the form of a

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AIR SUPREME COURT 1950-2010

@page-SC272
memorandum signed by the appellant or his
pleader and presented to the court or to such officer
as it appoints in that behalf. Order 3, Rule 4, CPC
deals with appointment of pleaders. Relevant
portion thereof is extracted below :
"4. Appointment of pleader.-(1) No pleader shall
act for any person in any Court, unless he has been
appointed for the purpose by such person by a
document in writing signed by such person or by
his recognized agent or by some other person duly
authorized by or under a power-of-attorney to
make such appointment.
(2) Every such appointment shall be filed in Court
and shall, for the purposes of sub-rule (1), be
deemed to be in force until determined with the
leave of the Court by a writing signed by the client
or the pleader, as the case may be, and filed in
Court, or until the client or the pleader dies, or until
all the proceedings in the suit are ended so far as
regards the client.

Vakalatnama. The question is whether the degree


of negligence is so high as to bang the door of
court to a suitor seeking justice. In other words,
should an investigation of facts for rendering
justice be peremptorily thwarted by some
procedural lacuna?
7. It is not for a moment suggested that a party can
ignore peremptory order of the Court for making
the appeal ready for hearing the appeal within a
specified time. But having said this, it must also be
borne in mind that the procedure was devised for
doing justice and not for thwarting the same. In
such a situation, civil courts have leaned in favour
of repairing the harassment, inconvenience or
damage to the other side by some order of costs.
But to take the view that failure to comply with an
order for filing Vakalatnama would result in
dismissal of the appeal involving a fairly good sum
is to put such procedural requirement on a pedestal
tall enough to hinder the course of justice. We find
it difficult to a party to this proposition. Hence we
are inclined to interfere."
12

[Explanation.- For the purposes of this sub-rule,


the following shall be deemed to be proceedings in
the suit,(a) xxx
(b) xxx
(c) an appeal from any decree or order in the suit,
..."

.In Shastri Yagnapurushdasji and Ors. v.


Muldas Bhundardas Vaishya and Anr. [AIR
1966 SC 1119], this Court considered a case
where the Vakalatnama was in favour of 'X',
but the memorandum of appeal was signed and
filed by 'Y'. This Court while holding that the
High Court was justified in permitting 'X' to
sign the memorandum of appeal, in order to
remove the irregularity, observed thus :

Pa
ra
13
of
AI
R

11
.In Bihar State Electricity Board v. Bhowra
Kankanee Collieries Ltd. [1984 (Supp.) SCC
597], this Court considered a case where the
Vakalatnama was not filed with the Appeal
Memo. As the defect was not removed in spite
of grant of an opportunity, the High Court
dismissed the appeal as also the application for
restoration. This Court, while allowing the
appeal against the said dismissal, held thus :-

AI
R
19
82
S
C
60

"6. Undoubtedly, there is some negligence but


when a substantive matter is dismissed on the
ground of failure to comply with procedural
directions, there is always some element of
negligence involved in it because a vigilant litigant
would not miss complying with procedural
direction moreso such a simple one as filing
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

"Technically, it may be conceded that the


memorandum of appeal presented by Mr.
Daundkar suffered from the infirmity that
respondent No.1 had signed his Vakalatnama in
favour of the Government Pleader and Mr.
Daundkar could not have accepted it, though he
was working in the Government Pleader's office as
an Assistant Government Pleader. Even so, the said
memo was accepted by the office of the Registrar
of the Appellate Side of the High Court, because
the Registry regarded the presentation of the appeal
to be proper, the appeal was in due course admitted
and if finally came up for hearing before the High
Court. The failure of the Registry to invite the
attention of the Assistant Government Pleader to
the irregularity committed in the presentation of the
said appeal cannot be said to be irrelevant in

AIR SUPREME COURT 1950-2010

dealing with the validity of the contention raised by


the appellants. If the Registry had returned the
appeal to Mr. Daundkar as irregularly presented,
the irregularity could have been immediately
corrected and the Government Pleader would have
signed both the memo of appeal and the
Vakalatnama. It is an elementary rule of

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AIR SUPREME COURT 1950-2010

@page-SC273
justice that no party should suffer for the mistake
of the court or its office."
13. We may also usefully refer to the decision in
Kodi Lal v. Ch. Ahmad Hasan [AIR 1945 Oudh
200], where the legal position was stated thus :"The governing rule no doubt is that the counsel
must be duly authorized by his client to enable him
to sign the appeal or to present it on his behalf. ......
It is to be noticed that the procedure, which is laid
down imposes a prohibition on the pleader to act
without a valid power. It does not confer any
benefit on the opponent except perhaps on the
hypothesis that the actings of the counsel do not
amount to acting in law. Where circumstances
disclose however that the omission to file a power
at the time of presentation of appeal was
accidental, it would be inequitable to visit the
penalty for the omission on the litigant by insisting
that his appeal must fail. Sub-rule (1) of R.4 of O.3
does not prohibit a Court from giving under S. 151,
Civil P.C., retrospective validity to the act of a
pleader who files a vakalatnama subsequently. .......
Ordinarily a power must be filed either
antecedently or simultaneously with the acting but
unless it is so enjoined or any principle of law is
violated or injustice is likely to occur, a statutory
rule of Practice should not normally be allowed to
be used as a weapon of attack. The following
dictum of Bowen, L.J., in (1884) 26 Ch. D. 700
may be here referred to with advantage :
"The object of Courts is to decide the rights of
parties and not to punish them for mistakes which
they make in the conduct of their cases by deciding
otherwise than in accordance with their rights ...
Courts do not exist for the sake of discipline, but
for the sake of deciding matters in controversy."
If therefore there was an inadvertent technical
violation of the rule in consequence of a bona fide
mistake, and the mistake is subsequently remedied
the defect need not necessarily be fatal."
14
.In so far as the decision in Sheikh Palat
(supra) relied on by the appellant-landlord, we
find that the said decision is not of much
assistance to the appellant as the decision itself
clarifies that "it may not be necessary to file a
V k l t
ith th
titi
f
l b t it

AI
R
19
20
Pa
tn
a
58
1

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

Vakalatnama with the petition of appeal, but it


is certainly necessary that there should be at
the time of presentation of the appeal, a
Vakalatnama in existence bearing the signature
of the appellant or his attorney."

AIR SUPREME COURT 1950-2010

15. It is, thus, now well-settled that any defect in


signing the memorandum of appeal or any defect in
the authority of the person signing the
memorandum of appeal, or the omission to file the
vakalatnama executed by the appellant, along with
the appeal, will not invalidate the memorandum of
appeal, if such omission or defect is not deliberate
and the signing of the Appeal memorandum or the
presentation thereof before the appellate court was
with the knowledge and authority of the appellant.
Such omission or defect being one relatable to
procedure, it can subsequently be corrected. It is
the duty of the Office to verify whether the
memorandum of appeal was signed by the
appellant or his authorized agent or pleader holding
appropriate vakalatnama. If the Office does not
point out such defect and the appeal is accepted
and proceeded with, it cannot be rejected at the
hearing of the appeal merely by reason of such
defect, without giving an opportunity to the
appellant to rectify it. The requirement that the
appeal should be signed by the appellant or his
pleader (duly authorized by a Vakalatnama
executed by the appellant) is, no doubt, mandatory.
But it does not mean that non-compliance should
result in automatic rejection of the appeal without
an opportunity to the appellant to rectify the defect.
If and when the defect is noticed or pointed out, the
court should, either on an application by the
appellant or suo motu, permit the appellant to
rectify the defect by either signing the
memorandum of appeal or by furnishing the
vakalatnama. It should also be kept in view that if
the pleader signing the memorandum of appeal has
appeared for the party in the trial court, then he
need not present a fresh Vakalatnama along with
the memorandum of appeal, as the Vakalatnama in
his favour filed in the trial court will be sufficient
authority to sign and present the memorandum of
appeal having regard to Rule 4(2) of Order 3 CPC,
read with Explanation [c] thereto. In such an event,
a mere memo referring to the authority given to
him in the trial court may be sufficient. However,
filing a fresh Vakalatnama with the memo of
appeal will always be convenient to facilitate

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AIR SUPREME COURT 1950-2010

@page-SC274
the processing of the appeal by the office.
16. An analogous provision is to be found in Order
6, Rule 14 CPC which requires that every pleading
shall be signed by the party and his pleader, if any.
Here again, it has always been recognized that if a
plaint is not signed by the plaintiff or his duly
authorized agent due to any bona fide error, the
defect can be permitted to be rectified either by the
trial court at any time before judgment, or even by
the appellate court by permitting appropriate
amendment, when such defect comes to its notice
during hearing.
17. Non-compliance with any procedural
requirement relating to a pleading, memorandum of
appeal or application or petition for relief should
not entail automatic dismissal or rejection, unless
the relevant statute or rule so mandates. Procedural
defects and irregularities which are curable should
not be allowed to defeat substantive rights or to
cause injustice. Procedure, a hand-maiden to
justice, should never be made a tool to deny justice
or perpetuate injustice, by any oppressive or
punitive use. The well recognized exceptions to
this principle are :i) where the Statute prescribing the procedure, also
prescribes specifically the consequence of
non-compliance.
ii) where the procedural defect is not rectified, even
after it is pointed out and due opportunity is given
for rectifying it;
iii) where the non-compliance or violation is
proved to be deliberate or mischievous;
iv) where the rectification of defect would affect
the case on merits or will affect the jurisdiction of
the court.
v) in case of Memorandum of Appeal, there is
complete absence of authority and the appeal is
presented without the knowledge, consent and
authority of the appellant.
18. We will now examine the facts of this case with
reference to the aforesaid principles. A. N. Singh
and DCC (by its President A.N. Singh) were the
defendants in the eviction suit and they were
represented in the trial court by their counsel Shri
Bindeshwar Prasad Singh and his colleagues. The
(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

cause-title of the memorandum of appeal against


the eviction suit shows that there were two
appellants-A.N. Singh and DCC. It is evident from
the subsequent application for substitution that
DCC was aware of the filing of the appeal. The
memorandum of appeal was signed by Shri Umesh
Chandra Kumar, Advocate, colleague of Shri
Bindeshwar Prasad Singh. It was accompanied by a
vakalatnama executed by A.N. Singh in favour of
Shri Bindeshwar Prasad Singh and his colleagues
including Shri Umesh Chandra Kumar. The office
report on examination of the memorandum of
appeal did not refer to any defect relating to
absence of any vakalatnama by DCC. It is apparent
that the appellants' counsel and the District Court
office proceeded on the basis that A.N. Singh was
representing himself and the DCC as its former
President. Only when A.N. Singh died and the
working President of DCC filed an application for
deletion of appellant No.1 (A.N. Singh) and for
amendment of the description of appellant No.2 by
substitution of the words "Working President" for
"Former President" as the person representing
DCC, an objection was raised alleging improper
presentation. In the circumstances, the appellate
court ought to have accepted the application for
amendment and substitution filed on behalf of
DCC.
19. Another aspect requires to be noticed. When
A.N. Singh ceased to be the President, it is true that
in the normal course, he could not have represented
DCC as its former President. But it was possible
for A.N. Singh to represent DCC as its former
President, if there was a resolution by DCC
expressly authorizing him to represent it in the
appeal. It is also possible that in the absence of a
new President, A.N. Singh continued to act on the
assumption that he was entitled to represent DCC.
As no objection was raised during the lifetime of
A.N. Singh, his explanation is not available as to
why he chose to represent DCC in the appeal, as its
'former President'. Neither the office of the
appellate court, nor the landlord-respondent having
raised this issue and the Vakalatnama signed by
A.N. Singh having been received and impliedly
accepted by the appellate Court as validly executed
by the appellants, the landlord's objection to the
application for substitution ought to have been
rejected by the appellate court. At all events, if the
representation was found to be defective or
non-existent, the appellate court ought to have

AIR SUPREME COURT 1950-2010

granted an

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AIR SUPREME COURT 1950-2010

@page-SC275
opportunity to the second appellant - DCC, to
rectify the defect.
20. There is yet another reason to hold that the
appeal by DCC against the eviction decree was
validly filed. DCC was represented by Shri
Bindeshwar Prasad Singh and his colleagues in the
trial court. The same counsel filed the appeal. The
Vakalatnama granted by DCC in favour of the said
counsel in the trial court was sufficient
authorization to the said counsel to file the appeal
having regard to Order 3 Rule 4(2) CPC read with
Explanation (c), even without a separate
vakalatnama for the appeal.
21. We may at this juncture digress and express our
concern in regard to the manner in which defective
Vakalatnamas are routinely filed in courts.
Vakalatnama, a species of Power of Attorney, is an
important document, which enables and authorizes
the pleader appearing for a litigant to do several
acts as an Agent, which are binding on the litigant
who is the principal. It is a document which creates
the special relationship between the lawyer and the
client. It regulates and governs the extent of
delegation of authority to the pleaders and the
terms and conditions governing such delegation. It
should,
therefore,
be
properly
filled/attested/accepted with care and caution.
Obtaining the signature of the litigant on blank
Vakalatnamas and filling them subsequently should
be avoided. We may take judicial notice of the
following defects routinely found in Vakalatnamas
filed in courts :(a) Failure to mention the names of the
persons/executing the Vakalatnama, and leaving
the relevant column blank;
(b) Failure to disclose the name, designation or
authority of the person executing the Vakalatnama
on behalf of the grantor (where the Vakalatanama
is signed on behalf of a company, society or body)
by either affixing a seal or by mentioning the name
and designation below the signature of the
executant (and failure to annex a copy of such
authority with the Vakalatnama).
(c) Failure on the part of the pleader in whose
favour the Vakalatnama is executed, to sign it in
token of its acceptance.

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

(d) Failure to identify the person executing the


Vakalatnama or failure to certify that the pleader
has satisfied himself about the due execution of the
Vakalatnama.
(e) Failure to mention the address of the pleader for
purpose of service (in particular in cases of
outstation counsel).
(f) Where the Vakalatnama is executed by someone
for self and on behalf of someone else, failure to
mention the fact that it is being so executed. For
example, when a father and the minor children are
parties, invariably there is a single signature of the
father alone in the Vakalatnama without any
endorsement/statement that the signature is for 'self
and as guardian of his minor children'. Similarly,
where a firm and its partner, or a company and its
Director, or a Trust and its trustee, or an
organisation and its office-bearer, execute a
Vakalatnama, invariably there will be only one
signature without even an endorsement that the
signature is both in his/her personal capacity and as
the person authorized to sign on behalf of the
corporate body/firm/society/organisation.
(g) Where the Vakalatnama is executed by a power
of attorney holder of a party, failure to disclose that
it is being executed by an Attorney-holder and
failure to annex a copy of the power of attorney.
(h) Where several persons sign a single
vakalatnama, failure to affix the signature seriatim,
without mentioning their serial numbers or names
in brackets. (Many a time it is not possible to know
who have signed the Vakalatnama where the
signatures are illegible scrawls);
(i) Pleaders engaged by a client, in turn, executing
vakalatnamas in favour of other pleaders for
appearing in the same matter or for filing an appeal
or revision. (It is not uncommon in some areas for
mofussil lawyers to obtain signature of a litigant on
a vakalatnama and come to the seat of the High
Court, and engage a pleader for appearance in a
higher court and execute a Vakalatnama in favour
of such pleader).
We have referred to the above routine defects, as
Registries/Offices do not verify the Vakalatnamas
with the care and caution they deserve. Such failure
many a time leads to avoidable complications at
later stages, as in the present case. The need to
issue appropriate instructions to the Registries/

AIR SUPREME COURT 1950-2010

Offices to properly check and verify the


Vakalatnamas filed requires emphasis. Be that as it
may.

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AIR SUPREME COURT 1950-2010

@page-SC276
22. Coming back, we find that the High Court was
justified in setting aside the dismissal and restoring
the first appeal to the file of the Additional District
Judge with a direction to decide the matter on
merits. We, therefore, dismiss this appeal.
Nothing stated above or by the High Court, shall be
construed as an expression of any view or opinion
on the merits.
Appeal dismissed.

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

AIR SUPREME COURT 1950-2010

Endnotes
1 (Popup - Remark)
RELIED ON AIR 2009 SC 2352

(c) Copyright with All India Reporter Pvt. Ltd., Nagpur

/DHC/WRJT/D-5/2009

,
~..J

From,
Thc Rcgistrar General
Delhi High Court
New Delhi

---->

To,

Mr, Deepak Khosla, ~/O Mr, RP, Khosla, House No, 218,

Sector XV -A, Noida-201 301


2. Mrs. Sonia Khosla, W/o Mr. Deepak Khosla, 218, Sector XV-A,
Noida-201 301

7651/2009

WIUT PETITION ( C) NO.


Mr Dccpak Khosla and another

.... Pctitioncr/s

Vs .
l

mon

C India and others

.. ..Respondcnt/s

Sir.
am

dirccted

compliance/necessary
Bon 'ble

Division

to

forward

action
Bench

of this

herewith

copy
Court

of

for

order

information
dated

in the above

and

8.10.2009
noted

case

immediatc
passed

by

alongwith

copy of Memo of parties.


Please acknowledge receipt.
Yours faithfully,

~~)~1
Asstt. Registrar (Writs)
for Registrar General
BIl/B.! 0.2009

IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI


EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO.

,s:!

'"7

IN THE MATTER OF:


DEEPAK KHOSLA & Anr.

-OF 2009

...... PETITIONEF(S
Vs .

UNION OF INDIA & ORS.

..... .RESPONDENTS

MEMO OF PARTIES
1.

Mr. Deepak Khosla


slo Mr. R.P. Khosla
House No. 218 Sector XV-A
NOIDA 201 301

2.

Mrs. Sonia Khosla


wlo Mr. Deepak Khosla
218 Sectoer XV-A
NOIDA 201 301

... PETITIONERS
Versus

Union of India
Acting through
The Secretary
Ministry of Law & Justice
NEW DELH/110 003
2.

Hon'ble Delhi High Court


Acting through Hon'ble Registrar General
High Court of Delhi
NEW DELHI - 110 003

3.

Hon'ble Registrar
(and Secretary, Rules Committee)
High Court of Delhi
NEW DEL.HI- 110 003
Hon'ble Arbitration Tribuna~
(Constituted pursuant to order dated 29-2-2008
passed by the Hon'ble Delhi High Court in
AA No. 93 of 2008)
[Acting through its President,
Hon'ble Justice Mr. Arun Kumar (Retd.]
11 Tyagraj Marg
NEW DELHI 110

DATE: 16-3-2009
PLACE: NOIDA

00j1 ') f--J

II

(:-e.

Sonia Khosla

\--

RESPONDENTS
Q.e.&p'~~)<~a

PETITIONERtJf.Ji1-tR
218 See or XV-A
j\Joida 201 301

Tel: 99 530 96650

~.!
.'.~
.

i.5

IN THE

HIGH

COURT

OF DELHI

AT NEW

DELHI

Date of Decision: 8th October, 2009

W.P.(Q 7651/2009
DEEPAK KHOSLA & ANR.
Through:
Petitioner

.... , Petitioners
No.1.

versus
..... Respondents
Mr. Girish Pande, Advocate for R-l
Mr. Krishnu Adhikary, Advocate
with Mr. Praveen Uppal, AR(DHC)
for Respondents Nos. 2 & 3.

UOI & ORS.


Through:

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAjOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters
see the judgment?
2. To be referred
3. Whether

to Reporter

the judgment

PRADEEP NANDRAJOG.
1.

Petitioner

2.

The prayers

of local papers may be allowed to

No.I,

J.

or not?

should be reported

in the Digest?

(Oral)

who appears

in person,

made in the writ petition

has been heard.

read as under:-

I/(a) To issue a writ of Mandamus to Respondent No.3


(Registrar
of the Hon'ble
High Court, acting as
Secretary of its Rules Committee)
to include in the
Agenda of the very next meeting
of the Rules
Committee of the Hon'ble Delhi High Court a praposal
for the amendment of the Delhi High Court Rules by
way of incorporating
detailed instructions
withi.n the
body of the Rules on how vakalatnamas
are to be
executed, especially those relating to juristic entities.
Page 1 of 8

(b)
To issue a writ of Mandamus to Respondent Nos.
2 & 3 (acting through themselves
or through their
subordinate officers) that pending translation of prayer
(a) into the relevant incorporation of the same into the
body of the Delhi High Court Rules, to object to the
filing any motion by any party in judicial proceedings
before the Hon'ble High Court if the vakalatnama
accompanying
it has not been executed by the party
concerned in the manner laid down in law when read
with the judgment
of the Hon'ble Supreme Court
passed .in the case of Uday Shankar Triyar v. Ram
Kalewar Prasad Singh and Anr. (AIR 2006 SC 269), and
to return the same and not to post it before the
Hon'ble
court concerned
till the deficiencies
are
rectified.
(c)
To issue a writ of Mandamus to Respondent NO.2
(acting
through
themselves
or
through
their
subordinate officers) that pending translation of prayer
(a) into the relevant incorporation of the same into the
body of the Delhi High Court Rules, to circulate
instructions similar to (b) to all the Courts -subordinate
to the administrative
charge of the Hon'ble Chief
Justice of the Hon'ble Delhi High Court.
(d)

Award costs for this petition.

(e)
And pass such other order(s) or direction(s) or
further orders or directions as this Hon'ble Court may
deem fit and proper under the circumstances
of the
case."
3.

Eschewing

petition,
is

to

crystallizing
the

authorization
before

reference

petitioners

manner

are being

of the

account

of clumsy

pleadings

law

being

filing

which

abused

of confusion

of vakalatnamas

being

and/Dr'
of the

Authorities

or trial

writ

of the petitioners

Members

and

instances

in the

vakalatnamas

by learned

Tribunals

highlighted

process

in

filed

Courts,

have

prolix

the same, the grievance

casual

various

to the

Bar
The

and

the

delayed

on

by learned

Members

Page 2 of 8

of the Bar.
4.

Learned counsel for the respondents

importance

of a vakalatnama

filed

do not dispute the

by Members

of the Bar

authorizing them to act and plead on behalf of their clients.


5.

Indeed, Order III of the Code of Civil Procedure contains

the legislative
on behalf

provisions how appearance

of the parties

by recognized

have to be entered
agents

or by their

persons, Order 29 and

Order 30 of

counsel.
6.

Pertaining to juristic

the Code of Civil Procedure further guides, as to in what manner


living

persons

can act on behalf

of corporate

and juristic

entities.
7.

Fortunately for us, in the decision r~ported as AIR 2006 SC

269 Uday Shankar

Triyar

v. Ram K~/ewar Prasad Singh & Anr.,

in Para 21 of the said decision, the Supreme Court noted as


many as 9 deficiencies
Court, in vakalatnama
8.

The complication

noticed by their Lordhips of Supreme


filed by learned Members of the Bar.
at later stages which can be avoided by

a timely check and proper verification

of

vakalatnamas

have

been noted by their Lordships.


9.

Para 21 of the decision in Uday Shanker's

case (SllJpra)

reads as under :"21. We may at this juncture digress and express


our concern in regard to the manner in which
Page 3 of 8

defective
Vakalatnamas
are routinely
filed
in
courts.
Vakalatnama,
a species
of Power of
Attorney, is an important document, which enables
and authorizes the pleader appearing for a litigant
to do several acts as an Agent, which are binding
on the litigant who is the principal. It is a document
which creates the special relationship between the
lawyer and the client. It regulates and governs the
extent of delegation of authority to the pleader and
the
terms
and
conditions
governing
such
delegation.
It should,
therefore,
be properly
filled/attested/accepted
with care and caution.
Obtaining the signature of th,e litigant on blank
Vakalatnamas and filling them subsequently should
be avotded. We may take judicial notice of the
following defects routinely found in Vakalatnamas
filed in courts:
(a) Failure to mention the name/s of the person/s
executing
the Vakalatnama,
and leaving
the
relevant column blank;
(b) Failure to disclose the name, designation
or
authority of the person executing the Vakalatnama
on behalf of the grantor (where the Vakalatnama is
signed on behalf of a company, society or body) by
either affixing a seal or by mentioning the name
and designation
below the signature
of the
executant
(and failure to annex a copy of such
authority with the Vakalatnama).
(c) Failure on the part
favour the Vakalatnama
token of its acceptance.

of the pleader in whose


is executed, to sign it in

(d) Failure to identify the person executing the


Vakalatnama or failure to certify that the pleader
has satisfied himself about the due execution of
the Vakalatnama.
(e) Failure to mention the address of the pleader
for purpose of service (in particular in cases of
outstation counsel).
(f) Where
the Vakalatnama
is executed
by
someone for self and on behalf of someone else,
failure to mention the fact that it is being so
executed.
For example, when a father and the
minor children are parties, invariably there is a
single
signature
of the father
alone in the
Page 4 of 8

Vakalatnama
without any endorsement/statement
that the signature is for 'self and as guardian of his
minor children'. Similarly, where a firm and its
partner, or a company and its Director, or a Trust
and its trustee, or an organisation and its officebearer, execute a Vakalatnama,
invariably there
will be only one signature
without
even an
endorsement that the signature is both in his/her
personal capacity and as the person al,lthorized to
sign on behalf
of the
corporate
body/firm/
society/organisation.
(g) Where the Vakalatnama
is executed
by a
power-of-attorney
holder of a party, failure to
disclose that it is being executed by an Attorneyholder and failure to annex a copy of the power of
attorney;
(h)
Where
several
persons
sign
a single
vakalatnama,
failure
to affix
the
signatures
seriatim, without mentioning their .serial numbers
or names in brackets. (Many a time it is not
possible
to
know
who
have
signed
the
Vakalatnama
where the signatures
are illegible
scrawls);
(i) Pleaders engaged by a client, in turn, executing
vakalatnamas
in favour of other pleaders for
appearing
in the same matter or for tiling an
appeal or revision. (It is not uncommon in some
areas for mofussil lawyers tq obtain signature of a
litigant on a vakalatnama arid come to the seat of
the High Court,
and engage
a pleader
for
appearance
in a higher court and execute
a
Vakalatnama in favour of such pleader).
We have referred to the above routine detects, as
Registries/ Offices do not verify the Vakalatnamas
with the care and caution they deserve. Such
failure
many
a time
leads
to
avoidable
complications
at later stages, as in the present
case. The need to issue appropriate instructions to
the Registries/Offices
to properly check and verify
the Vakalatnamas filed requires emphasis. Be that
as it may."

10.

We agree with the submissions

urged

by petitioner

NO.1

Page 5 of 8

that the time

has come, when a judicial

passed, directing
Authorities,

order needs to be

the Registry of this Court as also the Courts,

Tribunals

and Foras in Delhi

to ensure proper

scrutiny of vakalatnamas.
11.

Mandamus

as sought by the petitioners

issued for the reason, the mandate


manner in w~ich vakalatnamas

need not

of law, pertaining

have to be executed

be

to the
is clear.

What is needed is, directions to the Registry of this Court, the


Courts subordinate

to this Court and the Tribunals and Foras in

Delhi that

scrutiny

proper

effected and vakalatnamas

of vakalatnamas

filed

should be

which are not properly executed be

not taken on record.


12.

Pertaining to vakalatnamas

himself
authority

but

by some

claiming

to >appoint

or give

on this behalf, Rule 1, Part-A of Chapter 16 of the

Delhi High Court


attorney

person

executed not by the Principal

to act

appointment

Rules, inter

alia,

to be executed

stipulates:

(1) Proof of

by the principal

Every

of a pleader to act shall contain in full the name of

the person, or, where there are more than one, of every person
who thereby appoints the pleader to act on his behalf, and shall
be executed

by every such person.

power of attorney
appointment

(2) Proof required

"whell

not executed by the principal - When such

or power is not executed by the principal himself,


Page fof 8

but by some person claiming to appoint or give authority on his


behalf, the pleader will not be recognized by the Court without
proof that such person was duly authorized
execute such appointment
13.

We

direct

vakalatnamas
Subordinate

that

filed,

by the principal to

or power".
henceforth

while

be it in the Registry

scrutinizing

of this Court, ~he

Courts in Delhi or the Tribunals,

Foras in Delhi, failure/defect

the

Authorities

in the vakalatnamas,

and

noted in sub.

paras 'a' to 'e' of Para 21 of the decision of the Supreme Court


in Uday Shankar's case (supra), shall be treated as a deficiency
in the execution
vakalatnama
contemplated

to

of the vakalatnamas
be

returned.

making liable the said

Further,

In

the

situation

by sub paras 'f' to 'i' of Para 21 of the decision in

Uday Shankar's case (supra), vakalatnamas

not executed in the

manner indicated in the said sub paras shall also be treated as


a deficiency in the execution of the vakalatnama,
said vakalatnama
14.

making liable

to be returned.

We are passing the directions

in public interest for the

reason even we have come across vakalatnama's which are filed


in a most lackadaisical manner. Many a times, precious judicial
time is lost in determining

whether a proper repres~ntation

is

being made under a proper authority.


15.

The writ petition stands disposed issuing a mandamus in


Page 7 of 8

terms of para 12 above.


16.

The Register General of this Court is directed to make

available a copy of this order to the Registry of this Court and to


forward a copy thereof to all the District Judges in Delhi with a
direction that strict compliance should be made with the letter
and spirit of the law and our directions pertaining to execution
of vakalatnamas.

Similarly, to the Registrars of the Tribunals

and Foras functioning in Delhi, a copy of this order may be sent


for compliance.
17.

No costs.

18.

Copy of this order may be supplied dasti to the petitioners

on payment of usual charges.

r--

rJ\f

r-(J

. PRADEEP NA~DRAJOG)

JUDGE
I

IV

I...-

~URESH

KAIT)

JUDGE
OCTOBER 08, 2009

hk

Page 8 of 8

No. 13/RuleslDHC
Dated: 26.10.2009

CIRCULAR
While disposing of WP(C) No.765112009titled "Deepak Khosla & Anr. Vs. Union of India & Ors." the Division Bencb
comprising Hon'ble Mr.Justice Pradeep Nandrajog and Hon'ble Mr.Justice Suresb Kait, has noted that the Vakalatnamas are
being filed in a most lackadaisical manner.

Many a times, precious judicial time is lost in determining whether a proper

representation is being made under a proper-authority.

Hon'ble Division Bencb bas directed that henceforth while scrutinizing

the Vakalatnamas filed, failure/defects noted below shall be treated as a deficiency in the execution oftbe Vakalatnamas making
liable the said Vakalatnamas to be returned.

It should, therefore, be ensured that the Vakalatnama

is free from defects,

including, inter alia, the following:(a)

The name/s of the person/s executing the Vakalatnama is/are clearly mentioned.

(b)

In case the Vakalatnama has been signed on bebalf of a companylfirmlsociety/ organizationlbody corporate, tbe name,

..

designation or authority of tbe person executing the Vak.tllatnama on bebalf of the grantor is disclosed by either affixing
a seal or by mentioning the name and designation below the signature of the executant. III such a case, a true copy of
sucb autbority, sucb as the resolution of a compa!r or copy of the minutes of a meeting authorizing such a person to
represent a company/firm/society/orgllJlizationlbody

corporate, is annexed with the Vakalatnama. In tbese types of

cases, if such person ceases to be in tbe employment of sucb company/firmlsoc:iety/organization/body corporate, a fresh
Vakalanama is filed along with a fresb resolution.
(c)

The pleader, in whose favour the Vakalatnama has been executed, has signed it in token of its acceptance.

(d)

The pleader has identified the person executing the -Vakalatnama and has also certified that he had satisfied
'himself/herself about the due execution oftbe Vakalanama.

(e)

The address, pbone numbers, mobile number, fax number, e-mail ID, etc. of the pleader is clearly mentioned on the
Vakalatnama.

(f)

Where a Vakalatnama has been ex~uted by someone for self and on behalf of someone else, an endorsement/statement
to this effect is made on the Vakalatnama. For example when a father and tlie minor children are ,parties, invariably
there is a single signature of the father alone on the Vakalatnama without any endorsement/statement that the signature
is for 'self and as guardian of his minor \:hildren'.

Similarly, where a firm and its partner, or a company and its

Director, or a Trust and its trustee, or an organization and its office-bearer, execute a VakaJatnama, invariably there

will be only one signature without even an endorsement that the signature is both in bis/ber personal capacity and as the
person authorized to sign on behalf of the corporate body/firm/society/ organisation.
(g)

Wbere a Vakalatnama has been executed by a Pow~r of Attorney bolder of a party, the executant to disclose the same
and annex a true copy of such Power of Attorney.

(h)

Where several persons sign a single Vakalatnama, the signatures are atlb:ed seriatim, mentioning their seriall!umber
and name in brackets corresponding to the serial number and name mentioned in the memo of parties.

(i)

Where a single Vakalatnama has been executed in favour of more than one pleader, the names and addresses of each
pleader are clearly mentioned on tbe Vakalatnama.

(j)

The Vakalatnama is not executed by a pleader in favour ofanotber pleader.

(k)

The Vakalanama is properly stamped as per the Court Fees Act, 1870, the Advocates Act, 1961 and the Bar Council of
India Rules, 1975 framed under the Advocates Act, 1961.

(I)

The case number and the cause title are clearly mentioned in the Vakalatnama.

The Registry is directed to properly check, verify and ensure that the Vakalatnamas filed at the filing counter are
complete witb regard to all tbe aforesaid aspects. Incomplete Vakalatnamas should be roturned with objection (s).
BY ORDER
(RAKESH KAPOOR)
Registrar General

P a g e | 133
ANNEXURE P - 5

Deepak Khosla
Advocate
KAR 1280/13

Bangalore Office :
No.114 (Ground Floor),
Kempaiah Building,
1st Main, 1st Cross
Karekal, Kamakshipalya
Old Gurupriya Kalyana Mantapa
Road
BANGALORE 560 079
KARNATAKA * INDIA

Kolkata Office :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu
Sarani)
KOLKATA-700 001
INDIA

Honble Ms. (Dr.) Manjula Chellur


Honble the Chief Justice
Honble High Court of Calcutta
KOLKATA
SUBJECT

New Delhi Office :


Suite 6-C, Girdhar Apartments
28 Feroze Shah Road
NEW DELHI 110 001
INDIA
Tel : +91 11 2332 9654
Fax : +91 11 2372 2468
Email : dk@dandklaw.in
Cell : +91 99 530 96650

MOST URGENT
January 19th, 2015

BLATANT VIOLATION OF THE ORIGINAL SIDE


RULES BY KHAITAN & CO.

Revered Madam Lordship,


I append herewith a copy of my letter dated 09-01-2015 addressed to Ld.
Registrar (Original Side), which lists as many as 7 violations of the Original
Side Rules by Khaitan & Co, who, in fact, have no right of practice on the
Original Side, and are playing a fraud on the Court.
Your Lordship will also be pleased to recall that in Karnataka, Rules have
been framed by the Honble Karnataka High Court under Section 34 of the
Advocates Act, which Rules forbid the use of the suffix and Company in
the name of a law firm. No doubt the same Rule applies here.
I have been given to understand that M/s Khaitan & Co are using their
inordinate clout with the staff of the Honble High Court of Calcutta to
ensure that their violations remain hushed up. Hence, I humbly urge Your
Lordship to please issue appropriate directions ensure that the law follows
its course, no matter how high or powerful the violator may be.
Yours faithfully,
DEEPAK KHOSLA

ENCL. : Letter dated 09-01-2015.

-133-

134

Company Application No. ___________of 2015

ANNEXURE P - 6

Connected with CA No. _____ of 2007


And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Civil Original Company Jurisdiction
IN THE MATTER OF :
Application under Article 215 of the
Constitution of India, read with the Contempt
of Courts Act, praying to initiate suo motu
criminal contempt of court proceedings
against the persons named herein for
contempt committed on 09-01-2015 in the
face of the court, including by learned
advocates, to then be dealt with by the
Hon'ble Division Bench.
AND IN THE MATTER OF :
Initiation of proceedings under Section 340
of the CrPC for perjury, for a violation, inter
alia, of Section 209 of the Indian Penal Code,
read with Section 221 of the CrPC.
AND IN THE MATTER OF :
The Companies Act, 1956;
AND
IN THE MATTER OF:
Sections 155,397,399,402,403 and 404 of the
said Act;

135
AND
IN THE MATTER OF :
TURNER MORRISON & COMPANY LIMITED,
an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street, Kolkata.
AND
IN THE MATTER OF :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate Law of Singapore and having its
Registered Office at 36, Tanjong Penjura,
Singapore.
..........PETITIONER.
VERSUS
1.

TURNER MORRISON AND COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at 8, Camac Street,
Kolkata - 700 016.
2.

S.T.P.

LTD., formerly known as

SHALIMAR TAR PRODUCTS (1935) LIMITED,


an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 016.
3.

GRAHAMS

TRADING

COMPANY

(INDIA) LIMITED, an existing Company


within the meaning of Companies Act and
having its Registered Office at 8, Camac
Street , Kolkata - 700 016.
4.

LODNA COLLIERY COMPANY (1920)

136
LIMITED, an existing Company within the
meaning of the Companies Act, 1956 and
having its Registered Office at 8, Camac
Street,
Kolkata - 700 016.
5.

ANGELO BROTHERS LIMITED

An existing Company under the Companies


Act, 1956 having its Registered Office at No.
64-A, Raif Ahmed Kidwai Road, Kolkata 700016.
6.
(In

SHALIMAR WORKS LIMITED


liquidation),

through

the

Official

Liquidator attached to the High Court of


Calcutta having his office at
No. 9, Old Post Office Street, Kolkata - 700
001;
7.
(In

PANCHSSHEEL
liquidation),

SHIPPING LIMITED

through

the

Official

Liquidator attached to the High Court at


Calcutta having his office at No. 9, Old Post
Office Street, Kolkata - 700 001.
8.

ROHTAS INDUSTRIES LIMITED, an

existing Company within the meaning of the


Companies

Act,

1956

and

having

its

Registered Office at Dalmia Nagar in the State


of Bihar and also having its office at 8, Camac
Street, Kolkata - 700 016.
9.

ASHOKA MARKETING LIMITED, a

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 0016.

137
10.

NEW CENTRAL JUTE MILLS LIMITED,

an existing Company Within the meaning of


the

Companies

Act,

1956

having

its

Registered Office at 18-A, Brabourne Road,


Kolkata -700 001.
11.

SAHU

PROPERTIES

LIMITED,

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at B.B.D, Bag (East), Kolkata
-700 001;
12.

BENNETT COLEMAN & COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at Dr. Dadabhai Naoroji
Road, Bombay- 400 001;
13.

SOUMATI PROPERTIES LIMITED, a

Company incorporated under the provisions


of The Companies Act, 1956 having its
Registered Office at 5, Parliament Street, New
Delhi-110001;
14.

BHARAT WIDHI LIMITED, a Company

incorporated
Companies

under
Act,

the

1956

Provisions

and

having

of
its

Registered Office at 5, Parliament Street, New


Delhi-110001;
15.

SAHU JAIN LIMITED, an existing

Company
Companies
registered

within

the

Act,

1956

meaning
and

of

having

the
its

office at 7,Bahadur Shah Zafar

Marg,
New Delhi-110002;
16.

ASHOKA

HOLDING

LIMITED,

138
Company incorporated under the Provisions
of the Companies Act, 1956 and having its
Registered Office at 5, Parliament Street, New
Delhi-110 001;
17.

DHARMYUG INVESTMENT LIMITED, a

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at Times of India Building,
Dr. D.N. Road, Bombay- 400 001;
18.

SARVAMANGAL TRADING COMPANY

LIMITED, a company Incorporated under the


provisions of the Companies Act, 1956 and
having its Registered Office at 3-A Garstin
Place, Kolkata -700 001;
19.

COMBINE

HOLDING

LIMITED,

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 10, Stephen house, 4,
B.B.D,
Kolkata -700 001;
20.

CARAVAN COMMERCIAL COMPANY

LIMITED, a Company Incorporated under the


provisions of the Companies Act,1956 and
having its Registered Office at 2, Ganesh
Chandra Avenue, Kolkata -700 013;
21.

P.N.B. FINANCE LIMITED, a Company

incorporated under the Provisions of the


Companies Act, 1956 and having Registered
Office at B-45/47,Connaught

Place, New

Delhi-110001;
22.

HARI KRISHNA CHOUDARY;

139
23.

P.R NEELKANTH

(full name not known), both working for gain


at 8, Camac Street,
Kolkata -700 016;
24.

HARENDRA KUMAR, residing at 8,

Mandeville Garden, Kolkata -700 019;


25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,

All working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
29.

Smt. DURGA JAIN, working for gain at

Turner Morrison House at 16, Bank Street,


Bombay-400023;
30.

ATMA RAM SARAOGI

31.

K.K BIYANI, (full name not known)

Both working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI, residing

at 8, Lower Rowdon Street,


Kolkata -700 020;
35.

HONGKONG

BANK, constituted

under the appropriate Laws of England and


carrying on business, inter alia, at 8,Netaji
Subhas Road, Kolkata -700 001;

140

36.

PRADIP KUMAR SINGHANIA, residing

at No. 19, Ballygunge Circular Road, Kolkata.


37.

RESERVE BANK OF INDIA, a body

corporate constituted under the Reserve


bank of India Act, and carrying on business,
inter alia, at

115, Netaji Subhas Road,

Calcutta-700 001 and also having its office at


Central Office, Exchange Control Department,
Mumbai-400 001.
38.

DR. RABINDRA NATH GARG, son of

Late Baij Nath Garg, at present residing at 3,


Park Mansion, Park Street, Kolkata.
39.

TAX

RECOVERY

OFFICER

(IV)

Calcutta and 24-Parganas, 8/2 Esplanade,


East Dawkins House Kolkata.
.RESPONDENTS.
AND
IN THE MATTER OF APPLICATION BY :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate laws of Singapore and having its
Registered Office at 36, Tanjong, Penjura,
Singapore.
APPLICANT.
AFFIDAVIT
I, Gobinda Biswas, son of Late Mr. Tulsi Ram Biswas, aged about 40 years, resident of
903 KBM, Chakdah, Distt. Nadia 741 222, and also at 1-B Judges Court Road, Kolkata
700 027, profession Executive, do hereby solemnly affirm and state as under:

141
1.

That I am an Officer of the applicant Company, and as such, I am fully conversant


with the facts of the present case, and am fully competent to depose thereto, and
competent and authorised to file the accompanying application.
2. That the applicant Company is also the petitioner before this Hon'ble Court, and
has filed the above-mentioned CA No. 491 of 2012, seeking various directions.
These directions are premised on the proposition that any order, whether of this
Hon'ble Court, or of a co-ordinate Court / Bench, or of a superior court, if it
ostensibly appears to come in the way of this Hon'ble Court granting the reliefs
prayed for in CA No. 491 of 2012, this would be a fallacious interpretation, as all
such orders are a nullity in law, and hence, void ab initio, as if non est, these
orders being eminently challengeable before this Hon'ble Court by virtue of Article
141 of the Constitution read with Section 44 of the Evidence Act. The applicant
craves leave to establish this point to the satisfaction of this Hon'ble Court during
the course of oral arguments, fully backed by judicial precedents.

3.

That the applicant Company has filed the above mentioned Recall Petition before
this Honble Court in view of the material irregularity committed by the persons
named therein and harming the applicants interests. The facts and
circumstances relevant for the purposes of the present application are set out in
detail in the said petition and, for the sake of brevity and to avoid repetition, the
applicant craves leave to refer to and rely thereupon without specifically
incorporating the same hereinafter.

4.

That this application is for criminal contempt, where the contemner / nonapplicants who have commited the contempt in the face of this court are the
following 10 persons :
Sl.
No.

NAME

NON-APPLICANT No.

1.

Mr. Utpal Bose, Senior Advocate

Non-applicant No. 1

2.

Mr. Ratnesh Rai, Advocate

Non-applicant No. 2

3.

Mr. Joy Saha, Advocate

Non-applicant No. 3

4.

Mr. K. K. Biyani, Secretary of TMCL

Non-applicant No. 4

5.

Mr. Amit Judge, Mg. Director of TMCL

Non-applicant No. 5

6.

Ms. Renu Judge, Director of TMCL

Non-applicant No. 6

7.

Mr. Ranjit Chopra, Director of TMCL

Non-applicant No. 7

8.

Mr. Inderjit S. Narula, Director of TMCL

Non-applicant No. 8

9.

Mr. Ranjit Chowdhry, Director of TMCL

Non-applicant No. 9

142
10.

Mr. Jayant Raj Kochar, Director of TMCL

Non-applicant No. 10

Legend :
5.

TMCL : Turner Morrison Company Ltd

That on mentioning 3 applications (viz. CA Nos. 10-12 of 2015, one seeking


audio-recording of this Hon'ble Courts proceedings on a tape recorder to be
provided by the applicant, one seeking summoning of certain persons to depose
before this Hon'ble Court, including very significantly - the learned counsels
appearing in the matter who have been acting in furtherance of a criminal
purpose, and the third seeking a declaration that the order dated 09-03-2007
passed by the Division Bench in certain appeal proceedings is a nullity in law),
they were listed and heard briefly before this Hon'ble Court on 09-01-2015.

6.

That the three learned counsels who claimed alleged right to appear, and did
appear, for Respondent No. 1 Company (Turner Morrison Ltd) were a team
consisting of one Mr. Ratnesh Rai (of Khaitan & Company, Solicitors), and one
Mr. Joy Saha, both led by Mr. Utpal Bose (Senior Advocate designated so by this
Hon'ble Court w.e.f. 30-06-2014, though prior orders also describe him as a
Senior Advocate, even though he was not so prior to 30-06-2014, but which
orders he has not sought correction of, perhaps with strategic motive, as
explained further below).

7.

That to obstruct the smooth passage of the hearing intended for 09-01-2015,
these three learned advocates all chimed in in chorus to oppose any attempt on
the part of this Hon'ble Court to hear these three applications, their opposition
being on the grounds of determination. They vehemently argued that only the
Company Petition had been assigned by Hon'ble Chief Justice to this Hon'ble
Court, and this did not mean subsequent applications filed in the Company
Petition also stood automatically assigned to this Hon'ble Court. On this basis,
they questioned the jurisdiction of this Hon'ble Court to hear these 3
applications in the absence of Honble the Chief Justice specifically assigning
these 3 applications also to this Hon'ble Court.

8.

That these learned advocates went to the rather distasteful extent even of
imputing motives to the Registry officials, whose act of listing these 3
applications before this Hon'ble Court was vehemently questioned, and collusion
between the applicant herein and the Registry officials was vociferously and
repeatedly mooted.

143

9.

That their opposition to this Hon'ble Court haring these aplications not only has
been captured by the steographers tasked by this Hon'ble Court to capture all
the arguments before this Hon'ble Court verbatim, but also has been set out by
this Hon'ble Court in its order of proceedings for the day.

10.

That the consequence of this objection was that the matter, though commenced
arguments upon by around 2:15 pm, till 3:50 pm or so, when this Hon'ble Court
rose for the day, could not progress on the merits of the matters before this
Hon'ble Court that were intended for adjudication this day.

11.

That when they saw that the time was practically up, only then did they cease
their arguments on this objection, and when counsel for the applicant then
attempted to put forward his counter-argument. He respectfuly submitted to
this Hon'ble Court that CA No. 139 of 2013 had been filed and argued by these
same advocates. When they had filed this CA, they had not sought determination
of their applications assignment to this Hon'ble Court. This being so, this was a
deliberate and consciously-malicious attempt on their part to obstruct the due
course of judicial procedings intended for today, an act described in Section
2(c)(ii) of the Contempt of Courts Act, and punishable, inter alia, by Article 215
of the Constitution. This highly unfair action on their part also constituted an act
deliberately and maliciously intended to obstruct in the administration of
justice, an act described in Section 2(c)(iii) of the Contempt of Courts Act, and
punishable, inter alia, by Article 215 of the Constitution. They fully well knew
that the Ld. Presiding Officer of this Hon'ble Court had to rise for the day a little
earlier today (09-01-2015, at 3:30 pm), and they tried their best to clutch all
possible obstructive straws to see to it that this Hon'ble Court could not
proceed with the matter till it dealt with whatever objections were put to this
Hon'ble Court, whether such objections be tenable or not.

12.

That ordinarily, given that the objection put to this Hon'ble Court was a legal
argument, this would have been a classic case of approbate and reprobate not
on facts, but on the law, and by the counsel(s), and not by his client. However,
when this aspect of the matter was put to them (i.e. that their own CA No. 139 of
2013 had been listed before this Hon'ble Court without Hon'ble the Chief Justice
making a specific assignment / determination), given that they did not concede
and still continued to press their wholly-vexatious objection, the fact that they
did not sua sponte - reveal this vital aspect while pressing their objection nor

144
refused to withdraw it when shown their own application, assumes far more
sinister overtones, overtones that result in the situation falling squarely in the
lap of criminal contempt of court, as well as perjury.
13.

That is because they knew perfectly well that, in the same breath, they cannot
possibly argue that the 3 applications filed by the applicant could not be heard
by this Honble court unless and until Honble the Chief Justice agreed to
specifically mark these 3 applications also to this Honble court, even though
their own CA No. 139 of 2013 had been automatically listed before this Honble
court without such specific assignment. In other words, they knew that their
objection would be laughed out within 5 seconds flat had they disclosed the vital
aspect of their own application, and therefore, so as to enable themselves to
sustain that objection over a long(er) period time in order to ensure that their
objections would stretch, timewise, till the rising of the Court, they concealed
this very vital and material fact so as to mislead this Hon'ble Court into
continuing to allow them to raise what would otherwise have been viewed to be
a frivolous and downright-untenable objection.

14.

That as a direct and immediate consequence of their consciously vexatious,


malicious and dilatory conduct, none of the 3 applications filed by the applicant
could be heard on merits today.

15.

That had it been the case that there CA No. 139 of 2013 filed by their client
around 1 years ago had been through or different counsel, and/or acting
through or different deponent purporting to act on behalf of the company, it still
albeit, arguably - may or could have been a defensible case. However, in the
present case, that is no defense, because the deponent was the same (i.e. Mr. K.
K. Biyani), the counsels were the same, and to top it all, the deponent Mr. K. K.
Biyani was in the courtroom when this matter was argued today (09-01-2015).

16.

That if their CA No. 139 of 2013 had been filed long ago and/or disposed off, it
still - albeit, arguably - may or could have been a defensible case. However, in the
present case, that is no defense, because CA No. 139 of 2013 not only was filed
very recently, but is still showing in the Cause List as not only pending, but as
intended for disposal today itself. Therefore, it cannot be a case where such
objection was raised while legitimately forgetting their own application.

145
17.

That from the contents of the preceding 2 paragraphs, the only conclusion a
person of average reason can draw is that knowing fully well that there is no
requirement whatsoever for special determination/assignment by Honble Mr.
Justice for subsequent applications filed in a Company Petition that has been
specifically assigned to a specific court, as witnessed by the fact that their own
application was not subjected to such specific assignment/determination by
Honble the Chief Justice before listing of before this Honble Court, such
objection had been consciously, vexatiously and maliciously raised deliberately,
knowing fully well that it has no substance in law, with the sole motive of
prolonging these specious arguments to such a point that valuable court hours
would be wasted, and the court would be forced to eventually rise for the day
without their allowing the matter to proceed in the manner for which it had
been intended for the day.

18.

That this is nothing but criminal contempt of court.


PROSECUTION ALSO FOR PERJURY :

19.

That in addition, by making what are known to the advocates concerned to be


false claims in Court, their prosecution for perjury is warranted by initiation of
proceedings under Section 340 of the CrPC, for a violation, inter alia, of Section
209 of the Indian Penal Code, read with Section 221 of the CrPC [Illustration (c)].
The provisions of Section 209 of the Indian Penal Code and Sectiojn 221 CrPC
are reproduced below for the ease of referral of this Hon'ble Court :
Section 209 IPC : Dishonestly making

false

claim

in Court.

Whoever fraudulently or dishonestly, or with intent to injure or annoy


any person, makes in a Court of Justice any claim which he knows to be
false, shall be punished with imprisonment of either description for a term
which may extend to two years, and shall also be liable to fine.
Section 221 CrPC : (1) If a single act or series of acts is of such a nature
that it is doubtful which of several offences the facts which can be proved
will constitute, the accused may be charged with having committed all or
any of such offences , and any number of such charges may be tried at once;
or he may be charged in the alternative with having committed some one of
the said offences.

146

(2) If in such a case the accused is charged with one offence, and it appears
in evidence that he committed a different offence for which he might have
been charged under the provisions of sub-section (1), he may be convicted
of the offence which he is shown to have committed, although he was not
charged with it.
Illustrations
(a) A is accused of an act which may amount to theft, or receiving stolen
property, or criminal breach of trust or cheating. He may be charged with
theft, receiving stolen property, criminal breach of trust and cheating, or he
may be charged with having committed theft, or receiving stolen property,
or criminal breach of trust or cheating.
(b) In the case mentioned, A is only charged with theft. It appears that he
committed the offence of criminal breach of trust, or that of receiving
stolen goods. He may be convicted of criminal breach of trust or of receiving
stolen goods (as the case may be), though he was not charged with such
offence.
(c) A states on oath before the Magistrate that he saw B hit C with
a club. Before the Sessions Court A states on oath that B never hit C. A
may be charged in the alternative and convicted of intentionally
giving false evidence, although it cannot be proved which of these
contradictory statements was false.
20.

That it is a settled proposition of law that when a person makes 2 statements of


which only one can possibly be true, there is no necessity to establish which one
of the two is true and/or which one is false. His prosecution for perjury is
automatic, and by virtue of Section 221 CrPC, his conviction also is certain. In the
instant case, that is precisely the position : when they appeared on 09-01-2015
to press for final disposal of their CA No. 139 of 2013 listed today, they implicitly
stated that it was listed correctly without need for any specific assignment by
Hon'ble the Chief Justice ; yet, in the same breath, they opposed the listing of the
3 applications filed by the applicant on the grounds that they neded assignment
by Hon'ble the Chief Justice.

147

21.

That the applicant readily concedes that, ordinarily, any petition for criminal
contempt under the Contempt of Courts Act, 1971 requires filing of consent by
Ld. Attorney General before placement before the Honble Court. However, in the
present case, the Petitioner has invoked Article 215 of the Constitution of India,
based on the principles clarified by Hon'ble Supreme Court in the case of Dr.
Subramanian Swamy Vs. Arun Shourie [Contempt Petition (Crl.) No. 11 Of
1990] decided on 23-07-014. In this judgment, the Honble Supreme Court has
clearly spelled out that no procedural constraint will stand in the way of exercise
of inherent contempt powers enshrined in Article 129 of the Constitution. It is
most respectfully submitted that Article 215 of the Constitution is merely a
sister-article of Article 129, and contains the power vested with the Honble High
Courts in a manner that is pari materia with that vested in the Honble Supreme
Court under Article 129. This being so, just as no procedural limitation will stand
in the way of the Hon'ble Supreme Court in its exercise of powers under Article
129, similarly, no procedural limitation can stand in the way of exercise of the
same contempt powers under Article 215 by this Hon'ble Court. The consent by
Ld. Attorney General is purely a procedural limitation set out only in the
Contempt of Courts Act, and therefore, its absence is not an impediment on this
Hon'ble Court acting under Article 215. In that judgment, the Honble Supreme
Court tellingly observed as follows :
9. It may be observed immediately that the learned Solicitor General and
learned senior counsel for the respondent in the course of arguments
agreed that for exercising the suo motu power for contempt under Article
129 of the Constitution of India, the limitation provided in Section 20 of the
1971 Act has no application. There is no challenge before us about the legal
position that there are no implied or express limitations on the inherent
powers of the Supreme Court of India and, therefore, no limitations can be
read into Article 129 of the Constitution.

22.

That in the present case, to seek consent from Ld. Attorney General under the
Contempt of Courts Act is not without its own difficulties, given that he was not
present in the court, and therefore, no matter how long or elaborate an affidavit
is made and presented to him, it is impossible to give on affidavits the exact
flavor of what transpired in court (in the face of the court), when such
affidavits are compared to the personal knowledge of the learned Presiding
Officer of this Honble court, in whose presence the contumacious acts were

148
committed, and who, therefore, knows in terms of his personal knowledge the
precise nuances of whatever may otherwise be set out in an affidavit.
23.

That another aspect of the matter is that the applicant has no way of knowing
whether the fact that the learned advocates who committed this reprehensible
act, being part of, or closely associated with, Khaitan & Co (Solicitors), one of the
largest law firm of the city, a law firm with whom many Honble judges of the
Calcutta High Court have interned with or have been juniors in, or have been
briefed by prior to their elevation as Honble judges, and connected / similar
issues, would not be a significant factor(s) in his evaluation of whether to allow
the merits of the facts reported to him alone to sway him into granting or
denying consent.

24.

That in any case, sanction is merely a procedural requirement, which has no


bearing with contempt that is committed in the face of the court. In this kind of
contempt, it is the opinion of the learned Presiding Officer of the Court (if the
High Court) that is final, and the sanction (read, mere opinion) of the learned
Attorney General has very little, if no, role to play in the matter.

25.

That in specific relation to the prayers made in the present application, the
applicant respectfully submits that justice must not only be done, but be seen to
have been done.

26.

That this being

27.

incontrovertibly so, the applicant respectfully submits that it is his stand that in
India, which is a country ruled by the Rule of Law, there are none about the law.

28.

That this being so, it can hardly follow that persons intimately connected with
the Rule of Law themselves are about the same law that is seek enforcement of
against others.

29.

That it is the position already taken by the applicant before various judicial
forums that the opposite party is playing a heinous FRAUD on the Courts,
resorting to sharp practices, indulging in patent falsehoods (especially during
oral arguments), misleading the Courts, both by overt acts (by way of positivelyasserted falsehoods) as well as by covertly acts (strategically-omitted facts
which equates to suppression), forum shopping (obtaining listing before

149
preferred Courts), etc, all with the tacit support (perhaps even encouragement)
of their advisers, who are impermissibly acting as his mouthpiece.
30.

That it is, in fact, the mala fide conduct of the Respondents and their advisers in
Court that has been desired to be captured by this Hon'ble Court through
irrefutable means, and which is the prime motivator for the filing of one of the 3
applications listed today, so that this Hon'ble Court, its appellate Court(s), the
Bar Council of West Bengal, the Kolkata Police and the Central Bureau of
Investigation (CBI) all will have incontrovertible evidence of how they present
themselves and argue their (or their clients) cause before this Hon'ble Court.

31.

That some aspects of the conduct of the opposite party has been laid on record
of Honble the Chief Justice of the Hon'ble High Court of Calcutta, inter alia, vide
email dated 17-12-2014 whose subject line reads as follows Repeated forgery of
orders of Hon'ble High Court of Calcutta - immediate inquiry into.. This email has
been copied to various other connected / concerned dignitaries, including
learned Secretary General of the Hon'ble Supreme Court, President of India,
Prime Minister of India, Law Minister of India, Law Secretary of India, Home
Minister of India, Home Secretary of India, CBI, Director General of Police of
West Bengal, the Chief Secretary of West Bengal, Secretaries of the Law and
Judicial Departments of the State of West Bengal, etc), in which the gamut of
allegations set out in the email, some specifically against the opposite party,
include, inter alia, the following 8 ugly / sordid incidents :
i.

Entrapment by a leading law firm of Kolkata of a sitting Chief Justice of


this Hon'ble High Court in 1968, catching him in a sexuallycompromised position in Clarks Hotel, Benares (leading to his alleged
blackmail, this sordid incident further leading to establishment of the
Sarma Sarkar Commission in 1968-69).

ii.

Entrapment of another acting (lady) Chief Justice in 1971 by the very


same law firm, the entrapment being catching her also in a sexuallycompromised position in the Nile Hilton (Egypt), resulting in her
allegedly not protesting, inter alia, at an order dated 23-06-1993
pruported to have been dictated by her in CP No. 33 of 1988 on the
very date of her retirement being signed by another sitting Judge some
weeks later, by the latter Judge (impermissibly) citing Order XVI Rule 3
of the Calcutta High Court Rules, even though such Rule could not

150
possibly apply to this situation. (This Rule is reproduced immediately
below, from which this Hon'ble Court will kindly peruse that this Rule
could not possibly apply to that situation, but the appending of the
latter Judges signatures was an act allegedly orchestrated by the same
law firm by clandestine placement of the typed order in the Courts file,
purporting the situation to be as if Hon'ble Mr. Justice Khastagir had
dictated this order on the date of her retirement, but could not sign it.
Fortunately, this order dated 23-06-1993 has subsequently been set
aside by the Division Bench on 08-10-1996).
Order XVI, Rule 3 : Official note of judgement of a Judge on
leave, etc., how may be filed : - The official note of a judgment
delivered by a Judge, who has gone on leave or ceased to be a
Judge of the Court, after revision by the officer by whom it was
taken, or, where such officer is not available, the unrevised note
thereof, may be filed, with the leave of a judge, and when the same
has been filed, office copies may be obtained in the usual manner.
iii.

Death of a prime witness (BN Garg), whose son has formally levelled
charges of murder (alleged arsenic poisoning) against the antagonists
of the applicant, and in which the criminal trial is pending.

iv.

Death of an inconvenient Judge (Hon'ble Mr. Justice B. M. Mitra)


shortly after 1999 (when he delivered a devastating judgement dated
08-10-1996 against the Jain Group, and again upheld it when in
Division Bench with Hon'ble Mr. Justice Ansari on 21-03-1999), the
death being in highly mysterious circumstances, being at an incredibly
early age.

v.

Judges who have patently had vested interests in a matter and should,
therefore, not hear that matter, but who have insisted on hearing these
very same matters, and then going on to passing orders adverse to the
applicant.

vi.

A Senior Advocate of the Calcutta High Court who appeared for the
applicant in 1990 or thereabouts (one Mr. Kalyan Jyoti Sengupta, as he
was then known), but then helped the applicants opponent in open
court (by suggesting to the Court of HMJ Babulal Jain to pass an order

151
adverse to the applicant and in favour of the same opponent), leading
immediately to a vicious fist-fight in the barroom in the High Court
between the applicant and this Senior Advocate, resulting in that
Senior Advocate going screaming with bleeding lip and black-eye into
the Bar Room exhorting all his colleagues to ensure that none appear
for the applicant, then being elevated to Judgeship of the Honble High
Court of Calcutta, and in that capacity, adjudicating a matter of the
applicant in 2007, going on to maliciously pass a highly adverse order
against the applicant on 09-03-2007, which Honble Judge has now
been posted as a Chief Justice of a High Court, no doubt with his eyes
upwards, aimed at elevation to the Hon'ble Supreme Court.
vii.

Leading senior advocates of Calcutta lighting the candle from both


ends (appearing for both sides in the same matter), and Honble Judges
refusing to intervene at these acts of gross professional misconduct,
even though they are duty-bound to do so.

viii.

Honble Judges of the Calcutta High Court blatantly cocking a snoot at


binding orders of the Hon'ble Supreme Court, and also of co-ordinate
Benches of the Honble High Court of Calcutta passed in a prior
moment in time which, as per judicial hierarchy and canons of judicial
discipline laid down by the Hon'ble Supreme Court, being binding on
them by virtue of Article 141 of the Constitution.

ix.

and so on.

None of what has been set out above is outside existing and live judicial
record, and not on duly-sworn affidavit, hence, the applicant has no
hesitation in bringing these allegations to the attention of this Hon'ble Court
as well.
The incident [item (ii) above] relating to the order dated 23-06-1993
allegedly passed by Hon'ble Ms. Justice

Padma Khastagir (acting Chief

Justice) in CP No. 33 of 1988 [but subsequently signed by Hon'ble Mr. Justice


Gangulay after her retirement in the mistaken belief that the typed text
inserted mischievously by a devious miscreant(s) into the file had, indeed,
been dictated by her before her retirement] would show that the incident
recounted to the Chief Justice in the afore-referred email and also to this

152
Hon'ble Court in other proceedings (viz. in relation to the order allegedly
dated 22-08-2008 passed in CC No. 227 of 2007), is not an incident in
isolation. In fact, two other incidents of forgery of court orders,
manipulation of court records (by removing of orders), etc have been
recounted in that email, but are not being reproduced herein in full detail, as
even one incident is enough to justify grant of the prayers made herein.
32.

That in that context, it is crucially relevant for the purposes of the present
application to highlight that by way of non-denial, the opposite party has
admitted the allegations of wrongdoing raised by the applicant. In this regard,
apart from the above 8 allegations never having been controverted properly by
the opposite party, the applicant appends hereto, marked colly. as Annexure A,
the following 7 letters / Written Notes written by the applicant to the counsels
for the opposite party (viz. M/s Khaitan & Co) or filed before this Hon'ble Court,
whose relevant extracts are reproduced verbatim for the ease of referral below :
i)

Letter dated 03-02-2011 : In this letter, which, very significantly,


remains unreplied till date, the applicant categorically stated to M/s
Khaitan & Company (Solicitors impermissibly appearing for Turner
Morrison Ltd, albeit, without any locus standi in the hands of their client
to do so) that :
Khaitan and Company and their Mr. Sandip Agarwal are patent
fraudsters and impersonators, having no authority to represent
Turner Morrison. It is a recorded fact that Khaitan have been
obtaining orders from various Judges through corruption, graft,
misrepresentation and / or blackmail, including sexual favours to
unsuspecting Judges. In this context your Petitioner tendered in the
Honble court the clinching judgment of Manjula Bose, J. dated 1-81988 as well as the reported judgment of Division Bench dated 8-101996 of Batabyal and Mitra, JJs. This is because both the judgments
were assailed up to Supreme Court by Khaitans through their SLP
Nos. 9526 of 88 & SLP No. 8829 of 98, both of which were dismissed
during the August 1988 and during July 1998, well known to
Khaitans, who religiously suppressed this fact from all courts till
today. It is also an admitted fact that Khaitans forged two
judgments in the name of Retd. Judge P. Khastagir and/or the same
planted in court records by getting it fraudulently signed by another

153
judge with the help of the then C. J. Bhattacharya. The said CJ
Bhattacharya, while on his way to Supreme Court, was caught and
disgracefully thrown out from Bombay High Court under court
orders of the then CJI. It appears that Khaitan played a massive
fraud in different courts by suppressing all the facts including the
above two judgments, in order to obtain favorable orders, through
fraud and deceit laced with graft and corruption, which makes them
liable for criminal prosecution and also rendering each and every
favorable order, as void and non est ab initio.
ii)

Written Note dated 14-02-2012 filed before this Hon'ble Court : In


this Written Note, which, very significantly, remains unrebutted by the
opposite party till date, the applicant categorically stated as below, the
lack of denial by Khaitans constituting their acceptance of what has been
stated against them :
.. It is respectfully submitted that Hungerford Investment Trust
Ltd represented by Mr. N. S. Hoon alone is entitled to represent
Turner Morrison & Co Ltd in any legal procedings.
Issues to be framed :
1. The judgment of Honble Justice Manjula Bose with fatal findings
against Khaitans Client was upheld by the Division Bench dated
9-8-2001 and thereafter upheld by three judges of Supreme
Court presided over by CJI Pathak. See Vol. III of SLP No. 2528 of
1988.
a) Whether the judgment which it deemed finality is binding
on all courts, including this Honble court, for all times to
come, or not? If notwhy ?
b) Whether the admitted suppression of the judgment from
all succeeding courts amounts to a fraud on the part of
Khaitans and any order thus obtained, is a nullity or not?
If fraud is proved, they should be criminally prosecuted or
not by the adjudicating court?

154
2. Whether the judgment of Supreme Court dated 24-7-1992 in
Khaitans SLP No. 6675 of 1992 on the subject oral evidence, in
which Mr. Somnath Chatterjee himself fought tooth and nail on
behalf of Khaitans before the Appeals Court. Is the said order of
all courts including Supreme Court judges makes Khiatan and
their clients liable for criminal prosecution or not?
a) Whether Khaitans, who played outrageous fraud in the
name of three Supreme Court judges, and also succeeded
before the single judge by nullifying the order of Supreme
Court, which also attracted strong strictures from
Division Bench holding Khaitans guilty of criminal
perjury. As such, whether Khaitans shall be prosecuted or
not by this court.
3. Whether the judgment the Supreme Court dated 13-7-1998 of
Khaitans SLP No. 8829 of 1998 by the three judges presided over
by the CJI against the order of referee judge dated 16-4-1998
together with a Division Bench judgment dated November 8-109096 is binding on not which is been also held as binding (by
Mitra and Ansari, JJs) is sufficient for prosecution of Khaitans.
a) Whether the suppression of all these judgments in
Khaitans laps SLP . 200. From the various apex
court judges, both single and Division Bench, is a fraud on
those courts, or not? And if so, the guilty should be
criminally prosecuted or not (this is because the above
adverse three SLPs final mention in any subsequent
judgment by any court, and therefore, the fraud through
deliberate suppression by Khaitans is clearly established,
and as such, they should be criminally prosecuted by this
court, or not?
iii)

Letter dated 16-02-2012 : In this letter, which, very significantly,


remains unreplied till date, the applicant categorically stated to M/s
Khaitan & Company that :

155
This is to acknowledge the receipt of your third letter dated 13-22012 delivered to me last night, regarding your A. C. O. in the above
Company Petition. In fact, according to your earlier letters, Justice
Sengupta has already released this matter on personal grounds.
Therefore, I fail to understand your wisdom of repeatedly rubbing
your demands before the same judge. This is perhaps because
Sengupta, J. belongs to Khaitan Sarada stable under your control,
as such I see something sinister in your repeated efforts.
In fact, your mad rush to such irrelevant issues is most baffling. This
is because your own locus together with TMCLs fake Directors is
already in challenge in Court No. 24, where we are seeking the
criminal prosecution of both Khaitans as well as their impersonating
Directors. It is a shame that you are dragging your feet for over 6
weeks anyone challenging the mandate of Honble Chief Justice given
to Court No. 24. This is being done to cause delay by browbeating
and harassing the judge on different pretexts for reasons best known
to Khaitans. Therefore, unless you establish a locus first, how can you
keep misleading different courts, without informing them that your
locus with your clients is under serious challenge with ironclad and
irrefutable proofs from Khaitans own records.
In any case, you are again exploiting Sengupta, J. because of my
running feud and previous acrimony with him. As you very well know
that Sengupta, J. was my lawyer for several years, and in the end, he
was disgracefully discarded and removed by me on the bitter note,
for his conduct unbecoming of a lawyer. You will recall that even
during 2006-07, you pressurized Sengupta, J. to hear your frivolous
appeal against the adverse order of Justice Jayanta Kumar Biswas,
when oral evidence was ordered, as per Supreme Court directive.
This would have let the cat out of the bag, resulting in criminal
prosecution alongwith your Directors.
However, under your pressure or blackmail, Sengupta, J. took up the
appeal after Pinaki, J. release the same out of embarrassment. This is
in spite of the fact that I took strong objection for lack of faith in
trust in that court. In any case, Sengupta, J. took up your appeal, and
under your pressure, had the audacity to overrule and modify the

156
order of the Supreme Court to protect your future CJI Kabir from
criminal prosecution. This resulted in mind criminal contempt
petition in Calcutta High Court against three judges, including
Sengupta, J., before the then CJ Nijjar. In fact, the history was made
when CJ Nijjar order the criminal prosecution of the three sitting
brother judges in the year 2007, as will be evident from the enclosed
page 18 of Justice Magazine which is part of Supreme Court
records. In fact, another criminal writ petition against the same
judges is still pending in Supreme Court since 2009, to the other
shame of involved judges, with imminent pending motion of
impeachment against the CJI Kabir in the coming session of Lok
Sabha.
In view of the foregoing paragraphs, I have no intention to again go
to the court of Sengupta, J. and as such, you may give a copy of this
letter to him. If, however, Sengupta, J. still wishes to take up this
matter despite of my serious protests, then let enlist this matter in
his court and thereafter only the needful will be done.
iv)

Letter dated 17-02-2012 : In this letter, which, very significantly,


remains unreplied till date, the applicant categorically stated to M/s
Khaitan & Company as reproduced verbatim below :
This is due continuation of our yesterdays letter whereby we
exposed your delaying tactics in respect of your nonexistent locus
along with that of your fraudster Directors.
Please carefully note that we will be mentioning on Monday the 20 th
of February 2012 the above matter, in the afternoon session in the
Court No. 24 presided over by Honble Justice A. Bose. Among other
will also be seeking the pre-ponement and immediate hearing of the
above case.
As you know, in order to avoid any further delay or any excuse
whatsoever, we are only and entirely relying on Khaitans own
documents. As such, you are requested to bring the original copies or
your three Special Leave Petitions moved by you before the Supreme
Court during the years 1988, 1992 and 1998.

157

You are also requested to positively bring proofs, if any, evidencing


that you or your Directors had, in fact, brought to the notice of any
court, regarding those three Special Leave Petitions, which were all
dismissed, making your impugned orders final and binding against
you forever, and for all time to come.
As such, it is for this judicial prime only, that we are seeking criminal
prosecution and jail for both your impersonating Directors as well
as all the colluding partners of Khaitans, who were bound to disclose
all the facts before every court, failing which you are guilty of
criminal suppression which is a fraud on that court as well as on the
opposite party.
Please carefully prepared on this limited issue because we will not accept or
tolerate any site tracking an enlargement of scope on this one and only one
issue, under any circumstances.
v)

Written notes dated 19-11-2012 filed before this Hon'ble Court : In


this Written Note, which, very significantly, remains unrebutted by the
opposite party till date, the applicant categorically stated as below, the
lack of denial by Khaitans constituting their acceptance of what has been
stated against them :
. This is an admitted fact that Khaitans deliberately and
motivated league concealed from every subsequent court the fact
that there SLP No. 8829 of 1998 challenging the order of the referee
judge S. B. Sinha dated 16-4-1998 together with order of division
bench of Batabyal and Mita, JJs dated 8-10-1996, was dismissed by a
bench of three judges of Supreme Court presided over by CGI on 137-1998. In fact, most importantly, Khaitans also deliberately
suppressed this fact from justice S. B. Sinha (who was directly
concerned in the said SLP) before deceitfully obtaining an ex parte
order dated 23-7-9098 i.e. within 10 days after the fateful dismissal.
It is also a factor after one month, Khaitans only disclose one
operative paragraph of the order of dismissal to hoodwink and
cheat all concerned. This is becauses Are Bound to Disclose the
Entire Facts Contained in SLP No. 8829 of 1998, when admittedly
nothing survives thereafter. However, the only surviving exception

158
was a final verdict, which was finally delivered by the division bench
of Mitra and Ansari o 26th Match, 1999.
This colossal fraud of deliberate concealment alone is sufficient to
convict all the concerned partners of Khaitans, as well as
impersonating Directors including Amit Judge, K. K. Biyani, etc. it is
emphasized that decides confiscation of that ill-gotten assets and
properties running into thousands of crores, their conviction is an
absolute must. This is particularly in view of the laws laid down by
Honble Supreme Court to the effect that if there is a concealment of
the fact, or of a document/Court order, then any subsequent orders
obtained through concealment of the documents/Court order on
non est ab initio, and cannot be held as binding upon the party
against whom such subsequent orders have been fraudulently
obtained.
As such, any orders passed after the concealment of order of
dismissal of Khaitans SLP dated 13 July 1998 can never be looked
into. This will also wholly justified all the prayers of HIT, besides the
fully proven bribe of 12 cards, was also admitted the Robert or
wholesale, through judicial corruption and manipulation of
judgments, some of which were manifestly and palpably planted by
Khaitan and Co through high-profile Senior lawyers.
Furthermore, Khaitans also admittedly concealed the recorded
opinion of Solicitor General Kacker, giving green signal to Hon'ble
Company Law Board to criminally prosecute ashok Jain/ Khaitan
gang in 1978. Thereafter, Khaitans again conceded the orders of
Justice Monjula Bose dated 01-08-1988 fraudulently, which is upheld
by the division bench on 09-09-1988, resulting in that SLP No. 9528
of

1988 judges in those orders. The said SLP was admittedly

dismissed by Supreme Court, whereby the order of Monjula Bose


achieved finality under every stretch of imagination.
Similarly, Khaitans again fraudulently and deliberately misquoted
the three judges of Supreme Court to cheat and mislead Calcutta
judges, after the dismissal of their SLP No. 6675 or 1992. These ugly
facts were also exhaustively discussed, and the fraud of Khaitans

159
and the impersonating Directors was fully proved beyond any
shadow of doubt, in the judgment of Division Bench (Mitra and
Batabyal 08-10-1996) upheld by Apex Court (on 13-07-1998)
through dismissal of their SLP.
It is, therefore, emphasize that extremely exemplary punishment as
well as multi-thousand Court damages must be imposed in all the
concerned thirty plus respondents, including Sahu Jain Ltd, and
Bennet Coleman Ltd, etc who benefited from that widespread loot
accomplished through the managed judgments, procured through
judicial mafia. This abuse otherwise, the feet of the common man
from judiciary would disappear, resulting in judicial anarchy, like
Dinkaran episode. The connected frauds are in consummation to the
horrifying examples set by Haridas Mundhra and his son-in-law,
Kashinath Tapuria, who was recently court red-handed with 44
thousand crore deposit stashed illegally in Swiss Bank account, and
has been in jail ever since.
vi)

Letter dated 19-06-2013 : In this letter, which, very significantly,


remains unreplied till date, the applicant categorically stated to M/s
Khaitan & Company as reproduced verbatim below :
This is to acknowledge the receipt of your audacious letter dated
18-6-2013, which amounts to a thief threatening the Kotwal.
In the above case, even on 6th of June, when Court No. 24, presided
over by Justice A. Bose, directed a Hungerford to file affidavit in
reply, to your company application filed on 25-3-2013, there was
our vehement protest. This was in spite of the fact that we insisted
that Khaitan must prove their locus before any lawful court
proceeding could start.
In this context, I consulted my legal advisors, who unanimously
advised me not to file a reply, until the fundamental and core issue
in respect of Khaitans locus and or locus of TMCLs Diretcors is
established through a speaking order by the Honble court. This is
because more than four courts, including three separate bench of
Supreme Court, have categorically decided that Khaitans clients are

160
fraudsters, impersonators and interlopers, having no locus
whatsoever to act as Directors of TMCL. In this context, we refer to
the landmark judgment of Manjula Bose, J. dated 4 th August 1988
which is upheld by the division bench, and thereafter, by Supreme
Court, when the three judges bench presided over by the CJI Pathak
dismiss your SLP on eleventh August 1998. (Please see Volume III,
being your SLP No. 9528 of 1988).
Furthermore, it is also an admitted fact that Khaitans, through
bribes, influence and even blackmail, have bulldozed their way for
last 50 years, and getting favorable orders by paying fraud on
different courts with the help of retired CJIs employed by Khaitans in
the service of convicted criminals including Mundra and A. K. Jain.
This is evident from the excerpts of the reported judgment of Justice
B. M Mitra appearing on page 19 Vol. I filed in Supreme Court in
your dismissed CCP No. 80/2003. In fact, during January 2003, a
positive notice was served upon you through our lawyer Suptratik
Basu, forbidding you to represent TMCL. This was followed by
acrimonious correspondence between HIT and yourselves together
with your client Amit Judge, which appears in the same Vol. I, on
pages 54 onwards. All these facts are a matter of record before the
present court, and we will refer to the same at the time of hearing.
While on the subject, I would also refer to the outrageous fraud
committed by Khaitans to get an ex parte order from S. B. Sinha, J.
on 23rd July 1998, by fraudulently suppressing the fact that on 13th
July 1998 (i.e. ten days earlier), your most important SLP No. 8829
of 1998 against the order of the same S. B. Sinha, J. as Referee Judge,
was dismissed by three judges bench of Supreme Court presided over
by the then CGI, and nothing survived thereafter for all time to come.
In any case, because of the foregoing facts, according to my legal
advisors, under no circumstances Khaitans should be allowed to
proceed further, without establishing their locus first, which will
also require oral evidence, as ordered by Honble Supreme Court in
your SLP No. 6675 of 1992. The said order or three Supreme Court
judges was admittedly misquoted to play a fraud on single bench
(please see volume IV filed in this court). This is because according

161
to my legal advisors, any proceedings by Khaitans will not only
dilute their unparalleled fraud, but will also amount to conceding to
their nonexistent locus. This will surely be like putting the cart
before the horse, and will vitiate all future proceedings against
Khaitans criminal prosecution.
As such, we are determined to first decide your locus, fraught with
frauds, to justify the criminal prosecution of Khaitans, along with a
impersonating Directors, in order to justify our damages running in
the thousands of crores.
Lastly, we shall be also relying on our various letters and written
notes already filed in this court (with its acknowledged copies to
you), including five letters dated 14-02-2012, 16-02-2013, 17-022012, 19-11-2012 and 23-11-2012. All these letters should be
treated as our reply to your frivolous company application.
vii)

Letter dated 13-07-2013 : In this letter, which, very significantly,


remains unreplied till date, the applicant categorically stated to M/s
Khaitan & Company as reproduced verbatim below :
This is an continuation to our hitherto unreplied letter dated 19 th
June 2013, whereby we invoke the statute of fraud in reply to your
above-mentioned CA No. 139/13. This is because we been
challenging throughout your locus to represent our subsidiary
Turner Morrison.
Furthermore, in your above CA, you enclosed as well as relied upon a
patently forged and manufactured judgment, appearing on pages
139 onwards, and that very forgery stood fully proved on your pages
168 onwards.
This is an extremely serious crime, committed in connivance with
some corrupt judicial officers, including Registrar O/S, who are all
bound to be criminally prosecuted along with the publishers who
reported this forged judgment. This is beside the repeated megacrimes of impersonation committed by Khaitans planted Directors
of TMCL.

162

Be that as it may, we will mention this matter at 2:00 PM at the


second sitting of court No. 24 on Monday the 15th of July, 2013.
You are therefore requested to positively attend the same to avoid
any unpleasant ex parte orders against you. Please come prepared
with your reply as well as proofs required in our letter dated 19 th
June 2013.
33.

That the writing of these 5 letters is a fact that has been brought to the attention
of the Ld. Presiding Officer of this Hon'ble Court previously, and in shock, the Ld.
Presiding Officer has demanded in open court from these Soliciors their
explanation as to why they do not reply, but despite that prodding query from
this Hon'ble Court, they have not furnished their reply till date, this legally constituting their acquiescence to the truthfulness of the allegations set out
against them in these letters.

34.

That in this view of the matter, it is very vital and cruial to the present
proceedings that an accurate and holistic record is maintained by this Hon'ble
Court of what is argued before it, so that the exreme extent of abuse that has
gone on till date is arrested at least hereafter.

35.

That it is most respectfully submitted that the only way this record can be kept
is if the methodology of doing so is irrefutable, and cannot be challenged by
any party.

36.

That the only way the irrefutability can be achieved is if the proceedings
before this Hon'ble Court are tape-recorded, so that posterity also will know
what each party argued, and what swayed the mind of this Hon'ble Court in
favour of one proposition or the other.

37.

The applicant respectfully submits that the level of the bar set for advocates, in
terms of standards of conduct to be maintained in court, is much higher than
that for ordinary citizens. This being so, if - despite such a horrendous situation
as has been recounted herein - no action is allowed to be taken against the nonapplicants predominantly because if the clients are taken action against, it may
also necessitate taking action against their advocates, such a situation itself, if at

163
all it exists, would reflect a somewhat disquieting indicator of the state of things
as far as universal accountability is concerned.
38.

The disturbing signal that some mischievous persons may have legitimate basis
to draw in such a (hopefully, only hypothetical situation) is that the person(s)
who wish to hold others accountable do not wish to have themselves adjudged
by similar accountability standards.

39.

That it is most respectfully submitted that just as charity begins at home, so


does transparency, as well as accountability.

40.

That this application is without prejudice to the applicants rights to prefer


appropriate remedies in law, such as an independent writ petition filed under
empowering provisions of law read with Section 34 of the advocates act, seeking
withdrawal of the privilege of audience to the advocates who committed this
contemptuous act, as this is not the first time that they have attempted to before
the Honble courts.

41.

That it is most respectfully submitted that in the event of issuance of notice on


the present application, the notice should be directed by this Hon'ble Court not
only at the Resopondents, but also, and as much as (if not more), to Khaitan &
Companys principals. This is because the Respondents, obliged by law to make
averments on the basis of personal knowledge, cannot possibly answer what
(all) their Solicitors have been up to, whether acting on instructions, or
unilaterally, as alleged in this application.

42.

That Khaitan and Company may find themselves well-advised to file a detailed
reply on affidavit whether or not notice is formally issued to them, given that
this application is a precursor to a petition under Article 226, 227 read with
Section 34 of the Advocates Act, seeking to adjudicate whether or not their
conduct constitutes adequate basis for the Honble High Court of Calcutta to
withdraw their privilege of audience before it and before all the Courts
subordinate to the Hon'ble High Court of Calcutta, this being in exercise of its
power and, therefore, in discharge of its solemn duty - under Section 34 of the
Advocates Act.

164
43.

That this application is, thus, a clear reflection of the high regard and esteem and
reverence the applicant holds the institution of the judiciary and its Honble
Members in, as well as the sanctity of the judicial proceedings they conduct, and
it is his fervent and bona fide wish and prayer that no party(ies) to judicial
proceedings be allowed to take any steps, or conduct themselves in any manner,
should such step or manner denigrate the august sanctity and solemnity of the
judicial proceedings being conducted by the Hon'ble Courts while hearing the
matters before them, or unfairly cause prejudice to the position of any other
party to such proceedings.

44.

That it is most respectfully submitted that were advocates to practice the


profession by the written (and unwritten) high standards prescribed for the
same, this also would, in itself, be a very strong check against wayward litigants
resorting to perjury. Being Officers of the Court, by this Hon'ble Court
imposing some system of accountability on them, this Honble Court would
ensure a big step in the right direction, as the accountability would help ensure
that they not only enjoy the privileges associated with the label of Officers of
the Court, but also discharge the solemn duty and responsibility entrusted on
their shoulders by the aforesaid label.

45.

That one deterrent against advocates abrogating their solemn duty, and which
would ensure that they properly discharge their obligations as Officers of the
Court, would be to deny them the right to audience before the Courts if they do
not appear with lawful authority in their hands to do so. (The provisions to do so
are already existing, and enshrined in Section 34 of the Advocates Act.)

46.

That in regard to the above, the Hon'ble Supreme Court, in a judgement of a Full
Bench, has settled this very issue in the case of Common Cause, A Registered
Society vs. Union of India (AIR 2005 SC 4442) and has upheld that while the
right of an advocate to practice is a right conferred upon him by the
Advocates Act read with Bar Council Rules, however, his privilege to appear
before any Court is subject to the discretion of the Honble Court concerned. It
quoted with approval at para 4 of the same extracts from paras 34 and 35 of a
previous ruling of a Constitution Bench of the Hon'ble Supreme Court in the case
of Ex-Capt. Harish Uppal vs. Union of India (AIR 2003 SC 739), in which it was
stated as under :
34. One last thing which must be mentioned is that the right of appearance
in Courts is still within the control and jurisdiction of Courts. Section 30 of

165
the Advocates Act has not been brought into force and rightly so. Control of
conduct in Court can only be within the domain of Courts. Thus Article
145 of the Constitution of India gives to the Supreme Court and
Section 34 of the Advocates Act gives to the High Court power to frame
rules including rules regarding condition on which a person
(including an Advocate) can practice in the Supreme Court and/or in
the High Court and Courts subordinate thereto. Many Courts have
framed rules in this behalf. Such a rule would be valid and binding on all.
Let the Bar take note that unless self-restraint is exercised, Courts
may now have to consider framing specific rules debarring Advocates,
guilty of contempt and/or unprofessional or unbecoming conduct,
from appearing before the Courts. Such a rule if framed would not
have anything to do with the disciplinary jurisdiction of Bar Councils.
It would be concerning the dignity and orderly functioning of the
Courts. The right of the advocate to practise envelopes a lot of acts to be
performed by him in discharge of his professional duties. Apart from
appearing in the Courts he can be consulted by his clients, he can give his
legal opinion whenever sought for, he can draft instruments, pleadings,
affidavits or any other documents, he can participate in any conference
involving legal discussions, he can work in any office or firm as a legal
officer, he can appear for clients before an arbitrator or arbitrators etc.
Such a rule would have nothing to do with all the acts done by an advocate
during his practice. He may even file Vakalat on behalf of client even
though his appearance inside the Court is not permitted. Conduct in Court
is a matter concerning the Court and hence the Bar Council cannot
claim that what should happen inside the Court could also be
regulated by them in exercise of their disciplinary powers. The right to
practice, no doubt, is the genus of which the right to appear and conduct
cases in the Court may be a specie. But the right to appear and conduct
cases in the Court is a matter on which the Court must and does have
major supervisory and controlling power. Hence Courts cannot be and
are not divested of control of supervision of conduct in Court merely
because it may involve the right of an advocate. A rule can stipulate
that a person who has committed contempt of Court or has behaved
unprofessionally and in an unbecoming manner will not have the
right to continue to appear and plead and conduct cases in Courts. The
Bar Councils cannot overrule such a regulation concerning the orderly
conduct of Court proceedings. On the contrary it will be their duty to see

166
that such a rule is strictly abided by. Courts of law are structured in such a
design as to evoke respect and reverence to the majesty of law and justice.
The machinery for dispensation of justice according to law is operated by
the Court. Proceedings inside the Courts are always expected to be held in a
dignified and orderly manner. The very sight of an advocate, who is
guilty of Contempt of Court or of unbecoming or unprofessional
conduct, standing in the Court would erode the dignity of the Court
and even corrode the majesty of it besides impairing the confidence of
the public in the efficacy of the institution of the Courts. The power to
frame such rules should not be confused with the right to practise law.
While the Bar Council can exercise control over the latter, the Courts are in
control of the former. This distinction is clearly brought out by the
difference in language in Section 49 of the Advocates Act on the one hand
and Article 145 of the Constitution of India and Section 34(1) of the
Advocates Act on the other. Section 49 merely empowers the Bar Council to
frame rules laying down conditions subject to which an Advocate shall have
a right to practice i.e. do all the other acts set out above. However, Article
145 of the Constitution of India empowers the Supreme Court to make
rules for regulating this practice and procedure of the Court including
inter alia rules as to persons practising before this Court. Similarly
Section 34 of the Advocates Act empowers High Courts to frame rules,
inter alia to lay down conditions on which an Advocate shall be
permitted to practice in Courts. Article 145 of the Constitution of India
and Section 34 of the Advocates Act clearly show that there is no
absolute right to an Advocate to appear in a Court. An Advocate
appears in a Court subject to such conditions as are laid down by the
Court. It must be remembered that Section 30 has not been brought into
force and this also shows that there is no absolute right to appear in a
Court. Even if Section 30 were to be brought into force control of
proceedings in Court will always remain with the Court. Thus even then
the right to appear in Court will be subject to complying with conditions
laid down by Courts just as practice outside Courts would be subject to
conditions laid down by Bar Council of India. There is thus no conflict or
clash between other provisions of the Advocates Act on the one hand and
Section 34 or Article 145 of the Constitution of India on the other.
35. In conclusion it is held that lawyers have no right to go on strike or give
a call for boycott, not even on a token strike. The protest, if any is required,

167
can only be by giving press statements, TV interviews carrying out of Court
premises banners and/or placards, wearing black or white or any colour
arm bands, peaceful protect marches outside and away from Court
premises, going on dharnas or relay facts etc. It is held that lawyers holding
Vakalats on behalf of their clients cannot attend Courts in pursuance to a
call for strike or boycott. All lawyers must bodily refuse to abide by any call
for strike or boycott. No lawyer can be visited with any adverse
consequences by the Association or the Council and no threat or coercion of
any nature including that of expulsion can be held out. It is held that no Bar
Council or Bar Association can permit calling of a meeting for purposes of
considering a call for strike or boycott and requisition, if any, for such
meeting must be ignored. It is held that only in the rarest of rare cases
where the dignity, integrity and independence of the Bar and/or the Bench
are at stake, Courts may ignore (turn a blind eye) to a protest abstention
from work for not more than one day. It is being clarified that it will be for
the Court to decide whether or not the issue involves dignity or integrity or
independence of the Bar and/or the Bench. Therefore in such cases the
President of the Bar must first consult the Chief Justice or the District Judge
before Advocate decide to absent themselves from Court. The decision of the
Chief Justice or the District Judge would be final and have to be abided by
the Bar. It is held that Courts are under no obligation to adjourn matters
because lawyers are on strike. On the contrary, it is the duty of all Courts to
go on with matters on their boards even in the absence of lawyers. In other
words, Courts must not be privy to strikes or calls for boycotts. It is held
that if a lawyer, holding a Vakalat of a client, abstains from attending Court
due to a Strike call, he shall be personally liable to pay costs which shall be
addition to damages which he might have to pay his client for loss suffered
by him.
47.

That when it comes to fraud on this Hon'ble Court, as suppression as as much


fraud as is a positively-asserted falsehood, it is most respectfully submitted that
that in all the pleadings filed by the opposite party, the drafting of the same,
including the supporting affidavit, has been by the aforesaid Khaitan and
Company, and that being so, given that every affidavit has the Verification,
which is required to state .and nothing material has been conclealed., makes
their drafting of these pleadings a very relevant and questionable fact, given that
they were well aware that their client was, indeed, suppressing very vital and
material facts from the Courts, this constituting a sharp practice on his part, a

168
practice, which since it was continued, which prohibited them from appearing
for their client, and returning the brief, in light of Rule 4 of the Bar Council Rules
relating to professional misconduct, which states as reproduced verbatim
hereunder :
4. An advocate shall use his best efforts to restrain and prevent his client
from restoring to sharp or unfair practices or from doing anything in
relation to the Court, opposing counsel or parties which the advocate himself
ought not to do. An advocate shall refuse to represent the client who persists
in such improper conduct. He shall not consider himself a mere mouthpiece
of the client, and shall exercise his own judgment in the use of restrained
language in correspondence, avoiding scurrilious attacks in pleadings, and
using intemperate language during arguments in Court.
48.

That this is yet another area of grievance of the applicant, as privileges cannot
be disassociated from duty / responsibility in practice / reality. To the extent
relevant, it is perhaps important to mention to this Hon'ble Court that the
website of the Supreme Court Bar Association carries the following message on
the opening page itself of its website :
"It is a mistake to suppose that he (the barrister) is the mouthpiece of his
client to say what he wants : or his tool to do what he directs. He is none of
these things. He owes allegiance to a higher cause. It is the cause of truth
and justice- Lord Denning M.R.

49.

That the views of some of the more well-known Judges in the international arena
(in the UK and in the USA),as well as in India, what really constitutes the
profession of advocacy, as well as the duties and obligations of advocates, are
reproduced below for the ease of referral of this Hon'ble Court :

UK 1844 A.D. : The celebrated and eminent Judge, Honble J. Crampton, on


the issue of what is the precise role, status, duties, privileges and obligations
of advocates (i.e. what he termed as the forensic duty of an advocate),
stated his views on the subject in the matter of R. vs. OConnell [cited as
(1844) Ir. L.R. 261 at 312, 313 (in H.L., 1844, 11, Cl. & F, 155)], and which
views are set out below:

169
This Court in which we sit is a Temple of Justice ; and the Advocate at the
Bar, as well as the Judge upon the Bench, are equally Ministers in that
Temple. The object of all equally should be the attainment of justice ; now
Justice is only to be reached through the ascertainment of the truth, and the
instrument which our law presents to us for the ascertainment of the truth
or falsehood of a criminous charge is the trial by jury ; the trial is the
process by which we endeavour to find out the truth. Slow and laborious,
and perplexed and doubtful in its issue that the pursuit often proves ; but
we are Judges, Jurors, Advocates and Attorneys together concerned in
the search for truth ; the pursuit is a noble one, and those are honoured
who are the instruments engaged in it. The infirmity of human nature, and
the strength of human passion, may lead us to take false views, and
sometimes to embarrass and retard rather than to assist in attaining the
Great Object ; the temperament, the imagination and feelings may all
mislead us in the chase but let us never forget our high vocation as
Ministers of Justice and interpreters of the law ; let us all never forget that
the advancement of justice and the ascertainment of truth are higher
objects and nobler results than any which, in this place, we can propose to
ourselves. Let us never forget the Christian maxim, that we should not do
evil that good may come of it.
I would say to the advocate upon this subject let your zeal be as warm as
your hearts blood, but let it be tempered with discretion and self-respect ;
let your independence be firm, uncompromising, but let it be chastened by
personal humility ; let your love of liberty amount to a passion, but let it
not appear to be a cloak for maliciousness.
[The word malice appearing hereinabove undoubtedly refers to express
malice (as in, wrongful intention and/or active ill-will), as well as to
implied malice.]
Then, in regard to whether the Advocate is the mouthpiece of his client, he
succinctly stated in even wiser words as under :
..clients mouthpiece. Such, I do conceive, is not the office of an
advocate. His office is a higher one. To consider himself in that light is to
degrade him. I would say of him as I would say of a Member of the House
of Commons he is a representative, but not a delegate. He gives to his

170
client the benefit of his learning, his talents and his judgement ; but all
through, he never forgets what he owes to himself and to others.
He will not knowingly mis-state the law he will not willfully misstate the facts, even though it be to gain the cause for his client.
He will ever bear in mind that if he be the Advocate of an individual, and
retained and remunerated (often inadequately) for his valuable services,
yet he has a prior and perpetual retainer on behalf of truth and justice.
And there is no Crown or other licence which in any case, or for any party
or purpose, can discharge him from that primary and paramount
retainer.

USA 1917 : The celebrated and eminent Judge, Honble J. Cardozo, on the
issue of whether lawyers enjoy any immunity by way of statutory privilege
against self-incrimination in order to protect themselves from disbarment
(when, in leading evidence at the trial of his client who was accused of
criminal wrong-doing, an advocate had, in effect, confessed to being guilty,
himself, of misconduct, and then claimed statutory immunity from the
confession), stated his views on the subject in the case of Matter of Rouss
[cited as 221 NY 81 at 91 (1917)] as under :
Consequences cannot alter Statutes, but may help to fix their meaning.
Statutes must be so construed, if possible, that absurdity and mischief may
be avoided. The claim of immunity from disbarment cannot survive the
application of that test. If the exemption protects lawyers, it must equally
protect physicians, whose licences have long been subject to revocation for
misconduct. two great and honourable professions have, in that
view, been denied the right to purify their membership and vindicate their
honour. The charlatan and rogue may assume to heal the sick, and the
knave and criminal may pose as a Minister of Justice; however, such
things cannot have been intended, and will not be allowed.

UK 1967 : Lord Denning (in the case cited as 1967-1 QB 443) held forth his
views on the role of advocates as under :

171
Counsel has the duty and the right to speak freely and independently
without far of authority, without fear of the judges, and without fear of a
stab in the back from his own client. To some extent, he is a Minister of
Justice. It is a mistake to suppose that he is the mouthpiece of his client, to
say what he wants, or his tool to do what he directs. He is none of these
things. He owes allegiance to a higher cause. It is the cause of truth and
justice. He must not consciously misstate the facts. He must not
knowingly conceal the truth. He must not unjustly make a charge of
fraud that is without evidence to support it. He must produce all the
relevant authorities, even those that are against him. He must see to it
that his client discloses, if ordered, the relevant documents, even those
that are fatal to his case. He must disregard the most specific
instruction of his client, if they conflict with his duty to the Court. The
Code which requires a Barrister to do all this is not a Code of a Law. It is a
Code of Honour. If he breaks it, he is offending against the rules of the
profession, and is subject to its discipline.

UK 1969 : Lord Reid (in Roundel vs. Worsley, 1969 1 AC 191) stated in
equally wise words as under :
Every counsel has a duty to his client fearlessly to raise every issue,
advance every argument, and ask every question, however, distasteful,
which he thinks will help his clients case.
But, as an officer of the Court, concerned in the administration of justice, he
has an overriding duty to the Court, to the standards of his profession, and
to the public which may and often does lead to a conflict with his
clients wishes, or with what his client thinks are his personal interests.
Counsel must not mislead the court, he must not lend himself to casting
aspersions on the other party or witnesses of which there is no sufficient
basis in his possession, he must not withhold authorities or documents
which may tell against his clients which the law or the standards of his
profession require him to produce.
And by so acting, he may well incur the displeasure or worse of his client so
that if the case is lost, his client would or might seek legal redress if that
were open to him.

172

India 1979 2006 : In regard to the conduct of counsel(s), who knowingly


cite over-ruled judgements, and/or make false statements to the Hon'ble
Court, and/or also knowingly allow their clients to make false and
misleading statements on oath in applications drafted by them, knowing fully
well that making of such false statements on oath and suppression of vital
and material facts would, or could, favourably influence the learned Judges to
grant relief in favour of their client, the petitioner craves leave to refer to a
judgement of the Honble Supreme Court in which it was held that strictures
should be passed on counsel on the grounds that even referring to overruled
judgements by an advocate is a practice that is to be severely deprecated
(AIR 2004 SC 4272, State of Orissa vs. Nalinakanta Muduli) .
This being true, then inasmuch as citing over-ruled judgements, even if,
perhaps, out of inadvertence (i.e. lack of good faith as defined in Section
52 of the Indian Penal Code i.e. acting without due care and attention) or
out of ignorance (again, i.e. lack of good faith), invites contempt of court
and / or disciplinary proceedings upon the Advocate, then allowing a
deponent (the counsels client) to state on oath (and/or for counsel to state
the same false statements in Court) which counsel himself surely knows to
be untrue and false, or has reason to believe are not true and/or are false,
while somewhat similar in effect to a counsel citing over-ruled judgements in
court in terms of the end-objective (i.e. obtaining by any means an order /
judgement favourable to his client), but is, in fact, even worse, as it is the
beholden professional duty of the counsel to his client (as well as his sacred
duty to this Honble Court, to whom the counsel owes his primary allegiance
to, over and above the allegiance he owes to his client) and which duties are
specifically circumscribed in the letter of the law, to correctly advise his
client and ensure his proper conduct, so much so that it is also his duty to
prevent his clients improper conduct, so much so that should his client
refuse, it is the duty of the advocate specifically-prescribed in the letter of
the law to return the brief, and forthwith.
When a counsel disobeys the above-described dicta laid down in the Bar
Council Rules, it cannot be said that it is merely for altruistic motive and/or
merely in order to allow his client to advance the clients cause through false
and misleading statements, considering that the counsel also stands to
benefit by way of earning general professional credit for himself (as well as

173
direct monetary benefits from the case, through fees collected for the same)
for having obtained for his client the reliefs sought by him.
Similarly, the same thoughts flow in the case cited at AIR 1979 NOC 96, in
which the Supreme Court clearly and unambiguously stated inter alia :
An advocate is an officer of the court, and with that privilege,
responsibility must follow in its wake. His primary allegiance is to the
Court, and it is no part of the professional duties of an advocate to act
merely as a mouthpiece of his client. A member of the bar should use best
efforts to restrain and prevent his client from resorting to any unfair
or sharp practices.
The word primary is most significant to the present context (because a
counsels duties to the client come second or third, well below his duty to
this Honble Court), and the word prevent used in the above judgement
(and which is a reiteration of the Rule 4 of Part VI, Chapter II, Section I of the
Bar Council Rules) does not mean to try and discourage ; it means to stop,
so much so that if the client does not stop, the law specifically provides
rather, directs - that it is the immediate duty of the counsel to return such a
clients brief forthwith.
It is humbly submitted that just as it is incumbent upon an advocate to
ensure that his client desists from unfair or sharp practices, similarly, it is
also the solemn responsibility of the advocate himself to desist from sharp
or unfair practices.
Equally wise are the words of Honble Justice Mr. Arijit Pasayat, who stated
in the case of Zahira Habibullah Sheikh v. State of Gujarat (AIR 2006 SC
1367) as under :
The case at hand immediately brings into mind two stanzas (14 and 18) of
Eighth Chapter of Manu Samhita dealing with role of witnesses. They read
as follows :
Stanza 14
Jatro dharmo hyadharmena
Satyam Jatranrutenacha

174
Hanyate prekshyamananam
Hatastrata Sabhasadah
[Where, in the presence of Judges, "dharma" is overcome by
"adharma", and "truth" is overcome by "unfounded falsehood", at
that place, they (the Judges) are destroyed by sin].
Stanza 18
Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
pado rajanmruchhati
[In the adharma flowing from a wrong decision in a Court of law,
one fourth each is attributed to the person committing the adharma,
the witness, the judges and the ruler.]
50.

That these are, thus, the views of eminent and learned Judges spanning more
than 1 centuries of jurisprudence across the entire geographical spectrum of
our planet, and which reflect a fairly wide cross-section of political systems
under which the laws to which these views relate were passed (capitalist,
socialist and monarchy), considering that all these geographically-and-politically
differentiated views are consistent with each other, being views both of the
Honble Supreme Court of India, as well as eminent Judges in different parts of
the civilized world (the UK and the USA).

51.

That it is very humbly and respectfully submitted that it is these views of


eminent jurists in different parts of the world regarding the duties and privileges
of advocates that are to guide their conduct that have also guided the petitioner
while preparing the present petition.

52.

That it may also be stated that the thoughts (or even the actual words and
phrases) of some of the latter group may even have directly contributed to the
framing of our own laws in India and the Rules made thereunder, starting from
the times of Lord Macaulay in the 1800s, going down to the time of Dr.
Ambedkar and Pandit Nehru, etc in the 1940s / 1950s.

175
One example of incorporation of such thoughts or words of the latter group is
the word mouthpiece, which, as submitted above, was first used by Honble J.
Crampton in 1844 in the judgement referred to above, and which word, judging
by the usual standards of the language of jurisprudence and the wording of most
laws passed by Legislatures, is rather unusual (as it is somewhat slangy and
indirect, as opposed to more tempered and direct terminology invariably
used by the Legislature), but nonetheless, has been incorporated in the Rules
framed by the Bar Council of India, announced by it pursuant to exercise of
statutory powers conferred upon it by the Advocates Act of 1961.
It is the humble view of the petitioner that perhaps its usage of the word
mouthpiece in the Bar Council Rules comes from the usage of the same word
by Honble J. Crampton in the judgement of the year 1844 referred to above.
53.

That the applicant has not filed any other application or petition in this Court or
before any other authority or Court for prosecution of the non-applicants
arrayed herein for the acts of criminal contempt specifically alleged in the
present application.

54.

That the accompanying application is bona fide, and in the interests of justice.

55.

That I have read and understood the contents of the above affidavit drafted by
my counsel under my instructions, and state that the facts stated in paras 1 to 54
therein are true and correct to the best of my personal knowledge and belief, or
are as per my understanding and which I verily believe, whilst the legal
submissions are based on legal advice received and/or researched by me and
believed to be correct, and that nothing material has been concealed therefrom.

Solemnly affirmed by the said


Gobinda Biswas at the Court
House in Calcutta on this ___ day of
January, 2015.
Before me.

176

COMMISSIONER

177
Company Application No. ___________of 2015
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Original (Company) Jurisdiction
In the matter of :
Hungerford Investment Trust Limited
Petitioner
Versus
Turner Morrison & Company Ltd
Respondents
And
Hungerford Investment Trust Limited
Applicant

PETITION

DEEPAK KHOSLA,
Advocate for the Applicant
Suite No. 408, 4th Floor

178
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001

179
Company Application No. ___________of 2014
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Civil Original Company Jurisdiction
IN THE MATTER OF :
Application under the Calcutta (Original Side)
Rules (1914) read with Article 215 of the
Constitution of India, read with the Contempt
of Courts Act, praying to debar Khaitan & Co
(as it is generally or
loosely known or referred to) from filing
any pleading, or appearing, or pleading
before this Hon'ble Court, or before any
Bench on the Original Side of the Honble
High Court of Calcutta.
AND IN THE MATTER OF :
Initiation

of

proceedings

for

criminal

contempt, and also and under Section 340 of


the CrPC for perjury, for a violation, inter
alia, of Section 209 of the Indian Penal Code,
read with Section 221 of the CrPC.
AND IN THE MATTER OF :
The Companies Act, 1956;
AND
IN THE MATTER OF:
Sections 155,397,399,402,403 and 404 of the
said Act;
AND
IN THE MATTER OF :
TURNER MORRISON & COMPANY LIMITED,
an existing Company within the meaning of

180
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street, Kolkata.
AND
IN THE MATTER OF :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate Law of Singapore and having its
Registered Office at 36, Tanjong Penjura,
Singapore.
..........PETITIONER.
VERSUS
1.

TURNER MORRISON AND COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at 8, Camac Street,
Kolkata 700 016.
2.

S.T.P.

LTD., formerly known as

SHALIMAR TAR PRODUCTS (1935) LIMITED,


an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata -700 016.
3.

GRAHAMS

TRADING

OMPANY

(INDIA) LIMITED, an existing Company


within the meaning of Companies Act and
having its Registered Office at 8, Camac
Street , Kolkata -700 016.
4.

LODNA COLLIERY COMPANY (1920)

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 and
having its Registered Office at 8, Camac
Street,
Kolkata -700 016.
5.

ANGELO BROTHERS LIMITED

181
An existing Company under the Companies
Act, 1956 having its Registered Office at
No.64-A,

Raif

Ahmed

Kidwai

Road,

KOLKATA - 700 016.


6.
(In

SHALIMAR WORKS LIMITED


liquidation),

through

the

Official

Liquidator attached to the High Court of


Calcutta having his office at
No. 9, Old Post Office Street, Kolkata - 700
001
7.
(In

PANCHSSHEEL
liquidation),

SHIPPING LIMITED

through

the

Official

Liquidator attached to the High Court at


Calcutta having his office at No. 9, Old Post
Office Street, Kolkata - 700 001.
8.

ROHTAS INDUSTRIES LIMITED, an

existing Company within the meaning of the


Companies

Act,

1956

and

having

its

Registered Office at Dalmia Nagar in the State


of Bihar and also having its office at 8, Camac
Street, Kolkata - 700 016.
9.

ASHOKA MARKETING LIMITED, a

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 0016.
10.

NEW CENTRAL JUTE MILLS LIMITED,

an existing Company Within the meaning of


the

Companies

Act,

1956

having

its

Registered Office at 18-A, Brabourne Road,


Kolkata -700 001.
11.

SAHU

PROPERTIES

LIMITED,

182
Company incorporated under the provisions
of the Companies Act, 1956 and having its
Registered Office at B.B.D, Bag (East), Kolkata
-700 001;
12.

BENNETT COLEMAN & COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at Dr. Dadabhai Naoroji
Road, Bombay- 400 001;
13.

SOUMATI PROPERTIES LIMITED, a

Company incorporated under the provisions


of The Companies Act, 1956 having its
Registered Office at 5, Parliament Street, New
Delhi-110001;
14.

BHARAT WIDHI LIMITED, a Company

incorporated
Companies

under
Act,

the

1956

Provisions

and

having

of
its

Registered Office at 5, Parliament Street, New


Delhi-110001;
15.

SAHU JAIN LIMITED, an existing

Company
Companies
registered

within

the

Act,

1956

meaning
and

of

having

the
its

office at 7,Bahadur Shah Zafar

Marg,
New Delhi-110002;
16.

ASHOKA

HOLDING

LIMITED,

Company incorporated under the Provisions


of the Companies Act, 1956 and having its
Registered Office at 5, Parliament Street, New
Delhi-110 001;
17.

DHARMYUG INVESTMENT LIMITED, a

company incorporated under the provisions

183
of the Companies Act, 1956 and having its
Registered Office at Times of India Building,
Dr. D.N. Road, Bombay- 400 001;
18.

SARVAMANGAL TRADING COMPANY

LIMITED, a company Incorporated under the


provisions of the Companies Act, 1956 and
having its Registered Office at 3-A Garstin
Place, Kolkata -700 001;
19.

COMBINE

HOLDING

LIMITED,

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 10, Stephen house, 4,
B.B.D,
Kolkata -700 001;
20.

CARAVAN COMMERCIAL COMPANY

LIMITED, a Company Incorporated under the


provisions of the Companies Act,1956 and
having its Registered Office at 2, Ganesh
Chandra Avenue, Kolkata -700 013;
21.

P.N.B. FINANCE LIMITED, a Company

incorporated under the Provisions of the


Companies Act, 1956 and having Registered
Office at B-45/47,Connaught

Place, New

Delhi-110001;
22.

HARI KRISHNA CHOUDARY;

23.

P.R NEELKANTH

(full name not known), both working for gain


at 8, Camac Street,
Kolkata -700 016;
24.

HARENDRA KUMAR, residing at 8,

Mandeville Garden, Kolkata -700 019;

184
25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,

All working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
29.

Smt. DURGA JAIN, working for gain at

Turner Morrison House at 16, Bank Street,


Bombay-400023;
30.

ATMA RAM SARAOGI

31.

K.K BIYANI, (full name not known)

Both working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI, residing

at 8, Lower Rowdon Street,


Kolkata -700 020;
35.

HONGKONG

BANK, constituted

under the appropriate Laws of England and


carrying on business, inter alia, at 8,Netaji
Subhas Road, Kolkata -700 001;
36.

PRADAP KUMAR SINGHANIA, residing

at No. 19, Ballygunge Circular Road, Kolkata.


37.

RESERVE BANK OF INDIA, a body

corporate constituted under the Reserve


bank of India Act, and carrying on business,

185
inter alia, at

115, Netaji Subhas Road,

Calcutta-700 001 and also having its office at


Central Office, Exchange Control Department,
Mumbai-400 001.
38.

DR. RABINDRA NATH GARG, son of

Late Baij Nath Garg, at present residing at 3,


Park Mansion, Park Street, Kolkata.
39.

TAX

RECOVERY

OFFICER

(IV)

Calcutta and 24-Parganas, 8/2 Esplanade,


East Dawkins House Kolkata.
.RESPONDENTS.
AND
IN THE MATTER OF APPLICATION BY :
HUNGERFORD INVESTMENT TRUST LIMITED, a company incorporated under the
appropriate laws of Singapore and having its Registered Office at 36, Tanjong,
Penjura, Singapore.
APPLICANT.
JUDGES SUMMONS
LET ALL PARTIES concerned attend before the Honble Justice taking Company Matters
on the

day of January, 2015 at hour of 10.30 OClock in the forenoon or so soon

thereafter as it can be heard on the hearing of an application on behalf of the applicant


above named for and order that:
a)

That this Honble Court exercise its inherent powers read with powers, inter alia,
under Rule 16 of the Calcutta High Court (Original Side) Rules (1914) and debar
M/s Khaitan & Company from the right of effecting any filing on the Original
Side.
In the less-preferred alternative :
Direct Ld. Registrar (Original Side) to issue a Show-Case notice to M/s/ Khaitan
& Co, Mr. Ratnesh Rai, Mr. Joy Saha, requiring all of them to individually show
cause before this Hon'ble Court (when acting in chambers) on a date to be fixed,
as to why they should not be debarred from acting on the Original Side.
Ad interim relief :

186
Pending completion of the Show-Case formalities and the pendency of the same,
debar the aforesaid persons from the right of effecting any filing on the Original
Side.
b)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Section 34 of the Advocates Act, and forthwith debar any partner of
M/s Khaitan & Company, or any advocate (which includes any senior
advocate) employed by them, or engaged by them, from the privilege of
audience before this Hon'ble Court.

c)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Section 34 of the Advocates Act, and debar Mr. Joy Saha, Advocate, or
any other advocate not on duly-executed vakalatnama, from addressing this
Hon'ble Court in any manner other than what constitutes ministerial pleadings
i.e. pleadings not on the merits of the lis before this Hon'ble Court.

d)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Order X Rule 2 of the CPC, read with Order XIX of the same Code,
and direct Respondent No. 31 (Mr. Krishan Kumar Biyani, who has claimed to
act for Respondent No. 1) to disclose whether or not he lays claim to hold his
post (as Secretary and Board Member of Turner Morrison Ltd) by virtue of his
appointment to that post(s) by Directors who claim to have been elected to that
post by shareholders who have acquired their alleged shares either in lieu of
allegedly-renounced shares of Hungerford Investment Trust Ltd (alleged
renunciation of 1977), or have acquired shares from persons who acquired
either those alleged shares, or have acquired their alleged shares auctioned by
the Income Tax Department, or shares acquired from persons who acquired the
shares from the auction-purchaser acquiring them from the Income Tax
Department.

e)

That this Hon'ble Court exercise its inherent and other enabling powers and
direct Respondent No. 31 (Mr. Krishan Kumar Biyani, who has claimed to act for
Respondent No. 1) to file on affidavit all Board Resolutions of Turner Morsison
Ltd allegedly passed since 1977 that have allegedly authorised him to act and
appear for Turner Morrison Ltd before this Hon'ble Court.

f)

That this Hon'ble Court exercise its powers under Article 215 of the Constitution
of India, and take suo motu cognizance of criminal contempt committed by the 4
non-applicants (named in para 2 above) in the face of the court (for the 7

187
counts listed in para 3)

and refer the matter to the Division Bench for

appropriate action under law.


g)

In case affidavits-in-opposition are at all intended to be allowed by this Hon'ble


Court before deciding whether or not to refer the matter to the Hon'ble Division
Bench, and / or to prosecute for perjury, direct the 4 non-applicants to be
present in Court in person on the next date of hearing.

h)

Initiate proceedings against the 4 non-applicants named in para 3 above under


Section 340 of the CrPC for perjury, for a violation, inter alia, of Section 209 of
the Indian Penal Code, read with Section 221 of the CrPC.

i)

Pass ex parte orders on the above prayers.

j)

And pass such other order or further order or orders as this Honble Court may
deem fit and proper under the circumstances of the case.
Dated this

day of January, 2015.

________________________

________________

Deepak Khosla

Registrar

Advocate for the Applicant


Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001
This summons is taken out by Mr. Deepak Khosla, Advocate, for the applicant supported
by an affidavit of Mr. Gobina Biswas duly affirmed on
Calcutta.
To
1.

TURNER MORRISON AND COMPANY LIMITED,


8, Camac Street, Kolkata 700 016.

2.

S.T.P. LTD.,
8, Camac Street, Kolkata -700 016.

January,

2015

at

188

3.

GRAHAMS TRADING OMPANY (INDIA) LIMITED,


8, Camac Street , Kolkata -700 016.

4.

LODNA COLLIERY COMPANY (1920) LIMITED,


8, Camac Street, Kolkata -700 016.

5.

ANGELO BROTHERS LIMITED,


64-A, Raif Ahmed Kidwai Road, KOLKATA - 700 016.

6.

SHALIMAR WORKS LIMITED (In liquidation),


9, Old Post Office Street, Kolkata - 700 001

7.

PANCHSSHEEL SHIPPING LIMITED (In liquidation),


9, Old Post Office Street, Kolkata - 700 001.

8.

ROHTAS INDUSTRIES LIMITED,


8, Camac Street, Kolkata - 700 016.

9.

ASHOKA MARKETING LIMITED,


8, Camac Street, Kolkata - 700 0016.

10.

NEW CENTRAL JUTE MILLS LIMITED,


18-A, Brabourne Road, Kolkata -700 001.

11.

SAHU PROPERTIES LIMITED,


B.B.D, Bag (East), Kolkata -700 001;

12.

BENNETT COLEMAN & COMPANY LIMITED,


Dr. Dadabhai Naoroji Road, Bombay- 700 001;

13.

SOUMATI PROPERTIES LIMITED,


5, Parliament Street, New Delhi-110001

14.

BHARAT WIDHI LIMITED,


5, Parliament Street, New Delhi-110001;

15.

SAHU JAIN LIMITED,

189
7,Bahadur Shah Zafar Marg, New Delhi-110002;

16.

ASHOKA HOLDING LIMITED,


5, Parliament Street, New Delhi-110 001;

17.

DHARMYUG INVESTMENT LIMITED,


Times of India Building, Dr. D.N. Road, BOMBAY- 400 001;

18.

SARVAMANGAL TRADING COMPANY LIMITED,


3-A Garstin Place, Kolkata -700 001;

19.

COMBINE HOLDING LIMITED,


10, Stephen house, 4, B.B.D, Kolkata -700 001;

20.

CARAVAN COMMERCIAL COMPANY LIMITED,


2, Ganesh Chandra Avenue, Kolkata -700 013;

21.

P.N.B. FINANCE LIMITED,


B-45/47,Connaught Place, New Delhi-110001;

22.

HARI KRISHNA CHOUDARY;

23.

P.R NEELKANTH
both of 8, Camac Street, Kolkata -700 016;

24.

HARENDRA KUMAR,
8, Mandeville Garden, Kolkata -700 019;

25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,


all of 8, Camac Street, Kolkata -700 016;

190
29.

Smt. DURGA JAIN,


Turner Morrison House at 16, Bank Street, Bombay-400023;

30.

ATMA RAM SARAOGI

31.

K.K BIYANI,
Both of 8, Camac Street, Kolkata -700 016;

32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI,


All residing at 8, Lower Rowdon Street, Kolkata -700 020;

35.

HONGKONG BANK,
8, Netaji Subhas Road, Kolkata -700 001;

36.

PRADIP KUMAR SINGHANIA,


19, Ballygunge Circular Road, Kolkata.

37.

RESERVE BANK OF INDIA,


115, Netaji Subhas Road, Calcutta-700 001
and also at Central Office,
Exchange Control Department, Mumbai-400 001.

38.

DR. RABINDRA NATH GARG,


3, Park Mansion, Park Street, Kolkata.

39.

TAX RECOVERY OFFICER (IV) Calcutta and 24-Parganas,


8/2 Esplanade, East Dawkins House Kolkata.

ALSO TO :
40.

Mr. UTPAL BOSE, SENIOR ADVOCATE, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

191
41.

Mr. RATNESH RAI, ADVOCATE, c/o Khaitan & Co., Emerald


House, 1-B Old Post Office Street, Kolkata 700 001.

42.

Mr. JOY SAHA, ADVOCATE, c/o Khaitan & Co., Emerald


House, 1-B Old Post Office Street, Kolkata 700 001.

43.

M/s Khaitan & Co

44.

Mr. AMIT JUDGE, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

45.

Ms. RENU JUDGE, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

46.

Mr. RANJIT CHOPRA, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

47.

Mr. INDERJIT S. NARULA, Director TMCL, c/o Khaitan & Co.,


Emerald House, 1-B Old Post Office Street, Kolkata 700 001.

48.

Mr. RANJIT CHOWDHRY, Director TMCL, c/o Khaitan & Co.,


Emerald House, 1-B Old Post Office Street, Kolkata 700 001.

49.

Mr. JAYANT RAJ KOCHHAR, Director TMCL, c/o Khaitan & Co.,
Emerald House, 1-B Old Post Office Street, Kolkata 700 001.

192
Company Application No. ___________of 2015
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Original (Company) Jurisdiction
In the matter of :
Hungerford Investment Trust Limited
Petitioner
Versus
Turner Morrison & Company Ltd
Respondents
And
Hungerford Investment Trust Limited
Applicant

JUDGES SUMMONS

DEEPAK KHOSLA,
Advocate for the Applicant
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001

193

ANNEXURE P - 7
Company Application No. ___________of 2015
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Original (Company) Civil Jurisdiction
IN THE MATTER OF :
Application under the Calcutta (Original Side)
Rules (1914) read with Article 215 of the
Constitution of India, read with the Contempt
of Courts Act, praying to debar Khaitan & Co
(as it is generally or
loosely known or referred to) from filing
any pleading, or appearing, or pleading
before this Hon'ble Court, or before any
Bench on the Original Side of the Honble
High Court of Calcutta.
AND IN THE MATTER OF :
Initiation

of

proceedings

for

criminal

contempt, and also and under Section 340 of


the CrPC for perjury, for a violation, inter
alia, of Section 209 of the Indian Penal Code,
read with Section 221 of the CrPC.
AND IN THE MATTER OF :
The Companies Act, 1956;
AND
IN THE MATTER OF:
Sections 155,397,399,402,403 and 404 of the
said Act;
AND
IN THE MATTER OF :

194
TURNER MORRISON & COMPANY LIMITED,
an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street, Kolkata.
AND
IN THE MATTER OF :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate Law of Singapore and having its
Registered Office at 36, Tanjong Penjura,
Singapore.
..........PETITIONER.
VERSUS
1.

TURNER MORRISON AND COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at 8, Camac Street,
Kolkata - 700 016.
2.

S.T.P.

LTD., formerly known as

SHALIMAR TAR PRODUCTS (1935) LIMITED,


an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 016.
3.

GRAHAMS

TRADING

COMPANY

(INDIA) LIMITED, an existing Company


within the meaning of Companies Act and
having its Registered Office at 8, Camac
Street , Kolkata - 700 016.
4.

LODNA COLLIERY COMPANY (1920)

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 and
having its Registered Office at 8, Camac
Street,
Kolkata - 700 016.

195

5.

ANGELO BROTHERS LIMITED

An existing Company under the Companies


Act, 1956 having its Registered Office at No.
64-A, Raif Ahmed Kidwai Road, Kolkata 700016.
6.
(In

SHALIMAR WORKS LIMITED


liquidation),

through

the

Official

Liquidator attached to the High Court of


Calcutta having his office at
No. 9, Old Post Office Street, Kolkata - 700
001;
7.
(In

PANCHSSHEEL
liquidation),

SHIPPING LIMITED

through

the

Official

Liquidator attached to the High Court at


Calcutta having his office at No. 9, Old Post
Office Street, Kolkata - 700 001.
8.

ROHTAS INDUSTRIES LIMITED, an

existing Company within the meaning of the


Companies

Act,

1956

and

having

its

Registered Office at Dalmia Nagar in the State


of Bihar and also having its office at 8, Camac
Street, Kolkata - 700 016.
9.

ASHOKA MARKETING LIMITED, a

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 0016.
10.

NEW CENTRAL JUTE MILLS LIMITED,

an existing Company Within the meaning of


the

Companies

Act,

1956

having

its

Registered Office at 18-A, Brabourne Road,


Kolkata -700 001.

196

11.

SAHU

PROPERTIES

LIMITED,

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at B.B.D, Bag (East), Kolkata
-700 001;
12.

BENNETT COLEMAN & COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at Dr. Dadabhai Naoroji
Road, Bombay- 400 001;
13.

SOUMATI PROPERTIES LIMITED, a

Company incorporated under the provisions


of The Companies Act, 1956 having its
Registered Office at 5, Parliament Street, New
Delhi-110001;
14.

BHARAT WIDHI LIMITED, a Company

incorporated
Companies

under
Act,

the

1956

Provisions

and

having

of
its

Registered Office at 5, Parliament Street, New


Delhi-110001;
15.

SAHU JAIN LIMITED, an existing

Company
Companies
registered

within

the

Act,

1956

meaning
and

of

having

the
its

office at 7,Bahadur Shah Zafar

Marg,
New Delhi-110002;
16.

ASHOKA

HOLDING

LIMITED,

Company incorporated under the Provisions


of the Companies Act, 1956 and having its
Registered Office at 5, Parliament Street, New
Delhi-110 001;

197
17.

DHARMYUG INVESTMENT LIMITED, a

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at Times of India Building,
Dr. D.N. Road, Bombay- 400 001;
18.

SARVAMANGAL TRADING COMPANY

LIMITED, a company Incorporated under the


provisions of the Companies Act, 1956 and
having its Registered Office at 3-A Garstin
Place, Kolkata -700 001;
19.

COMBINE

HOLDING

LIMITED,

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 10, Stephen house, 4,
B.B.D,
Kolkata -700 001;
20.

CARAVAN COMMERCIAL COMPANY

LIMITED, a Company Incorporated under the


provisions of the Companies Act,1956 and
having its Registered Office at 2, Ganesh
Chandra Avenue, Kolkata -700 013;
21.

P.N.B. FINANCE LIMITED, a Company

incorporated under the Provisions of the


Companies Act, 1956 and having Registered
Office at B-45/47,Connaught

Place, New

Delhi-110001;
22.

HARI KRISHNA CHOUDARY;

23.

P.R NEELKANTH

(full name not known), both working for gain


at 8, Camac Street,
Kolkata -700 016;

198
24.

HARENDRA KUMAR, residing at 8,

Mandeville Garden, Kolkata -700 019;


25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,

All working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
29.

Smt. DURGA JAIN, working for gain at

Turner Morrison House at 16, Bank Street,


Bombay-400023;
30.

ATMA RAM SARAOGI

31.

K.K BIYANI, (full name not known)

Both working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;
32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI, residing

at 8, Lower Rowdon Street,


Kolkata -700 020;
35.

HONGKONG

BANK, constituted

under the appropriate Laws of England and


carrying on business, inter alia, at 8,Netaji
Subhas Road, Kolkata -700 001;
36.

PRADIP KUMAR SINGHANIA, residing

at No. 19, Ballygunge Circular Road, Kolkata.


37.

RESERVE BANK OF INDIA, a body

199
corporate constituted under the Reserve
bank of India Act, and carrying on business,
inter alia, at

115, Netaji Subhas Road,

Calcutta-700 001 and also having its office at


Central Office, Exchange Control Department,
Mumbai-400 001.
38.

DR. RABINDRA NATH GARG, son of

Late Baij Nath Garg, at present residing at 3,


Park Mansion, Park Street, Kolkata.
39.

TAX

RECOVERY

OFFICER

(IV)

Calcutta and 24-Parganas, 8/2 Esplanade,


East Dawkins House Kolkata.
.RESPONDENTS.
AND
IN THE MATTER OF APPLICATION BY :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate laws of Singapore and having its
Registered Office at 36, Tanjong, Penjura,
Singapore.
APPLICANT.
AFFIDAVIT
I, Gobinda Biswas, son of Late Mr. Tulsi Ram Biswas, aged about 40 years, resident of
903 KBM, Chakdah, Distt. Nadia 741 222, and also at 1-B Judges Court Road, Kolkata
700 027, profession Executive, do hereby solemnly affirm and state as under:
56.

That I am an Officer of the applicant Company, and as such, I am fully conversant


with the facts of the present case, and am fully comptent to depose thereto, and
competent and authorised to file the accompanying application.

57.

That the applicant Company is also the petitioner before this Hon'ble Court, and
has filed the above-mentioned CA No. 491 of 2012, seeking various directions.
These directions are premised on the proposition that any order, whether of this

200
Hon'ble Court, or of a co-ordinate Court / Bench, or of a superior court, if it
ostensibly appears to come in the way of this Hon'ble Court granting the reliefs
prayed for in CA No. 491 of 2012, this would be a fallacious interpretation, as all
such orders are a nullity in law, and hence, void ab initio, as if non est, these
orders being eminently challengeable before this Hon'ble Court by virtue of
Article 141 of the Constitution read with Section 44 of the Evidence Act. The
applicant craves leave to establish this point to the satisfaction of this Hon'ble
Court during the course of oral arguments, fully backed by judicial precedents.
58.

That the non-applicants to the present application are all the parties in the
petition, as well as (i.e. in adiditon) the following 3 advocates and the firm
which they (claim to) represent :
a) Mr. Utpal Bose, Senior Advocate
b) Mr. Joy Saha
c) Mr. Ratnesh Rai
d) M/s Khaitan & Co

59.

That this is because the right of filing any pleading and / or the right of audience
to these 4 non-applicants is sought to barred by this Hon'ble Court on the
following 7 grounds :
a) Firstly, these advocates / advocates firm have / has no right to practice
(hence, no right of audience) before this Hon'ble Court, because of their
violation / non-compliance with the Calcutta High Court (Original Side) Rules
(1914).
b) Secondly, this firm M/s Khaitan & Company cannot appear for Turner
Morrison Ltd, as they have acted for Mr. Haridas Mundhra and against this
Company. Thus, they violate Rule 33 of the Bar Council Rules by doing so.
c) Thirdly, assuming without admitting that (a) and (b) do not apply, advocate
Mr. Ratnesh Rai, not being a Partner in Khaitan & Co, has no right of making
any filing, or claiming any audience before this Hon'ble Court (i.e. on its
Original Side).
d) Fourthly, no filing could have been accepted by the Registry on account of
breach of the mandatory filing requirements stipulated by the Hon'ble

201
Supreme Court in the case of Uday Shankar Triyar vs. Ram Kalewar Singh
(AIR 2006 SC 269). (In fact, their listing of applications / counter-affidavits is
in blatant contempt of the Hon'ble Supreme Court.)
It is relevant to highlight that despite raising this objection as far back as on
09-01-2015, the breach still continues, thus, showing the contemptuous
defiance with which this Hon'ble Court is being attempted to be addressed
by the non-applicants.
e) Fifthly, Mr. Joy Saha has no right of audience, if he has been engaged by Mr.
Ratnesh Rai, as the latter himself has no right of audience before this Hon'ble
Court.
f) Sixthly, Mr. Joy Saha, not being on duly-executed vakalatnama executed by
the alleged client, cannot address this Hon'ble Court on any of the merits of
the matter, and by operating merely on the strength of the proviso to subRule (5) of Rule 4 of Order III of the CPC, must confine his addressing this
Hon'ble Court to ministerial pleadings only i.e. pleading in a manner which
does not involve his setting out for the judicial appreciation of this Hon'ble
Court any of the merits of the present matter (which right, as well as
liability1, is confined only to the advocate on duly-executed vakalatnama, and
/ or to the Senior Advocate engaged by him).
g) Lastly, these advcoates know very well that the deponent claiming to act for
the Respondent No. 1 Company (i.e. Mr. Krishan Kumar Biyani., who is,
himself, Respondent No. 31 in these proceedings) is playing a patent fraud
on this Hon'ble Court, not difficult for any advocate to discern merely from
the face of things.
Reliance :

In re a Vakil (AIR 1925 All 641)

Emperor vs. Guru Prasad (AIR 1934 Pat 142 FB).

Shyam Sunder vs. Sheo Raj Singh (AIR 1944 Oudh 236)

Affirmative Obligation of an advocate (in the book titled Justice,


Courts and Delays By Arun Mohan, Senior Advocate).

1 Liability in light of Section 209 of the Indian Penal Code, read with the criminal contempt.

202
60.

That as regards the 1st count above, it is extremely vital to highlight that on 0901-2015, in discharge of his professional duties to the applicant (as an
advocate), the applicants counsels appeared before this Hon'ble Court, duly
exercising his rights under Section 30 of the Advocates Act (1961) to practice
before this Hon'ble Court. However, his attempts to do so were obstructed by
the learned counsels allegedly appearing for the Respondent No. 1, albeit,
without any demonstrable / demonstrated lawful authorty in their hands to do
so2 (i.e. Mr. Utpal Bose, learned Senior Advocate, advocate Mr. Joy Saha and
advocate Mr. Ratnesh Rai) on the specious grounds that he was not duly
registered under the Calcutta High Court (Original Side) Rules (1914) to practice
on the Original Side of the Honble High Court of Calcutta, and that, therefore, as
per the aforesaid Rules, he had no right to make any filing on the Original Side of
this Hon'ble Court, much less any right of audience before this Hon'ble Court.

61.

That solely on this ground, they prayed to this Hon'ble Court that CA Nos. 10, 11
and 12 of 2015 filed by the applicant be summarily dismissed in limine, and that
the hearing be truncated forthwith as the counsel appearing for the applicant
had no right of audience before this Hon'ble Court.

62.

That fortunately, the counsel appearing for the applicant could satisfy this
Hon'ble Court that he complied with the Calcutta High Court (Original Side) Rules
(1914), and on that basis, the hearing proceeded. (He made this submission
without prejudice to the position that some of these Rules are ultra vires, being
in conflict with the Advocates Act).

63.

That the purpose of recounting the above is only to highlight that the
categorically-asserted position of the 3 advocates / non-applicants that the right
to file any matter before this Hon'ble Court, and the right to claim exercise of the
privilege of audience is strictly subject to Calcutta High Court (Original Side)
Rules (1914).

64.

That on the principle of what is sauce for the goose is sauce for the gander, it is
humbly prayed that this Hon'ble Court may be pleased to dismiss / strike off
from the record of the present proceedings any pleading(s) or undisposed-off
application(s) filed by the 3 non-applicant advocates [or, for that matter, by any

2 Based on para 21 of the the Hon'ble Supreme Courts judgement set out in the case of Uday Shankar
Triyar vs. Ram Kalewar Singh (AIR 2006 SC 269).

203
other advocate who, similarly, has breached the Calcutta High Court (Original
Side) Rules (1914)].
65.

That in regard to breaches of the Calcutta High Court (Original Side) Rules
(1914), these 3 advocates have commited as many as 7 breaches of the aforesaid
Rules, full details of which are set out in the letter dated 09-01-2015 addressed
to Ld. Registrar (Original Side) and whose copy has been furnished to this
Hon'ble Court today. This letter is appended hereto, and is marked as Annexure
1. Its contents are craved leave to be considered as forming part and parcel of
the present application, and are not being reprocued herein verbatim only to
avoid prolixity.

66.

That as regards (2), the Bar Council Rules are crystal-clear, and the matter
requires no major elaboration, except to state the matter in the instant case is
much worse than ordinarily so, because during the hearing today (13-01-2015),
the biographical book titled Amicus Curiae turns 100 (commissioned by
Khaitan & Co through ist author Ms. Aditi Roy Ghatak) had been produced before
this Hon'ble Court, in which, at page 129, it had been set out (significantly, in the
nature of an admission) how this particular law firm had assisted Mr. Haridas
Mundhra in executing his plans in literally looting the coffers of Turner Morrison
Ltd, issues which are part of the subject matter of the present petition.

67.

That as regards the 3rd count above, since Mr. Ratnesh Rai is not a partner of
Khaitan & Co, he cannot practice before this Hon'ble Court under the banner of
Khaitan & Co (which is without prejudice to the position that even a Partner of
Khaitan & Company cannot practice, because of the firms violation / noncompliance with the Rules).

68.

That as regards (4), by contemptuously cocking a snoot at the dignity and


authority of the Hon'ble Supreme Court as set out in Uday Shankar Triyar,
these advocates are not only not entitled to audience before this Hon'ble Court
and their pleadings filinsg are liable to summary dismissal / return, but are
liable to be proceeded against for criminal contempt, because they are
continuing to insist on appearing before this Hon'ble Court even after their noncompliance of this judgement has been pointed out to them (on 09-01-2015). No
doubt their non-compliance rather, conscious and deliberate refusal to comply
is connected, inter alia, with the proviosions of Section 126 of the Evidence Act,
which renders their communications with their clients no longer privileged in

204
relation to any criminal acts committed after the date of engagement of their
servcies. (The burden of strict compliance with Uday Shankar Triyar is on the
advocate, and not on his client.)
69.

That as regards the 5th count, Mr. Joy Saha cannot claim right of audience, given
that he is being instructed by advocate Mr. Ratnesh Rai who, himself, has no
right of audience before this Hon'ble Court, as he is not a Partner of Khaitan &
Co, and moreover, Khaitan & Co itself does not have right of audience before this
Hon'ble Court.

70.

That as regards the 6th count, Mr. Joy Saha cannot plead the merits of any matter,
as the provision set out in the proviso to Order III, Rule 4, Sub-rule (5) permits
only ministerial pleadings, and not full-blown pleadings on the merits of the
matter.

71.

That as regards the 7th count, the Notice dated 11-01-2015 (whose copy had
been handed over to this Hon'ble Court on 13-01-2015) makes the fraud by the
persons puporting to act for Turner Morrison clear. This Notice has been
despatched by email to various persons set out in the email appended hereto as
Annexure 2.

72.

That as regards the fraud being played out by their clients, while there may be
many counts against their client but against which he may claim to have a
defence or satisfactory answer, most certainly, two counts he does not. Hence,
the patent nature of the fraud being resorted to by their client, and which fraud
cannot be perpetuated by the advocate on a Court (even while claiming to act on
instructions) is self-evident by the answer to the following 3 simple questions :
1. Is renunciation of rights to a rights issue by a foreign resident in an
Indian Company a violation of Section 19(1)(b) of FERA, 1974 ?
2. Can a Company issue duplicate shares without first taking back into its
physical possession inter alia, for cancellation - the original shares in lieu
of which the duplicate shares are intended to be issued, especially when the
purpose of issuing duplicate share certificates is to issue fresh certificates
for reduced nominal value, reduced from Rs. 1,000 per share to Rs. 10 per
share ?

205
Can the Income Tax Department or put differently does the Income Tax
Department have the jurisdiciton to raise a tax demand in 1985 (or
thereabouts) on the same and identical question of law already settled by
the Hon'ble Supreme Court in 1972 ?
73.

That as regards the 1st question, this has already been settled by the Hon'ble
Supreme Court in the well-known case of Needle Industries (India) Ltd vs.
Needle Industries Newey (India) Holdings Ltd (AIR 1981 SC 1298). In addition,
it has been clairified by RBI vide its Ciruclar dated 11-01-1979, supported by the
opinion of the Ld. Solicitor Geenral in August 1978. Thereaftre, the Courts of
Hon'ble Ms. Justice Monjula Bose, the DB of Hon'ble Mr. Justice Suhas Sen, the
DB of Hon'ble Mr. Justice Batabyal and MItra, the DB of Hon'ble Mr. Justice MH
Ansari and BM Mitra, the Hon'ble Supreme Court, etc all have upheld that the
shares issued to the Ashok Jain Group in lieu of renounced shares are a FERA
offence (so much so that it led to Ashok Jains arrest for FERA violations).

74.

That as regards the 2nd question, it has been settled, inter alia, in the case of
Stridewell Leathers (P) Ltd vs. Shoe Specialities (P) Ltd 2001 33 SCL 797 /
2003 5 CLJ 311 (CLB-Chennai).

75.

That as regards the 3rd question, there is no scope even for a minutes debate, by
virtue, inter alia, of Article 141 of the Constitution of India.

76.

That it is very vital to highlight that the applicant has obtained a confirmation
from the Ld. Registrar (Original Side) of this Hon'ble Court to the effect that :
a) Mr. Ratnesh Rai, Mr. Joy Saha and Mr. Utal Bose are not Partners of Khaitan &
Co.
b) The names of the partners on record with this Hon'ble Court are different
from what has been set out on their letter-head, the last intimation to this
Hon'ble Court of their partners set-up being in 1977.
A copy of the letter dated 15-01-2015 is appended hereto, and is marked as
Annexure 3.

77.

That from the letter-head of the firm, it appears that they have an office in
Bengaluru also. Appended as Annexure 4 are th Rules of the Honble High Court
of Karnataka framed under Section 34 of the Advocates Act, 1961. As per these

206
Rules, it is clear that M/s Khaitan & Co are in violation, inter alia, of the following
Rules :
a) No lawyers firm can have & Company as part of their name.
b) Only the partners can act on behalf of such firm, and in recognition of which
they must sign for the firm (thereby each partner binding the others with his
acts), and which would be by appending their own signatures.
c) The name of the firm must carry the name of the partners.
78.

That when it comes to (c) above, it is clear that the purpose of requiring the
partners name to be on the name of the firm is to inform the public at large as to
who are the persons behind the firm. In the instant case, this firm has sprung 3
off-shoots : Khaitan & Co, OP Khaitan & Co and Khaitan and Khaitan. Clearly,
barring the 2nd firm the other 2 are in patent violation of the spirit as well as
letter of the law, as the public-at large- cannot know which particular Khaitan is
behind the firm. To expand the analogy further : tomorrow, if a Mr. Om Prakash
Khaitan wishes to start practice under the banner of a firm, he cannot start
using the name O. P. Khaitan as part of his firms name, as this would mislead
the public at large. In such an instance. the name of the firm must, therefore,
have to inlcude the first name of the partners also in order to comply with law.

79.

That when it comes to fraud on this Hon'ble Court, as suppression as as much


fraud as is a positively-asserted falsehood, it is most respectfully submitted that
that in all the pleadings filed by the opposite party, the drafting of the same,
including the supporting affidavit, has been by the aforesaid Khaitan and
Company, and that being so, given that every affidavit has the Verification,
which is required to state .and nothing material has been conclealed., makes
their drafting of these pleadings a very relevant and questionable fact, given that
they were well aware that their client was, indeed, suppressing very vital and
material facts from the Courts, this constituting a sharp practice on his part, a
practice, which since it was continued, which prohibited them from appearing
for their client, and returning the brief, in light of Rule 4 of the Bar Council Rules
relating to professional misconduct, which states as reproduced verbatim
hereunder :

207
4. An advocate shall use his best efforts to restrain and prevent his client
from restoring to sharp or unfair practices or from doing anything in
relation to the Court, opposing counsel or parties which the advocate himself
ought not to do. An advocate shall refuse to represent the client who persists
in such improper conduct. He shall not consider himself a mere mouthpiece
of the client, and shall exercise his own judgment in the use of restrained
language in correspondence, avoiding scurrilious attacks in pleadings, and
using intemperate language during arguments in Court.

PLEASE TURN OVER

208

80.

That this is yet another area of grievance of the applicant, as privileges cannot
be disassociated from duty / responsibility in practice / reality. To the extent
relevant, it is perhaps important to mention to this Hon'ble Court that the
website of the Supreme Court Bar Association carries the following message on
the opening page itself of its website :
"It is a mistake to suppose that he (the barrister) is the mouthpiece of his
client to say what he wants : or his tool to do what he directs. He is none of
these things. He owes allegiance to a higher cause. It is the cause of truth
and justice- Lord Denning M.R.

PLEASE TURN OVER

209
81.

That the views of some of the more well-known Judges in the international arena
(in the UK and in the USA),as well as in India, what really constitutes the
profession of advocacy, as well as the duties and obligations of advocates, are
reproduced below for the ease of referral of this Hon'ble Court :

UK 1844 A.D. : The celebrated and eminent Judge, Honble J. Crampton, on


the issue of what is the precise role, status, duties, privileges and obligations
of advocates (i.e. what he termed as the forensic duty of an advocate),
stated his views on the subject in the matter of R. vs. OConnell [cited as
(1844) Ir. L.R. 261 at 312, 313 (in H.L., 1844, 11, Cl. & F, 155)], and which
views are set out below:
This Court in which we sit is a Temple of Justice ; and the Advocate at the
Bar, as well as the Judge upon the Bench, are equally Ministers in that
Temple. The object of all equally should be the attainment of justice ; now
Justice is only to be reached through the ascertainment of the truth, and the
instrument which our law presents to us for the ascertainment of the truth
or falsehood of a criminous charge is the trial by jury ; the trial is the
process by which we endeavour to find out the truth. Slow and laborious,
and perplexed and doubtful in its issue that the pursuit often proves ; but
we are Judges, Jurors, Advocates and Attorneys together concerned in
the search for truth ; the pursuit is a noble one, and those are honoured
who are the instruments engaged in it. The infirmity of human nature, and
the strength of human passion, may lead us to take false views, and
sometimes to embarrass and retard rather than to assist in attaining the
Great Object ; the temperament, the imagination and feelings may all
mislead us in the chase but let us never forget our high vocation as
Ministers of Justice and interpreters of the law ; let us all never forget that
the advancement of justice and the ascertainment of truth are higher
objects and nobler results than any which, in this place, we can propose to
ourselves. Let us never forget the Christian maxim, that we should not do
evil that good may come of it.
I would say to the advocate upon this subject let your zeal be as warm as
your hearts blood, but let it be tempered with discretion and self-respect ;
let your independence be firm, uncompromising, but let it be chastened by
personal humility ; let your love of liberty amount to a passion, but let it
not appear to be a cloak for maliciousness.

210

[The word malice appearing hereinabove undoubtedly refers to express


malice (as in, wrongful intention and/or active ill-will), as well as to
implied malice.]
Then, in regard to whether the Advocate is the mouthpiece of his client, he
succinctly stated in even wiser words as under :
..clients mouthpiece. Such, I do conceive, is not the office of an
advocate. His office is a higher one. To consider himself in that light is to
degrade him. I would say of him as I would say of a Member of the House
of Commons he is a representative, but not a delegate. He gives to his
client the benefit of his learning, his talents and his judgement ; but all
through, he never forgets what he owes to himself and to others.
He will not knowingly mis-state the law he will not willfully misstate the facts, even though it be to gain the cause for his client.
He will ever bear in mind that if he be the Advocate of an individual, and
retained and remunerated (often inadequately) for his valuable services,
yet he has a prior and perpetual retainer on behalf of truth and justice.
And there is no Crown or other licence which in any case, or for any party or
purpose, can discharge him from that primary and paramount retainer.

PLEASE TURN OVER

211

USA 1917 : The celebrated and eminent Judge, Honble J. Cardozo, on the
issue of whether lawyers enjoy any immunity by way of statutory privilege
against self-incrimination in order to protect themselves from disbarment
(when, in leading evidence at the trial of his client who was accused of
criminal wrong-doing, an advocate had, in effect, confessed to being guilty,
himself, of misconduct, and then claimed statutory immunity from the
confession), stated his views on the subject in the case of Matter of Rouss
[cited as 221 NY 81 at 91 (1917)] as under :
Consequences cannot alter Statutes, but may help to fix their meaning.
Statutes must be so construed, if possible, that absurdity and mischief may
be avoided. The claim of immunity from disbarment cannot survive the
application of that test. If the exemption protects lawyers, it must equally
protect physicians, whose licences have long been subject to revocation for
misconduct. two great and honourable professions have, in that
view, been denied the right to purify their membership and vindicate their
honour. The charlatan and rogue may assume to heal the sick, and the
knave and criminal may pose as a Minister of Justice; however, such
things cannot have been intended, and will not be allowed.

UK 1967 : Lord Denning (in the case cited as 1967-1 QB 443) held forth his
views on the role of advocates as under :
Counsel has the duty and the right to speak freely and independently
without far of authority, without fear of the judges, and without fear of a
stab in the back from his own client. To some extent, he is a Minister of
Justice. It is a mistake to suppose that he is the mouthpiece of his client, to
say what he wants, or his tool to do what he directs. He is none of these
things. He owes allegiance to a higher cause. It is the cause of truth and
justice. He must not consciously misstate the facts. He must not
knowingly conceal the truth. He must not unjustly make a charge of
fraud that is without evidence to support it. He must produce all the
relevant authorities, even those that are against him. He must see to it
that his client discloses, if ordered, the relevant documents, even those
that are fatal to his case. He must disregard the most specific
instruction of his client, if they conflict with his duty to the Court. The
Code which requires a Barrister to do all this is not a Code of a Law. It is a

212
Code of Honour. If he breaks it, he is offending against the rules of the
profession, and is subject to its discipline.

UK 1969 : Lord Reid (in Roundel vs. Worsley, 1969 1 AC 191) stated in
equally wise words as under :
Every counsel has a duty to his client fearlessly to raise every issue,
advance every argument, and ask every question, however, distasteful,
which he thinks will help his clients case.
But, as an officer of the Court, concerned in the administration of justice, he
has an overriding duty to the Court, to the standards of his profession, and
to the public which may and often does lead to a conflict with his
clients wishes, or with what his client thinks are his personal interests.
Counsel must not mislead the court, he must not lend himself to casting
aspersions on the other party or witnesses of which there is no sufficient
basis in his possession, he must not withhold authorities or documents
which may tell against his clients which the law or the standards of his
profession require him to produce.
And by so acting, he may well incur the displeasure or worse of his client so
that if the case is lost, his client would or might seek legal redress if that
were open to him.

India 1979 2006 : In regard to the conduct of counsel(s), who knowingly


cite over-ruled judgements, and/or make false statements to the Hon'ble
Court, and/or also knowingly allow their clients to make false and
misleading statements on oath in applications drafted by them, knowing fully
well that making of such false statements on oath and suppression of vital
and material facts would, or could, favourably influence the learned Judges to
grant relief in favour of their client, the petitioner craves leave to refer to a
judgement of the Honble Supreme Court in which it was held that strictures
should be passed on counsel on the grounds that even referring to overruled
judgements by an advocate is a practice that is to be severely deprecated
(AIR 2004 SC 4272, State of Orissa vs. Nalinakanta Muduli) .

213
This being true, then inasmuch as citing over-ruled judgements, even if,
perhaps, out of inadvertence (i.e. lack of good faith as defined in Section
52 of the Indian Penal Code i.e. acting without due care and attention) or
out of ignorance (again, i.e. lack of good faith), invites contempt of court
and / or disciplinary proceedings upon the Advocate,

then allowing a

deponent (the counsels client) to state on oath (and/or for counsel to state
the same false statements in Court) which counsel himself surely knows to
be untrue and false, or has reason to believe are not true and/or are false,
while somewhat similar in effect to a counsel citing over-ruled judgements in
court in terms of the end-objective (i.e. obtaining by any means an order /
judgement favourable to his client), but is, in fact, even worse, as it is the
beholden professional duty of the counsel to his client (as well as his sacred
duty to this Honble Court, to whom the counsel owes his primary allegiance
to, over and above the allegiance he owes to his client) and which duties are
specifically circumscribed in the letter of the law, to correctly advise his
client and ensure his proper conduct, so much so that it is also his duty to
prevent his clients improper conduct, so much so that should his client
refuse, it is the duty of the advocate specifically-prescribed in the letter of
the law to return the brief, and forthwith.
When a counsel disobeys the above-described dicta laid down in the Bar
Council Rules, it cannot be said that it is merely for altruistic motive and/or
merely in order to allow his client to advance the clients cause through false
and misleading statements, considering that the counsel also stands to
benefit by way of earning general professional credit for himself (as well as
direct monetary benefits from the case, through fees collected for the same)
for having obtained for his client the reliefs sought by him.
Similarly, the same thoughts flow in the case cited at AIR 1979 NOC 96, in
which the Supreme Court clearly and unambiguously stated inter alia :
An advocate is an officer of the court, and with that privilege,
responsibility must follow in its wake. His primary allegiance is to the
Court, and it is no part of the professional duties of an advocate to act
merely as a mouthpiece of his client. A member of the bar should use best
efforts to restrain and prevent his client from resorting to any unfair
or sharp practices.

214
The word primary is most significant to the present context (because a
counsels duties to the client come second or third, well below his duty to
this Honble Court), and the word prevent used in the above judgement
(and which is a reiteration of the Rule 4 of Part VI, Chapter II, Section I of the
Bar Council Rules) does not mean to try and discourage ; it means to stop,
so much so that if the client does not stop, the law specifically provides
rather, directs - that it is the immediate duty of the counsel to return such a
clients brief forthwith.
It is humbly submitted that just as it is incumbent upon an advocate to
ensure that his client desists from unfair or sharp practices, similarly, it is
also the solemn responsibility of the advocate himself to desist from sharp
or unfair practices.
Equally wise are the words of Honble Justice Mr. Arijit Pasayat, who stated
in the case of Zahira Habibullah Sheikh v. State of Gujarat (AIR 2006 SC
1367) as under :
The case at hand immediately brings into mind two stanzas (14 and 18) of
Eighth Chapter of Manu Samhita dealing with role of witnesses. They read
as follows :
Stanza 14
Jatro dharmo hyadharmena
Satyam Jatranrutenacha
Hanyate prekshyamananam
Hatastrata Sabhasadah
[Where, in the presence of Judges, "dharma" is overcome by "adharma",
and "truth" is overcome by "unfounded falsehood", at that place, they (the
Judges) are destroyed by sin].
Stanza 18
Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
pado rajanmruchhati

215
[In the adharma flowing from a wrong decision in a Court of law, one
fourth each is attributed to the person committing the adharma, the
witness, the judges and the ruler.]
82.

That these are, thus, the views of eminent and learned Judges spanning more
than 1 centuries of jurisprudence across the entire geographical spectrum of
our planet, and which reflect a fairly wide cross-section of political systems
under which the laws to which these views relate were passed (capitalist,
socialist and monarchy), considering that all these geographically-and-politically
differentiated views are consistent with each other, being views both of the
Honble Supreme Court of India, as well as eminent Judges in different parts of
the civilized world (the UK and the USA).

83.

That it is very humbly and respectfully submitted that it is these views of


eminent jurists in different parts of the world regarding the duties and privileges
of advocates that are to guide their conduct that have also guided the petitioner
while preparing the present petition.

84.

That it may also be stated that the thoughts (or even the actual words and
phrases) of some of the latter group may even have directly contributed to the
framing of our own laws in India and the Rules made thereunder, starting from
the times of Lord Macaulay in the 1800s, going down to the time of Dr.
Ambedkar and Pandit Nehru, etc

in the 1940s / 1950s.

One example of

incorporation of such thoughts or words of the latter group is the word


mouthpiece, which, as submitted above, was first used by Honble J. Crampton
in 1844 in the judgement referred to above, and which word, judging by the
usual standards of the language of jurisprudence and the wording of most laws
passed by Legislatures, is rather unusual (as it is somewhat slangy and
indirect, as opposed to more tempered and direct terminology invariably
used by the Legislature), but nonetheless, has been incorporated in the Rules
framed by the Bar Council of India, announced by it pursuant to exercise of
statutory powers conferred upon it by the Advocates Act of 1961.
It is the humble view of the petitioner that perhaps its usage of the word
mouthpiece in the Bar Council Rules comes from the usage of the same word
by Honble J. Crampton in the judgement of the year 1844 referred to above.

216
85.

That the applicants have not filed any other application or petition in this Court
or before any other authority or Court for prosecution of the non-applicants
arrayed herein for the acts of criminal contempt specifically alleged in the
present application.

86.

That the accompanying application is bona fide, and in the interests of justice.

87.

That I have read and understood the contents of the above affidavit drafted by
my counsel under my instructions, and state that the facts stated in paras 1 to 31
therein are true and correct to the best of my personal knowledge and belief, or
are as per my understanding and which I verily believe, whilst the legal
submissions are based on legal advice received and/or researched by me and
believed to be correct, and that nothing material has been concealed therefrom.

Solemnly affirmed by the said


Gobinda Biswas at the Court
House in Calcutta on this ___ day of
January, 2015.
Before me.

COMMISSIONER

217
ANNEXURE 2
TRUE COPY OF EMAIL DATED 13-01-2015 SENT
TO KHAITAN & CO, AND OTHER ADDRESSESS
From: Deepak Khosla/D&K LAW [mailto:dk@dandklaw.in]
Sent: 13 January 2015 00:34
To: 'kolkata@khaitanco.com'
Cc: 'delhi@khaitanco.com'; 'mumbai@khaitanco.co.'; 'bengaluru@khaitanco.com';
'pradip.khaitan@khaitanco.com'; 'ravi.kulkarni@khaitanco.com'; 'padam.khaitan@khaitanco.com';
'rajiv.khaitan@khaitanco.com'; 'aniket.agarwal@khaitanco.com';
'haigreve.khaitan@khaitanco.com'; 'tmlcal@turner.co.in'; 'turner@turner.co.in';
'ranjitchopra@hotmail.com'; 'RAKESH MUNDHRA'; 'rakesh_mundhra@yahoo.co.in';
'indu.jain@timesgroup.com'; 'samir.jain@timesgroup.com'; 'vineet.jain@timesgroup.com';
'rghc_cal@rediffmail.com'; 'westbengalbarcouncil@gmail.com'; 'rkatoch@nic.in'; 'ed-delrev@nic.in'; 'yogesh.gupta@nic.in'; 'Nirmaljeet Singh Hoon'; 'nshoon80@gmail.com'
Subject: Very serious FERA offences ; and whether your law firm is acting illegally, and/or "in
furtherance of a criminal purpose".

Deepak Khosla
Advocate
KAR 1280/13

Bangalore Office :
No.114 (Ground Floor),
Kempaiah Building,
1st Main, 1st Cross
Karekal, Kamakshipalya
Old Gurupriya Kalyana Mantapa
Road
BANGALORE 560 079
KARNATAKA * INDIA

Kolkata Office :

New Delhi Office :

Hastings Chambers,
2nd Floor, Room No. 9,
7C, Kiran Shankar Roy Road,
KOLKATA-700 001
INDIA

Suite 6-C, Girdhar Apartments


28 Feroze Shah Road
NEW DELHI 110 001
INDIA
Tel : +91 11 2332 9654
Fax : +91 11 2372 2468
Email : dk@dandklaw.in
Cell : +91 99 530 96650

M/s Khaitan & Company


Advocates and Notaries
1B, Emerald House,
Old Post Office Street,
KOLKATA * WEST BENGAL 700 001

January 11th, 2015

Copy for information and parallel action to :


1. M/s Khaitan & Company - New Delhi / Mumbai / Bengaluru for attention of
their Partners.
2. Turner Morrison Ltd - acting through its Director, Mr. Ranjit Chopra.
3. Mr. Utpal Bose, Senior Advocate, Kolkata.
4. Ld. Registrar General, Calcutta High Court.
5. Bar Council of the State of West Bengal.
6. Turner Morrison Ltd.
7. Some present/ past (alleged) Directors / shareholders of Turner Morrison Ltd 8. Chartered Accountant Mr. Rakesh Mundhra (Certifying Authority of Form 23AC
uploaded with ROC, which is a false document).
9. Enforcement Directorate Kolkata / New Delhi : with the request to kindly
conclude the investigation already launched into M/s Sahu Jain Ltds / Ashok
Jains FERA violations in the matter.
SUBJECT : Pre-emption of criminal contempt of court : whether your
firm is acting in furtherance of a criminal purpose of its client(s).

218

Dear Sirs,
On instructions of my clients (M/s Hungerford Investment Trust Ltd, and Mr. Nirmal Jit
Singh Hoon), this Notice is addressed to you in the following terms :
1.

Due to its relevance to immediate context, and only for the ease of referral of the
various readers of this Notice (as some of them are not lawyers), the text of Rule
33 of the Bar Council Rules framed under Section 49(1) of the Advocates Act
(1961) relating to professional misconduct by Advocates is reproduced
verbatim below:
33. An Advocate who has at any time, advised in connection with the
institution of a suit, appeal or other matter or has drawn pleadings or acted
for a party, shall not appear or plead for the opposite party.

2.

This Rule is cited as an incident of professional misconduct by your firm relates


to its having advised in connection with institution of a suit, and subsequently,
has drawn pleadings and has acted for one then-jailed Mr. Haridas Mundhra
against Turner Morrison Ltd (herein, TMCL), inter alia, in Civil Suit No. 2005 of
1965 filed before the Honble High Court of Calcutta, as well as in appeals to the
Hon'ble Supreme Court flowing therefrom.

3.

This being so, Rule 33 of the Bar Council Rules patently precludes your firm
from appearing for Turner Morrison Ltd.

4.

Yet, some persons in your firm are doing so, in blatant violation of the aforesaid
Rule.

5.

This violation, being undoubtedly-conscious and deliberate by an Officer of the


Court, also reflects a conscious and, therefore, deliberate interference in the
administration of justice, this constituting criminal contempt of court.

6.

This Notice is issued in light of your firms representatives (Advocate Mr.


Ratnesh Rais) stubborn insistence on Friday (09-01-2015) to continue to appear
in the Court of Honble Mr. Justice Anirudha Bose in the Honble High Court of
Calcutta for Turner Morrison Ltd, despite it being objected during the hearing
that your firm cannot do so as this is a Company your firm has vigorously sued
in the past on behalf of Mr. Haridas Mundhra.

7.

In addition, and de hors the above position, you have acted in a manner that is
patently inimical to the interests of Turner Morrison Ltd. On this count also, you
are precluded from appearing for the Company, just as the lawful Directors of
Turner Morrison are precluded from engaging your services.

8.

In context of the immediately-foregoing, your firms admission to having helped


your client Mundhra clean out Turner Morrisons stables of all its blue-chip
subsidiaries is no longer in doubt, given that it has been set out and admitted in
the biographical work titled Amicus Curiaie Khaitan & Co is 100 years, a
pseudo-literary work commissioned by your firm to Ms. Aditi Roy Ghatak.

9.

Without prejudice to the above, your alleged right to appear for Turner
Morrison Ltd was objected to on 09-01-2015 also in light of the fact that there
has been no compliance on your part with Rule 6 of the Calcutta High Court
(Original Side) Rules, 1914, which Rule reads as under (emphasis supplied) :

219
Rule 6 : An Advocate acting on the Original Side shall, upon filing a
Memorandum of Appearance on behalf of a party accompanied by a
Vakalatnama duly executed by the party in his favor, he entitled to act as
well as to plead for any party or parties in the court in any suit, matter and
proceeding, including appeals, and to conduct and to prosecute the same in
the court, and to do all acts and things in all proceedings in connection with
the said suit, matter, proceeding and appeal, and to deposit and pay money
on behalf of the said party if the court authorizes the said Advocate to
receive such money.
In regard to the phrase duly executed used above, take note that if an advocate
is appearing for an individual, it is one thing ; however, the position changes if
an advocate is appearing for a party other than the signatory of the
Vakalatnama.
For example, such a case would be that of an advocate appearing for a juristic
entity like a company, society, etc.; it could also be an advocate appearing for a
person acting through his lawfully constituted attorney.
Therefore, the phrase duly executed in the above Rule has great relevance in
context of Vakalatnamas filed by Advocates purporting to act on behalf of a
juristic entity like a company. In such a case, the Vakalatnama has to be
accompanied by a copy of the Board Resolution passed by the Board of Directors
of the company, empowering the individual who has signed the Vakalatnama to
act for and represent the company.
This is a mandatory requirement laid down by 3-Member Bench of the Honble
Supreme Court set out in Uday Shankar Triyar vs. Ram Kalewar Singh (AIR
2006 SC 269), which judgment has resulted in a similar judgment of a Division
Bench of the Honble Delhi High Court passed on 8-10-2009 in CWP No. 7651 of
2009 directing the Registrar to frame Rules in that regard, which judgment has
further resulted in Practice Direction No. 13/Rules/DHC dated 26-10-2009
issued by the Hon'ble Delhi High Court.
These judgements / Circular are attached herewith for your ease of referral.
10.

In the present case, in all the filings in CP No. 33 of 1988, though Khaitan &
Company have purported to act for Turner Morrison Ltd, in no case has there
been filed a copy of any Board Resolution empowering the prospective
deponent/signatory to act for the company.

11.

This fact was orally acknowledged by your Mr. Ratnesh Rai before the Honble
Court during the hearing held on 09-01-2015.

12.

Since, in that particular Company Petition, allegations are flying fast and thick
between the parties regarding forgery of company documents of Turner
Morrison Ltd, this (especially) is not some kind of idle or pro forma requirement,
and the lapse on the part of your firm in complying with what is undoubtedly
known to it to be a mandatory requirement can only be termed as strategic, in
light, inter alia, of Section 126 of the Evidence Act.
WHETHER ACTING IN FURTHERANCE OF A CRIMINAL PURPOSE

13.

Please note that upto 03-02-1977, the lawfully-issued Share Capital of Turner
Morrison Ltd, admittedly, was as under :
a) Hungerford Investment Trust Ltd

2,295 shares = 51%

220
b) Haridas Mundhra (acting through BIC)
TOTAL

2,205 shares = 49%


4,500 shares = 100%

14.

This issued capital of 4,500 shares was purportedly increased by increase of the
Authorised Share Capital by another 3,000 shares of Rs. 1,000 each in an EGM
allegedly held on 03-02-1977.

15.

Following the alleged increase in the Authorised Share Capital, these 3,000
shares were allegedly approved to be issued to various persons by and in a
Board meeting allegedly held on 22-02-1977.

16.

The decision mischievously taken by the Board of Directors was to allegedly


issue these 3,000 shares with a face of Rs. 1,000 value at par to their face value
i.e. for Rs. 1,000 per share. In other words, it was purported by the Board of
Directors to issue additional shares that would, post-issue, constitute ownership
of 40% of TMCL for a sum of Rs. 30 lakhs, meaning, a valuation of TMCL of
around Rs. 75 lakhs.

17.

This decision may be contrasted with the fact that an application jointly filed by
TMCL, Hungerford and Sahu Jain Ltd (herein, SJL) was, at that relevant time,
pending with the RBI for grant of approval to SJL to acquire 540 equity shares in
TMCL from Hungerford for a consideration of Rs. 10.80 crores at a price of Rs. 2
lakhs per share of Rs, 1,000 each, as set out in the Agreement dated 17-05-1973.
A copy of this Agreement is attached.

18.

In other words, the transaction between SJL and Hungerford was for SJL to
acquire 12% of TMCL for Rs. 10.80 crores, thus, valuing 100% ownership of
TMCL - even if merely pro-rated, with no premium whatsoever for full
Management control at Rs. 90 crores.

19.

In yet other words, the 3,000 shares allegedly proposed to be issued by this
Board of Directors on 22-02-1977 was for a consideration that was a mere
0.83% of the minimum valuation of TMCL already agreed between Hungerford
and SJL and known to the Directors of TMCL i.e. even less than a piffling 1%.

20.

In that alleged Board meeting (which meeting is, in legal fact, a nullity in law),
as the existing shareholders (Hungerford and Mundhra) allegedly did not
acquire their shares, a situation was orchestrated by Mr. Ashok Jain / Sahu Jain
Ltd and his cohorts to purport as if Hungerford Investment Trust Ltd had
allegedly renounced its rights to 1,500 shares, and in its place, these 1,500
shares were allegedly approved by the Board to be issued to the following
companies, when legally, in terms of the jurisdiction / authority conferred upon
the Board of Directors by the Articles of Association of TMCL, it was obliged by
law to offer these 1,500 shares also first to British India Corporation Ltd /
Haridas Mundhra:
1st tranche allegedly issued on 22-02-1977 :
i)
ii)
iii)
iv)

21.

PNB Finance Ltd


Bennett Coleman & Co Ltd
Sahu Jain Ltd
Sanmati Properties Ltd
TOTAL

550 shares
550 shares
200 shares
200 shares
1,500 shares

It is significant to the matter to highlight that at the time Hungerford allegedly


renounced its right to these 1,500 shares for value at par i.e. 22-02-1977 (when,
at the same time, it was pressing RBI for release of permission to sell its shares

221
in the same company to one of these 4 allottees viz. Sahu Jain Ltd - at a price
that was 120 times more), the alleged decision was taken unilaterally by one Mr.
B. N. Garg (since deceased, allegedly murdered), claiming to act as Director of
Hungerford.
22.

(Notably, Mr. B. N. Garg, a class-fellow of Shanti Prasad Jain, father of Ashok Jain,
before taking up Directorship of Hungerford, and hence, of TMCL, was an
employee of Sahu Jain Ltd, and at the relevant time, while acting as Director of
Hungerford and of TMCL, shockingly, was also drawing emoluments
clandestinely from its Group Companies concurrent to his tenure as Director of
TMCL viz. from New Central Jute Mills Ltd, Ashoke Marketing Ltd and Rohtas
Industries Ltd.)

23.

However, the records of the Corporate Registry in Singapore (where Hungerford


Investment Trust Ltd is registered) shows that the aforesaid Mr. B. N Garg was
removed from its Directorship with effect from 19-06-1976. (Evidence from the
Singapore Registry is attached.)

24.

From this, it follows that his alleged act of renunciation almost 8 months later
(on 22-02-1977), apart from being mala fide and a breach of his fiduciary duty to
the hatreholders of TMCL (who wee entitled to a price of at least the same Rs. 2
lakhs per share as agreed between SJL and Hungerford on 17-05-1973) as well
as to Hungerford, is an act without jurisdiction, and is a nullity in law, void ab
initio as if non est, and of no judicial significance, consequence, relevance or
effect.

25.

Therefore, he was no longer a Director of TMCL also with effect from that same
date.

26.

In addition, and de hors the fact that he has not a Director of Hungerford with
effect from 19-06-1976, even assuming without admitting that he had not been
removed by Hungerfords Management on 19-06-1976, he, nonetheless, also
vacated office of Director of Hungerford by operation of law if he claimed to
retain tenure beyond 01-01-1976 i.e. precisely 2 years from the notifying of
FERA, 1974.

27.

The alleged renunciation by Hungerford was purported to have been effected


through the hands of one Mr. B. N. Garg purporting to act as a Director of
Hungerford vide letters dated 29-01-1977 and 12-02-1977 when not only was
he not authorised to do so since 09-06-1976 (i.e. 8 months prior to these
letters), and de hors his removal, by operation of law, was not a Director of TMCL
with effect from 01-01-1977 by operation of law [virtue of Section 28(1) of
FERA].

28.

However, assuming without admitting that the rights issue was legal (which
itself was not, as it was not proposed for a bona fide purpose, in meetings not
notified in writing, etc), and further assuming without admitting that Haridas
Mundhra did not wish to acquire his 1,500 shares, the 1st tranche of 1,500 shares
should have first been offered to Haridas Mundhra / British Indian Corporation
Ltd, as it was the only other legitimate shareholder on that date.

29.

In other words, the Board of Directors of TMCL had no jurisdiction no


authority - to act on the premise that Hungerford, while allegedly renouncing its
own right to 1,500 shares, could specify to who the Board of Directors of TMCL
could allegedly issue these allegedly-renounced shares.

222
30.

Thereafter, orchestrating with Haridas Mundhra not to buy his alleged portion
of the rights issue, it appears that Mundhra was asked to renounce his shares,
which were then allegedly allotted to the following Companies, all of the Sahu
Jain Group, as detailed further below.

31.

The alleged issuance of the 1st tranche of 1,500 shares to the 4 companies above
was subsequently followed up by a further (alleged) issuance of 1,200 shares
almost a year later, vide Board meeting allegedly held on 21-02-1978 to the
following 2 companies, both being Members of the Sahu Jain Ltd Group :
2nd tranche allegedly issued on 21-02-1978 :
i)
ii)

Sahu Properties Ltd


Sanmati Properties Ltd
TOTAL

700 shares
500 shares
1,200 shares

32.

Assuming without admitting that Haridas Mundhra had renounced his rights to
1,500 shares, these 1,500 shares were required by law to first be offered to
Hungerford. But by offering them to others (especially Sahu Properties Ltd), the
Board of Directors of TMCL acted without jurisdiction without any authority
in their hands to do so. Thus, this act, too, is a nullity in law.

33.

This was followed up by yet another alleged issue of 300 shares vide Board
meeting allegedly held on 05-04-1978 to the following :
3rd tranche allegedly issued on 05-04-1978 :
iii)
iv)

Sahu Properties Ltd


Sanmati Properties Ltd
TOTAL

150 shares
150 shares
300 shares

34.

Similarly, the 2nd tranche of 1,200 shares and the 3rd tranche of 300 shares
should have first been offered to Hungerford Investment Trust Ltd, the others
being claimants acting in furtherance of their fraudulent acquisition of its
allegedly-renounced shares i.e. the 1st lot of 1,500 shares.

35.

By not doing so (i.e. by not having first offered the 2nd lot of 1,500 shares
allegedly renounced by Haridas Mundhra to Hungerford Investment Trust Ltd,
and also, the 2nd and 3rd tranche), the Board of Directors was allegedly acting
without jurisdiction, in violation of Article 7 of the Articles of Association read
with Section 3 (1)(iii) of the Companies Act (1956), and hence, its act of allotting
this 2nd lot of shares to the above 5 companies is a nullity in law, void ab initio
as of non est, of no judicial consequence, significance, relevance, or effect.

36.

Therefore, any person or Company having purchased this 1st tranche of 1,500
shares or 2nd tranche of 1,200 shares or 3rd tranche of 300 shares is holding the
proverbial fruits of the poisoned tree.

37.

By the principles of cadit opus fondamento sublato, such claim itself is, therefore,
a nullity in law, void ab initio as of non est, of no judicial consequence,
significance, relevance, or effect.
SHARES BOUGHT BY MAHABIR PRASAD CHOWDHARY

38.

Please note that the 2,295 shares owned by Hungerford and allegedly auctioned
by the Income Tax Department and bought by Mahabir Prasad Chowdhary are
forgeries, forgeries created by the then-Management of TMCL.

223

39.

In this regard, it is vital to highlight that the share scrip numbers of Hungerfords
2,295 equity shares of face value of Rs. 1,000 each are as under :
Sl.
No.
1.

DISTINGUISHING SHARE
SCRIP NUMBERS
From
To
1

2.

1,450
1,451

NO. OF
SHARES
1,450
1

3.

1,456

4.

1,452 / 1,593 / 1,594

5.

1,453 / 1,595 / 1,596

6.

1,454 / 1,597 / 1,598

7.

1,455 / 1,599 / 1,600

8.

1,601
TOTAL SHARES

1,592

2,295

137

695
2,295

Note : Shares listed at serial numbers 4, 5, 6 and 7 are registered in the names of
Antony Haliburton Hume, Leonard W. Balcombe, David M. Jaffray and C. N.
Rodewald.
40.

Whereas, what the Income Tax Department has purported to auction to Mahabir
Prasad Choudhury in 1994 (i.e. after Mr. Amit Judge came on board TMCL as
Director, which was on 30-06-1990) are the following scrip numbers of 2,28,300
shares of a face value of Rs. 10 each :
a) Scrip No. 1 to 1,45,100
b) Scrip No. 1,45,501 to 1,59,200
c) Scrip No. 160,001 to 2,29,500

41.

However, these scrips relating to 2,28,300 shares were brought into existence in
1994 by the alleged Board of Directors of TMCL (including Mr. Amit Judge)
without the original 2,295 share scrips of Rs. 1,000 being in their hands to do so.
Thus, this smacks of the very same fraudulent type of violation set aside by the
CLB, and upheld by the Hon'ble Supreme Court, in the case of Stridewell Leathers
(P) Ltd vs. Shoe Specialities (P) Ltd 2001 33 SCL 797 / 2003 5 CLJ 311 (CLBChennai).
Thus, the persons claiming to purport to be the Board of Directors of Turner
Morrison, in 1994, in criminal breach of trust by an agent (a Company Director,
or a person purporting to act as a Company Director) punishable with life
imprisonment by Section 409 of the Indian Penal Code, also committed the
offence of forgery of a valuable security also punishable with life imprisonment,
the word forgery being used in context of the word as used in Sections 463 and
464 of the Indian Penal Code, and valuable security being used within the
meaning of the phrase as used in Section 30 of the same Code.

42.

Thus, this act, too, apart from being fraudulent, is a nullity in law.

43.

The fault is not that of the Income Tax Department alone i.e. in selling these
forged scrips to Mahabir Prasad Chowdhury. The fault is that of the thenManagement of TMCL in 1994, which brought these forged scrips of Rs. 10 each

224
into existence, and forwarded these duds these dummies these patent
forgeries - to the Income Tax Department for ensuing auction.
(This is without prejudice to the position that the Income Tax Department was
acting in cahoots in a criminal conspiracy that has been so viewed, judicially,
vide orders dated 04-08-1988 and 08-10-1996 with the Ashok Jain Group.)
44.

Therefore, what Mahabir Prasad Chowdhury has bought in the auction is best
illustrated by the following example, and in no way qualifies him to lay claim to
be a shareholder of TMCL, as his alleged purchase is not supported by the
relevant scrips, but worthless pieces of paper that are nothing but forgeries :

Suppose A is an artist, who has created a famous painting titled


by him as The Shadows, which is reportedly worth Rs. 10 crores.

Further assume that A has asked another artist friend to


commission a forgery of his famous painting The Shadows.

Further assume that unknown to people in India, A clandestinely


keeps the original painting on display in a museum in Amsterdam,
but has kept the forgery at home.

Further assume that A is in default towards the Income Tax


Department.

Suppose further that the Income Tax Department, in exercise of


its tax lien of Rs. 1 crore on As estate, seizes this forgery of The
Shadows, and then, without any verification as to its provenance,
sells is to some gullible fool B for Rs. 1 crore, and having
received Rs. 1 crore from B, deems its tax demand on the estate
of A to be satisfied.

All this actually means is that :


a) B, the auction purchaser, now has a reverse claim on the Income Tax
Department for Rs. 1 crore plus interest, damages, etc (for having sold him a
dud, a fake).
b) Because of (a) above, the Income Tax Departments tax lien of Rs. 1 crore on
A and his estate remains unsatisfied.
c) The genuine painting created by A (The Shadows) remains on display in a
museum in Amsterdam, which museum acknowledges its liability that it is
holding the painting as trustee / agent of owner A, liable to return it to him,
or to his order.
45.

From this, it follows that if any persons have bought the scrips that Mahabir
Prasad Chowdhury has bought from the Income Tax Department, they have
bought the equivalent of stolen goods or forgeries, and to that extent, have, at
best, a claim on him for the consideration allegedly paid (just as he would have a
claim against the Income Tax Department), but cannot claim to be bona fide
shareholders of TMCL for the simple reason that they do not possess the
requisite legitimate share scrips, but duds, dummies, forgeries.

46.

This is without prejudice to the position that Mahabir Prasad Choudhury was
just a front-man - a benaamidaar - for Ashok Jain, who had been ousted from

225
TMCL by the judgement of Honble Ms. Justice Monjula Bose dated 04-08-1988,
his ouster being upheld on by the Division Bench of Justice Basak vide its
judgement dated 05-07-1989.
47.

Therefore, by propping up Mahabir Prasad Choudhury as his front, Ashok Jain


was attempting to do by the back-door what he had been prohibited by the
Honble Calcutta High Court from doing by the front-door.

48.

This being so, the sale violates, inter alia, Section 423 of the Indian Penal Code.
For your ease of referral, the provisions of Section 423 of the Code are
reproduced hereunder :
423. Dishonest or fraudulent execution of deed of transfer
containing false statement of consideration.--Whoever dishonestly or
fraudulently signs, executes or becomes a party to any deed or
instrument which purports to transfer or subject to any charge any
property, or any interest therein, and which contains any false
statement relating to the consideration for such transfer or charge, or
relating to the person or persons for whose use or benefit it is really
intended to operate, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.

49.

The fact that Mahabir prasad Chowdhury has in his possession something that
was worthless has been taken judicial note of by the Court of Honbl Ms. Justice
Monjula Bose vide her order dated 04-08-1988, as well as 8 years later, by the
Division Bench of Honble Mr. Justices B. M. Mitra and N. K. Batabyal, vide their
judgement dated 08-10-1996.

50.

Mahabir Prasad Chowdhurys further sales of these alleged scrips to Times


Construction (P) Ltd (the Khemkas) and to Sterling Securities, retaining for
himself just 600 shares out of a total of 2,28,300 shares allegedly purchased by
him - i.e. a mere 00.26 % - is just a sham, to show alleged distance, and to further
complicate matters in Court, given that the Khemkas are deeply-entrenched in
the Ashok Jain Group, as evidenced, inter alia, by the fact that Rahul Khemka is a
Director of Caravan Commercial Co Ltd even today (Caravan Commercial
Company being the owner of the residential house at 42 Sunder Nagar New
Delhi that TMCLs alleged Managing Director, Amit Judge, lives in even today,
albeit, the property is under litigation before the Hon'ble Delhi High Court).

51.

Times Construction (P) Ltd and Sterling Securities Ltd also were acting as a
front for Ashok Jain, the sale from Mahabir Prasad Choudhury to them being
only to further complicate matters, and to show further distance. Thus, their
purchase also violates Section 423 of the Indian Penal Code.

52.

The further sales from these two entities who no longer are shareholders to
the 25 entities listed in para 62 below is, by definition, a nullity in law.
TRANSACTIONS VOID UNDER FERA

53.

Your firm is already aware that RBI has already issued a clarification on 11-011979, clarifying that any renunciation of a rights issue by the foreign
shareholders of a FERA Company (i.e. a Company that is owned more than 40%
by foreign residents) is a violation of Section 19 (2) of FERA. A copy of this
clarification is appended hereto.

226
54.

Your firm is also aware that clarification was based on an opinion rendered by
Mr. A. K. Kacker, Solicitor General of India, on 09-08-1978. A copy of this
opinion, too, is appended hereto.

55.

Your firm is also aware that this opinion only endorsed the reference made to
him by the Company Law Board vide Statement of the Case (meaning, TMCLs
case) referred to him by Jt. Secretary and Legal Adviser (Ministry of Corporate
Affairs) Mr. N. S. Mehta of the Company Law Board on 31-07-1998. A copy of the
Statement of the Case this opinion, too, is appended hereto.

56.

Therefore, your firm is aware that by virtue of Section 47 of FERA (reproduced


below), any such allotment of shares pursuant to renunciation by a foreign
resident, being in violation of Section 19 of FERA, is void, and not merely
voidable or just illegal.

57.

Your firm is also aware that it was keeping also in mind this clarification that the
Division Bench of the Calcutta High Court, in Appeal No. 963 of 1993, composed
of HMJ Batabyal and Mitra, clearly made a finding vide their order dated 08-101996 that Mr. Ashok Jain / Sahu Jain Ltd Group not only were interlopers and
impostors, but had violated FERA. A copy of this order also is appended hereto.

58.

Your firm is also aware that this judicial finding was made notwithstanding the
letter-of-convenience dated 03-09-1981 corruptly procured by your clients from
RBIs one Mr. S. S. Thakur, Deputy Controller. (A copy of this letter also is
appended hereto.)

59.

Your firm is also aware pursuant to this judicial finding, Mr. Ashok Jain was
arrested for this very violation of FERA, and remanded to judicial custody, and
refused bail even by the Hon'ble Supreme Court, the matter eventually leading to
his death, purportedly in USA, but which death has been reported to my client to
have actually taken place in Venezuela around 5 years later, after the so-called
official death reported in the USA.

60.

Therefore, what follows from all of the above is that any claim made by any
person to being a shareholder of Turner Morrison Ltd based on acquisition of
these 1,500 shares allegedly-renounced by Hungerford Investment Trust Ltd
and allotted in the Board Meeting allegedly held on 22-02-1977, and / or the
1,500 shares allegedly not purchased by British India Corporation Ltd (Haridas
Mundhra Group) and allotted in the Board Meeting allegedly held on 21-021978 and / or 05-04-1978, is not only a nullity in law, but also admission of a
crime, of a prosecutable violation of FERA.

61.

Therefore, any advocate advancing such argument on behalf of such client, when
seized of all the above facts and judicial findings, would most certainly, without
any doubt whatsoever, be acting in furtherance of a criminal purpose.

62.

The records of the Registrar of Companies show that the following 25 persons /
companies are the alleged shareholders of TMCL as on date (Nos. 26-27 having
allegedly exited some time ago):

1.

Mr. AMIT JUDGE


Alleged Managing Director and shareholder,
Turner Morrison Ltd (allegedly owning
7,16,430 shares)
42 Sunder Nagar
NEW DELHI 110 003

227

Email :
2.

Ms. RENU JUDGE


Alleged Director and shareholder, Turner
Morrison Ltd (allegedly owning 5,90,000
shares)
Wife of Mr. Amit Judge
42 Sunder Nagar
NEW DELHI 110 003
Email :

3.

Mr. MAHABIR PRASAD CHOWDHARY


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 600 shares)
6 Lyons Range
KOLKATA 700 001
Email :

4.

M/s CARAVAN COMMERCIAL COMPANY


LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 15,14,040 shares)
6 Lyons Range
KOLKATA 700 001
Email :

5.

Mr. LEONARD WILFRED BALCOMBE


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
6 Lyons Range
KOLKATA 700 001
Email :

6.

Mr. ANTHONY HALIBURAN HUME


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
6 Lyons Range
KOLKATA 700 001
Email :

7.

M/s BRITISH INDIA CORPORATION LTD


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 20,000 shares)
Sutherland House
Kanpur 208 001
Email :

8.

Mr. HARIDAS MUNDHRA


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
26 Prasanna Kumar Tagore Street
KOLKATA 700 019

228

Email :
9.

Mr. WALTER HENRY JOHN CHRISTIE


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
Grammsmere
KANPUR
Email :

10. Mr. DAVID MITCHELL JAFFRAY


Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
15 Balleygunje Park Road
KOLKATA 700 019
Email :
11. Mr. CHARLES NIEL RODEWALD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 300 shares)
19, Tivoli Court, 1-B
Ballygunje Circular Road
KOLKATA 700 019
Email :
12. M/s AKARSH PRINTERS LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 5,25,000 shares)
6 Lyons Range
KOLKATA 700 001
Email :
13. M/s GAREMOHAN TIE-UP (P) LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 1,44,000 shares)
55 Chowringhie Road
Flat No. 1, Ground Floor
KOLKATA 700 071
Email :
14. M/s SARVAMANGAL TRADING COMPANY
(P) LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 8,28,123 shares)
6 Lyons Range
KOLKATA 700 001
Email :
15. M/s WOOLVEST MERCHANDISE (P) LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 1,60,000 shares)
6 Lyons Range
KOLKATA 700 001

229

Email :
16. Mr. SHRIKANT DAS
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 3 shares)
9, Alipore Park Place
KOLKATA 700 027
Email :
17. Mr. SUJIT HALDER
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 4 shares)
Vill. Bishnupur Goshpura
Distt. Rajarhat Bishnupur
WEST BENGAL 700 135
Email :
18. Mr. KRISHNA PRASAD SHRIVASTAV
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
1401 Sector 46
GURGAON 122 001
Email :
19. Mr. KUNDAN KUMAR JHA
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
A/53 C. M. D. A. Quarters
KOLKATA 700 003
Email :
20. M/s VASUNDHARA HOLDINGS LTD
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 8,52,015 shares)
6 Lyons Range
KOLKATA 700 001
Email :
21. Mr. SANKAR CHAKRABORTY
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
43/2 Sarat Dhar Road
KOLKATA 700 090
Email :
22. Mr. KRISHNA KUMAR BIYANI
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
11-C BL-B,
APC Road
KOLKATA 700 009

230

Email :
23. Mr. BANSI DHAR SHARMA
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
6 Lyons Range
KOLKATA 700 001
Email :
24. Mr. VISHAL CHANDRA JAIN
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 2 shares)
10-E Rajshree
31 Judges Court Road
KOLKATA 700 027
Email :
25. Mr. SHRIKANT & KRISHNA KUMAR
BIYANI
Alleged Shareholder, Turner Morrison Ltd,
(allegedly holding 4 shares)
6 Lyons Range
KOLKATA 700 001
Email :
26. TIMES CONSTRUCTION (P) LTD
6-B Dr. Rajendra Prasad Sarani
KOLKATA 700 001
Email :
27. STERLING SECURITIES LTD
KOLKATA
Email :
63.

All such persons (except Nos. 5, 6, 7, 8, 9, 10 and 11 above ) have no legal basis
to claim to be so, and are either playing a fraud, or are knowingly holding and
/or attempting to enjoy the fruits of the poisoned tree.

64.

Similarly, as per records self-servingly filed with the Registrar of Companies to


perpetuate this fraud, the following 6 persons are claiming to be the Directors of
TMCL today :

231
1.

Mr. AMIT JUDGE


Alleged Managing Director and shareholder,
Turner Morrison Ltd (allegedly owning
7,16,430 shares)
42 Sunder Nagar
NEW DELHI 110 003
Email :

2.

Ms. RENU JUDGE


Alleged Director and shareholder, Turner
Morrison Ltd (allegedly owning 5,90,000
shares)
Wife of Mr. Amit Judge
42 Sunder Nagar
NEW DELHI 110 003
Email :

3.

Mr. RANJIT CHOPRA


Alleged Director, Turner Morrison Ltd
W-50 Greater Kailash-I
NEW DELHI 110 048
Email : ranjitchopra@hotmail.com;

4.

Mr. INDERJIT SINGH NARULA


Alleged Director, Turner Morrison Ltd
A-3/104-C Western Avenue
Maharani Bagh
NEW DELHI 110 065
Email :

5.

Mr. RANJIT CHOWDHRY


Alleged Director, Turner Morrison Ltd
LCG 07 GFA
The Laburnum
Sector 28
Sushant Lok-I
GURGAON 122 002
HARYANA
Email :

6.

Mr. JAYANT RAJ KOCHAR


Alleged Director, Turner Morrison Ltd
1 Paschmi Marg
Vasant Vihar
NEW DELHI 110 057

65. A
Email :
l
l these 6 persons have no legal basis to claim to be so, and are either playing a
fraud, or are knowingly holding and attempting to enjoy (or assisting their
patrons in enjoying) the fruits of the poisoned tree
.
66. It is highly pertinent to note that FERA was repealed with effect from 01-062000 whereas the following persons, given that their date of appointment is

232
prior to that date, have acted on the fruit of the poisoned tree resulting from
FERA violations known to them at that time to have been committed, inter alia,
to facilitate their appointment as Directors :
Date of
Appointment
a) Mr. Amit Judge

30-06-1990

b) Mr. Ranjit Chopra

29-03-1997

67.

In either case, it does not behove any advocate to advance in Court such
patently-fraudulent claims, when such claims have already been held to be
fraudulent by a competent Court of Law, when such claims, because of these
very same judicial findings, have resulted in Mr. Ashok Jain being arrested by the
Enforcement Directorate and incarcerated, and which findings have not been
recalled, reviewed, set aside or otherwise disturbed.

68.

Should an advocate do so, he could be viewed to be acting in furtherance of a


criminal purpose, and in certain cases, even be viewed to be abetting /
facilitating / participating in the criminal conspiracy hatched by his client.

69.

Please note (and which is de hors the argument that you simply cannot act for
Turner Morrison, as your doing so constitutes a violation of Rule 33 of the Bar
Council Rules, and hence, also constitutes criminal contempt of court) that if you
act as advocates of Turner Morrison on the sole premise that Hungerfords CP
No. 33 of 1988 has been dismissed on 21-06-2007, please note that even
assuming without admitting that the petition was rightly dismissed by a valid
judicial order, it was not dismissed on merits, but only on grounds of locus
standi.

70.

From this, all that follows is that a court allegedly took a view that in absence of
the qualification necessary to prosecute such a petition, the petition could not be
allowed to proceed, and not that the allegations raised therein are baseless.

71.

But no Court has endorsed the legal validity of the acts of the persons who
laid claim to the renounced shares, or to the persons acting therefrom.

72.

In other words, no judicial endorsement has been made of the right of the
persons presently claiming to be shareholders to actually be the legitimate
shareholders of the Company, and consequently, its Directors.

73.

In yet other words : even assuming without admitting that Mr. Nirmal Jit Singhs
Hoon to lay claim to relief on the grounds that he was majority shareholder and
Chairman was negated, no court gave a judicial finding that the Ashok Jain /
Amit Judge combine was lawfully in the saddle of TMCL.
Meaning, that the actions of fraud, forgery, etc are very much open to judicial
scrutiny, especially in light of Section 39(1)(viii) of the CrPC read with Section
409 of the Indian Penal Code (criminal breach of trust by an agent).

74.

Rather, by a judgement of the Honble High Court of Calcuttas Division Bench


passed on 08-10-1996, a judgement appealed by your clients through you but
which SLP was dismissed as withdrawn vide the Hon'ble Supreme Courts order
dated 13-07-1998, the unequivocal view taken is that the Ashok Jain Group are
FERA violators, inter alia, in respect of attempting to acquire the shares
allegedly renounced by Hungerford Investment Trust Ltd.

233

75.

This being so, any contract flowing from such violation, by virtue of, inter alia,
Section 47 of FERA, is void, as well as a criminally prosecutable offence.

76.

As the claim of the persons claiming to be the present shareholders of Turner


Morrison is patently in violation of FERA, or flows from such violation, and is,
thus, void, the correct legal position is that no Court can possibly entertain
such a claim, on the well-settled principles of ex dolo malo non oritur actio.

77.

Take careful note that no part of the above argument rests on a fact other than
those admitted between the parties under oath, and / or is based on an
ambiguous, and hence, arguable provision of the law.

78.

In this regard, the only 2 provisions of law relevant to this argument are Section
19 and 28 of FERA, both of which are crystal-clear, and notwithstanding the
corruptly-issued letter dated 03-09-1981 of RBI (signed by one Mr. S. S. Thakur,
Dy. Controller), brook no argument after the following as many as 11
judgements / clarifications / opinions, all which conclusively settle the matter :
a) 09-08-1978 : Written opinion of Ld. Solicitor General Mr. S. N. Kacker on
Section 19 of FERA vis--vis renunciation of their rights to participate in a
rights issue by a foreign resident.
b) 11-01-1979 : clarification issued by RBI in relation to Section 19 of FERA.
c) 07-05-1981 : Judgement of a 3-Member Bench of the Hon'ble Supreme
Court passed in the case of Needle Industries (India) Ltd vs. Needle
Industries (Newey (India) Holdings Ltd (AIR 1981 SC 1298) see paras 165168.
d) 04-08-1988 : Order of Honble Ms. Justice Monjula Bose of the Honble
Calcutta High Court passed in CP No. 33 of 1988.
e) 12-08-1988 : Order of the Hon'ble Supreme Court on TMCLs SLP No. 9528
of 1988 preferred through Khaitan & Co.
f) 05-07-1989 : Order of Honble Mr. Justices Suhas Chandra Sen and
Bhagabati Prasad Banerjee, passed in Appeal Nos. 681-682-719 of 1988, all
flowing from CP No. 33 of 1988.
g) 08-10-1996 : Order of Honble Mr. Justices B. M. Mitra and N. K. Batabyal of
the Honble Calcutta High Court passed in Appeal No. 953 of 1993 flowing
from CP No. 33 of 1988.
h) 16-05-1997 : Order of Honble Mr. Justices B. M. Mitra and N. K. Batabyal of
the Honble Calcutta High Court passed in Appeal No. 953 of 1993 flowing
from CP No. 33 of 1988, jointly conceding the sole point of difference
between them, and referring the same to the referee Judge.
i) 16-04-1998 : Order of Honble Mr. Justice Satyabrata Sinha of the Honble
Calcutta High Court passed in Appeal No. 953 of 1993 flowing from CP No. 33
of 1988, on the sole point of difference referred to him.
j) 13-07-1998 : Order of the Hon'ble Supreme Court on TMCLs SLP No. 8829
of 1998 preferred through Khaitan & Co against the order dated 16-04-1998
passed in Appeal No. 953 of 1993 flowing from CP No. 33 of 1988..

234
k) 26-03-1999 : Order of the Division bench of Honble Mr. Justices B. M. Mitra
and M. H. Ansari of the Honble Calcutta High Court passed in Appeal No. 953
of 1993 flowing from CP No. 33 of 1988, delivering the judgement of the
Division Bench after the sole point of difference had been settled by the
Referee Judge on 16-04-1998 (against whose order your SLP had been
dismissed vide order dated 13-07-1998).
79.

Just in case there be any doubt as to whether the corruptly-procured letter dated
03-09-1981 issued by RBI to TMCL (acting then through one Mr. Vishal Chandra
Jain, General Manager, and who is, now, laughably, a shareholder of TMCL), an
extract of the Needles Industries judgement is extracted below, and though the
core ratio decidendi of the judgement is set out in its para 168, nonetheless, the
contents of paras 164-167 also are relevant to current context, because TMCL,
like Newey Industries, is a Section 43-A Company :
164. We do not think it necessary to consider the decision of the Privy Council
in Shanmugam v. Commissioner for Registration, 1962 AC 515 cited by
Shri Nariman, which says that to be an "express provision" with regard to
something it is not necessary that the thing should be specially mentioned; it
is sufficient that it is directly covered by the language, however broad the
language may be which covers it, so long as the applicability arises directly
from the language used and not by inference therefrom. We may only
mention that though the Articles of NIIL do not contain an express provision
that there shall be no right of renunciation, that right is wholly inconsistent
with the Articles. We have already stated above that the right of renunciation
is tantamount to an invitation to the public to subscribe for the shares in the
company and can violate the provision in regard to the limitation on the
number of members. Article 11, by reason of its clause (iv), prevails over the
provisions of all other Articles if there is inconsistency between it and any
other Article.
165. For these reasons we are of the opinion that clause (c) of Section 81 (1)
of the Companies Act, apart from the consideration arising out of the opening
words of that clause, can have no application to private companies which
have become public companies by virtue of Section 43A and which retain in
their Articles the three matters referred to in Section 3 (1) (iii) of the Act. In
so far as the opening words of clause (c) are concerned, we are of the opinion
that they do not require an express provision in the Articles of the Company
which is otherwise than what is provided for in clause (c). It is enough, in
order to comply with the opening words of clause (c), that the Articles of the
Company contain by necessary implication a provision which is otherwise
than what is provided in clause (c). Articles 11 and 50 of NIIL's Articles of
Association negate the right of renunciation.
166. The question immediately arises, which is of great practical importance
in this case, as to whether the members of a Section 43A-proviso company
have a limited right of renunciation, under which they can renounce the
shares offered to them in favour of any other member or members of the
company. Consistently with the view which we have taken or clause (c) of
Section 81 (1), our answer to this question has to be in the negative. The right
to renounce shares in favour of any other person, which is conferred by clause
(c) has no application to a company like NIIL and therefore, its members
cannot claim the right to renounce shares offered to them in favour of any
other member or members. The Articles of a Company may well provide for a
right of transfer of shares by one member to another, but that right is very
much different from the right of renunciation, properly so called. In fact,
learned counsel for the Holding Company has cited the decision in Re Pool

235
Shipping Co. Ltd., (1920-1 Ch 251) in which it was held that the right of
renunciation is not the same as the right of transfer of shares.
167. Coming to sub-section (1A) of Section 81, it provides, stated briefly, that
notwithstanding anything contained in sub-section (1), the further shares
may be offered to any persons in any manner whatsoever, whether or not
those persons include a person referred to in clause (a) of sub-section (1).
That can be done under clause (a) of sub-section (1A) by passing a special
resolution in the General Meeting of the company or under clause (b), where
no such special resolution is passed, if the votes cast in favour of the proposal
exceed the votes cast against it and the Central Government is satisfied that
the proposal is most beneficial to the Company. For reasons similar to those
for which we have come to the conclusion that clause (c) of Section 81 cannot
apply to a Section 43A-proviso company, we must hold that sub-section (1A),
can also have no application to such companies. To permit the further shares
to be offered to the persons who are not members of the company will be
clearly contrary to the Articles of Association of a Section 43A-proviso
company, in regard to the three matters which bear on the structure of such
companies. At the highest, the method provided for in clauses (a) and (b) of
sub-section (1A) may be resorted to by a Section 43A-proviso company for the
limited purpose of offering the new shares to its members otherwise than in
proportion to the capital paid up on the equity shares of the company. That
course may be open for the reason that sub-section (1A) permits the further
shares to be offered "in any manner whatsoever". A change in the pro rata
method of offer of new shares is not necessarily violative of the basic
characteristics of a private company which becomes a public company by
virtue of Section 43A. To this limited extent only, but not beyond it, the
provisions of sub-section (1A) of Section 81 can apply to such companies.
168. The following propositions emerge out of the discussion of the provisions
of FERA, Sections 43A and 81 of the Companies Act and of the articles of
association of NIIL :
(1) The Holding Company had to part with 20% out of the 60% equity capital
held by it in NIIL;
(2) The offer of Rights Shares made to the Holding Company as a result of the
decision taken by Board of Directors in their meeting of April 6, 1977 could
not have been accepted by the Holding Company;
(3) The Holding Company had no right to renounce the Rights Shares
offered to it in favour of any other person, member or non-member; and
(4) Since the offer of Rights Shares could-not have been either accepted or
renounced by the Holding Company, the former for one reason and the latter
for another, the shares offered to it could, under Article 50 of the articles of
association, be disposed of by the directors consistently with the Articles of
NIIL, particularly Article 11, in such manner as they thought most beneficial
to the Company. These propositions afford a complete answer to Shri
Seervai's contention that what truly constitutes oppression of the Holding
Company is not the issue of Rights Shares to the existing Indian shareholders
only but the offer of Rights Shares to all existing shareholders and the issue
thereof to existing
Indian shareholders only.
169. The meeting of 2nd May, 1977 was unquestionably illegal for reasons
already stated. It must follow that the decision taken by the Board of

236
Directors in that meeting could not, in the normal circumstances, create
mutual rights and obligations between the parties. But we will not treat that
decision as non est because a point of preponderating importance is that the
issue of rights shares to existing Indian shareholders only and the nonallotment thereof to the Holding Company did not cause any injury to the
proprietary rights of the Holding Company as shareholders, for the simple
reason that could not have possibly accepted the offer of rights shares
because of the provisions of FERA and the conditions imposed by the Reserve
Bank in its letter dated May 11, 1976, nor indeed could they have renounced
the shares offered to them in favour of any other person at all because Section
81 (1) (c) has no application to companies like NIIL which were once private
companies but which become public companies by virtue of Section 43-A and
retain in their articles the three matters referred
to in Section 3 (1) (iii) of the Act.
NONE OF THESE 11 JUDICIAL FINDINGS HAS BEEN DISTURBED, LET ALONE
SET ASIDE
80.

Please note that vital judicial findings against the Ashok Jain Group/ Income Tax
Department / RBI and their corrupt collusion warranting a CBI investigation
have been set out in the following 6 orders passed by as many as 7 Honble High
Court Judges, none of which have been disturbed, let alone set aside by any
superior judicial authority :
a) Order dated 04-08-1988 of Honble Ms. Justice Monjula Bose of the Honble
Calcutta High Court passed in CP No. 33 of 1988, in which she has taken due
note of the Judgement of a 3-Member Bench of the Hon'ble Supreme Court
passed on 07-05-1981 in the case of Needle Industries (India) Ltd vs.
Needle Industries (Newey (India) Holdings Ltd (AIR 1981 SC 1298) see
paras 165-168.
b) Order dated 05-07-1989 of Honble Mr. Justices Suhas Chandra Sen and
Bhagabati Prasad Banerjee, passed in Appeal Nos. 681-682-719 of 1988, all
flowing from CP No. 33 of 1988.
c) Order dated 08-10-1996 of Honble Mr. Justices B. M. Mitra and N. K.
Batabyal of the Honble Calcutta High Court passed in Appeal No. 953 of 1993
flowing from CP No. 33 of 1988.
d) Order dated 16-05-1997 of Honble Mr. Justices B. M. Mitra and N. K.
Batabyal of the Honble Calcutta High Court passed in Appeal No. 953 of 1993
flowing from CP No. 33 of 1988, jointly conceding the sole point of difference
between them, and referring the same to the referee Judge.
e) Order dated 16-04-1998 of Honble Mr. Justice Satyabrata Sinha of the
Honble Calcutta High Court passed in Appeal No. 953 of 1993 flowing from
CP No. 33 of 1988, on the sole point of difference referred to him.
f) Order dated 26-03-1999 of Honble Mr. Justices B. M. Mitra and M. H. Ansari
of the Honble Calcutta High Court passed in Appeal No. 953 of 1993 flowing
from CP No. 33 of 1988, delivering the judgement of the Division Bench after
the sole point of difference had been settled by the Referee Judge on 16-041998.

81.

Whereas, vide the following 3 orders of the Hon'ble Supreme Court, various
challenges raised by the Ashok Jain Group (with Khaitan & Company as the
counsels) have been dismissed as withdrawn :

237

a) Order dated 12-08-1988 of the Hon'ble Supreme Court on TMCLs SLP No.
9528 of 1988 preferred through Khaitan & Co against the order dated 04-081988 passed by Honble Ms. Justice Monjula Bose.
b) Order dated 24-07-1992 of the Hon'ble Supreme Court on TMCLs SLP No.
6675 of 1992 preferred through Khaitan & Co against the order dated 11-121991 passed by Honble Ms. Justice Padma Khastagir in CP No. 33 of 1988.
c) Order dated 13-07-1998 of the Hon'ble Supreme Court on TMCLs SLP No.
8829 of 1998 preferred through Khaitan & Co against the order dated 16-041998 passed in Appeal No. 953 of 1993 flowing from CP No. 33 of 1988.
82.

In regard to the above, since some of these orders have been set aside insofar as
the concluding directions contained in them are concerned, it is vital to highlight
that every order contains 3 elements :

the 1st element is the Courts rendition of the facts and the law as placed
before it by the parties before it,

the 2nd element is the Courts judicial appreciation of the facts and the law
so placed before it, and

the 3rd element is the concluding direction contained in its order,

the link of logic between the 2nd and the 3rd elements being the ratio decidendi of
the order.
When such order is challenged before a superior Court, and the directions of the
lower court are set aside by such superior court, this does not automatically
mean that the 2nd element also has been disturbed by the superior court (i.e. the
Courts judicial appreciation of the facts and the law so placed before it i.e. its
findings).
If the superior Court does not, in its order, explicitly set aside the judicial
findings of the subordinate court, the findings stand, and are binding on all
courts thereafter, even if the fact that such judicial findings being allowed to
stand may perhaps represent an anachronism of logic, in terms of such order
being passed by the superior court despite it not disturbing the findings of the
lower court.
83.

Put differently : unless the superior court, in explicit terms set out in its order
(as the appellate court), also set aside the findings of fact of the lower court, the
findings stand, and cannot be re-agitated by the parties before the lower court,
by proceeding on the assumption that not just the directions but also the
findings have (implicitly) been reversed by the superior court.

84.

Therefore, it is an unarguable proposition that the persons laying claim to


presently be the controlling shareholders and Directors of Turner Morrison all
are either violators of FERA, or are attempting to enjoy the fruits of such
violation (by taking resort, inter alia, to the corporate veil), and more
important, have been viewed by multiple judicial authorities to be so, by
findings which remain undisturbed.

85.

Therefore, should Khaitan & Co knowingly advance such claim on behalf of its
clients which is unequivocally dependent on the clients violation, inter alia, of
FERA, the firm would (at least now, but which is without prejudice to the

238
position that the firm has known all along) consciously be acting in furtherance
of a criminal purpose of its client.
PAST CONDUCT OF YOUR FIRM
86.

In this context, it is relevant to highlight that your firm issued a legal opinion on
14-01-1977 signed by your Partner, one Mr. Pradeep (Pinto) Khaitan. A copy
of that opinion is attached, which has been described by the Honble High Court
of Calcutta not once but twice (judgements dated 04-08-1988 and 08-10-1996)
as misleading, purposive and colourful, which descriptions are nothing but
polite judicial euphisms for self-serving trash.

87.

Sight cannot be lost also of the fact that the same Mr. Pradip Khaitan also was
allegedly detained for extended questioning by the Enforcement Directorate at
New Delhi sometime around the year 2000 allegedly for his role in large-scale
FERA / money-laundering violations, whether by him or by others.

88.

Sight cannot be lost also of the fact that one your firms most senior partners
(one Mr. Ram Kishore Choudhury) was arrested and incarcerated in jail by the
Government for his participation in the frauds, inter alia, of Indian Cables Ltd
(INCAB) in 1994.

89.

Sight cannot be lost also of the fact that despite ignominy surrounding him, he
continues to be on the masthead of your firm, shown as Senior Consultant.

90.

Sight cannot be lost also of the fact that your firm is alleged to have planted a
judgement in the Honble High Court of Calcutta in CS No. 2005 of 1965, an act
which, coupled with the sexual entrapment of Chief Justice Mr. P. B. Mukherjee
by your lady-lawyer Ms. Uma Banerjee at Clarks Hotel (Benares) in 1965 led to
the formation of the Sharma-Sarkar Commission, in whose proceedings your
firms conduct has been severely indicted.

91.

Sight cannot be lost also of the fact that it has been alleged that you are
responsible for planting 2 more judgements into the records of the Honble
Calcutta High Court relating to the retiring Honble Ms. Justice Padma Khastagir,
both dated 23-06-1993 (the date of her retirement), one in CP No. 33 of 1988,
and one in the case of Daibara Tea Co. Ltd.

92.

Sight cannot be lost also of the fact that it is alleged that you had trapped Honble
Ms. Justice Padma Khastagir also in a sexually-compromised position in the Nile
Hilton, Cairo (Egypt), leading to arm-twisting her into not coming out with the
accusation / confirmation that the aforesaid 2 judgements allegedly dated 2306-1993 and attributed to her had not been dictated by her and had been
planted on her courts files.

93.

Sight cannot be lost also of the fact of your firms machinations and
manipulations, leading to recusal of as many as 14 Judges of the Honble Calcutta
High Court while hearing CP No. 33 of 1988, by stratagems that include, inter
alia, deliberately employing relatives of those Judges to appear before them, all
so that the appeals could not be heard, as you very well knew before engaging
those advocates that that they were ineligible to appear before their relative
Judges, only to have those same advocates disappear on the next hearing before
the new Judge, once the recusal had been achieved, thus, proving that their
services had been engaged solely for the purpose of obtaining a recusal.

239
94.

Sight cannot be lost also of the fact that at your firms machinations and
manipulations in trying to have matters placed before Benches favorable to you,
or away from Benches you feel are not likely to favour you.
All this is on judicial record, inter alia, in terms of your own letters addressed to
Honble the Chief Justice, seeking formation of Benches of your choice, or
seeking assignment away from Benches you felt are inimical to you / your
clients cause, as well as set out in letter dated 13-08-1998 of Mr. Hoon to
Honble the Chief Justice of the Calcutta High Court.

95.

Sight cannot be lost also of the fact that a very senior partner of your firm (Mr.
Puroshottam Lal Aggarwal) is alleged to have retracted on affidavit a statement
made by him previously in the Lodha-Birla wills dispute.

96.

Sight cannot be lost also of the fact in the same dispute, after having appeared
for one party, your firm is reported to be appearing for the other party, similar
to what is happening in the case here.
THE ROLE OF AN ADVOCATE

97.

In the above context, to assist you in what is perceived by our professional peers
to be the real role and liability of an advocate, I append hereto an extract of a
book titled Justice, Courts and Delays written by the renowned Senior
Advocate, Dr. Arun Mohan, the extract being titled Affirmative Obligation of an
Advocate.

98.

I trust it shall make interesting reading, especially since this particular chapter
has been relied on by the Hon'ble Supreme Court in one of its recent judgements
in relation to removal of an advocate from the profession, and his incarceration
in prison for criminally-punishable acts. The essence of this chapter is this :
Should an advocate petition a Court with a suit for, say, possession of a
property based on a will claimed by his client to have been executed by his
grandfather in 1943 which has been printed on a laser printer (when the
whole world knows that laser printers did not exist in 1943), he would be as
guilty of forgery of a valuable security punishable with life imprisonment
under Section 467 of the Indian Penal Code as would be his client, both
being liable to be judicially viewed to be part of the same criminal
conspiracy.

99.

In such a fact-situation, any defence put forward by such advocate on the lines of
I am merely acting on instructions of my client would not come to his rescue :

neither before the States Bar Council in disciplinary proceedings for


professional misconduct,

nor before the Honble High Court concerned (for criminal contempt of
court, and perhaps also perjury Section 209 of the Indian Penal Code
making false claims in Court - read with its Section 197 and 193),

nor before the Honble High Court concerned (for withdrawal of the
privilege of audience to such advocate under Section 34 of the Advocates
Act),

nor before the criminal court, where he is as liable to prosecuted and


punished for forgery as is his client.

240
100. The case of (erstwhile) advocate Mr. Sharad Aggarwal at Delhi / Ghaziabad is a
recent case in point, who was incarcerated by the Hon'ble Delhi High Court for
forgery, etc. for fraudulently filing winding-up petitions in the name of fictitious
persons [the well-known case of Arun Mehra vs. Durga Builders (P) Ltd.].
CRIMINAL AND CIVIL LIABILITY OF ALL THE PARTNERS AND PRINCIPAL
OFFICERS OF KHAITAN & CO
101. The email is being endorsed for the attention of the other partners in your firm,
just in case the conduct of the gentlemen conducting this particular litigation
relating to Turner Morrison is based on decisions taken by them unilaterally,
without the firms concerned partners knowledge and / or authorisation(s).
102. As Khaitan & Co is a partnership firm, and as it is a settled principle of law that
the acts of a partner bind all the other partners, and since what is being alleged
to have been committed is criminally-punishable acts by persons claiming to act
for and on behalf of your firm, the principles of common intention / abetment /
conspiracy coupled with vicarious liability suggest rather, dictate - that the
other partners, too, are made aware what the name of the firm is being dragged
into by some of its other partners / representatives, so that all partners may,
thus, be held liable based on their conscious knowledge and / or ensuing
omission to suitably correct the infractions of these other persons, should the
situation reach that point, their omission being their endorsement and
acknowledgement of their participation and ensuing liability in and for the same
act(s).
WIDENING OF THE COMPANY PETITIONs PROCEEDINGS UNDER SCHEDULE
XI OF THE COMPANIES ACT
103. Please note that in view of the large-scale defalcation of assets, forgery of
Company documents, etc of Turner Morrison committed prior to and during the
pendency of the Company Petition, my client is immediately invoking Schedule
XI of the Companies Act, 1956. The impact of Schedule XI on Sections 539-544 of
the Companies Act, as amended, mutatis mutandis, is reproduced for the ease of
referral below :
COMPARISON OF SECTIONS 539-544 OF THE COMPANIES ACT WITH THEIR
CORRESPONDING PROVISIONS AS SET OUT IN SCHEDULE XI
Section
539.

As per the Companies Act

As per Schedule XI

539. Penalty for falsification of 539. Penalty for falsification of


books.
books
If with intent to defraud or deceive
any person, any officer or
contributory of a company which
is being wound up

If with intent to defraud or deceive


any person, any officer or member
of a company in respect of which an
application has been made under
section 397 or 398

(a) destroys, mutilates, alters,


falsifies or secrets, or is
privy to the destruction,
mutilation,
alteration,

(a) destroys, mutilates, alters,


falsifies or secrets any
books, papers or securities,
or is privy to the

241
falsification or secreting
of, any books, papers or
securities; or

destruction,
mutilation,
alteration, falsification, or
secreting of any books,
papers or securities; or

(b) makes, or is privy to the


making of, any false or
fraudulent entry in any
register, book of account
or document belonging to
the company;

(b) makes, or is privy to the


making of, any false or
fraudulent entry in any
register, books of account
or document belonging to
the company,
he shall be punishable with he shall be punishable with
imprisonment for a term which imprisonment for a term which may
may extend to seven years, and extend to seven years, and shall
also be liable to fine.
shall also be liable to fine.
540.

540. Penalty
officers.

for

frauds

by 540.
Penalty for frauds by
officers

If any person, being at the time of


the commission of the alleged
offence an officer of a company
which is subsequently ordered to
be wound up by the 4a[Tribunal]
or which subsequently passes a
resolution for voluntary winding
up,

If any person, being at the time of


the commission of the alleged
offence, an officer of a company in
respect of which the 86[Tribunal]
subsequently makes an order
under section 397 or 398,

(a) has, by false pretences or


by means of any other
fraud, induced any person
to give credit to the
company; or

(a) has, by false pretences or


by means of any other
fraud, induced any person
to give credit to the
company;

(b) with intent to defraud


creditors of the company,
has made or caused to be
made any gift or transfer
of or charge on, or has
caused or connived at the
levying of any execution
against, the property of
the company; or
(c) with intent to defraud
creditors of the company,
has concealed or removed
any part of the property of
the company since the
date of any unsatisfied
judgment or order for
payment
of
money
obtained
against
the
company, or within two

(b) with intent to defraud


creditors of the company,
has made or caused to be
made any gift or transfer of
or charge on, or has caused
or connived at the levying
of any execution against
the property of the
company; or
(c) with intent to defraud
creditors of the company,
has concealed or removed
any part of the property of
the company since the date
of
any
unsatisfied
judgment or order for
payment
of
money
obtained
against
the
company, or within two

242
months before that date;
he shall be punishable with
imprisonment for a term which
may extend to two years and shall
also be liable to fine.
541.

541. Liability where


accounts not kept.

months before that date;


he shall be punishable with
imprisonment for a term which may
extend to two years and shall also
be liable to fine.

proper 541.
Liability where proper
accounts not kept

(1) Where a company is being


wound up, if it is shown that proper
books of account were not kept by
the company throughout the period
of two years immediately preceding
the commencement of the winding
up, or the period between the
incorporation of the company and
the commencement of the winding
up, whichever is shorter, every
officer of the company who is in
default shall, unless he shows that
he acted honestly and that in the
circumstances in which the
business of the company was
carried on, the default was
excusable, be punishable with
imprisonment for a term which
may extend to one year.

(2) For the purposes of sub-section


(1), it shall be deemed that proper
books of account have not been
kept in the case of any company, if
there have not been kept
(a) such books or accounts as
are necessary to exhibit
and
explain
the
transactions and financial
position of the business of
the company, including
books containing entries
made from day to day in
sufficient detail of all cash
received and all cash paid;
and
(b) where the business of the
company has involved
dealings
in
goods,
statements of the annual
stock takings and (except
in the case of goods sold

(1) Where an application has been


made to the 87[Tribunal] under
section 397 or 398 in respect of a
company, if it is shown that proper
books of account were not kept by
the company throughout the period
of two years immediately preceding
the making of the application, or the
period between the incorporation of
the company and the making of the
application, whichever is shorter,
every officer of the company who is
in default shall, unless he shows that
he acted honestly and that in the
circumstances in which the business
of the company was carried on, the
default
was
excusable,
be
punishable with imprisonment for a
term which may extend to one year.
(2) For the purposes of this section,
proper books of account shall be
deemed not to have been kept in the
case of any company, if there have
not been kept
(a) such books of account as
are necessary to exhibit
and
explain
the
transactions and financial
position of the business of
the company, including
books containing entries
made from day to day in
sufficient detail of all cash
received and all cash paid;
and
(b) where the business of the
company has involved
dealings
in
goods,
statements of the annual
stock takings and (except
in the case of goods sold by
way of ordinary retail

243
by way of ordinary retail
trade) of all goods sold
and purchased, showing
the goods and the buyers
and the sellers thereof in
sufficient detail to enable
those goods and those
buyers and sellers to be
identified.
542.

542. Liability for


conduct of business.

trade) of all goods sold and


purchased showing the
goods and the buyers and
sellers thereof in sufficient
detail to enable those
goods and those buyers
and sellers to be identified.

fraudulent 542. Liability for


conduct of business

(1) If in the course of the winding


up of a company, it appears that
any business of the company has
been carried on, with intent to
defraud creditors of the company or
any other persons, or for any
fraudulent
purpose,
the
4b[Tribunal], on the application of
the Official Liquidator, or the
liquidator or any creditor or
contributory of the company, may,
if it thinks it proper so to do,
declare that any persons who were
knowingly parties to the carrying
on of the business in the manner
aforesaid shall be personally
responsible, without any limitation
of liability, for all or any of the debts
or other liabilities of the company
as the 4b[Tribunal] may direct.

fraudulent

(1) If in the course of the


proceedings on an application
made to the 87[Tribunal] under
section 397 or 398 in respect of a
company, it appears that any
business of the company has been
carried on with intent to defraud
creditors of the company, or any
other persons, or for any fraudulent
purpose, the 87[Tribunal] may, if it
thinks it proper so to do, declare
that any persons who were
knowingly parties to the carrying on
of the business in the manner
aforesaid shall be personally
responsible, without any limitation
of liability, for all or any of the debts
or other liabilities of the company as
the 87[Tribunal] may direct.

On the hearing of an application


under this sub-section, the Official
Liquidator or the liquidator, as
the case may be, may himself give
evidence or call witnesses.
(2) (a) Where the 4b[Tribunal]
makes any such declaration, it may
give such further directions as it
thinks proper for the purpose of
giving effect to that declaration.

(2)(a) Where the 87[Tribunal] makes


any such declaration, it may give
such further directions as it thinks
proper for the purpose of giving
effect to that declaration.

(b) In particular, the 4b[Tribunal]


may make provision for making the
liability of any such person under
the declaration a charge on any
debt or obligation due from the
company to him, or on any
mortgage or charge or any interest
in any mortgage or charge on any
assets of the company held by or

(b) In particular, the 87[Tribunal]


may make provision for making the
liability of any such person under
the declaration a charge on any debt
or obligation due from the company
to him, or on any mortgage or
charge or any interest in any
mortgage or charge on any assets of
the company held by or vested in
him, or any person on his behalf, or

244
vested in him, or any person on his
behalf, or any person claiming as
assignee from or through the
person liable or any person acting
on his behalf.

any person claiming as assignee


from or through the person liable or
any person acting on his behalf.

(c) The 88[Tribunal] may, from time


to time, make such further orders as
(c) The 4c[Tribunal] may, from time may be necessary for the purpose of
to time, make such further order as enforcing any charge imposed under
may be necessary for the purpose of this sub-section.
enforcing any charge imposed
under this sub-section.
(d) For the purpose of this subsection, the expression assignee
(d) For the purpose of this sub- includes any person to whom or in
section, the expression assignee whose favour, by the directions of
includes any person to whom or in the person liable, the debt,
whose favour, by the directions of obligation, mortgage or charge was
the person liable, the debt, created, issued or transferred or the
obligation, mortgage or charge was interest was created, but does not
created, issued or transferred or the include an assignee for valuable
interest was created, but does not consideration
(not
including
include an assignee for valuable consideration by way of marriage)
consideration
(not
including given in good faith and without
consideration by way of marriage) notice of any of the matters on the
given in good faith and without ground of which the declaration is
notice of any of the matters on the made.
ground of which the declaration is
made.
(3) Where any business of a

company is carried on with such


intent or for such purpose as is
mentioned in sub-section (1), every
person who was knowingly a party
to the carrying on of the business in
the manner aforesaid, shall be
punishable with imprisonment for a
term which may extend to two
years, or with fine which may
extend to five thousand rupees89, or
with both.

(3) Where any business of a


company is carried on with such
intent or for such purpose as is
mentioned in sub-section (1), every
person who was knowingly a party
to the carrying on of the business in
the manner aforesaid, shall be
punishable with imprisonment for a
term which may extend to two
years, or with fine which may
extend to 5[fifty] thousand rupees,
or with both.
(4) This section shall apply,
notwithstanding that the person
(4) This section shall apply,
concerned may be criminally liable
notwithstanding that the person
in respect of the matters on the
concerned may be criminally liable ground of which the declaration is to
in respect of the matters on the
be made.
ground of which the declaration is
to be made.
543.

543. Power of Tribunal to assess 543. Power of 88[Tribunal] to


damages against delinquent assess
damages
against
directors, etc.
delinquent directors, etc.
(1) If in the course of winding up (1) If, in the course of the
of a company, it appears that any proceedings on an application
person who has taken part in the made to the 88[Tribunal] under

245
promotion or formation of the
company, or any past or present
director, manager, liquidator or
officer of the company

(a) has misapplied, or


retained, or become liable
or accountable for, any
money or property of the
company; or
(b) has been guilty of any
misfeasance or breach of
trust in relation to the
company,
the Tribunal may, on the
application
of
the
Official
Liquidator, or the liquidator, or of
any creditor or contributory,
made within the time specified in
that behalf in sub-section (2),
examine into the conduct of the
person,
director,
manager,
liquidator or officer aforesaid, and
compel him to repay or restore the
money or property or any part
thereof respectively, with interest
at such rate as the Tribunal thinks
just, or to contribute such sum to
the assets of the company by way of
compensation in respect of the
misapplication,
retainer,
misfeasance or breach of trust, as
the Tribunal thinks just.

section 397 or 398, it appears that


any person who has taken part in
the promotion or formation of the
company, or any past or present
$managing
director,
agent,
secretaries
and
treasurers,
manager or officer of the
company
(a) has misapplied or retained
or become liable or
accountable for any money
or
property
of
the
company; or
(b) has been guilty of any
misfeasance or breach of
trust in relation to the
company.
The 88[Tribunal] may, on the
application of any creditor or
member, examine into the conduct
of such person, director, managing
agent, secretaries and treasurers,
manager or officer aforesaid, and
compel him to repay or restore the
money or property or any part
thereof respectively, with interest at
such rate as the 88[Tribunal] thinks
just or to contribute such sum to the
assets of the company by way of
compensation in respect of the
misapplication,
retainer,
misfeasance or breach of trust as the
88[Tribunal] thinks just.

(2) An application under subsection (1) shall be made within Note : No limitation
five years from the date of the
order for winding up, or of the first
appointment of the liquidator in the
winding
up,
or
of
the
misapplication,
retainer,
misfeasance or breach of trust as
the case may be, whichever is
longer.
(2) This section shall apply
(3) This section shall apply notwithstanding that the matter is
notwithstanding that the matter is one for which the person concerned
one for which the person concerned may be criminally liable.
may be criminally liable.]

246

544.

544. Liability under sections 542 544. Liability under sections 542
and 543 to extend to partners or and 543 to extend to partners or
directors in firm or company.
directors in firm or company Where a declaration under section 542
or an order under section 543 is or
may be made in respect of a firm or
body corporate, the 7[Tribunal] shall
also have power to make a declaration
under section 542, or pass an order
under section 543, as the case may be,
in respect of any person who was at
the relevant time a partner in that firm
or a director of that body corporate.

Where a declaration under section 542


or an order under section 543 is or
may be made in respect of a firm or
body corporate, the 90[Tribunal] shall
also have power to make a declaration
under section 542 or pass an order
under section 543, as the case may be,
in respect of any person who is a
partner in that firm or a director of that
body corporate.

104. It is the intention of my client to invoke the aforesaid provisions against all
offending persons i.e. the entire Ashok Jain Group (including his legal heirs), the
various Companies involved in this imbroglio and their Directors (the Amit
Judge Group), etc.
105. This is without prejudice to invoke the said provisions also against counsels who
have acted in the matter, if their conduct be criminally impeachable, and have
breached the provisions, inter alia, of Section 126 of the Evidence Act.
INFORMATION REQUESTED FROM KHAITAN & CO :
106. You are also requested to immediately furnish the following information to
enable my client to initiate appropriate proceedings before the concerned Bar
Councils of all the States in which your various partners stand registered under
the Advocates Act, as well as before the Honble High Court of Calcutta under
Section 34 of the Advocates Act :
1. The currently-updated list of your firms partners.
2. The Bar Council Registration numbers of all your partners.
3. If Mr. Ratnesh Rai are not partners, the name(s) of the partners in your
firm who are instructing him to act in the matter.
4. Whether advocate Mr. Joy Saha has been engaged by your firm ; if so,
when, by what document, and what is the precise scope of his
assignment(s).
107. As regards 106 (1), there is already a burden cast on you to that same effect by
virtue of Rule 9(d) of the Calcutta High Court (Original Side) Rules, 1914, but the
burden is reported to remain contemptuously undischarged. Rule 9(d) is
reproduced verbatim below :
Rule 9(d) : All partnership firms of Advocates acting on the Original Side
shall be registered with the Registrar. The names and addresses of the
partners all such firms, as well as any change in the composition of such
firms, shall be intimated by the Advocate acting on the Original Side
concerned to the Registrar.
108. As regards 106 (2), by the Rules of the Bar Council, you are required to post
these details sua sponte on all your stationery, visiting cards, etc, but apparently
have not done so.

247

109. These details are urgently required as my client intends to petition the Bar
Council of the State of West Bengal (and other Bar Councils where your Partners
and offending advocates may be registered) for professional misconduct.
110. Immediately subsequent to filing of the complaint with the State Bar Council(s)
concerned, he intends to petition the Bar Council of India under Section 36(2) of
the Advocates Act read with Chapter VII (titled Disciplinary Proceedings and
Review), Chapter I (titled Complaints against Advocates and Procedure to be
followed by Disciplinary Committees of the State Bar Council and the Bar Council
of India - Rules under Section 49 (1) (f) of the Act), Part B titled Withdrawal of
Proceedings under Section 36 of the Act, Rule 18(2) of the Bar Council Rules to
withdraw the complaint to itself, as he believes that because of the all-pervasive
and pernicious influence your firm exercises in the State of West Bengal, he is
not likely to get justice for a complaint against your acts of professional
misconduct here.
For your ready reference, the text of this provision is reproduced verbatim
below :
ADVOCATES ACT
Section 36. Disciplinary powers of Bar Council of India- (1) Where on
receipt of a complaint or otherwise the Bar Council of India has reason to
believe that any advocate (Note:- The words "on the common roll" omitted
by Act 60 of 1973, sec.25) whose name is not entered on any State roll has
been guilty of professional or other misconduct, it shall be refer the case for
disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary
committee of the Bar Council of India may, [(Note:- Subs. by Act 60 of 1973,
sec.25, for the words "of its own motion".) either of its own motion or on a
report by any State Bar Council or an application made to it by any
person interested] withdraw for inquiry before itself any proceedings for
disciplinary action against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India disposing of any
case under this section, shall observe, so far as may be, the procedure laid
down in Section 35, the references to the Advocate-General in that section
being construed as references to the Attorney-General of India.
(4) In disposing of any proceedings under this section the disciplinary
committee of the Bar Council of India may make any order which the
disciplinary committee of a State Bar Council can make under sub-section
(3) of section, 35 and where any proceedings have been withdrawn for
inquiry [(Note:- Subs. by Act 60 of 1973, sec.26) before the disciplinary
committee of the Bar Council of India] the State Bar Council concerned
shall give effect to any such order.
BAR COUNCIL RULES
PART VII
DISCIPLINARY PROCEEDINGS AND REVIEW
CHAPTER-I
Complaints against Advocates and Procedure to be followed by
Disciplinary Committees of the State Bar Council and the Bar Council
of India

248
(Rules under Section 49 (1) (f) of the Act)
B. Withdrawal of Proceedings under Section 36 of the Act
18. (1) Where a State Bar Council makes a report referred to in Section 36
(2) of the Act, the Secretary of the State Bar Council shall send to the
Secretary of the Bar Council of India all the records of the proceedings
along with the report.
(2) An application by a person interested in the withdrawal of a proceeding
referred to in Section 36 (2) of the Act shall be signed by him and it shall set
out the necessary facts supported by an affidavit and accompanied by the
fee prescribed.
(3) For making an order on an application of a party or otherwise under
Section 36 (2) of the Act, the Disciplinary Committee of the Bar Council of
India may :
(a)
call for a report of the Disciplinary Committee seized of the
proceedings;
(b)
(c)

issue notice to the respondent;


require the parties to file such statements as it considers necessary;

(d)
(e)

call for the records of the proceedings; and


examine any witnesses.

111. In light of the fact that you have a fully-staffed office in New Delhi, please advise
whether or not you have any objection to the Bar Council of India adjudicating
the intended complaint for professional misconduct against your firm at New
Delhi.
112. In the event of not receiving any response on this issue in 2 days, my client shall
proceed on the premise that you do not have any objection and your
acquiescence (by your lack of response) shall be presented to the Bar Council of
India to seek ex parte withdrawal orders.
113. To seek accountability of your firm for its conduct in Court, a copy of this email
shall be filed before the Honble Court of Honble Mr. Justice Anirudha Bose on
the next date of hearing viz. 13-01-2015, at 2 pm, so that it may form part of
judicial record.
NOTICE ALSO TO THE ENFORCEMENT DIRECTORATE
114. A copy of this Notice is also being endorsed to the Enforcement Directorate, both
at Kolkata and New Delhi, since even though FERA stands repealed and replaced
by FEMA with effect from 01-06-2000, any offence committed while it was in
force is still prosecutable even today. (As you know, there is no limitation on
criminal offences.)
115. In this regard, the FERA offences were not just committed by Ashok Jain, but,
inter alia, allegedly by and/or for the benefit of Bennett Coleman & Co Ltd, Sahu
Jain Ltd, PNB Finance Ltd, Sahu Properties Ltd, Sanmati Properties Ltd, etc and
all their Directors and Officers ; therefore, these offences survive against these
companies and their Directors even his demise.
116. Moreover, the offence is also compensable by the provisions of Section 357(3) of
the CrPC, which liability is on that of his estate / heirs, and which liability shall
survive his death.

249
117. It may also be of use to take careful note of the fact that as the offences
committed, inter alia, are those covered by Section 19(1)(b) of FERA, and exceed
Rs. 1 lakh, Section 55 of FERA provides for the punishment for such offence to be
imprisonment for a minimum period of 6 months, but which period may extend
to 7 years and fine.
118. Lastly, it may be of use to take careful note of the fact that by virtue of Section 66
of FERA, the Probation of Offenders Act (1958) has no application to convictions
for FERA offences.
You are requested to kindly furnish your reply promptly to paras 106 and 111 above,
but in no case later than 13-01-2015 noon, well before the hearing that day at 2 pm.
Yours faithfully,

DEEPAK KHOSLA

250
Company Application No. ___________of 2015
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Original (Company) Jurisdiction
In the matter of :
Hungerford Investment Trust Limited
Petitioner
Versus
Turner Morrison & Company Ltd
Respondents
And
Hungerford Investment Trust Limited
Applicant

PETITION

DEEPAK KHOSLA,
Advocate for th
e Applicant
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001

251
Company Application No. ___________of 2014
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988

IN THE HIGH COURT OF CALCUTTA


Civil Original Company Jurisdiction

IN THE MATTER OF :
Application under the Calcutta (Original Side)
Rules (1914) read with Article 215 of the
Constitution of India, read with the Contempt
of Courts Act, praying to debar Khaitan & Co
(as it is generally or
loosely known or referred to) from filing
any pleading, or appearing, or pleading
before this Hon'ble Court, or before any
Bench on the Original Side of the Honble
High Court of Calcutta.

AND IN THE MATTER OF :


Initiation

of

proceedings

for

criminal

contempt, and also and under Section 340 of


the CrPC for perjury, for a violation, inter
alia, of Section 209 of the Indian Penal Code,
read with Section 221 of the CrPC.
AND IN THE MATTER OF :

252
The Companies Act, 1956;
AND
IN THE MATTER OF:
Sections 155,397,399,402,403 and 404 of the
said Act;
AND
IN THE MATTER OF :
TURNER MORRISON & COMPANY LIMITED,
an existing Company within the meaning of
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street, Kolkata.
AND
IN THE MATTER OF :
HUNGERFORD

INVESTMENT

TRUST

LIMITED, a company incorporated under the


appropriate Law of Singapore and having its
Registered Office at 36, Tanjong Penjura,
Singapore.
..........PETITIONER.
VERSUS
1.

TURNER MORRISON AND COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at 8, Camac Street,
Kolkata 700 016.

2.

S.T.P.

LTD., formerly known as

SHALIMAR TAR PRODUCTS (1935) LIMITED,


an existing Company within the meaning of

253
the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata -700 016.

3.

GRAHAMS

TRADING

OMPANY

(INDIA) LIMITED, an existing Company


within the meaning of Companies Act and
having its Registered Office at 8, Camac
Street , Kolkata -700 016.

4.

LODNA COLLIERY COMPANY (1920)

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 and
having its Registered Office at 8, Camac
Street,
Kolkata -700 016.

5.

ANGELO BROTHERS LIMITED

An existing Company under the Companies


Act, 1956 having its Registered Office at
No.64-A,

Raif

Ahmed

Kidwai

Road,

KOLKATA - 700 016.

6.
(In

SHALIMAR WORKS LIMITED


liquidation),

through

the

Official

Liquidator attached to the High Court of


Calcutta having his office at
No. 9, Old Post Office Street, Kolkata - 700
001

254

7.
(In

PANCHSSHEEL
liquidation),

SHIPPING LIMITED

through

the

Official

Liquidator attached to the High Court at


Calcutta having his office at No. 9, Old Post
Office Street, Kolkata - 700 001.

8.

ROHTAS INDUSTRIES LIMITED, an

existing Company within the meaning of the


Companies

Act,

1956

and

having

its

Registered Office at Dalmia Nagar in the State


of Bihar and also having its office at 8, Camac
Street, Kolkata - 700 016.

9.

ASHOKA MARKETING LIMITED, a

Company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 8, Camac Street,
Kolkata - 700 0016.

10.

NEW CENTRAL JUTE MILLS LIMITED,

an existing Company Within the meaning of


the

Companies

Act,

1956

having

its

Registered Office at 18-A, Brabourne Road,


Kolkata -700 001.

11.

SAHU

PROPERTIES

LIMITED,

Company incorporated under the provisions


of the Companies Act, 1956 and having its

255
Registered Office at B.B.D, Bag (East), Kolkata
-700 001;

12.

BENNETT COLEMAN & COMPANY

LIMITED, an existing Company within the


meaning of the Companies Act, 1956 having
its Registered Office at Dr. Dadabhai Naoroji
Road, Bombay- 400 001;

13.

SOUMATI PROPERTIES LIMITED, a

Company incorporated under the provisions


of The Companies Act, 1956 having its
Registered Office at 5, Parliament Street, New
Delhi-110001;

14.

BHARAT WIDHI LIMITED, a Company

incorporated
Companies

under
Act,

the

1956

Provisions

and

having

of
its

Registered Office at 5, Parliament Street, New


Delhi-110001;

15.

SAHU JAIN LIMITED, an existing

Company
Companies
registered

within

the

Act,

1956

meaning
and

of

having

the
its

office at 7,Bahadur Shah Zafar

Marg,
New Delhi-110002;

16.

ASHOKA

HOLDING

LIMITED,

256
Company incorporated under the Provisions
of the Companies Act, 1956 and having its
Registered Office at 5, Parliament Street, New
Delhi-110 001;

17.

DHARMYUG INVESTMENT LIMITED, a

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at Times of India Building,
Dr. D.N. Road, Bombay- 400 001;

18.

SARVAMANGAL TRADING COMPANY

LIMITED, a company Incorporated under the


provisions of the Companies Act, 1956 and
having its Registered Office at 3-A Garstin
Place, Kolkata -700 001;

19.

COMBINE

HOLDING

LIMITED,

company incorporated under the provisions


of the Companies Act, 1956 and having its
Registered Office at 10, Stephen house, 4,
B.B.D,
Kolkata -700 001;

20.

CARAVAN COMMERCIAL COMPANY

LIMITED, a Company Incorporated under the


provisions of the Companies Act,1956 and
having its Registered Office at 2, Ganesh
Chandra Avenue, Kolkata -700 013;

257

21.

P.N.B. FINANCE LIMITED, a Company

incorporated under the Provisions of the


Companies Act, 1956 and having Registered
Office at B-45/47,Connaught

Place, New

Delhi-110001;

22.

HARI KRISHNA CHOUDARY;

23.

P.R NEELKANTH

(full name not known), both working for gain


at 8, Camac Street,
Kolkata -700 016;

24.

HARENDRA KUMAR, residing at 8,

Mandeville Garden, Kolkata -700 019;


25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,

All working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;

29.

Smt. DURGA JAIN, working for gain at

Turner Morrison House at 16, Bank Street,


Bombay-400023;

258

30.

ATMA RAM SARAOGI

31.

K.K BIYANI, (full name not known)

Both working for gain, inter alia, at 8, Camac


Street, Kolkata -700 016;

32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI, residing

at 8, Lower Rowdon Street,


Kolkata -700 020;

35.

HONGKONG

BANK, constituted

under the appropriate Laws of England and


carrying on business, inter alia, at 8,Netaji
Subhas Road, Kolkata -700 001;

36.

PRADAP KUMAR SINGHANIA, residing

at No. 19, Ballygunge Circular Road, Kolkata.

37.

RESERVE BANK OF INDIA, a body

corporate constituted under the Reserve


bank of India Act, and carrying on business,

259
inter alia, at

115, Netaji Subhas Road,

Calcutta-700 001 and also having its office at


Central Office, Exchange Control Department,
Mumbai-400 001.

38.

DR. RABINDRA NATH GARG, son of

Late Baij Nath Garg, at present residing at 3,


Park Mansion, Park Street, Kolkata.

39.

TAX

RECOVERY

OFFICER

(IV)

Calcutta and 24-Parganas, 8/2 Esplanade,


East Dawkins House Kolkata.
.RESPONDENTS.

AND
IN THE MATTER OF APPLICATION BY :
HUNGERFORD INVESTMENT TRUST LIMITED, a company incorporated under the
appropriate laws of Singapore and having its Registered Office at 36, Tanjong,
Penjura, Singapore.
APPLICANT.

JUDGES SUMMONS

260
LET ALL PARTIES concerned attend before the Honble Justice taking Company Matters
on the

day of January, 2015 at hour of 10.30 OClock in the forenoon or so soon

thereafter as it can be heard on the hearing of an application on behalf of the applicant


above named for and order that:
k)

That this Honble Court exercise its inherent powers read with powers, inter alia,
under Rule 16 of the Calcutta High Court (Original Side) Rules (1914) and debar
M/s Khaitan & Company from the right of effecting any filing on the Original
Side.
In the less-preferred alternative :
Direct Ld. Registrar (Original Side) to issue a Show-Case notice to M/s/ Khaitan
& Co, Mr. Ratnesh Rai, Mr. Joy Saha, requiring all of them to individually show
cause before this Hon'ble Court (when acting in chambers) on a date to be fixed,
as to why they should not be debarred from acting on the Original Side.

Ad interim relief :
Pending completion of the Show-Case formalities and the pendency of the same,
debar the aforesaid persons from the right of effecting any filing on the Original
Side.

l)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Section 34 of the Advocates Act, and forthwith debar any partner of
M/s Khaitan & Company, or any advocate (which includes any senior

261
advocate) employed by them, or engaged by them, from the privilege of
audience before this Hon'ble Court.
m)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Section 34 of the Advocates Act, and debar Mr. Joy Saha, Advocate, or
any other advocate not on duly-executed vakalatnama, from addressing this
Hon'ble Court in any manner other than what constitutes ministerial pleadings
i.e. pleadings not on the merits of the lis before this Hon'ble Court.

n)

That this Hon'ble Court exercise its inherent powers read with powers, inter
alia, under Order X Rule 2 of the CPC, read with Order XIX of the same Code,
and direct Respondent No. 31 (Mr. Krishan Kumar Biyani, who has claimed to
act for Respondent No. 1) to disclose whether or not he lays claim to hold his
post (as Secretary and Board Member of Turner Morrison Ltd) by virtue of his
appointment to that post(s) by Directors who claim to have been elected to that
post by shareholders who have acquired their alleged shares either in lieu of
allegedly-renounced shares of Hungerford Investment Trust Ltd (alleged
renunciation of 1977), or have acquired shares from persons who acquired
either those alleged shares, or have acquired their alleged shares auctioned by
the Income Tax Department, or shares acquired from persons who acquired the

262
shares from the auction-purchaser acquiring them from the Income Tax
Department.

o)

That this Hon'ble Court exercise its inherent and other enabling powers and
direct Respondent No. 31 (Mr. Krishan Kumar Biyani, who has claimed to act for
Respondent No. 1) to file on affidavit all Board Resolutions of Turner Morsison
Ltd allegedly passed since 1977 that have allegedly authorised him to act and
appear for Turner Morrison Ltd before this Hon'ble Court.

p)

That this Hon'ble Court exercise its powers under Article 215 of the Constitution
of India, and take suo motu cognizance of criminal contempt committed by the 4
non-applicants (named in para 2 above) in the face of the court (for the 7
counts listed in para 3)

and refer the matter to the Division Bench for

appropriate action under law.

q)

In case affidavits-in-opposition are at all intended to be allowed by this Hon'ble


Court before deciding whether or not to refer the matter to the Hon'ble Division
Bench, and / or to prosecute for perjury, direct the 4 non-applicants to be
present in Court in person on the next date of hearing.

263
r)

Initiate proceedings against the 4 non-applicants named in para 3 above under


Section 340 of the CrPC for perjury, for a violation, inter alia, of Section 209 of
the Indian Penal Code, read with Section 221 of the CrPC.

s)

Pass ex parte orders on the above prayers.

t)

And pass such other order or further order or orders as this Honble Court may
deem fit and proper under the circumstances of the case.

Dated this

day of January, 2015.

________________________

________________

Deepak Khosla

Registrar

Advocate for the Applicant


Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001
This summons is taken out by Mr. Deepak Khosla, Advocate, for the applicant supported
by an affidavit of Mr. Gobina Biswas duly affirmed on
Calcutta.
To

January,

2015

at

264

1.

TURNER MORRISON AND COMPANY LIMITED,


8, Camac Street, Kolkata 700 016.

2.

S.T.P. LTD.,
8, Camac Street, Kolkata -700 016.

3.

GRAHAMS TRADING OMPANY (INDIA) LIMITED,


8, Camac Street , Kolkata -700 016.

4.

LODNA COLLIERY COMPANY (1920) LIMITED,


8, Camac Street, Kolkata -700 016.

5.

ANGELO BROTHERS LIMITED,


64-A, Raif Ahmed Kidwai Road, KOLKATA - 700 016.

6.

SHALIMAR WORKS LIMITED (In liquidation),


9, Old Post Office Street, Kolkata - 700 001

7.

PANCHSSHEEL SHIPPING LIMITED (In liquidation),


9, Old Post Office Street, Kolkata - 700 001.

8.

ROHTAS INDUSTRIES LIMITED,


8, Camac Street, Kolkata - 700 016.

9.

ASHOKA MARKETING LIMITED,


8, Camac Street, Kolkata - 700 0016.

10.

NEW CENTRAL JUTE MILLS LIMITED,


18-A, Brabourne Road, Kolkata -700 001.

11.

SAHU PROPERTIES LIMITED,


B.B.D, Bag (East), Kolkata -700 001;

12.

BENNETT COLEMAN & COMPANY LIMITED,


Dr. Dadabhai Naoroji Road, Bombay- 700 001;

13.

SOUMATI PROPERTIES LIMITED,


5, Parliament Street, New Delhi-110001

14.

BHARAT WIDHI LIMITED,


5, Parliament Street, New Delhi-110001;

15.

SAHU JAIN LIMITED,


7,Bahadur Shah Zafar Marg, New Delhi-110002;

16.

ASHOKA HOLDING LIMITED,


5, Parliament Street, New Delhi-110 001;

265

17.

DHARMYUG INVESTMENT LIMITED,


Times of India Building, Dr. D.N. Road, BOMBAY- 400 001;

18.

SARVAMANGAL TRADING COMPANY LIMITED,


3-A Garstin Place, Kolkata -700 001;

19.

COMBINE HOLDING LIMITED,


10, Stephen house, 4, B.B.D, Kolkata -700 001;

20.

CARAVAN COMMERCIAL COMPANY LIMITED,


2, Ganesh Chandra Avenue, Kolkata -700 013;

21.

P.N.B. FINANCE LIMITED,


B-45/47,Connaught Place, New Delhi-110001;

22.

HARI KRISHNA CHOUDARY;

23.

P.R NEELKANTH
both of 8, Camac Street, Kolkata -700 016;

24.

HARENDRA KUMAR,
8, Mandeville Garden, Kolkata -700 019;

25.

SAMIR JAIN

26.

ASHOK KUMAR JAIN

27.

VISHAL CHANDRA JAIN

28.

ALOK PRASAD JAIN,


all of 8, Camac Street, Kolkata -700 016;

29.

Smt. DURGA JAIN,


Turner Morrison House at 16, Bank Street, Bombay-400023;

30.

ATMA RAM SARAOGI

31.

K.K BIYANI,
Both of 8, Camac Street, Kolkata -700 016;

32.

HARIDAS MUNDHRA

33.

YASODA DEVI MUNDHRA

34.

KAMAL NARAYAN SARAOGI,


All residing at 8, Lower Rowdon Street, Kolkata -700 020;

35.

HONGKONG BANK,

266
8, Netaji Subhas Road, Kolkata -700 001;
36.

PRADIP KUMAR SINGHANIA,


19, Ballygunge Circular Road, Kolkata.

37.

RESERVE BANK OF INDIA,


115, Netaji Subhas Road, Calcutta-700 001
and also at Central Office,
Exchange Control Department, Mumbai-400 001.

38.

DR. RABINDRA NATH GARG,


3, Park Mansion, Park Street, Kolkata.

39.

TAX RECOVERY OFFICER (IV) Calcutta and 24-Parganas,


8/2 Esplanade, East Dawkins House Kolkata.

ALSO TO :
40.

Mr. UTPAL BOSE, SENIOR ADVOCATE, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

41.

Mr. RATNESH RAI, ADVOCATE, c/o Khaitan & Co., Emerald


House, 1-B Old Post Office Street, Kolkata 700 001.

42.

Mr. JOY SAHA, ADVOCATE, c/o Khaitan & Co., Emerald


House, 1-B Old Post Office Street, Kolkata 700 001.

43.

M/s Khaitan & Co

44.

Mr. AMIT JUDGE, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

45.

Ms. RENU JUDGE, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

46.

Mr. RANJIT CHOPRA, Director TMCL, c/o Khaitan & Co., Emerald
House, 1-B Old Post Office Street, Kolkata 700 001.

47.

Mr. INDERJIT S. NARULA, Director TMCL, c/o Khaitan & Co.,

267
Emerald House, 1-B Old Post Office Street, Kolkata 700 001.
48.

Mr. RANJIT CHOWDHRY, Director TMCL, c/o Khaitan & Co.,


Emerald House, 1-B Old Post Office Street, Kolkata 700 001.

49.

Mr. JAYANT RAJ KOCHHAR, Director TMCL, c/o Khaitan & Co.,
Emerald House, 1-B Old Post Office Street, Kolkata 700 001.

268
Company Application No. ___________of 2015
Connected with CA No. _____ of 2007
And connected with CA No. 139 of 2013
And connected with CA No. 491 of 2012
IN
Company Petition No. 33 of 1988
IN THE HIGH COURT OF CALCUTTA
Original (Company) Jurisdiction
In the matter of :
Hungerford Investment Trust Limited
Petitioner
Versus
Turner Morrison & Company Ltd
Respondents
And
Hungerford Investment Trust Limited
Applicant

JUDGES SUMMONS

DEEPAK KHOSLA,
Advocate for the Applicant
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
Kolkata -700 001

269
T. No. _____________ of 2015
W.P. No. _____________ of 2015
IN THE HONBLE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF :
An application under Article 226 &
227 of the Constitution of India;
IN THE MATTER OF :
MR. DEEPAK KHOSLA & ORS.
.PETITIONERS
Versus
HONBLE HIGH COURT OF CALCUTTA
& ORS.
.RESPONDENTS

PETITION

DATE : 22-01-2015
PLACE:KOLKATA

.
Deepak Khosla (Advocate)
PETITIONER No. 1 IN PERSON
D - 367 Defence Colony
NEW DELHI 110 024
Tel : 099 530 96650
deepak.khosla@gmail.com
Also at :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu Sarani)
KOLKATA -700 001

P a g e | 270
ANNEXURE P 8

Deepak Khosla
Advocate
KAR 1280/13

Bangalore Office :
No.114 (Ground Floor),
Kempaiah Building,
1st Main, 1st Cross
Karekal, Kamakshipalya
Old Gurupriya Kalyana Mantapa
Road
BANGALORE 560 079
KARNATAKA * INDIA

Kolkata Office :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu
Sarani)
KOLKATA-700 001
INDIA

New Delhi Office :


Suite 6-C, Girdhar Apartments
28 Feroze Shah Road
NEW DELHI 110 001
INDIA
Tel : +91 11 2332 9654
Fax : +91 11 2372 2468
Email : dk@dandklaw.in
Cell : +91 99 530 96650

January 20th, 2015


Ld. Registrar (Original Side)
Hon'ble High Court of Calcutta
B. B. D. Bagh
KOLKATA
WEST BENGAL 700 001
BY FAX TO :
SUBJECT

033 2248 2580

HARASSMENT IN FILING APPLICATIONS,


CONSTITUTING CRIMINAL CONTEMPT OF
COURT, AS IT IS PREJUDICING THE DUE
COURSE OF JUDICIAL PROCEEDINGS, AND IS
A
CONSCIOUS
AND
DELIBERATE
INTERFERENCE IN THE ADMINISTRATION
OF JUSTICE.

Dear Sir,
I have been given to understand from junior associates in my
Kolkata office that due to behind-the-scenes opposition from
Khaitan & Co, all sorts of hurdles are being placed to him by the
Registry staff who are involved in receiving of applications,
processing them, numbering them and listing them.
I know this personally for a fact, because the Stamp Reporter had
frustrated the filing of these applications on Friday (16-01-2015)
to me personally, by setting out objections which had not been
raised on similar (alleged) defects in CA Nos. 10, 11 and 12 of
2015.

-270-

P a g e | 271
ANNEXURE P 8

As a direct result of his inconsistent objections (i.e. inconsistent


with the processing of the aforesaid CAs), the applications could
not be executed by the deponent therein i.e. Mr. N. S. Hoon, who
then had to leave for New Delhi.
This is a direct and immediate interference in the
administration of Justice, caused by causing an obstruction to
fair, reasonable and convenient access to the court.
To solve the problem of Mr. Hoons absence from Kolkata, a Board
resolution had to be passed by circulation between the Directors
of Hungerford Investment Trust Ltd on 16-01-2015. The
Resolution was reproduced on the companys letterhead, and duly
signed by the Chairman of the company, Mr. N. S. Hoon, while in
New Delhi.
After affixation of his signatures, the Resolution was scanned and
emailed to my junior associates at Kolkata, to facilitate execution
of the affidavit by the new authorised signatory i.e. Mr. Gobinda
Biswas, Officer of the Company.
When this was done, then the new objection that was raised by
your Registry officials was that a photocopy of the Resolution
would not be acceptable, and the original must be filed.
In answer, it was urged that the resolution has been self-certified
by Mr. Gobinda Biswas to a CERTIFIED TRUE COPY, who also
has executed an affidavit of competency. This being so, there is no
call for your office to continue to raise what I, as an Officer of the
Court, would term as a frivolous and baseless objection.
It was also urged that if this reply not be accepted, then the
application may, nonetheless, be numbered and listed with the
Registrys objection, so that the matter may be adjudicated by the
Honble court.
Sadly, even this reasonable request was denied, even though this
time-honored practice is invoked in all the Honble High Courts of
the country.
As an Officer of the Court, I would like to respectfully bring to your
attention that we must not forget that though the Honble High

-271-

P a g e | 272
ANNEXURE P 8

Court of Calcutta is a Court of Law, it is so only because it is a


Court of Justice. This being so, to render the attempt of a party to
effect a filing into a process that is akin to an Essay-writing
Contest where the prize of such a contest is the mere listing of
the application before the court, is to denigrate the judicial
process, and to ridicule the dignity and authority of the Honble
court.
It is also an attempt to thwart access to the portals of Justice,
which is nothing but criminal contempt of court.
I may respectfully remind your office that the decision of the
Registry officials is not final in terms of raising any objection to a
motion that is filed in court ; the final decision is that of the
Honble court.
Therefore, Registry officials are perfectly entitled to process an
application and list it before the Honble court with their
objections, but they do not have the right where, due to objections
raised by them, and despite the advocate concerned requesting in
writing that the matter be listed with their objections, they still
refuse to list the matter.
This will be tantamount to the Registry officials deciding for
themselves as to whether their objection is tenable in law or
not, when that is not the correct legal position.
The final word is that of the Honble Court, not of the Registry
officials, and the only way the matter would reach the Honble
court is if the so-called defective application is placed before the
court with the objections of the Registry officials.
In light of all of the above, and further, when read with the
contents of my letter dated 19-1-2015, I respectfully urge you to
kindly ensure that the 4 applications being attempted to be filed
are listed without any obstruction, for Thursday, 22-1-2015,
which is Senior Citizens Day.
Since I suspect that the new objection that will be raised for
refusing to list on Thursday, 22-1-2015 is that 4 days the in notice
is required, in response, I State that the 4 days has to be calculated
from the date the applications were first presented to the registry,
and not from today. That date is Friday, 16-1-2015, and listing

-272-

P a g e | 273
ANNEXURE P 8

these 4 applications on Thursday, 22-1-2015 perfectly makes the


requirements of the advance-listing rule.
Im raising this point because it may be required by or the
Registry officials that a mention may be made in the Honble court,
but that is not possible now for 2 reasons, firstly, I am not in
Kolkata, and secondly, I believe the Ld. Presiding Officer is not
presiding today and tomorrow.
Sir : you know how bitter this litigation is. This being so, I would
urge that no unreasonable conduct of your subordinates be
allowed to obstruct and interfere in the due course of judicial
proceedings, and/or in the administration of Justice, because the
consequences would be not be taken lying down, and would be
dealt with in accordance with law.
I may further add that whenever conduct of a public official is
subjected to scrutiny, and it is found to be unreasonable, and/or
perverse, and/or inconsistent with his own prior conduct, the only
conclusion that any person of average reason can draw is that
such public official is acting on the basis of extraneous
considerations, this phrase being merely a polite euphemism for
something that is, in fact, rather sordid and reprehensible.
I would respectfully urge you to kindly intervene and ensure that
the situation does not escalate to the point where such scrutiny is
demanded as a matter of right.
Thank you for your kind assistance and cooperation.
Yours faithfully,

DEEPAK KHOSLA

ENCL. : Board Resolution.

-273-

P a g e | 275

Deepak Khosla
Advocate
KAR 1280/13

Bangalore Office :
No.114 (Ground Floor),
Kempaiah Building,
1st Main, 1st Cross
Karekal, Kamakshipalya
Old Gurupriya Kalyana Mantapa
Road
BANGALORE 560 079
KARNATAKA * INDIA

Kolkata Office :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu
Sarani)
KOLKATA-700 001
INDIA

Honble Ms. (Dr.) Manjula Chellur


Honble the Chief Justice
Honble High Court of Calcutta
KOLKATA

New Delhi Office :


Suite 6-C, Girdhar Apartments
28 Feroze Shah Road
NEW DELHI 110 001
INDIA
Tel : +91 11 2332 9654
Fax : +91 11 2372 2468
Email : dk@dandklaw.in
Cell : +91 99 530 96650

MOST URGENT
January 20th, 2015

BY FAX TO :

033 2242 9158

SUBJECT

MANIPULATION OF DUE PROCESS BY


KHAITAN & CO., WHICH IS INTENDED TO
PREJUDICE THE DUE COURSE OF JUDICIAL
PROCEEDINGS, AND IS A CONSCIOUS AND
DELIBERATE
INTERFERENCE IN THE
ADMINISTRATION OF JUSTICE.

Revered Madam Lordship,


I append herewith a copy of my email of yesterday to Mr. Ratnesh Rai of
Khaitan & Co, and also, my email to Your Lordship of yesterday.
Im formally placing on record with Your Lordship the abusive and
downright manipulative practice being indulged in by what is supposed to
be one of the leading law firms practicing before this Honble High Court, if
not in the country. It is their own stand taken repeatedly in writing with
Your Lordships predecessor that any attempt on the part of my client Mr.
N. S. Hoon to file letters with Your Lordships office without serving them
on their office first is criminal contempt of court on his part.
Since it hardly needs to be argued that what is sauce for the goose is sauce
for the gander, it clearly follows that since they have not served a copy of
the letter filed with Your Lordships offce yesterday upon me or to my

-275-

P a g e | 276

client till the time of writing of this letter, means that they are, by their own
admission of definition, committing criminal contempt of court.
What concerns me more is the fact that by deliberately not serving
upon me this letter, it is clear that they are trying to obtain from Your
Lordship some sort of ex parte (administrative) order behind my back
before the letter is served so that it will take months (if not years) to get
that ex parte direction set aside.
I further suspect that this is something to do with the ex parte order dated
13-1-2015 passed by the Honble High Court of Delhi.
If this be so, I humbly urge Your Lordship to grant me a fair hearing before
any sort of action which prejudices me is taken by Your Lordship. Most
respectfully, the principles of natural Justice dictate so.
I am willing to travel down the Calcutta on just 1 days advance notice for
this personal hearing.
Without meaning for this to constitute my explanation, I would like to
submit to Your Lordship that if at all this order of 13-01-2015 is the subject
matter of their communication, the order is a patent nullity in law, void
ab initio as if non est, and thus, of no judicial significance, consequence,
relevance, or effect.
Its being a nullity in law is not on just one sole ground, but on as many as
34 grounds, each taken singly, and without prejudice to the other, and
which 34 grounds are apart from it liable to be quashed on the merits of
the purported, so-called adjudication (which was never done).
I have issued a Legal Notice of Rs. 100 crores against the learned judge who
has acted patently without jurisdiction, and worse, has made no attempt,
let alone one in good faith, in determining whether his actions were within
his jurisdiction, or outside.
As a result, he stands deprived of the immunity conferred upon him by the
Judicial Officers Protection Act, 1850.
I am also contemplating seeking sanction from the President of India under
Section 197 of the CrPC for his prosecution. (I am sure that Your Lordship,
to, would agree that Judges are not above the law.)
The matter relating to the order dated 13-1-2015 is very complex, and will
require a detailed hearing by Your Lordship before any fair view can be

-276-

P a g e | 277

formed on the matters set out in that order. Many of the events recounted
in that order are not current, including the (perhaps inadvertent, perhaps
deliberate ?) exclusion of certain Supreme Court orders that have reversed
some of the events recounted in that order.
Suffice it to state that the matter goes back to three orders passed by a
sitting judge of the Honble Delhi High Court (Kait, J.) on 15-12-2011, 2212-2011 and 04-01-2012. It was a consequence of his order dated 04-012012 that his confirmation as a Permanent judge, by virtue of a letter
written by my colleague advocate Mr. Prashant Bhushan to the Hon'ble
President of India in end-January 2012, was stalled for as much as 1
years, leading also to a situation where no Additional Judge of the Honble
Delhi High Court appointed on or after the date of his appointment being
confirmed as a Permanent judge, despite over 2-4 years having gone by
since the date of their appointment as Additional Judges.
Due to no action being taken by the Honble Delhi High Court aganst Kait, J.
in terms of the In-House Procedure laid down by the Honble Supreme
Court following its judgment in the case of C. Ravichandran Iyer vs. Justice
Bhattacharjee (who, ironically, came to the Bombay High Court from the
High Court of Calcutta), a criminal complaint has now been filed at Patiala
House courts on 5-1-2015.
In addition, a civil suit for Rs. 25 crores also has been filed in the Honble
Delhi High Court on the same date, in which one of the reliefs prayed for is
also a declaration that the Judges Protection Act (1986) be declared ultra
vires the Constitution and the Indian Penal Code.
No doubt, the concluding directions of the order of 13-1-2015 cannot be
viewed de hors these 2 very vital immediately-preceding developments just
1 week before.
As submitted above, I reserve all my rights to explain my position more
fully and completely to Your Lordship in the course of a personal hearing,
which may please be granted to me if at all the contents of the order dated
13-1-2015 are under consideration of Your Lordship for taking any action,
whether final, interim, or ad interim.
Since Khaitan & Company are not serving upon me the letter filed with
Your Lordships office, I request that Your Lordship may kindly instruct the
concerned person in your office to fax me a copy of this letter. (My fax
number is 011 4109 9467.)

-277-

P a g e | 278

I further urge that if the order dated 13-1-2015 is the subject matter of the
letter of Khaitan & Company, no action, whether interim, ad interim or
final, that is prejudicial to my standing as an advocate and / or a citizen
may be taken without granting me a Personal Hearing first.
Most respectfully, the most fundamental rules of natural Justice require
this.
I humbly request that suitable directions for faxing the letter may please be
issued accordingly.

I am deeply grateful for Your Lordships kind sympathetic consideration


to the contents of this letter.
Yours reverentially,

DEEPAK KHOSLA

ENCL. : Emails to Khaitan & Co.

-278-

P a g e | 288

Deepak Khosla
Advocate
KAR 1280/13

Bangalore Office :
No.114 (Ground Floor),
Kempaiah Building,
1st Main, 1st Cross
Karekal, Kamakshipalya
Old Gurupriya Kalyana Mantapa
Road
BANGALORE 560 079
KARNATAKA * INDIA

Kolkata Office :
Suite No. 408, 4th Floor
Center Point
21 Old Court House Street
(also known as Hemant Basu
Sarani)
KOLKATA-700 001
INDIA

New Delhi Office :


Suite 6-C, Girdhar Apartments
28 Feroze Shah Road
NEW DELHI 110 001
INDIA
Tel : +91 11 2332 9654
Fax : +91 11 2372 2468
Email : dk@dandklaw.in
Cell : +91 99 530 96650

January 19th, 2015


Ld. Registrar (Original Side)
Hon'ble High Court of Calcutta
B. B. D. Bagh
KOLKATA
WEST BENGAL 700 001
SUBJECT

COMPLIANCE WITH THE HIGH COURT


(ORIGINAL SIDE) RULES, 1914.
PLACEMENT OF 4 APPLICATIONS BEFORE
THE HONBLE COURT ON 22-01-2015
(THURSDAY) ON THE STRENGTH OF MY
UNDERTAKING TO WITHDRAW, IF THE
HONBLE COURT SO DESIRES/ DIRECTS.

Dear Sir,
I have been given to understand that due to opposition from
Khaitan & Co, it being urged to your office not to place for judicial
consideration the 4 applications made reference of by the Honble
Court in its order dated 15-01-2015, on the grounds that Rule 2(b)
of the Calcutta High Court (Original Side) Rules, 1914 state as
under :
2(i) Date of enrolment as an Advocate with the Bar Council,
West Bengal.

-288-

P a g e | 289

A copy of that order is appended hereto for the ease of referral,


and the relevant part on its 3rd page is reproduced below :
In course of hearing today, Mr. Khosla also sought leave of
this Court to file four applications. But as the determination
of this court to hear the said applications is not fully
established, I do not think I can pass any direction in relation
to these four applications.
In other words, once the issue of determination is resolved, in
these applications are not placed for judicial consideration, it
would upset the very basis of the Honble Court for having
referred the matter to Honble the Chief Justice.
In regard to your objection, please note my following submissions:
1. Please note that with effect from 15-06-2011, Section 30 of
the Advocates Act has been notified and made operative,
thereby making it the right of every Advocate registered
under the Advocates Act, 1961 (advocate meaning as
defined in the aforesaid Act) to practice as a matter of right
anywhere in the country.
2. This right to practice, being the embodiment of the right to
pursue a profession of his choice, means that it is a
fundamental right guaranteed by Article 19 (1)(g) of the
Constitution.
3. This being so, if there is any subordinate legislation that
conflicts with Article 19 (1)(g) of the Constitution, such
subordinate legislation will have to bow in the face of the
Constitution.
4. Under the circumstances, it is clear that the Rule 2(b) of the
Calcutta High Court (Original Side) Rules, 1914 cannot be
allowed to stand in the way of any advocate exercising his
fundamentally-guaranteed right to practice his profession
before the Honble High Court of Calcutta, whether on the
Original Side or on the Appellate Side.
5. Furthermore, please note the following two points which
show the dichotomy in your own Rules even if Section 30
and not been notified:

-289-

P a g e | 290

a) Rule 1(i)(b) defines advocate not as an advocate


registered, or eligible to be registered, in the Register
maintained by your office, but as an advocate who is
one within the meaning of the Advocates Act, 1961.
This being so, it is an anomaly if your rules then proceed
to deny that very advocate his right to practice his
profession on the Original Side of the Honble Calcutta
High Court, even though he qualifies under the
Advocates Act to do so.
b) If you wish to attempt to enforce Rule 2, please note that
the concluding part of the rule makes it mandatory for
your office to do something which you are not doing.
This relevant part of the Rule 2 says as under :
The Register containing the names of all Advocates
acting on the Original Side of this court will be kept
and maintained by the Registrar, and all persons shall
have free access to the same without payment of any
fee.
Sir, you are well aware that no such Register is being
maintained by your office.
This being so, it is discriminatory treatment against me if
this Rule is pointed out against me, but not against
others.
c) In other words, if we strictly interpret this rule,
practically no advocate currently practicing on the
Original Side of the Honble High Court of Calcutta is
qualified to do so.
d) Please note that the conditions to be complied with in
order to entitle an Advocate to act on the original side is
set out in Rule 4.
It needs no elaboration that I already stand in
compliance with these 2 conditions, rather, 3 conditions,

-290-

P a g e | 291

given the third condition has been implicitly inserted


by use of the word advocate, and not person.
In other words, the 3 conditions required to be complied
with by Rule 4 are the following :
i)

The intending practitioner must be in advocate as


defined in the Advocates Act, 1961, meaning, he
must be registered with any State Bar Council in
the country.

ii)

His office with must be within the geographical


confines of the area delineated in the Rules.

iii)

The conditions relating to service of pleadings and


motions shall be as delineated in the Rules.
As I comply with all of the above 3 conditions, I
respectfully submit that no fetters can be put by the
Honble High Court of Calcutta on me to exercise my
right to practice my profession, whether on its
Original Side, or on its Appellate Side, or both.

e) The only way to interpret Rule 2 harmoniously with the


Rule 4 is to interpret Rule 2 also in light of the proviso
set out in Rule 5, which sets out as under :
Rule 5. ..; provided that the court may, for any
special reason, permit any other person to appear
before it in a particular cause.
6. In other words, even if I do not strictly comply with your
rules, the Honble court has discretion to allow me to appear
in the matter.
7. Please note that your department has already placed 3
applications for judicial consideration i.e. CA No. 10 of 2015
2015, CA No. 11 of 2015 and CA No. 12 of 2015, all filed in
CP No. 33 of 1988. Khaitan & Co had already objected to the
listing of these applications before the Honble court, but
their objections were overruled in by the Honble court.

-291-

P a g e | 292

8. This being so, it is respectfully urged that your Department


may kindly be consistent in its approach, because if it now
raises an objection for something it has already allowed
previously, no doubt, allegations will be raised that they are
acting at the behest of someone in the opposite camp.
9. Also, since the same objection is being adjudicated by the
Honble court, it would now, in fact, constitute criminal
contempt on the part of Registry officials if they were to
attempt to usurp the authority of the Honble court and
attempt to adjudicate the very same issue that the Honble
Court is seized of and is adjudicating.
Therefore, may I request that these applications may kindly be
numbered and listed for Thursday, 22-01-2015, as that is Senior
Citizens day, with any alleged defect as is being pointed out by
your office, on my specific undertaking that should the Honble
court not allow me to act on the Original Side in light of your
offices objections ( if any ), I shall not address the Honble court
during the hearing, and Mr. Hoon shall address the court, for
which, in any case, one of the 4 applications that is being
attempted to be filed is this very application i.e. seeking
permission for him to argue the matter,
Please note that if my fundamentally-guaranteed right to practice
my profession is impinged upon by any person in an attempt at
enforcing archaic rules which only now deserve to be lodged in
the dustbin of archival history, I should be constrained to seek
extensive damages and compensation for the violation of my
fundamental rights from all such persons.
Kindly place these 4 applications for judicial consideration on
Thursday, 22-1-2015 on the strength of the aforesaid undertaking.
I also request that since the Rules are to be applied equally to all
persons, no matter how breach or powerful they may be, action
may also be taken on my letter dated 09-01-2015 against the
violation of these same Rules by Khaitan & Co.
To refresh your memory, it is a letter whose subject line reads as
under:
7 BLATANT VIOLATIONS OF THE CALCUTTA

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P a g e | 293

HIGH COURT (ORIGINAL SIDE) RULES, 1914


BY M/s KHAITAN & CO.
Yours faithfully,

DEEPAK KHOSLA
ADVOCATE

n Encl. : As above.

-293-

1/19/2015

Khaitan reps Uber in Delhi HC shining light on rival, as Suhaan Mukerji's PLR lobbies with government | Litigation | Deals | News | Editorial | Legall

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By Legally India

Tuesday, 06 January 2015, 19:56

Litigation

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Khaitan reps Uber in Delhi HC shining


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Khaitan & Co, instructing senior advocate Rajiv Nayar, has been representing US-based cab
booking app Uber, which today withdrew its plea filed in the Delhi high court against the
ban imposed on it by the Delhi government.
Khaitan Bangalore partner Ganesh Prasad, Delhi partners Ajay Bhargava and Mohit
Abraham are acting for Uber, advising on litigation across India. Prasad declined to
comment when contacted.
The technology company has also drafted in former Amarchand Mangaldas lobbying and
policy partner Suhaan Mukerji, whose 2013 start-up PLR Chambers has been handling
governmental relations and lobbying of the transport ministry according to sources.
Mukerji did not respond to a message seeking comment.
Following the alleged rape of a 27-year-old woman in the national capital by a Uber driver,
the transport department of the Delhi government had banned the services of app based
taxis.
Justice Rajiv Shakdher allowed the company to withdraw the plea after the transport
department passed its order on Ubers plea against the ban.
In its order passed 1 January, the Delhi transport authority said, there are no grounds to
review the ban imposed, on Uber along with its domestic counterpart Ola Cabs.
Uber also told the court that it is the only company that is trying to comply with the
courts order, while Ola continued plying on Delhis roads, even after the government
banned the operation of app based cab services.
However, Delhi government counsel Zubeda Begum said the ban extended both to Ola and
Uber.
The high court had directed the transport department to hear Uber after it approached the
court against the ban.
Both the companies have been found guilty of violating the Motor Vehicles Act since they
were plying vehicles with All India Tourist permits within the national capital region, the
department said.
They were allegedly flouting several other rules such as running non-compressed natural gas
(CNG) taxis.
Web-based taxi companies, including Uber and Ola Cabs, were banned from operating in
Delhi 8 December 2014 after a Uber cab driver allegedly raped a woman.

More about: Delhi High Court, Khaitan Co, Lobbying, Plr Chambers, Rajiv Nayar, Rajiv
Shakdher

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