TaxTMI 
TaxTMI 
2016 (1) TMI 1322
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....d. Admittedly, the amount was not deposited, as directed. Simultaneously in the appeal filed with an application to condone the delay, the judgment debtor company had sought for stay of execution and the court directed the amount to be paid as the condition for grant of stay. Again the amount had not been deposited. The appeal came to be dismissed on 27.01.1997 declining to condone the delay in preferring the appeal. 2. The decree holder filed an execution petition on 29.05.2004 which on the face of it was more than 12 years from the date of the decree that was granted on 30.08.1990. There had been an objection regarding the issue of limitation but executing court dismissed the execution petition on the ground that there had been winding up proceedings before the High Court of judicature at Calcutta and, therefore, execution petition could not be prosecuted without permission of the High Court. The decree holder withdrew the winding up petition filed before the Calcutta High Court on 28.08.2006 and filed a fresh execution petition on 23.10.2006 which was just over 16 years after the institution of the suit. The petitioner had stated, while seeking for attachment of the property of....
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....ring on behalf of the company reiterates the objections brought before the executing court and lays emphasis on the issue of limitation and the non liability of the Director for a decree obtained the company except in cases of tax liability of the company. The learned Senior counsel would also find fault with the observations of the executing court to hold that if the company assets were not sufficient, the asset of the director could always be proceeded to be a wrong statement of law. 6. On the issue of a limitation, the learned Senior counsel would point out to two decisions, namely, Ratan Singh versus Vijay Singh and others JT 2000 (Suppl.3) SC 499 and the judgment in Chandi Prasad and others versus Jagdish Prasad and others (2004) 8 Supreme Court Cases 724 as laying down the law that when an appeal is filed against a decree, which is dismissed summarily without examination of the case on merits, for the purpose of limitation under Article 136 of the Limitation Act it shall be the date of the decree of the court that passed the judgment on merits which would be the starting point. A summary dismissal at the High court or the Supreme Court by dismissal in limine at the stage on ....
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.... must be taken as having such effect. It is this judgment in Sheodan Singh that the Supreme Court was citing Shyam Sunder Sarma's case (supra) to make for an interpretation that for the purpose of Article 136, it shall be the decision of the Appellate Court which shall be the starting point. 9. No doubt, the decision in Shyam Sunder Sarma's case (supra) was cited before yet another Bench of the Supreme Court in Raja Mechanical Company (P) Ltd. Versus Commissioner Central Exercise ILR (2002) 1 Delhi 33. The Court, however, took the same view that had been taken in Ratan Singh and Chandi Prasad cases (supra) and did not follow Shyam Sunder Sarma's case. The Supreme Court did not make any attempt to reconcile the conflict in view to hold that if the appeal was dismissed on the ground of limitation and not on the merits, the order would not merge with the order passed by the first Appellate Court. If the two decisions of equal strength of higher forum take diametrically conflicting views, a subordinate court shall attempt to harmonize to the extent possible a view that will not conflict with the propositions of either case. Shyam Sunder Sarma's case makes reference to ....
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.... plea of undertaking and default persisted even before the Appellate Court against the decree when the Company was preferring an appeal through the Managing Director and seeking for stay. There was a direction for payment but he failed to comply with the direction. The decree-holder was, therefore, saying that the Managing Director of the Company had approached the Division Bench of the Calcutta High Court only with a motive to buy time and after the dismissal of appeals, the Managing Director was operating from House No. 703, Sector 3, Chandigarh, but evading all types of liabilities. 11. Learned counsel for the respondent points out to me that in Jawahar Lal Nehru Hockey Tournament Versus Radiant Sports Management (2008) 149 DLT 749, the Delhi High Court was holding that there could be a case where the Court could lift the corporate veil even in execution proceedings of a closely held company, particularly of a private limited company in order to satisfy the decree and proceed against the personal assets of the Director. I am in respectful agreement with the proposition and hold that the scope for lifting the veil will be available even at the execution stage, if a fraud was bei....