TaxTMI 
TaxTMI 
2017 (5) TMI 1689
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.... the averments made in the winding up petition, a promissory note for the said sum of Rs. 35 lacs together with interest was executed by ABL and second charge on ABL's fixed assets was also created on consent of ABL's bankers, Punjab and Sind Bank, who had the first charge over such assets. BCCL's case, as made out in the winding up petition was that Rs. 15 lacs in instalments was repaid by ABL along with interest of Rs. 1,81,232.87, the former constituting three instalments upto 31st March 1981 and thereafter default was committed by ABL. Subsequently, it has been alleged by BCCL that ABL purported to send two share scrips of Angelo Rhodes Ltd., an English Company covering 50,000 shares of Rs. 1/- each for pledging the same by way of further security subject to compliance of the provisions of Foreign Exchange Regulation Act, 1973. It has been pleaded in the winding up petition that ABL had never sent the permission of the Reserve Bank of India as per the provisions of the 1973 Act. Total demand, for which the winding up proceeding was instituted was Rs. 27,69,781.66. In course of hearing before me, it has been pointed out by Mr. Khosla, learned counsel representing the....
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....enth day of December in the year one thousand nine hundred and eighty two after deducting therefrom the amount upto the date of payment, shall become due and payable and the winding up proceedings shall be proceeded with And it is further ordered that the order for advertisement of the winding up petition as granted by the said order dated the twenty fifth day of March in the year one thousand nine hundred and eighty three shall remain stayed until further orders of this court and it is further ordered that the said applicant company shall be at, liberty to apply before this Court for further direction." A copy of the said order has been annexed to the affidavit in C.A. 187 of 2016, which is BCCL's application seeking dismissal of C.A. 715 of 2015, C.A. 97 and C.A. 131 of 2016. It has been pleaded in the affidavit taken out in support of Judge's Summons C.A. 715 of 2015 that 50,000 shares of Angelo Rhodes Ltd. was fraudulently transferred from ABL to BCCL on 20th June 1994, when these shares were to be in physical custody of the Official Liquidator. In paragraph 8 of the affidavit, the deponent thereof, being Nirmaljit Singh Hoon (NHS), has referred to further journey of....
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....nts. 3. The applicant in C.A. No. 187 of 2016 is BCCL and in the Judge's Summons taken out by it on 2nd March 2016, the following prayers have been made:- "a) C.A. No. 715 of 2015, C.A. No. 97 of 2016 and C.A. No. 131 of 2016, all filed in C.P. No. 575 of 1982 (In re Angelo Brothers Limited -and-Bennett Coleman and Company Limited) be dismissed; b) An order be passed directing and declaring that Mr. Nirmaljit Singh Hoon has no locus, right, or authority to represent Angelo Brothers Limited, a company in liquidation; c) An order be passed directing that Hungerford Investments Trust Limited has no locus, right or authority to make any application in C.P. No. 575 of 1982; d) Stay of all further proceedings in C.A. No. 715 of 2015, C.A. No. 97 of 2016 and C.A. No. 131 of 2016, all filed in C.P. No. 575 of 1982 (In re Angelo Brothers Limited -and-Bennett Coleman and Company Limited) till the disposal of this application; e) Ad interim orders in terms of prayers above; f) Costs; g) Such further or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper."....
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....roceeding was instituted on or about 23rd February 1983. One of the material dates so far it relates to the proceedings in C.P. 90 of 1983, is 16th September 1983. On that date the matter was taken up for hearing by the Court and an order was passed recording that the said company had paid in Court Rs. 4,654.84p by cheque bearing No. 533901 dated 9th September 1983 drawn on Grindlays Bank Ltd. in full and final settlement of the claim of the applicant firm. It was also ordered by the Court on that date that "the petition for winding up of the said company shall remain stayed permanently." On 29th September 1983, however, the same Hon'ble Judge was pleased to recall the order of permanent stay. On 26th March 1984, order was passed to wind up ABL. The Official Liquidator was appointed as Liquidator and was directed to take possession of assets and records of the company but the order was stayed for six weeks to enable the company to settle the claim of the petitioning creditor and other creditors, whose petitions were pending. Those petitions were directed to be admitted and be treated as in support of the petition. There were subsequent orders through which revival of the compan....
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....bute to NHS knowledge of the said consent order and steps taken in consequence thereof, drawing my attention to Article 59 contained in the schedule to Limitation Act. His contention is that the recall petition was instituted beyond the prescribed period of three years from the date NHS could be said to have had acquired knowledge thereof. On his first submission, Mr. Kar has referred to the provisions of Rules 3 and 3A of Order 23 of the Code of Civil Procedure. It has also been urged by him that HIT in any event has not explained or described its interest in the subject-dispute, and its status as a contributory or creditor has not been spelt out in the pleadings of any of the applications which are being dealt with in this judgment. According to him, mere oral submission on this count ought not to be taken cognisance of by the Court. His argument is that HIT cannot be an aggrieved party to bring these actions. On the point of limitation, Mr. Kar has also taken me through the provisions of Section 17 thereof to contend that C.A.715 of 2015 and all consequential proceedings are time-barred. 7. Extensive argument has been advanced by the learned counsel for the parties on these p....
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....eginning from institution of C.P. 575 of 1982 till passing of the consent decree was on the basis of fraudulent practise, and without knowledge of the Company, i.e. ABL itself or that of said NSH, who at the material point of time was in effective control of the said company. It has also been contended by him that BCCL had not disclosed the relationship between itself and ABL. His submission is that BCCL at the material point of time was controlling entity of another company, Turner Morrison & Co. Ltd., which was the dominant shareholder of ABL. He has also complained that the notice of the proceeding was not given at the registered office of the company but was sent to 11, Brabourne Road, even though affidavit-of-service pertaining to the said proceeding made by the Advocate-on-Record of BCCL showed service thereof to have had been made at 6, Ram Gopal Ghosh Road Kolkata. It is also his case that the statutory notice was never served upon ABL. He has advanced arguments on certain other factual issues which according to him would demonstrate that fraud was played on Court in obtaining the consent decree. 9. I shall first deal with the case of Mr. Khosla on demurrer, which submis....
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....al custody of BCCL allegedly till such time that the Promissory Note stood discharged, would be returned to Angelo Brothers Ltd. 19. Interestingly, at the same period, it had been orchestrated by Mr. Ashok Jain that a winding-up petition would be filed against Angelo Brothers Ltd. by some other alleged creditors in February 1983, alleging non-payment of a grand and princely sum of Rs. 4,564.84p. (This aspect will assume greater significance as further events set out in the present Legal Notice unravel, relating to "fraudulent preference"). 20. Reverting back to the collusive decree of 27-04-1983, in discharge of the alleged liability of Angelo Brothers Ltd., a sum of Rs. 3 lakhs was paid to BCCL by an associate of Mr. N.S. Hoon [one M/s. Minerals Syndicate (1960)] on account of the liability of, and on the request of my client, Angelo Brothers Ltd., vide bank draft No. PQW/119904 drawn on Punjab National Bank, Bombay. Receipt of the same was acknowledge by BCCL vide receipt dated 29-04-1983 issued by their Calcutta office. 21. Thereafter, Mr. Hoon contacted Executive Director and Secretary of BCCL (one Mr. P.R. Krishnamoorthy), in response to which the af....
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.... 23. Thereafter, acting on instructions of Angelo Brothers Ltd., and in compliance with the requirements of BCCL as set out in the telex dated 03-05-1983, a letter was addressed on 08-06-1983 to BCCL by the aforesaid associate of Mr. N.S. Hoon [the aforesaid M/s. Minerals Syndicate (1960)], forwarding two more bank drafts aggregating to the balance of Rs. 2 lakhs, which was tendered by them in full and final settlement of the collusive court decree of 27-04-1983. 24. It was categorically stated in the letter as follows: "We shall be grateful if you send us the shares of Angelo Rhodes Ltd., and until delivered, hold the same in trust for us." (Emphasis supplied.) 25. acting on the instructions of BCCL's Mr. P.R. Krishnamoorthy, as set out in his telex dated 30-04-1983, these 2 bank drafts for the balance Rs. 2 lakhs were delivered to M/s. Khaitan & Co (Solicitors), acting in this particular transaction not as solicitors but as "agents"/"attorneys" of BCCL. 26. According, M/s. Khaitan and Company issued their formal receipt dated 08-06-1983 for an on behalf of BCCL, in which it was categorically stated and confirmed by them that ....
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....ting that these shares are allegedly transferred to BCCL, the person who allegedly has signed the transfer papers on behalf of Angelo Brothers Ltd. has done it without any lawful authority by virtue of the fact that the company, pursuant to orders passed in CP No. 90 of 1983, had been ordered to be wound up. This being so, and as per the argument taken by your Group itself in CA No. 579 of 1989 executed on 02-09-2015 and filed in CP No. 90 of 1983 by one Mr. Sanket Agarwal, Director of Sahu Jain Ltd., once a company has been ordered to be would up by a court, Its Board of Directors, its management, et cetera all are functus officio. A copy of the aforesaid CA No. 579 of 2015 is appended to this notice, and is marked as Annexure 4 (pages 41-57 of this Legal Notice) 32. This being so, it is not only clear that the transfer papers could not have lawfully been signed by such person, but also that this legal impediment is a fact known to you also." 10. The present set of proceedings arise out of a petition for winding-up, and jurisdiction this Court is exercising while hearing these applications is that of the Company Court under the provisions of the Compa....
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....the nature of demurrer, and advanced his arguments on that basis. Mr. Kar wants this Court to treat that application as if it was an application under Order 7 Rule 11 of the Code. Mr. Khosla on the other hand contends that this is not an application in the nature of Order 7 Rule 11 of the Code as the applicant BCCL has applied for dismissal of the petition, whereas under the aforesaid provision of the Code, the term employed is rejection of plaint. Mr. Kar has specifically referred to Clause (d) of Rule 11 of Order 7, and has contended that it is that provision which should guide this Court for dealing with C.A. 187 of 2016. Rule 11 of Order 7 provides:- "The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed....
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....iv) Tyler v. Hand [: 48 U.S. 573 (1849)] v) Slocum V s. New York Life Insurance Company [228 U.S. 364 (1913)] vi) Fowle v. Common Council of Alexandria [24 U.S. 320 U.S. 320 (1826)] vii) Mireless v. Waco [: 502 U.S. 9 (1991)] viii) Smalis v. Pennysalvania [: 476 U.S. 140 (1986)] ix) Nalle v. Oyster [: 230 U.S. 165 (1913)] x) Davis v. Tileston [47 U.S. 114 (1848)] xi) Scott v. Sandford 60[: U.S. 393 (1856)] xii) Gould v. Evansville & Grawfordsville R. Co. [91 U.S. 526 (1875)]" I am not repeating the passages cited by Mr. Khosla from these judgments of the Courts in the US because these decisions uniformly hold that seeking dismissal on demurrer plea would bind the applicant for dismissal to the facts pleaded in the plaint of petition. In a Bench decision of the Bombay High Court in the case of Sowkabai Pandharinath Rajapurkar v. Sir Tukojirao Holkar [: ILR LVI (Bombay) 224], there is reference to the "demurrer" Rule in England. There is observation in that judgment to the effect that Rule 2 of Order XIV of the Code may be applied to introduce that practise in this country, but the opinion of the Bench in that....
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.... a plea of demurrer. Demurrer is an act of objecting or taking exception or a protest. It is a pleading by a party to a legal action that assumes the truth of the matter alleged by the opposite party and sets up that it is insufficient in law to sustain his claim or that there is some other defect on the face of the pleadings constituting a legal reason why the opposite party should not be allowed to proceed further..." 16. In the aforesaid judgment, the Supreme Court applied the principles of Order 7 Rule 11 in relation to the petition for dismissal, but allowed the appeal against judgment of the High Court by which the dismissal plea was upheld. The High Court was directed to hear the company petition afresh. In paragraph 16 of the Report, referring to another judgment of the Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association: 20057 SCC 510], it was held and observed:- "16. It was emphasised in para 25 of the report that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application or Order 7 Rule 11 CPC. The principle, therefore, well settled that in order to exa....
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....RO Bank v. Punjab Urban Planning and Development Authority (: AIR 2000 P & H44), a view was taken that under Order 7 Rule 11, there is no concept of partial rejection of plaint. Ratio of that authority is not applicable in the facts of these proceedings. None of these authorities lay down the ratio that an application referred to as a "demurrer" constitutes admission of facts in the suit or application whose dismissal is asked for. The principles contained in the aforesaid Rules of Order VIII cannot be implanted in a case of this nature, in which dismissal of an application is sought for on maintainability point, without adverting to merits of the case. Mr. Kar, on the other hand, has cited a judgment of the Bombay High Court in the case of Globex Financial Services Ltd. v. Bakulesh T. Shah and Ors. [: 2000(2) ALL MR 419]. Submission on this very point was rejected by a learned Single Judge of the Bombay High Court in this case, and it was held in the context of that case that when the defendant proceeded on demurrer, it would only mean that they are denying the contentions of the plaintiffs as raised in the plaint and in their view assuming without conceding that those contentions....
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....aram Chettiar v. Alamelu Achi (37) 1937 M.W.N. 480, their effect has to be ascertain ed with reference to the attendant circumstances and not merely from the form of the order. In the present case, the order was clearly one of 'dismissal' and the mere use the word 'rejected' at the end does not make any difference." 20. I accordingly hold that the expression demurrer, when used in connection with an application seeking dismissal of a petition on a preliminary or maintainability point shall not imply automatic admission of facts contained in the plaint or petition whose dismissal is sought for by opposing party. The principles of Order 7 Rule 11 would apply in relation to such petitions, and if it is found that adjudication of such motion involves mixed questions of fact and law, then adjudication of that question would stand deferred, and those points would be left to be determined on trial. Though there does not appear to be a clear Indian authority on this point as yet, from the decisions to which I have referred to earlier, it is apparent that the practise followed in England and the US had never been accepted as a part of Indian jurisprudence. The term "demur....
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....thing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which- (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgement-debtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the application of the judgement-creditor made after the expiry of the said period extend the period for execution of the de....
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.... this case, it has been held that if an act is void or ultra vires, it is enough for the Court to declare it so and it would collapse automatically and there is no need to set aside the void act. But this case is not an authority for the proposition that the limitation statute does not apply to such an act. On the other hand, it has been held in this case:- "It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for." Mr. Kar has also referred to the decision of the Supreme Court in the case of M.P. Steel Corporation v. Commissioner of Central Excise [: (2015)7 SCC58] to non-suit the applicants in C.A. 715 of 2015 on the ground of their applications are barred under the provisions of the Limitation Act, 1963. 23. Main thrust of Mr. Khosla's submission is that the said consent decree was obtained upon playing fraud on Court and there is no limitation on bringing....
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....and it cannot be treated as a waste paper. The only objection that can be made to a decree as being void or a nullity must be on ground that it was passed without jurisdiction or that the Court which passed it had no territorial or pecuniary jurisdiction over the subject-matter of the suit." 25. Mr. Khosla's submission that Article 59 of the Limitation Act, 1963 relates to administrative decree and not judicial decree cannot be accepted by this Court. Md. Noorul Hoda v. Bibi Raifunnira and Ors. [ (1996)7 SCC 767], a suit was instituted for a declaration that a preliminary and final decree passed in an earlier suit for partition were illegal, collusive and did not bind the plaintiff in the second suit. The dispute ultimately reached the Supreme Court, one of the points which was dealt with by the Supreme Court was the point of limitation. Question arose in that case as to whether Article 59 or Article 113 of the Schedule to the Act would apply to the facts in that case. The Supreme Court held that Article 59 would govern any suit to set aside a decree either on fraud or any other ground. 26. While dealing with the question of maintainability of the recall petition in relat....
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....itation was not directly addressed to. In the A.V. Papayya Shastri (supra), limitation point was not directly dealt with, but question arose as to whether revisional power could be exercised by a statutory authority to undo something effected by fraud after 13 years was reasonable time or not. This question was answered in the affirmative. It was held in the judgment:- "22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order - by the first Court or by the final Court - has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings." The different authorities cited by Mr. Kar, being the cases of Brahm Datt Sharma (supra), Babu Singh (supra), Indian Council for Enviro - Legal Action (supra), M.P. Steel Corporation (supra), Meghmala and others (supra), Gurdev Singh (supra) and Md. Noorul Hoda (supra) did not specifically deal with the question of fraud on Court. Mr. Khosla has also referred to the provisions....
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.... founded on Order 23 of the Code. 28. Mr. Kar has also argued that the consent decree which the applicants in C.A. 715 of 2015 wants to be declared as void was in the nature of a contract between the parties to the proceeding and cannot be recalled by application of one of the parties only. The authorities relied upon on this point are Mulchand Jhoomar v. G.R. Martindale (: AIR 1928 Cal 756) and another Bench decision of this Court delivered in A.O.P. No. 411 of 2011 on 12th July 2013 (Castron Technologies Ltd. v. Castron Mining Ltd.). In none of these cases, however, the very basis of the consent decree was called into question and there was no allegation that the consent decree was fraudulently obtained without service to a party, but representation of such party was fraudulently shown. Ratio of these two authorities does not apply in the facts of this case. 29. The next point I shall turn to now is as to whether petition of ABL could be presented by NHS as a co-petitioner, in C.A. 715 of 2015 and the two other applications. Mr. Kar's submission, so far as ABL is concerned, is that a company in liquidation cannot bring any proceeding represented by its erstwhile Directo....
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....p of the company. After the inventory is completed, the Official Liquidator will apply to Court for further directions on notice to the company. It is made clear that the company in the meantime will be at liberty to negotiate with the Government of West Bengal workmen and other creditors. Liberty to apply. The Official Liquidator and all parties to act on a signed copy of the minutes of this order." 31. I also find from records that there were certain orders directed at revival of the company. On 27th August 1984 the Official Liquidator was directed to take formal possession of the assets and records of the company. This order was passed after a Special Officer earlier appointed with the direction to run the company had apprised the Court that it was not possible for him to run the company any more inasmuch as the possession of the factory of the company had been taken over by some unauthorised persons and neither the Special Officer nor the Official Liquidator retained any control over the company. Further attempts at revival of the company was made. But ultimately, by an order passed on 1st October 1986 the revival scheme was put to an end. As regar....
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....s question, the passage from Ambikamoni Dasi (supra), which I have referred to earlier lays down the position of law. This proposition of law, in my opinion still holds the field, and stands confirmed by the Supreme Court in the case of Gurdev Singh (supra). 33. Mr. Khosla's submission is that the authority or right of a director of a company to bring an action to invalidate a fraudulent consent decree passed in pre-winding up stage still remains. In this regard he cited judgment of Federal Court in the case of Dr. Satya Charan Law and Others v. Rameshwar Prosad Bajoria and Others (1950) 20 C-C 39]. In that case, the right of majority shareholders to institute a proceeding in the name of the company under certain circumstances was upheld. But in Dr. Satya Charan Law (supra), the company concerned was not in liquidation. He has relied on the decision of the Delhi High court in the case of Vivek Kumar v. Pearl Cycle Industries Ltd. (1983) 54 Company Cases 77 (Delhi)]. In that case, to a limited extent the right of a member of the family which had controlling interest over a company-in-liquidation in the pre-liquidation stage to question execution of decrees issued prior to the....
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....nly upon obtaining sanction of the Court. 35. I have referred to different provisions of the 1956 Act which deal with the status of the Directors of a Company in liquidation. A combined reading of Section 2(30) with Section 445 (3) of the 1956 Act leads to inevitable conclusion that the Directors stand divested of their power to act on behalf of the company except for the limited purpose provided in sub-Section (1) of Section 445. I do not accept Mr. Khosla's submission that different meanings have been attributed to the term "Officer" in different provisions of the Act, and in appropriate cases the Directors of a company-in-liquidation could retain the right or power to sue in the name of the company. Such power has been vested with the Official Liquidator, and this power in my opinion would extend to bringing an action to invalidate something which occurred prior to the time the company went into liquidation, if such action is called for in the interest of the company. Question may come up as to what would be the course if the Official Liquidator does not act to protect the interest of the company. In such a situation also, the proper course would for the parties intereste....
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.... not be fettered by the form in which a petition for recalling a consent decree obtained by fraud is brought and the Court can examine the question in exercise of its jurisdiction conferred on it under Article 215 of the Constitution. On this point he has relied on the cases of (i) Shri Ram Phal v. Shri B.S. Bhalla 2004 CRI. L. J. 4274) (ii) Dr. Subramanian Swamy v. Arun Shourie [Contempt Petition (Crl.) No. 11 of 1990 decided by the Supreme Court on 23rd July 2014] (iii) Delhi Development Authority v. Skipper Construction Company (P) Ltd.: AIR 1996 SC 2005(1)] and (iv) Union of India & Ors. v. Ramesh Gandhi: (2012)1 SCC 476]. Mr. Khosla also wants to equate the jurisdiction of this Court in entertaining the application of HIT similar to that vested in the Court under Section 340 of the Code of Criminal Procedure, 1973 as well as Order 1 Rule 8A of the Code of Civil Procedure. In this regard the judgment relied upon him is the case of N. Natarajan v. B.K. Subbarao: AIR 2003 SC 541). Citing the judgment of Andhra Pradesh High Court in the case of P. Satyanarayana v. Land Reforms Tribunal: AIR 1980 AP 149) he has reiterated his submission that the Court has inherent powers to recall ....
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....plicable in that case. 39. The judgment of the Allahabad High Court, Smt. Suraj Kumari v. District Judge, Mirzapur & Ors. (: AIR 1991 All 75) has been cited by Mr. Kar in support of his submission that a stranger to a proceeding cannot maintain an application for setting aside a consent decree. In this judgment it has been held:- "22. The petitioner's second submission regarding the applicability of O. 23, R. 3-A of the Code of Civil Procedure is misconceived the provision is confined only to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree, which affects his rights is not barred by the said provision. Order 23, Rule 3-A of the Code of Civil Procedure cannot be read dehors its earlier provision of the same chapter. The said provision is only a part of the entire Chapter of Order 23 of the Code of Civil Procedure which prescribes provisions for Withdrawal and adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read toge....
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....rred to in some detail the allegations of Mr. Khosla's clients on the basis of which he seeks to avoid the decree. These allegations have been spelt out in paragraph 9 of this judgement. I do not think from plain reading of these allegations, it would be possible for me to come to a finding straightaway that the entire proceeding from institution and compromise of the winding up proceeding was a fraudulent exercise. 42. In this case, in my view, on the basis of materials placed before me, it is not possible for me to conclude at this stage that the consent decree was obtained by playing fraud upon Court. BCCL must have opportunity to meet HIT's challenge to the decree on such allegations through a proper adjudicatory process. A recall petition, which is usually decided following summary procedure for such purpose is inadequate instrument. For the same reason, in my opinion, initiation of contempt action or a proceeding under Section 340 of the 1973 would not be proper course in the facts of this case at this stage. One hurdle HIT might face if it is to bring fresh action, would be the fact that ABL is at present a company in liquidation. But in the event HIT contemplates....