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Thursday, March 23, 2017

As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another[2], and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge. However, taking note of the fact, an amount of Rs.2,23,00,000/- has been kept in fixed deposit towards lien for issuance of bank guarantee, we make it clear that the respondents shall not operate the bank accounts of the company after 03.04.2017 without securing an amount of Rs.8,32,60,331/- We also make it clear that without leave of the High Court, the fixed deposit of Rs.2,23,00,000/- with the Axis Bank shall not be withdrawn. However, it would be open to the respondents to apply for appropriate clarification or modification of the order dated 26.06.2015, after making the deposit as above and it will be open to the learned Single Judge to pass the appropriate orders on merits of the application. We make it clear that any observations made by us are only for the purpose of this order and shall not have any bearing on the consideration by the learned Single Judge in the contempt proceedings.

                                                                  REPORTABLE

                           SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS.  4298-4299  OF 2017
             (Arising out of S.L.P.(Civil) Nos.25733-25734/2015)


BARANAGORE JUTE FACTORY PLC.
MAZDOOR SANGH (BMS) ETC.                     ...  APPELLANT (S)


                                   VERSUS



BARANAGORE JUTE FACTORY PLC. ETC.           ... RESPONDENT (S)

                                    WITH

                    CIVIL APPEAL NOS.  4302-4305 OF 2017
             (Arising out of S.L.P.(Civil) Nos.28212-28215/2015)

                                     AND

                    CIVIL APPEAL NOS.  4306-4308  OF 2017
             (Arising out of S.L.P.(Civil) Nos.28198-28200/2015)

                           J  U  D  G  M  E  N  T

KURIAN, J.:

Leave granted.

The appellants are the  petitioners/applicants  before  the  learned  Single
Judge in an application filed by them for taking appropriate action  against
the respondents herein for violating the order dated  23.02.2011.  According
to the appellants, the entire money paid by the National  Highway  Authority
of India (‘NHAI’ for short) on  account  of  acquisition  of  the  company’s
land, should have been deposited with the High Court, in the true spirit  of
the order dated 23.02.2011. To the extent relevant, for the purpose  of  the
present case, it may be noted that of the total amount due to  the  company,
the NHAI issued a cheque for an amount of Rs.94.16 crores  approximately  in
favour of the Registrar of the High  Court  after  deducting  an  amount  of
Rs.10,55,60,331/- by way of  tax  deducted  at  source  (‘TDS’  for  short).
Thereafter, the company filed its income-tax return for the assessment  year
2013-2014 and claimed and received refund of the entire  amount  covered  by
the TDS, after deducting the tax. According to the respondents,  the  amount
was utilised for various purposes in connection  with  the  affairs  of  the
company. It is the stand of the respondents that the  direction  to  deposit
the amount with the High  Court  was  given  to  the  NHAI,  and  in  having
claimed, received and utilised  the  refund  received  from  the  Income-Tax
Department, there is no violation of the order dated 23.02.2011.
Learned Single  Judge  was  prima  facie  of  the  opinion  that  there  was
deliberate violation of the order dated 23.02.2011,  and  therefore,  issued
Rule  to  the  respondents,  returnable  in  six  weeks,  vide  order  dated
26.06.2015. There was also  a  direction  that  the  respondents  shall  not
operate the bank  accounts  of  the  company  without  securing  the  afore-
mentioned amount of Rs.10,55,60,331/-.
Aggrieved, the respondents took up the matter in appeal before the  Division
Bench leading to the impugned order.
The Division Bench, in the impugned order, took the view  that  the  learned
Single Judge should not have passed an  order  affecting  the  operation  of
bank accounts, and therefore, to that  extent,  the  order  of  the  learned
Single Judge was vacated. And thus  aggrieved,  the  appellants  are  before
this Court.
It may specifically be noted that the  Division  Bench  has  not  interfered
with the Rule issued to the respondents in the proceedings  initiated  under
The Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act’)  for
the alleged violation of the order  dated  23.02.2011.  The  Division  Bench
only vacated the order regarding operation  of  the  bank  accounts  of  the
company without securing the amount of rupees ten crores and odd.  To  quote
from the impugned order:
“The order under appeal cannot, in our view,  be  sustained  to  the  extent
that the appellants have been restrained from operating their bank  accounts
without setting apart ten crores and odd. The two appeals and the  connected
stay applications are disposed of.”
                                                         (Emphasis supplied)

Still further, the Division Bench also clarified that:
“Having regard to the urgency and considering the  fact  that  the  contempt
proceedings and the company applications  are  pending  before  the  learned
Single Bench, we have not issued any direction for affidavits.”

Thus, the limited question before us  is  whether  the  Division  Bench  was
justified in interfering with the order passed by the learned  Single  Judge
for securing the amount received by the respondents by way  of  refund  from
the Income-Tax Department.
In order to appreciate the above question, it is necessary to refer  to  the
background under which the relevant orders have been passed by  the  learned
Single Judge.
The most relevant amongst the orders is the one dated 23.02.2011  passed  by
the learned Single Judge, which is one alleged to have been violated by  the
respondents. The text of the order reads as follows:
“The Court: Mr. S.N.  Mitra,  learned  senior  Advocate  appearing  for  the
Baranagore Jute Factory PLC Mazdoor Sangh (BMS), the applicant in CA 906  of
2010 submitted that  a  portion  of  the  vacant  land  of  the  company  in
liquidation has been acquired by the National  Highway  Authority  of  India
and on account of compensation huge amounts are likely to  be  paid  to  the
company in  liquidation.  He  submitted  that  considering  the  conflicting
claims made by various persons who are  either  in  management  or  who  are
seeking to take over management in liquidation the money likely to come  may
not be safe. Therefore, he submitted that the  money  should  be  adequately
protected.
      Mr. Sen, learned Senior Advocate appearing for Chaitan  Chowdhury  and
Ridh Karan Rakeeha submitted that the submission made by Mr. S.N.  Mitra  is
a reasonable one.
      Mr.  Anindya  Kumar  Mitra,  learned  Senior  Advocate  appearing  for
Damodar Prasad Bhattar, Sunil Toshniwal, S.Jha & Ors, submitted  that  there
is no objection to the money being  protected  but  he  submitted  that  his
clients are presently running the management of the company  in  liquidation
and therefore his clients should be permitted to  receive  the  compensation
and to keep the same in fixed deposit subject to further order of Court.
      Mr. Subhranshu Ganguly, learned Advocate representing Yashdeep  Trexim
Pvt. Ltd. supported the submission of Mr. S.N. Mitra.
      Ms. Manju  Agarwal,  learned  Advocate,  appearing  for  some  of  the
creditors of the company in liquidation also  supported  the  contention  of
Mr. S.N. Mitra.
       Mr.  D.K.  Singh,  learned  Advocate  appearing  for   the   Official
Liquidator submitted that pursuant to earlier  orders  passed  by  the  Apex
Court it is, only proper  that  the  money  should  be  deposited  with  the
Registrar, Original Side.
      Mr. Niloy Sengupta,  learned  Advocate  appearing  for  Krishna  Kumar
Kapadia, who, according to him, holds controlling block  of  shares  in  the
company submitted that the submission of Mr. S.N. Mitra should be accepted.
      Considering the submissions made by the  learned  Advocates  appearing
for the parties I am of the opinion that the submission made  on  behalf  of
the Official Liquidator is also in conformity with the  submission  made  by
Mr. S.N. Mitra which has largest support of  the  parties  appearing  before
me.
      In that view of the matter, National Highway  Authority  of  India  is
restrained from making  any  payment  on  account  of  compensation  to  the
company in liquidation except by way of  an  account  payee  cheque  to  the
Registrar, Original Side. The Registrar, Original Side upon receipt of  such
payment shall keep the same  in  a  short  term  fixed  deposit  subject  to
further order of Court with the SBI Main Branch. Upon receipt of the  money,
he shall keep the parties informed about it.
      It is clarified that I have referred to the company as  a  company  in
liquidation because there is already a  winding  up  order  passed  by  this
Court. Fuller effect of that order is yet to be examined.
xxxx                         xxxx                           xxxx”
                                                         (Emphasis supplied)



After the deposit of the amount of around  Rs.95  crores,  as  paid  by  the
NHAI, in terms of the said order, several attempts have  been  made  by  the
respondents herein for  withdrawal  of  the  said  amounts  purportedly  for
meeting some of the liabilities of the company. We shall refer to  only  one
order passed by this Court on 12.03.2015 wherein this Court,  at  paragraph-
4, has taken note of the order passed by the  Division  Bench  of  the  High
Court dated 14.08.2014. To the extent relevant, paragraphs-4, 6,  and  7  of
the order dated 12.03.2015 passed by this Court in Civil Appeal  Nos.  2814-
2815 of 2015, read as follows:

“4.   The Division bench while affirming the order  passed  by  the  Company
Judge observed as under:-

“Considering the amount of deposit which the appellants  want  to  withdraw,
and the company’s indebtness to its various creditors  and  the  quantum  of
its liability, coupled with the facts that even the workers  have  not  been
paid their dues, we do not feel it safe  to  allow  a  particular  group  of
shareholders, who are described as interloper by the creditors, to  withdraw
the money deposited with the Registrar, Original Side of this Court  without
deciding  the  said  issue  finally  particularly  when  we  find  that  the
appellant/applicant themselves have filed an application being  C.A.  No.957
of 2010 praying for permanent stay of the  company  petition  No.2  of  1987
which is yet to be decided finally. In the  aforesaid  context,  we  do  not
find any illegality in the impugned order  passed  by  the  learned  Company
Court proposing to dispose of all the pending applications  simultaneously.”


xxxx                         xxxx                           xxxx

6.    It has been brought to  our  notice  that  the  impugned  order  dated
14.8.2014 was earlier challenged in SLP (C)  No.29330  of  2014  (@  SLP  CC
No.16278/2014). The said Special Leave Petition was dismissed  as  withdrawn
on 27.10.2014 by passing the following order.

“Mr. Ajit Kumar Sinha, learned senior counsel appearing for the  petitioner,
seeks permission to withdraw this  petition  with  a  liberty  to  move  the
Company Judge  to  dispose  of  the  pending  matters  as  expeditiously  as
possible. Therefore, in view of the fair  submission  made  by  the  learned
senior counsel, we dismiss this special leave petition as withdrawn  with  a
request  to  the  Company  Judge  to  dispose  of  the  pending  matters  as
expeditiously as possible preferably within a period of  three  months  from
today.”

7.    In the facts and circumstances of the case,  we  are  of  the  opinion
that the Company Judge before  whom  all  applications  are  pending  should
dispose of the same as expeditiously as possible  within  a  period  of  two
months from today.”
                                                         (Emphasis supplied)

Thus, it may be noted that this Court declined to interfere with  the  order
passed by the Division Bench of the High Court, which in  turn  refused  the
prayer for withdrawal of the deposit lying with the Court.
Despite  the  above  background,  the  respondents  received  cheque   dated
13.06.2014 by way of Income-Tax refund  to  the  tune  of  Rs.10,21,28,520/-
after  conceding  the  tax  for  Rs.34,31,807/-  from  the  total   TDS   of
Rs.10,55,60,331/- and utilised the same for  various  purposes  without  any
clarification or permission from the company court which  passed  the  order
dated 23.02.2011 regarding the deposit of the entire money paid by the  NHAI
towards compensation for the acquired land. This conduct, according  to  the
learned Single Judge, prima facie, was  in  violation  of  the  order  dated
23.02.2011, and hence, the Rule with  a  further  direction  to  secure  the
entire TDS amount. Thus, the learned Single Judge, after  referring  to  the
order dated 23.02.2011, passed the following order  on  26.06.2015.  To  the
extent relevant, the order reads as follows:
“... Pursuant to the aforesaid order, the National Highway Authority  issued
a cheque of Rs.94.16  crores  approximately  in  favour  of  the  Registrar,
Original Side of this Court. The National Highway Authority had  issued  the
aforesaid cheque after deducting a sum of Rs.10,55,60,331/-  on  account  of
tax deducted at source. Such payment appears to have been  received  by  the
Registrar, Original Side of this Court  on  or  about  November,  2012.  The
fixed deposit was made by the Registrar,  Original  Side  on  9th  November,
2012, that is to say, during the financial  year  2012-13  corresponding  to
assessment year 2013-14. In the return filed on behalf of  the  company  for
the assessment year 2013-14, a claim for refund was made  on  the  basis  of
the aforesaid deposit made by the National Highway Authority on  account  of
the  tax  deducted  at  source  as  would  appear  from  page  101  of   the
application. It appears that the claim for refund was met by the Income  Tax
Authority by issuing a cheque on 13th June, 2014 as would appear  from  page
102 of the application. There is, as such, clear evidence of the  fact  that
the alleged contemnors received the refund in violation of the  order  dated
23rd February, 2011. Assuming that receipt  of  the  cheque  on  account  of
refund of income tax was in the usual course of business, there  can  be  no
gainsaying that the cheque should not have been encashed  without  leave  of
Court. From Annexure-E to the application appearing at page 102, it  appears
that a cheque dated 13th June, 2014 was received on account  of  refund  and
has also been encashed. Such encashment of the cheque on account  of  refund
which has its origin in the amount paid by the  National  Highway  Authority
was in the teeth of the order dated 23rd February, 2011.
I am,  therefore,  prima  facie  of  the  opinion  that  there  has  been  a
deliberate violation of the order passed by this court.
It  appears  from  the  return  appearing  at  page  101  that  a   sum   of
Rs.34,31,807/-  was  payable  on  account  of  tax  by  the  company.  After
deducting the aforesaid  sum  from  the  amount  of  Rs.10,55,60,331/-,  the
balance  sum  of  Rs.10,21,28,520/-  was  claimed  by  way  of  refund.  The
liability on account of income tax is  payable  by  the  present  management
from their own resource and for that any part of  the  money  received  from
the National Highway Authority could not be  used.  Therefore,  the  alleged
contemnors, managing the affairs of the company, in liquidation,  appear  to
have  appropriated  the  aforesaid  sum  of  Rs.10,55,60,331/-   which   was
deposited by way of tax deducted at source with the  Income  Tax  Department
by the National Highway Authority.
For the aforesaid reasons, issue Rule against the alleged contemnor  Nos.  1
to 6. Returnable six weeks hence.
Since the company, in liquidation, through the machination  of  the  alleged
contemnors, has been enriched by the aforesaid sum and in order to  preserve
the aforesaid sum the alleged contemnors are restrained from  operating  the
bank account/accounts of the company without  setting  aside  the  aforesaid
sum of Rs.10,55,60,331/-. …”
                                                         (Emphasis supplied)


The above order was the subject matter  of  challenge  before  the  Division
Bench, leading to the impugned order.
The Division Bench, as we have already referred  to  above,  was  not  happy
with the order regarding  restriction  on  operation  of  the  bank  account
without securing the TDS amount. To the extent relevant,  the  consideration
in the impugned order reads as follows:

“… With the greatest respect we are of  the  view  that  the  learned  Court
should perhaps have given the  appellants  an  opportunity  to  explain  and
should perhaps also have ascertained what was the balance  in  the  accounts
maintained by the company before passing an order which has  in  effect  and
substance restrained the company from operating its accounts.
It is not in dispute that the turnover of the company  is  in  crores.  This
was the submission made on behalf of the respondents as  well.  A    Company
with such turnover cannot possibly carry on its business  without  operating
any bank accounts at all. The livelihood of 4000  workers  employed  by  the
company  is  involved.  We  are  not  concerned  with  whether  the  present
management will continue or not; we are also not concerned with whether  the
management is managing the affairs of the company well  or  mismanaging  the
company. These  are  matters  which  will  be  decided  in  the  appropriate
proceedings at the appropriate stage. It is however reiterated, at the  cost
of  repetition  that  there  was  no  specific  order  against  the  Company
restraining the Company from encashing cheques towards  Income  Tax  refund,
or from utilising the same.
 The order under appeal cannot, in our view,  be  sustained  to  the  extent
that the appellants have been restrained from operating their bank  accounts
without setting apart ten crores and odd. The two appeals and
the connected stay applications are disposed of.”

                                                         (Emphasis supplied)


As we have already clarified, the Division Bench,  in  the  impugned  order,
has not interfered with the Rule issued in  the  contempt  proceedings.  The
interference is only to the extent of direction to  secure  the  TDS  amount
Rs.10,55,60,331/-.
Though Shri Shyam Divan, learned Senior Counsel  invited  our  attention  to
the judgment of  this  Court  in  Sudhir  Vasudeva,  Chairman  and  Managing
Director, Oil and Natural Gas Corporation Limited and others  v.  M.  George
Ravishekaran and others[1], and contended that the courts  must  not  travel
beyond the four corners of the order which is alleged to have been  flouted,
in the background which we have explained above, we  find  it  difficult  to
appreciate the submission. This Court, in the judgment  referred  to  above,
in paragraph-19, has clarified that the directions  which  are  explicit  in
the judgment or “are plainly self-evident” can be  taken  into  account  for
the purpose of consideration as to whether there has been  any  disobedience
or wilful violation of the same. Prima  facie,  we  are  of  the  view  that
learned Single Judge has taken note only of the plainly  self-evident  facts
while issuing the Rule and order regarding securing the  amounts  which  the
respondents received by way of refund from  the  Income-Tax  Department  and
utilized.
It may be seen that the order dated  23.02.2011  regarding  the  deposit  in
court was passed to secure the entire compensation from the NHAI. The  court
was concerned about the money to be  received  from  the  NHAI  towards  the
compensation and appropriately protecting the same from being  used  by  the
company. Even the respondents herein had “... no objection  to  money  being
protected...”. The court had, in fact, declined  the  request  made  by  the
respondents ... “to receive the compensation and to keep the same  in  fixed
deposit subject to further orders of the  court”.  The  Official  Liquidator
was of the view that ... “the money should be deposited with the  Registrar,
Original Side”.
After considering the submissions of the learned Counsel appearing  for  the
parties, the  learned  Single  Judge,  formed  the  opinion  that  ...  “the
submission made on behalf of the Official Liquidator is also  in  conformity
with the submission made by Mr. S.N. Mitra, who has largest support  of  the
parties before me (the court)”. Hence, the  learned  Single  Judge  made  it
clear that “In that view of the matter, the National Highway  Authority  was
restrained from making  any  payment  on  account  of  compensation  to  the
company in liquidation except by way of  an  account  payee  cheque  to  the
Registrar, Original Side of the High Court”. Therefore, it is  fairly  clear
that the court had in mind the entire  compensation  paid  by  the  NHAI  in
respect of the land acquired by them. Since the NHAI  was  bound  to  deduct
TDS, an amount of Rs.10,55,60,331/- was paid to the  Income-Tax  Department.
There can be no doubt whatsoever that the said amount  formed  part  of  the
compensation. What the court in its order  dated  23.02.2011  was  requested
and the court intended too was to protect the  compensation  amount.  Merely
because it goes through the Income-Tax Department, the same does  not  cease
to be part of  compensation.  Even  the  respondents  herein  had  submitted
before the court at the time of passing the order dated 23.02.2011 that  the
compensation amount needed to be protected and they were willing to  protect
it subject to the order of the  court.  Therefore,  the  respondents,  while
handling of the compensation amount, had to  seek  orders  from  the  court;
going by the way they understood the proceedings.
In that background of the case, we are of  the  view  that  the  respondents
should not have appropriated the refund they received  from  the  Income-Tax
Department. There is nothing wrong in claiming the refund.  The  problem  is
in utilising the refund received. The refund they received is  actually  the
compensation in respect of the land acquired from  the  company  and  it  is
that  amount  which  the  court  wanted  to  protect  by  its  order   dated
23.02.2011. Hence, prima facie, we are of the view  that  the  appropriation
made by the respondents of the refund amount they received from the  Income-
Tax Department was in violation of the order dated 23.02.2011.  It  appears,
for that reason only, even the Division Bench declined to disturb  the  Rule
in  the  contempt  proceedings  issued  against  respondents.  However,  the
Division Bench is wholly wrong in  entering  a  finding  that  there  is  no
violation of the order dated 23.02.2011 in utilising the refund.  No  doubt,
had the refund and subsequent appropriation been of any  amount  other  than
the compensation, there would not have been any contempt at all.
Unfortunately,  the  Division  Bench,  in  the  impugned  order,  failed  to
recapitulate the background of  the  order  dated  23.02.2011  and  its  own
earlier orders with regard to the refusal for withdrawal by the  respondents
of the compensation deposited in court. Even if  there  be  pressing  needs,
there could not  have  been  any  utilisation  of  the  compensation  amount
without leave of the court. We find that the Division Bench has  taken  note
of the expenditure made by the respondents of the amount they  received.  To
quote the relevant background:
“We have also looked into the details of utilisation of the refund as  given
in the schedule being Annexure ‘L’ to the stay application filed before  us,
wherefrom  it  appears  that  Rs.1,19,18,723/-  was  paid   towards   arrear
electricity charges by three account payee cheques drawn on Axis Bank  Ltd.,
particulars   whereof   have   been   given   in   the   schedule.   Another
Rs.2,23,00,000/- has been kept in fixed deposit  as  lien  for  issuance  of
bank guarantee favouring CESC Ltd., against the security deposit to be  paid
to CESC Ltd., for continuation of supply of electricity.  This  payment  has
been made by cheque  dated  28th  June,  2014  and  also  by  transfer  from
Syndicate Bank on 28th June, 2014. A sum of  Rs.24,92,582/-  has  been  paid
towards arrear Central Sales Tax [Partial Payment];  Rs.34,56,910/-  towards
Employees State Insurance  contribution;  Rs.44,44,044/-  towards  Provident
Fund contribution; Rs.66,00,000/- towards arrear dues of  Jute  Corporation,
a government body and  Rs.4,68,85,198/-  towards  arrear  wages,  arrear  ex
gratia payment, arrear gratuity and other arrear dues of the workmen.”

It is also seen from the order that the Division Bench  had  taken  note  of
the paltry balance in the accounts of  the  company  as  on  27.06.2015.  To
quote:


“We directed the company to furnish us with details of its bank  operations.
It appears that the company has about twelve bank accounts in  operation  in
India and the combined balance in all these accounts taken  together  as  on
27th June, 2015 was Rs.13,96,188.79P. Our attention has been  drawn  by  Mr.
Mookherjee to the fact  that  there  are  three  other  bank  accounts  with
combined balance of not more than Rs.3,44,436/- which  have  not  been  used
for over seven years and the company also has a bank account  outside  India
that has a balance of 936  pounds  [less  than  Rs.1,00,000/-  in  value  in
Indian currency].”

It may be seen that the respondents have been managing the  affairs  of  the
company for a few  years  despite  the  futile  attempts  made  by  them  to
withdraw the compensation lying in deposit in court.
As  held  by  this  Court  in  Delhi  Development   Authority   v.   Skipper
Construction Co. (P) Ltd. and another[2], and  going  a  step  further,  the
Court  has  a  duty  to  issue  appropriate  directions  for  remedying   or
rectifying the things done in violation of the orders. In that  regard,  the
Court may even take restitutive measures at any stage of the proceedings.
In the background as above of the case, the Division Bench should  not  have
interfered with the order dated 26.06.2015  passed  by  the  learned  Single
Judge. However, taking note of the fact, an amount of  Rs.2,23,00,000/-  has
been kept in fixed deposit towards lien for issuance of bank  guarantee,  we
make it clear that the respondents shall not operate the  bank  accounts  of
the company after 03.04.2017 without securing an amount of  Rs.8,32,60,331/-
. We also make it clear that without leave of  the  High  Court,  the  fixed
deposit of Rs.2,23,00,000/- with the  Axis  Bank  shall  not  be  withdrawn.
However, it would be open  to  the  respondents  to  apply  for  appropriate
clarification or modification of the order dated  26.06.2015,  after  making
the deposit as above and it will be open to  the  learned  Single  Judge  to
pass the appropriate orders on merits of the application.
We make it clear that any observations made by us are only for  the  purpose
of this order and shall not have any bearing on  the  consideration  by  the
learned Single Judge in the contempt proceedings.
The appeals are allowed as above. There shall be no order as to costs.

                                                   .......................J.
                                                             (KURIAN JOSEPH)

                                                   .......................J.
       (R. BANUMATHI)
NEW DELHI;
MARCH 21, 2017.
-----------------------
[1]    (2014) 3 SCC 373
[2]    (1996) 4 SCC 622


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