In The High Court at Calcutta Original Jurisdiction Original Side The Hon'ble Justice Sabyasachi Bhattacharyya C.A. No.27 of 2024 In C.P. No.452 of 2013 In the matter of:

Laxmi Narayan Udyog Limited And Vijay Kumar and Another VS The Official Liquidator For the applicants : Mr. Sambuddha Dutta, Adv., Mr. Chandra Sekhar Banerjee, Adv., Mr. Shamit Dutta, Adv., Mr. Rahul Kumar Singh, Adv.

For the petitioning creditor : Mr. Pradip Sancheti, Adv., Mr. Anurag Bagaria, Adv., Mr. A. Podder, Adv.

For the O/L : Mr. Susanta Dutta, Adv.

Heard on : 22.08.2024, 05.10.2024, 31.01.2025, 14.02.2025 Judgment on : 28.02.2025 Sabyasachi Bhattacharyya, J:-

1. C.A. No.27 of 2014 has been filed by one Vijay Kumar and his wife Smt. Rajbala, for disclaimer of a property being Flat No.20 I on the 20^th Floor of Diamond City South, situated at Premises No.58, Mahatma Gandhi Road, Kolkata – 700 001 and an open terrace pertaining thereto. The genesis of the application is a registered sale deed dated September 30, 2021 by which the applicants claim to have purchased the disputed property from one Nivedita Chowdhury.

2. Learned counsel for the applicants submits that Nivedita Chowdhury had purchased the property from the original owner Rajat Merchandise Private Limited, where the developer Shree Rajat Enterprises was also a party.

3. It is contended that subsequently, when the applicants were sought to be ousted from the physical possession of the property, the applicants became aware of an order dated June 27, 2019 whereby the purchase deed of Nivedita, the vendor of the applicants, had been held to be invalid by an order passed by the Company Court in connection with a winding up petition bearing C.P. No.452 of 2013.

4. Learned counsel appearing for the applicants submits that the relevant facts attending the valid purchase of Nivedita from the original owner had been suppressed before the Company Court and relies on the principle of Actus Curiae Neminem Gravabit. Since the order declaring the said purchase deed of Nivedita invalid was vitiated by fraud and a patent error committed by the court, it is argued that the same ought to be held as null and void and the property be restored to its legal owner, the applicants.

5. In support of his contention, learned counsel relies on the judgment of South Eastern Coalfields Ltd. v. State of M.P. and others, reported at (2003) 8 SCC 648, where it was held that if one party gained an unlawful advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the erroneous order of the court, such mistake or error can be corrected to do real and substantial justice.

6. Learned counsel next cites Bhupinder Singh v. Unitech Limited reported at 2023 LiveLaw (SC) 263, where it was held that if true and correct facts had been pointed out to the court, the court might have passed a different order, in which case the court ought to restitute the parties to their original position by correcting such error.

7. Learned counsel next cites M.M. Thomas v. State of Kerala and another, reported at (2000) 1 SCC 666, where it was held that a High Court, being a „Court of Record‟ under Article 215 of the Constitution of India, envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memory and testimony and it is the duty of the High Court to keep its records correct.

8. It is submitted that M.M. Thomas‟s case was relied on and applied in a Single Bench judgment of this Court in Radha Bhattad v. Rashmi Cement Limited, reported at 2023 SCC OnLine Cal 2570.

9. Learned counsel for the applicants also places reliance on Bhaurao Dagdu Paralkar v. State of Maharashtra and others, reported at (2005) 7 SCC 605, and T. Vijendradas and another v. M. Subramanian and others, reported at (2007) 8 SCC 751, in support of the proposition that if a judgment or an order is obtained by fraud, the same is a nullity or non est in the eye law and has to be treated as