TMI Blog1974 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the same family, while the other three (holding only 12 shares) are friends to whom a few shares were allotted as a special favour. Vimaldeo Sharma, the respondent No. 2, holds 1,360 shares. He also commands the support of his wife, Shrimati Kusum Sharma (125 shares), and his mother, Shrimati Subhadra Ram Sharma (100 shares). Thus he is in a position to exercise control over the affairs of the company. He was the managing director of the company. The appellant, Dr. Baldeo Sharma, holds 25 shares. He was, under the articles of association of the company, permanent chairman of the board of directors. He is the first appellant before us. Appellant No. 2 , Vijai Pratap Gambhir, holds six shares in the company. The two appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had a fair trial. He has urged that the learned company judge was in error in refusing to accept his rejoinder-affidavit (which has been filed along with the application for adducing additional evidence in this special appeal). In the next place, his grievance is that his application for calling the deponents of the affidavits filed on behalf of the respondents for cross-examination was erroneously rejected. The petition under sections 397 and 398 of the Companies Act was transferred to this court by the Company Tribunal on 25th July, 1967. Issues were framed on 11th April, 1968. On 21st May, 1968, the learned company judge framed an additional issue. The petitioner was granted time till 1st February, 1968, to file his affidavit and evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich were concluded today, I find no necessity for cross-examining the deponents of the affidavits. Refused." The learned counsel for the appellants stated that because of the pendency of the application for calling the deponents of the affidavits for cross-examination, the rejoinder-affidavit could not be prepared in time but it was ready to be filed on 16th March, 1970, when the case was taken up for hearing. The learned company judge refused to take the rejoinder-affidavit on the record. This company petition was tried on affidavit evidence only. The respondents had taken sufficiently long time to file the counter-affidavit. The counter-affidavit was pretty bulky. The petitioner had been granted time to file the rejoinder-affidavit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence will be confined to affidavits only but that order does not indicate that the parties had either given up their right to cross-examine the deponents of the affidavits or that the court had made any direction in that behalf. It was an open question. If after studying the affidavits filed the party feels that in order to elucidate the true facts and the truthfulness of the deponents of the affidavits it was necessary to cross-examine them, the matter ought to have been considered by the court at that stage. The learned company judge was, in our opinion, in error in postponing the decision of this application to the date of the hearing of the arguments on the main petition. The learned company judge, in our opinion, was also in error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant has established that he has had no fair trial. In this context the case has to go back for recording the cross-examination of the deponents of the affidavits for taking the rejoinder-affidavit on record as evidence and thereafter trying it in accordance with law. During the pendency of the petition before the Company Tribunal, the appellant, Dr. Baldeo Sharma, had moved another application in May, 1967, for the removal of Hiranand Sharma as the Tribunal's director and for a declaration that Vimal Deo Sharma had ceased to be the managing director of the company. On 29th June, 1967, the Company Tribunal directed that a meeting of the board of directors should be held within a week to consider whether Dr. Baldeo Sharma should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 970, after the dismissal of the main company petition on 17th April, 1970. A Division Bench held that the order dated 27th October, 1967, was in the nature of an interim order and that it operated only during the pendency of the company petition. With the dismissal of the company petition the order automatically came to an end. It was also held that since the order under appeal stands vacated, it was unnecessary to discuss the merits of the order on the ground that the appeal had become infructuous. The learned counsel for the respondents invited our attention to the consequences that would arise on the remand of the case, namely, that the interim order dated 27th October, 1967, would revive with all its force. In our opinion, the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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