TMI Blog2013 (4) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Company Petition under Sections 397/398 of the Act 1956, was non- existence in the eyes of law while placing reliance on the earlier judgments of the Division Bench of the High Court dated 16.11.1993 and 18.11.1993. Thus, the appeals are allowed - The impugned judgment and order of the High Court dated 24.11.2003 is hereby set aside - The matters are remanded to be decided by the High Court of Calcutta afresh giving strict adherence to judgment of this Court dated 26.4.1996 - While deciding the case afresh, the Division Bench shall not take note of the earlier judgments of the High Court dated 16.11.1993 and 18.11.1993. As the matters are pending since long, in the facts and circumstances of the case - We request the Hon’ble High Court to decide the appeals expeditiously preferably within a period of six month from the date of filing of certified copy of this judgment and order before the High Court. - Civil Appeal Nos. 361-362 of 2005 - - - Dated:- 4-4-2013 - Dr. B. S. Chauhan And Fakkir Mohamed Ibrahim Kalifulla,JJ. JUDGMENT 1. These appeals have been preferred against the judgment and final order dated 24.11.2003 passed by the High Court of Calcutta in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of the said appeals, and for the transposition of the Chatterjee brothers as proforma respondents, whilst substituting the appellant as the sole appellant therein. The Division Bench, vide order dated 2.2.1995 dismissed the said application by a detailed judgment, labelling the appellant as a stranger having no locus standi whatsoever, and observing that as the appeal was no longer pending, the question of transposition of parties did not arise. Moreover, it was observed that there had been an inordinate delay in the filing of such an application. G. Aggrieved, the appellant preferred S.L.P.(C) Nos. 19193 and 19217 of 1995 before this court, challenging the order dated 2.2.1995. This Court entertained the said petitions, granted leave, and disposed of the appeals vide judgment and order dated 26.4.1996, observing that the appellant may prefer independent appeals, challenging the judgment and order dated 13/14.1.1992, passed by the learned Single Judge, further stating that if such an appeal was infact filed, the same would not be dismissed by the Division Bench on grounds of limitation or locus standi. However, it would be open for Respondent No.2 to contend, that the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had withdrawn both their appeals, as well as Company Petition No. 222 of 1991. Therefore, it was not permissible for the appellant to move applications for impleadment and transposition. It is evident that such applications cannot be entertained where the Company Petition itself is not pending. Furthermore, the learned Single Judge had rightly held, that the present appellant and Shri R.L. Gaggar, the consenting parties, were neither eligible nor competent to give such consent, as they did not possess valid shares. Moreover, one of them had given consent through the Power of Attorney holder, which is not in accordance with law. This Court, vide its order dated 26.4.1996 did not set aside the judgment and order of the High Court dated 16.11.1993. Thus, the same has rightly been relied upon by the High Court in its impugned judgment. The appeals are devoid of any merit, and are hence, liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the records. 6. The right to apply for the winding up of a company is available, provided that the applicant satisfies the requisite requirements under Sections 397, 398 and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others under Sections 397 and 398 of the Companies Act. During the pendency of the petition, the four other persons who had joined the applicant in filing the petition sold their shares thereby ceasing to be shareholders of the company. It was held that the application could not be rejected as not maintainable on the ground that the four shareholders ceased to be shareholders of the company. The requirement about qualification shares is relevant only at the time of institution of proceeding. In Jawahar Singh Bikram Singh v. Sharda Talwar (1974) 44 Company Cases 552, a Division Bench of the Delhi High Court held that for the purposes of petition under Sections 397/398 it was only necessary that members who were already constructively before the Court should continue to proceedings. It is a case in which the petitioner who had filed a petition died during the pendency of the petition. While filing the petition he had obtained consent of requisite number of shareholders of the company, among them his wife was also there. The Court further observed that since wife of the petitioner was already constructively a petitioner in the original proceedings, by virtue of her having given a cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appeal was withdrawn by Shri Ajit Kumar Chatterjee, vide order dated 16.11.1993. 13. The said application was also opposed by another appellant, namely, Shri Arghya Kusum Chatterjee. However, the court passed the following order: In the instant case, as the applicant No. 1 goes out of the picture and the appeals in so far as the appellant No.1 stand dismissed for non-prosecution, the Company Petition is not maintainable and the appeals are also not maintainable in the same ground in view of the fact that with regard to two other appeals, one on the question of maintainability of the appeal and the other on the question of merit of the appeal. If the maintainability of the appeal could not be proceeded within that event the other appeal also could not be proceeded with. Accordingly, when one of the parties in appeals does not want to proceed with the appeals the Court has no jurisdiction to compel that party to continue with the appeals against his will. Further, if that party is allowed to withdraw from the appeals and if it is evident that the petition itself could not be maintainable in the absence of that party in that event the entire petition and/or the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable from those in Rajahmundry s case, as in the latter, the consenting party had withdrawn its consent, while here, the constructive consenting party has withdrawn its case. 17. The appellant being aggrieved, preferred appeals before this Court, which were disposed of vide judgment and order dated 26.4.1996, giving liberty to the appellant to file an independent appeal against the order of the Company Court Judge dated 13/14.1.1992. Further, it was also open to the respondents to contend that the company petition itself was not maintainable for the reason given by the Company Court Judge, i.e. not having the requisite 10% share holding. The said order dated 26.4.1996, was passed at the behest of the respondents, with their consent, stating that they would not raise the issues of limitation, or of the locus standi of the appellant. 18. In view of the above, the appellant preferred the appeals which were dismissed vide impugned judgment and order dated 24.11.2003, relying upon an observation made by the Division Bench earlier, to the effect that, in view of the fact that the Chatterjee brothers had withdrawn their appeals, and that the Company Petition had been declared as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n since withdrawal of the Chatterjee brothers, can there be any existence of any appeal arising out of the said Company Petition and in our considered view the only answer to this crucial question must be in the negative. II. According to the observation of the learned Single Judge the Company Petition was invalid and ineffective at the time of its institution, because, one of the Chatterjee brothers was not a "member" within the meaning of the Companies Act and at the same time one of the consenting parties namely, R.L. Gaggar had withdrawn his consent soon after filing of the original application and on both these counts, even if the Chatterjee brothers had not withdrawn, the Company Petition could not be accepted as a valid petition in the eye of law and we have already recorded that these findings of the learned Single Judge were upheld by the Division Bench while disposing of the petitions filed by the BDPL and even taking the risk of repetition it can be stated that the Hon'bIe Supreme Court did not interfere with the findings of the Division Bench in this regard while recording its order dated 26th April, 1996. III. We are of the view that the order of the previous Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the appeals and further, dismissing the application of the appellant for recalling the said orders. If this Court did not set aside the said orders, we fail to understand the purpose of asking the appellant to file an appeal against the judgment and order of this Court dated 2.2.1995. Thus, by the impugned order, the High Court has rendered the entire exercise undertaken by this Court, a futile one. In our humble opinion, the Division Bench has hence, erred gravely. 23. We do not find any force in the submissions made by Shri Desai, to the effect that in view of Rule 88(2) of the Rules 1959, the CPC had no application to the facts of the instant case. Rule 88(2) reads, that a petition under Sections 397 and/or 398 of the Act 1956, shall not be withdrawn without the leave of the court, and therefore, as per Shri Desai, the provisions of the CPC, as have been applied in the case on which Shri Gupta has relied upon, have no application in the instant case. Rule 6 reads as under: Save as provided by the Act or by these rules the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue with respect to the fact that as the Supreme Court had not set aside the orders dated 16.11.1993 and 18.11.1993, passed by the division bench of the Calcutta High Court, the same remained intact. Such an argument could not have been advanced by respondent no.1 before the division bench, in view of the legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man . This Court dealt with the said maxim in Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084, and explained its scope, observing: .where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. The order of this Court dated 26.4.1996, if given strict literal interpretation, would render the appellant remediless, which is not permissible in law. (Vide: Rameshwarlal v. Municipal Council, Tonk Ors., (1996) 6 SCC 100). 30. In view of the above, we are of considered opinion that the Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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