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2015 (11) TMI 133 - SUPREME COURT OF INDIA

2015 (11) TMI 133 - SUPREME COURT OF INDIA - TMI - Demerger - allegation of oppression and mis-management - substitution of existing Board of Directors - Held that:- In our view, there did not exist any searing urgency to substitute the existing Board of Directors as done and to continue with it till the disposal of the suit and at the same time to keep the proceeding of the CLB pending till then. This is more so, as can be culled from the order dated 6.8.2014 of the CLB, the status of the respo .....

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observation is called for. Suffice it to state however, that the aspect of demerger for the present cannot ipso facto be an impelling factor to conclude in favour of allegation of oppression and mis-management as made by the respondent No. 1.

As in the course of hearing, some grievance was expressed on behalf of respondent No. 1 that her status as the Executive Director of the company, stands undermined due to uncalled for surveillance imposed at the instance of the existing Board of .....

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affairs of the company in her said capacity. The existing Board of Directors would also abide by the undertaking as recorded in the order dated 6.8.2014 of the CLB qua the alienation of the assets of the company. The set-up of the Board of Directors and the arrangement vis-a- vis the administration of the affairs of the company, as was existing on the date on which the order dated 6.8.2014 was passed by the CLB, would continue until further orders by it. The CLB is, however, directed to dispose .....

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GOPALA GOWDA AND AMITAVA ROY, JJ. JUDGMENT Amitava Roy, J. Leave granted. 2. The steeled stand off encased in the decision impugned, projects the members of a family, daughters against their mother in particular, in a combative formation in their bid to wrest the reins of a company, Biological E. Limited (for short, hereinafter to be referred to as "the company") engaged in the business of pharmaceutical products and vaccines. The differences that had surfaced soon after the demise of .....

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t Nos. 1, 2 and 3 herein, under Section 10F of the Companies Act, 1956 (for short hereinafter to be referred to as "the Act") assailing the order dated 6.8.2014 passed by the Company Law Board, Chennai Bench (for short, hereinafter to be referred to as "CLB") in Company Petition No. 36 of 2014 filed by them. 3. While entertaining the instant appeals, this Court by order dated 12.5.2015, having regard to the considerations referred to therein and as accepted by the learned cou .....

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l arising out of S.L.P. (C) No. 12831 of 2015 (who are also respondent Nos. 4 & 5 in SLP (C) No. 12835 of 2015 and 5 & 6 in SLP (C) No. 20338 of 2015), Mr. Shyam Divan, learned senior counsel for the appellant in Civil Appeal arising out of S.L.P. (C) No. 12835 of 2015 (who is also respondent No. 5 and 4 in SLP (C) No. 12831 of 2015 and SLP (C) No. 20338 of 2015 respectively), Mr. P.P. Rao, learned senior counsel for the appellant in Civil Appeal arising out of S.L.P. (C) No. 20338 of 20 .....

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would outline the contours of the respective assertions. 7. The company, which was initially promoted by the father of respondent No. 1, with time took in its fold, Mr. Venkata Krishnam Raju Datla, the father of Dr. Vijay Kumar Datla (since deceased and husband of respondent No.1). After the demise of the father of respondent No. 1, Dr. Vijay Kumar Datla, who was inducted as the Chairman and Managing Director of the company on 1.5.1972 stewarded, nurtured and nourished it from strength to streng .....

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ndividual capacity, then did hold 81% of the shares thereof. 8. As the facts evince, Mr. G.V. Rao (respondent No. 6) offered his resignation as a director vide his letter dated 6.4.2013 with immediate effect. It has been pleaded, however, on behalf of the appellant that Mr. G.V. Rao (respondent No. 6), on being requested by the family not to abandon the company at its hour of crisis, its guardian and mentor Dr. Vijay Kumar Datla having departed, did reconsider his decision and addressed another .....

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(respondent no. 5) and Ms. Mahima Datla (appellant). The respondent No. 1 did not attend the meeting and as the minutes of the proceedings would record, leave of absence was granted to her. In the same meeting, Mrs. Indira Pusapati (respondent No. 5) was inducted as the Director of the company to fill up the casual vacancy caused by the death of Dr. Vijay Kumar Datla. Mr. G.V Rao (respondent No. 6), was authorised, inter alia, to verify all acts and deeds as would be necessary, expedient and des .....

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he meeting took note of a will dated 14.2.2005, said to be executed by Dr. Vijay Kumar Datla in favour of Ms. Mahima Datla (appellant) and resolved to transmit the equity shares held by him and as referred to in the aforesaid will, in favour of Ms. Mahima Datla (appellant). In the same meeting, it was further resolved to appoint Ms. Mahima Datla (appellant) and Ms. Purnima Manthena (respondent No. 4) as the Additional Directors of the company, to hold the said office up to the conclusion of next .....

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e Chairman to advise respondent No. 1 to officially communicate the appointment of Ms. Mahima Datla (appellant) as Managing Director of the company. 12. Though the pleaded assertion of respondent No. 1 is that she was neither noticed nor informed of the meetings held on 9.4.2013, 10.4.2013 and 11.4.2013 and that the proceedings thereof were a nullity, as the meeting dated 9.4.2013 could not have been validly convened by Mr. G.V. Rao (respondent No. 6), who had, prior thereto, resigned from the c .....

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ima Datla (appellant) as the Managing Director, thereby seeking the "blessings and guidance" of all concerned for enabling her to discharge her new responsibility. Respondent No. 1, however, at a later point of time, did allege exertion of pressure and undue influence by the other Directors to which she wilted, being in an anguished and forsaken state of mind, still mourning the sudden demise of her husband, Dr. Vijay Kumar Datla. 13. While the matter rested at that, the respondent No. .....

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. Incidentally on the same day i.e. 24.5.2013, a meeting of the Board of Directors was convened in which, as respondent No. 1 was absent, leave of absence was granted to her. In the said meeting, amongst other, taking note of the Memorandum Of Understanding referred to in the aforementioned letter dated 24.5.2013 signed by the respondent No. 1 and Mrs. Purnima Manthena (respondent No. 4), Mrs. Indira Pusapati (respondent No. 5) and Ms. Mahima Datla (appellant), 4594 equity shares held by Dr. Vij .....

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6. On the receipt of notice of the Annual General Meeting of the company, which was scheduled to be held on 28.11.2013, respondent No. 1 filed an application under Section 409 of the Act before the CLB, which was registered as Company Petition No. 1 of 2013, seeking principally a declaration that the appointments of her three daughters namely; Ms. Purnima Manthena (respondent No. 4), Mrs. Indira Pusapati (respondent No. 5) and Ms. Mahima Datla (appellant) as Directors of the company by virtue of .....

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ngs be adjudged to be void and not binding on the company. Apart from seeking a permanent injunction restraining her three daughters namely; Ms. Purnima Manthena (respondent No. 4), Ms. Indira Pusapati (respondent No. 5), Ms. Mahima Datla (appellant) and Mr. G.V. Rao (respondent No. 6) from functioning as Directors of the company, by way of interim relief, she prayed for a restraint on the ensuing Annual General Meeting fixed on 28.11.2013 and to appoint two ad hoc Directors for administering th .....

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e received the letter of withdrawal of resignation of Mr. G.V. Rao- respondent No. 6, she had not responded thereto either accepting or rejecting the same. On an appraisal of the pleaded facts and the documents on record, the CLB returned a finding that there was neither any change in the Board of Directors nor in the management of the company nor there was any likelihood of change in the ownership of the company nor any likelihood of the new management taking over the company nor any change in .....

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not substantiated by any documentary evidence. Having recorded that the respondent No. 1 was continuing as the Executive Director of the company and that Mahima Datla (appellant herein) being associated with its affairs was well acquainted therewith and that in the proposed Annual General Meeting to be held on 18.12.2013 (which got deferred to this date from 28.11.2013), the company was going to transact the business, as notified, which did not disclose any proposed change in the management or .....

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pany Petition No.1 of 2013. 18. Though the respondent No.1, being aggrieved by this order, did prefer an appeal under Section 10F of the Act being Company Appeal No. 1 of 2014, she participated in the Annual General Meeting held on 18.12.2013 in which, resolutions on the appointment of the appellants as Directors/Managing Director and amongst others, the enhanced remuneration of respondent No. 1 were adopted. Eventually on 24.2.2014, the appeal stood disposed of as infructuous on the concurrence .....

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strength of a will claimed to have been executed in her favour by Dr. Vijay Kumar Datla (since deceased) and a direction to the defendants therein to transfer the same by recording her name in relation thereto and to hand over the possession of the share certificates to her. Her alternative prayer, without prejudice to this relief, was for delineating her extent of claim to the shares in the capacity of a working spouse/widow of late Dr. Vijay Kumar Datla. 20. As the flow of the developments the .....

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7,398,402,403,404,406 of the Act, 1956 and Sections 58 and 59 of the Companies Act, 2013. As the pleaded assertions made therein would attest, those were in substantial reiteration of the facts narrated hereinabove, with the added imputation that the respondents therein were contemplating to transfer and consign the undertakings of the company to other companies incorporated and managed by the appellant herein and other Directors so as to enable them, to dispose of the said assets through their .....

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n alleging over all mis-management and oppression by the Directors therein in particular, consciously driving the company and its shareholders to a state of ruination chiefly through the process of demerger. The respondent No.1 prayed for a declaration of the acts of the said Directors to be oppressive and prejudicial to the interest of the company and to appoint an administrator and/or Special Officer to manage the affairs thereof by superseding the existing Board of Directors. In the alternati .....

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Kumar Datla (since deceased) to the appellant (Ms. Mahima Datla) as illegal, null and void. A declaration to adjudge the resolutions passed in the Board meetings held on or after 20.03.2013 and also the Annual General Meeting held on 18.12.2013 as non est was also sought for. By way of interim relief, she prayed for supersession of the Board of Directors and appointment of interim administrator and/or Special Officer to assume the charge of the affairs of the company and in the alternative, pray .....

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eme of demerger was scheduled to be held on 7.8.2014, as directed by the High Court, construed it to be inexpedient to intervene in that regard. It observed as well, that meanwhile a suit had been filed by the respondent No.1 on the basis of a will said to have been executed in her favour and that the same was pending adjudication and concluded that it would not be appropriate to restrain the appellant (Ms. Mahima Datla) from exercising her voting right in respect of 400961 equity shares. Notice .....

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from the post of Executive Director, it was submitted on behalf of the respondents therein that no step would be taken to dislodge her without the leave of the CLB. Taking note of these submissions/undertakings, the CLB ruled that the respondent No. 1 had not been able to make out any case for grant of interim relief "at the time of mentioning of the Company Petition" and permitted the respondents therein to file their counter within a period of six weeks and fixed 9.10.2014 to be the .....

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following reliefs. "1. An ad hoc Board of Directors constituted with appellant No. 1 as the Executive Director and respondent Nos. 2 to 4 as the Directors of respondent No. 1-company. Appellant No. 1 shall discharge the functions of the Managing Director of the company. 2. The ad hoc Board is responsible for the day-to- day functioning of the company and shall carry out the statutory obligations under the Act. 3. All the decisions shall be taken by the Board based on unanimity and consensus .....

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l its members and without the prior approval of the Company Law Board. 6. The ad hoc Board shall continue to function till O.S. No. 184 of 2014 is disposed of and appropriate orders in C.P. No. 36 of 2014 are passed thereafter. 7. The Company Law Board shall keep C.P. No. 36 of 2014 pending till O.S. No. 184 of 2014 is finally disposed of." 25. The appeal was allowed and the accompanying applications were disposed of as infructuous. In arriving at its penultimate conclusions, leading to the .....

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ts of the establishment through a process of demerger. 26. En route to the final deductions, the High Court did dwell upon the validity of the Board meetings held on 9.4.2013, 10.4.2013 and 11.4.2013 in particular and also of the Annual General Meeting conducted on 18.12.2013, the claim made by the respondent No. 1 in her suit based on a will claimed to be executed in her favour by Dr. Vijay Kumar Datla (since deceased), the letter dated 15.4.2013 written by the respondent No. 1 as well as the a .....

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to be appropriate to proceed on the premise that the appellant, her sisters and the respondent No. 1 had more or less equal shares. In the backdrop of this determination, the High Court, being of the view, that it would be preferable to make an interim arrangement to conduct the administration of the company, without the induction of an outsider as an administrator/receiver, issued the above-mentioned directions to ensure the same. 27. As would be evident from the steps enumerated in the impugne .....

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t was ordered that the CLB would keep the Company Petition No. 36 of 2014 pending till the suit was finally disposed of. 28. To put it differently, by the impugned verdict, the existing Board of Directors was substituted by an ad hoc body adverted to hereinabove and the respondent No. 1 was entrusted with the charge of office of the Managing Director of the company. Further the arrangement, as directed, was to continue till the disposal of the suit. The restraint on the CLB from proceeding with .....

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f by the statutorily prescribed forum of original jurisdiction i.e. the CLB in an appeal under Section 10F of the Act and the decisive bearing thereof, is the focal point of impeachment in the instant proceedings. 30. Learned senior counsel for the appellants in all the appeals have, at the threshold, urged that as the order dated 6.8.2014 of the CLB did not generate any question of law, as enjoined by Section 10F of the Act, the High Court ought to have summarily dismissed the appeal. According .....

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tor of the respondent No. 1, there was no finding based on any adjudication and thus no question of law did emanate to permit an appeal therefrom under Section 10F of the Act. 31. Without prejudice to these demur, the learned senior counsel for the appellants emphatically argued that not only in the attendant facts and circumstances, Mr. G.V. Rao did lawfully continue as the Director of the company, he having withdrawn his resignation prior to the date of the meeting on 9.4.2013, they urged as w .....

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ned that her complaint qua this letter, after a lapse of one year, being an after thought, was thus of no relevance or significance. According to the learned senior counsel, even assuming without admitting that the meetings of the Board of Directors held on 9.4.2013, 10.4.2013 and 11.4.2013 and thereafter were invalid as imputed by respondent No. 1, the same got sanctified in the Annual General Meeting held on 18.12.2013, in which she participated without any cavil. The learned senior counsel ur .....

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the same in Company Petition No. 1 of 2014, in which the CLB declined to grant injunction to the conduct of the annual General Meeting which was to be held on 18.12.2013, the High Court ought not to have on an extensive evaluation of the same facts afresh, overhauled the set-up of the company in the manner done at the preliminary stage and that too in absence of any tangible and legally cognizable evidence of oppression and/or mis-management of the affairs thereof. They argued as well, that as t .....

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tors and replacing it by an ad hoc body with the respondent No. 1 as the Managing Director. They urged that the interim arrangement modelled by the High Court making it co- terminus with the suit tantamounts to grant of reliefs claimed in the Company Petition No. 36 of 2014 finally, pending disposal of the proceeding before the Board and on this count alone, the impugned decision is liable to be interfered with. 32. To endorse the above pleas, the following decisions were pressed into service: 1 .....

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m Begam and another AIR 1917 Cal 546 7. Gokaraju Rangaraju v. State of A.P. (1981) 3SCC 132 8. State of Punjab and others v. Krishan Niwas (1997) 9 SCC 31. 9. A.R. Antulay v. R.S. Nayak & Another (1988) Suppl. 1 SCR1 33. In emphatic repudiation, the learned senior counsel for Mrs. Renuka Datla (respondent No. 1) assiduously insisted in favour of the maintainability of the appeal before the High Court under Section 10F of the Act. They urged, that the denial of interim relief by the CLB in th .....

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, they urged that not only the respondent No. 1 was unaware thereof, but also there was no such pressing urgency to rush through such steps for her exclusion and that too while she was in the state of mourning, having lost her husband. They repudiated as well, the validity of the said meetings for want of quorum and due notice and assailed also the Annual General Meeting to be a nullity as the same could not have been convened by or on behalf of the Board of Directors which was non est in law fo .....

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to deprive the respondent No. 1 of her legitimate dues. They assertively pleaded that the letter dated 15.4.2013 of the respondent No. 1, purportedly accepting the induction of her daughters in the Board of Directors, was not issued on her volition, and thus was wholly inconsequential. As the progression of events from 9.4.2013 did irrefutably demonstrate, the endeavours of the appellant and the other Directors of the Board to cast aside the respondent No. 1 and assume the absolute charge of th .....

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he learned senior counsel, the contemplation of the demerger of the company did signal imminent cleavage of its vital assets to reduce it to a carcass for the unlawful gain of a selected few though unauthorisedly at the helm of affairs, warranting the substitution of Board of Directors by the ad hoc body as effected by the impugned order. The following decisions were cited in buttressal: 1. Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Another (2010) 4SCC 772, 2. Waman .....

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ceeding before the High Court under the Act, and thus could not have been taken note of qua the allegation of oppression and mis- management, there being neither any prayer for cancellation of the appointment of Mr. G.V. Rao nor any necessity for the replacement of the Board of Directors, the impugned judgment warrants interference, pending disposal of the proceeding before the CLB on merits. The learned senior counsel for the respondent No. 1 has not controverted the pendeny of the demerger pro .....

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w of the nascent stage of the proceedings before the CLB, at which the appeal had been carried to the High Court. Admittedly, the appeal preferred by the respondent No. 1 under Section 10F of the Act has been against an order dated 6.8.2014 of the CLB, declining to grant the interim relief in entirety while securing the office of the respondent No. 1 as the Executive Director of the company and noting the pendency of the demerger proceeding as well as the undertaking on behalf of the contesting .....

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the CLB had not filed their pleadings. 36. In the above prefatory, yet presiding backdrop and having regard to the decisive bearing of a finding on the maintainability or otherwise of the appeal before the High Court or the permissibility of the ambit of scrutiny undertaken by it, expedient it would be to assay at the threshold, these cardinal aspects in the proper legal perspective. 37. Section 10F of the Act, which provides for appeal against the order of the Company Law Board, for ready refe .....

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llant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." 38. As the quoted provision would reveal, a person aggrieved by a decision or order of the CLB, may file an appeal before the High Court within 60 days from the date of communication of the decision or order to him on any question of law arising out of such order. The period of limitation prescribed, however, is extendable by the High .....

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would be of formidable significance. The precedential guidelines available offer the direction. 40. In Scindia Steam Navigation Co. Ltd. (supra), a Constitution Bench of this Court while dilating on the contingencies on which a question of law would arise out of an order of the Appellate Tribunal, as envisaged in Section 66(1) of the Income Tax Act, 1922 had ruled that when a question of law is neither raised nor considered by it, it would not be a question arising out of its order notwithstandi .....

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urt could not have disturbed the findings arrived at by the Company Law Board and record its own findings on certain issues which it could not go into, this Court held that if a finding of fact is perverse and is based on no evidence, it can be set-aside in an appeal even though the appeal is permissible only on the question of law. It was clarified that, perversity of a finding itself, becomes a question of law. Reverting to the facts of that case, this Court observed that the CLB had rendered .....

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appeal under Section 10F "on a question of law", the jurisdiction of the appellate court is restricted to the question as to whether on the facts as noticed by the Company Law Board and as placed before it, its conclusion was against law or was founded on a consideration of irrelevant material or was as a result of omission to consider the relevant material. 43. Adverting to the right of appeal, as a creature of statute, as provided by Section 35 of the Foreign Exchange Management Act, .....

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that while conferring such a right of appeal, a statute may impose restriction or condition in law, limiting the area of appeal, to question of law or sometime to a substantial question of law and ruled that whenever such limitations are imposed, those are to be strictly adhered to. 44. This Court in Wander Ltd. (supra), while dealing with appeals against orders granting or refusing a prayer for interlocutory injunction, did reiterate that the same, being in exercise of judicial discretion, the .....

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ch a conclusion different from the one reached by the court below, if it was reasonably possible on the materials available. It was held as well, that the appellate Court in such a situation would normally not be justified in interfering with the exercise of discretion of the Court below, if made reasonably and in a judicial manner, solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. It was proclaimed that an interlocutory re .....

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ory remedy which is both temporary and discretionary. Referring to the fundamental object of interlocutory injunction, this Court noted with approval that the need for such protection of the plaintiff against injury by violation of his rights must be weighed against the corresponding need of the defendant to be protected against any injury resulting from the restraint on the exercise of his rights, as sought for, which he could not be adequately compensated. The need of one, thus was required to .....

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ed. A question of law, as is comprehended in Section 10F of the Act, would arise indubitably, if a decision which is the foundation thereof, suffers from perversity, following a patent error on a fundamental principle of law or disregard to relevant materials or cognizance of irrelevant or non-germane determinants. A decision however, on the issues raised, is a sine qua non for a question of law to exist. A decision logically per-supposes an adjudication on the facets of the controversy involved .....

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ith that of the lower forum, ought to confine its judicial audit within the layout of the adjudgment undertaken by the forum of lower tier. This is imperative, more particularly in the exercise of the appellate jurisdiction qua a decision on discretion rendered at an introductory stage of any proceeding, otherwise awaiting final adjudication on merits following a full contest. It is settled that no adjudication at the preliminary stage of a proceeding in a court of law ought to have the attribut .....

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of the existence of a question of law arising from the decision of the CLB as an essential pre-condition for the maintainability of an appeal thereunder. While the language applied therein evinces that all orders, whether final or interlocutory, can be the subject-matter of appeal, if it occasions a question of law, in our comprehension, the Section per se defines the perimeters of inquisition by the appellate forum conditioned by the type of the order under scrutiny. The nature and purport of .....

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may not necessarily regulate and/or restrict the domain of examination in a regular appeal on facts and law. Section 10F, thus, statutorily demarcates the contours of the jurisdictional exercise by an appellate forum depending on the nature of the order impugned i.e. interlocutory or final and both cannot be equated, lest the pending proceeding before the lower forum, if the order impugned is purely of interlocutory nature, and does not decide any issue on a consideration of the rival assertions .....

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according to her, when the meeting of the Board of Directors, invalid in law, was convened and conducted by Mr. G.V. Rao , who allegedly had no authority to do so, he having resigned from the company. She had asserted her express and implicit reservation in this regard and her disapproval not only of the constitution of the Board of Directors since then but also of the decisions taken from time to time. Without recapitulating the stream of developments that had occurred, suffice it to mention, t .....

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endorsed the validity of the meetings on or from 9.4.2013 contending that respondent No. 1 though intimated thereof, had opted out therefrom and on the basis of the record, have sought to demonstrate her participation in the meetings, amongst others on 24.5.2013, 22.8.2013 and the Annual General Meeting held on 18.12.2013 as permitted by the CLB, they have also emphatically adverted to the letter dated 15.4.2013 addressed by the respondent No. 1 seemingly acknowledging the lawful induction of t .....

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as well as of the pendency of the demerger proceeding before the High Court. 48. In the above overwhelming factual premise, the High Court, as the impugned decision would demonstrate, being fully conscious that the proceeding before the CLB was pending for final adjudication, proceeded to undertake an in-depth exercise to fathom and analyse the facts and the law involved and has recorded its decision on merits in total substitution of the order of the CLB. This to reiterate, is in absence of any .....

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ng in mind the permissible parameters of exercise of appellate jurisdiction in such matters, the elaborate pursuit so undertaken by it, is neither contemplated nor permissible. The High Court, in any view of the matter, was not dealing with a regular appeal under Section 10F of the Act on a question of law from a decision rendered by the CLB on merits, after a complete adjudication. The appeal before it, being one on principle and from an order rendered by the CLB in the exercise of its discreti .....

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gal aspects ought to have been undertaken by the High Court to record its conclusive deductions on the basis thereof. Keeping in view the stage wise delineation of the jurisdictional frontiers of the forums in the institutional hierarchy as codified by law, the High Court's quest to unravel the entire gamut of law and facts involved at the preliminary stage of the proceeding before the CLB and to record its findings on all issues involved on merits did amount to prejudging those, thereby ren .....

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none for the CLB to decide. This is not the role of the appellate forum as is contemplated under Section 10F of the Act qua the stage from which the appeal had been preferred from the order of the CLB. 51. Noticeably in the face of the undertaking given by the appellants and the pendency of the demerger proceeding separately before the High Court, in our view, there did not exist any searing urgency to substitute the existing Board of Directors as done and to continue with it till the disposal .....

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good as binding directions on the parties. The aspect of demerger as adverted to hereinabove, is the subject matter of adjudication in a separate proceeding on which, at this stage, no observation is called for. Suffice it to state however, that the aspect of demerger for the present cannot ipso facto be an impelling factor to conclude in favour of allegation of oppression and mis-management as made by the respondent No. 1. 52. In the wake up of above, we feel persuaded to interfere with the imp .....

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ny, stands undermined due to uncalled for surveillance imposed at the instance of the existing Board of Directors, we make it clear, as has been assured before us, that she ought to be allowed to function in the aforesaid capacity being provided with all facilities and privileges attached to the office as permissible in law, so much so that she does not have any occasion to complain in this regard. This indeed ought to be in accord with the letter and spirit of the undertaking offered by the Boa .....

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