TMI Blog2021 (3) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee who arrived at conclusion that the wife of the respondent was having substantial interest in the company. In para 7 of the impugned order it is held by the disciplinary committee that Although, the Respondent wife's holding does not fall within the clear cut definition of substantial interest, yet looking into the supporting documents which shows that she has been authenticating the Financial Statements of the Company for the Financial Year 2009-2010, signing annual return, holding more than 20% shares in the Company seem to suggest that she had substantial interest in the Company. In para 8 the disciplinary committee has arrived at the conclusion that there is some possible collusion of the Respondent with the Director of the Company. He is being guilty by the disciplinary committee on the basis of material available on record. Further in para 11 of the impugned order shows that despite an application for withdrawal of the complaint which was received on 31.10.2014 the disciplinary committee has continued with the proceedings. This clearly goes to show that the impugned order has been passed merely on the basis of possibilities. In the present case the disciplinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court of M.P. Bench at Gwalior on the ground of territorial jurisdiction. It is alleged that the order impugned is being passed at New Delhi. The entire proceedings have taken place in the New Delhi, therefore, the petition should have been preferred at High Court Judicature at New Delhi. It is submitted that the petition is not maintainable owing to want of jurisdiction. The second objection is with respect to maintainability of the petition on the ground of alternative remedy. It is argued that the petitioner is having an alternative, efficacious remedy of filing an appeal against the order impugned under section 22G of the Chartered Accountant Act, 1949, which is headed by a Retired Judge of the High Court. Without availing the alternative, efficacious remedy available to him the petition has directly before this Court is not maintainable. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Kusum Ingots Alloys Lts. Vs. Union of India, (2004) 6 SCC 658 and also in the case of Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C., (2018) 3 SCC 85 . (3) Prior to going into merit of the case, this Court deems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. (4). Recently, the Hon'ble Supreme Court in the case of Shanti Devi alias Shanti Mishra Vs. Union of India and others, (2020) 10 SCC 766 had an occasion to consider the aspect of territorial jurisdiction and cause of action and has held as under: 17. Mulla on the Code of Civil Procedure while commenting on Section 20 of the Civil Procedure Code defined cause of action in following words:- The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court has quashed the order passed by the High Court dismissing the petition on the ground of territorial jurisdiction and has held that even a part of cause of action gave jurisdiction to Court to entertain the petition under Article 226 of the Constitution of India. In the present case the petitioner is resident of Gwalior. The petitioner and his Company is situated at Gwalior. Complainant is resident of Gwalior. All the work which was carried out for which complaint was made, was done at Gwalior. The complaint was made from Gwalior and part of cause of action has arisen at Gwalior. In such circumstances and following the judgments passed by the Hon'ble Supreme Court in the aforesaid cases, this Court is of the considered opinion that this Court is having territorial jurisdiction under Article 226 of the Constitution of India to entertain the issue. (7) Next objection raised with respect to alternative remedy is concerned, it is a settled preposition of law that alternative remedy is no bar to entertain a petition under Article 226 of the Constitution of India as has been held by the Hon'ble Supreme Court in the large number of judgments. The pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, unless there are good grounds therefor , which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh AIR 1958 SC 86 , as under : But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the Tribunal . (8) The Constitutional Bench in Mohinder Singh Gill Vs. Chief Election Commr., (1978) 1 SCC 405 held that natural justice is now a brooding omnipresence concept although varying in its play and that the exceptions to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. The rule of audi alteram partem is the justice of law, without of course making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. The Hon'ble Supreme Court held as under: 47. It is fair to hold that subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of the citizens and subjects of a state. The word is derived from the Latin civilise, a citizen... In law, it has various significations. Civil Rights' are such as belong to every citizen of the State or country, or, in a wider sense, to all its inhabitants, and are not connected with the organisation or administration of government. They include the rights of property, marriage protection by the laws, freedom of contract, trial by jury, etc.... Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a State or community. Rights capable of being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the thirteenth and fourteenth amendments to the Constitution, and by various act of Congress made in pursuance thereof. (p. 1487, Blacks Legal Dictionary) The petition can directly be entertained owing to certain limitations. The case of the petitioner is fallen under the parameters as being established by the Hon'ble Supreme Court. Thus, the petition directly before this Court is maintainable. (9) So far as merits of the case are concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being received on 31st October, 2014 from the complainant requesting for withdrawal of her complaint. The Committee is of the opinion that these are again points towards the indulgence of the Respondent in trying to extricate himself from the case through undesirable means. Moreover, mentioning of the civil suit and various complaints filed against the complainant does not absolve the misconduct on the part of the respondent. It was also observed that later-on complainant for the reason best known to him withdrew the complaint through the affidavit as mentioned above dated 3.7.2019 received from E-mail ID of Sanjeev Kumar Kansal (husband of complainant) but still kept on making request for the adjournments also subsequently, but the disciplinary committee has not permitted to withdraw the complaint and on his own has proceeded with the matter. Once the complainant itself was not cross-examined before the disciplinary committee and thereafter no opportunity to lead defence evidence was provided to the petitioner the order passed by the Authorities itself is bad in law. It is argued that the disciplinary committee on its own motion has drawn the conclusion against the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cross-examined by the complainant as is evident from the notes of hearing dated 15.5.2019. (12) After conclusion of the cross-examination time was sought which was also granted to the petitioner, but despite of opportunity being granted to him he has adopted the dilatory tactics of seeking adjournments on one ground or the other. Ample time was provided to him, but he has not chosen to conclude the arguments. In such circumstances the authority was not having any other option except to proceed in the matter and accordingly on the basis of material available on record the authorities have proceeded in the matter. It is further pointed out that the petitioner's wife has been shown as Chairman cum Managing Director and Mr. Amit Shrivastava as Director of the Company for Financial Year 2008-2009. The equity shares allotted to his wife are being shown as 33.33%, whereas the annual return signed by the petitioner himself that for the financial year 2008-09 showed his wife's shares as 38.33%. The supporting documents filed by the parties during the disciplinary proceedings clearly reflect that the wife of the petitioner has been authenticating the financial statements of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable on record which have been considered by the disciplinary committee who arrived at conclusion that the wife of the respondent was having substantial interest in the company. In para 7 of the impugned order it is held by the disciplinary committee that Although, the Respondent wife's holding does not fall within the clear cut definition of substantial interest, yet looking into the supporting documents which shows that she has been authenticating the Financial Statements of the Company for the Financial Year 2009-2010, signing annual return, holding more than 20% shares in the Company seem to suggest that she had substantial interest in the Company. In para 8 the disciplinary committee has arrived at the conclusion that there is some possible collusion of the Respondent with the Director of the Company. He is being guilty by the disciplinary committee on the basis of material available on record. Further in para 11 of the impugned order shows that despite an application for withdrawal of the complaint which was received on 31.10.2014 the disciplinary committee has continued with the proceedings. This clearly goes to show that the impugned order has been passed merely o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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