9911796707
TMI Blog1983 (5) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... 146.37 lakhs. As such limit or extent of the credit facilities was considered by the company to be inadequate for its purpose, it approached the bank to enhance and/or modify the overall limit of the credit facilities. After some discussions that took place between the bank and the representatives of the company, the bank by its letter dated July 6, 1979, required the company to appoint a firm of technical consultants to study the viability of the unit of the company and a firm of chartered accountants for the internal audit of the company. Such appointments were to be made by the company after the approval of the bank. As required, the company, with the approval of the bank, appointed S. R. Batliboi and Co., a firm of chartered accountants, both for the purpose of studying the viability of the unit of the company and for internal audit. S. R. Batliboi and Co. by its letter dated July 23, 1980, informed the company that the study would "cover various aspects of the company's working together with our suggestions for remedial measures as may be considered necessary for bringing about improvements in the future". After the technical report and the internal audit report were submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Act by filing an affidavit-in-opposition denying the allegations made in the application, bat not specifically dealing with the adverse findings and comments made in the said reports submitted by S.R. Batliboi and Co. The company, however, pointed out in the affidavit-in-opposition some implementations and improvements made by it as suggested or recommended in the said reports. Some time in January, 1982, the case was opened on behalf of respondents Nos. 1, 2 and 3, but the hearing did not proceed further. On February 22, 1982, the company filed a supplementary affidavit with the leave of the learned judge. Thereafter, submissions were made from time to time on behalf of respondents Nos. 1, 2 and 3 at the hearing of the application. After the conclusion of the submissions on behalf of the said respondents on December 9, 1982, the company started its submissions in reply on the next day and it was submitted on behalf of the said respondents that an application would be made by them praying for leave of the court to re-verify the application under sections 397 and 398 of the Companies Act. It was also represented to the court, on behalf of the company, that it would file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second supplementary affidavit showing the incorrectness of the findings made in the said reports of S. R. Batliboi and Co. In that view of the matter, the company filed the said application praying for leave to file a second supplementary affidavit. It appears that in the proposed supplementary affidavit, the company has challenged the adverse findings and comments made in the said reports and has annexed a number of documents from the records of the company in support of its allegation as to the incorrectness of the said reports. The learned judge, as stated already, dismissed the said application of the company praying for leave to file the supplementary affidavit. Hence, this appeal. The first thing that we propose to consider is the objection taken by Mr. Dipankar Gupta, learned counsel appearing on behalf of respondents Nos. 1, 2 and 3 to the maintainability of the appeal. It may, however, be stated that the learned counsel has not raised the objection at the outset as a preliminary objection, but has taken the same in the course of his reply to the submissions may by Mr. Prabir Sen, learned counsel for the company, in support of the appeal including the submission that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of prejudice suffered by a defendant in a suit whose written statement is struck out or who is; not permitted to file a written statement and that suffered by the company in the instant case by the dismissal of its application for leave to file a supplementary affidavit in defence against the prayer for supersession of its board of directors and appointment of a special officer or an administrator to take charge of the company. It may be that the impugned order can be challenged in appeal against the final judgment disposing of the application under sections 397 and 398 of the Companies Act, as contended on behalf of respondents Nos. 1, 2 and 3 but, in our opinion, the contention is quite irrelevant to the serious prejudice that has been caused to the company by the impugned order. An interlocutory order, unless made expressly appealable by any statute under which it is passed, can always be challenged by the aggrieved party in an appeal from the judgment disposing of the proceeding. The seriousness of the prejudice or injustice caused to an aggrieved party by an interlocutory order is the guiding factor for the decision of the question as to whether such an order is a judgment wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, contended on behalf of respondents Nos. 1, 2 and 3, that the said application for leave to file a supplementary affidavit was an afterthought and was filed by the company mala fide with a view to delay the proceeding. It is submitted that as the learned judge in his discretion refused to grant leave to the company to file the supplementary affidavit, this court should not interfere with the discretion exercised by the learned judge. We are unable to accept the contention. It appears that the company was wrongly advised not to deal with the said reports submited by S. R. Batliboi and Co. The very object of the company was to get the loan facilities increased by the bank and the said object having been achieved, it did not seriously consider the adverse findings and comments made in the said reports. In the proposed supplementary affidavit, the company has annexed a number of documents from the records of the company for the purpose of showing the incorrectness of such findings and comments. It is, therefore, difficult to say that it was an afterthought or that the said application was filed mala fide in order to delay the proceedings. It must, however, be said that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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