9911796707
TMI Blog1999 (2) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... s not necessary to go into all the particulars pleaded in support of this case for the purpose of this appeal. The relevant allegation in the petition made is that the respondent Nos. 2 and 3 and their group were intending to sell their shareholding in the company and pass on the control of the company to certain outsiders. According to the appellant's petition, transfer of shares would tantamount to selling of assets of the company which included valuable immovable properties and that the transfer was being made surreptitiously in violation of the articles of association. It was alleged : "The respondent Nos. 2 and 3 are holding regular meetings with Mr. G.S. Gill, the managing director of Indian Shaving Products Ltd. an Indian subsidiary of Gillette and Mr. J.C. Ribera, group vice president of Gillette in charge of operations in Africa, Middle East and East European countries. The petitioners are not aware as to what transpired in such meetings." 3. Gillette International Ltd. ('Gillette') is a foreign multinational company which also manufactures and trades in, inter alia, the same products as the company. 4. According to the appellants, the appellant No. 1 protested against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ court. The Supreme Court disposed of the special leave petition by setting aside the order of the writ court on the basis that the CLB had not interdicted preparatory before the actual issuance of shares. The Supreme Court, accordingly, disposed of the special leave petition as well as the writ application filed clarifying that the direction of the CLB in the order dated 20-10-1993 could not be construed as coming in the way of the respondents taking preparatory steps for issuing shares to the collaborators. 10. The appellants then made an application for amendment of the sections 397 and 398 application. The appellants sought to bring on record the apprehended collaboration agreement of the company with Gillette. It was also alleged that in fact Gillette had concluded a deal with the company for equity participation by Gillette and that FIPB had cleared the proposal of the respondent Nos. 2 and 3 for such equity participation in NVI Engg. (P.) Ltd., which holds shares in the company. It was also stated that the induction of Gillette would change the structure of the company. It was stated that the agreement between Gillette and the company was contrary to the orders pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter into a collaboration. Whether the allegations regarding the nature of the technology as made in the amended petition were correct or not was to be examined and that the CLB could not pass an effective order on this question in the petition without a proper affidavit from Gillette through impleadment. 15. Gillette challenged the decision of the CLB to implead it as the party before the High Court under section 10F of the Act. The appeal was dismissed by a judgment dated 4-9-1997. 16. In November 1997, Gillette again made an application before the CLB. This time for striking out its name from the petition on the ground that : "There is no current or pending arrangement regarding supply of technology to the respondent-company as had been alleged while impleadment of the application as a party respondent was being sought, since there is no commitment and no further interest on the part of the applicant to that effect and since the validity of the approval by FIPB had lapsed and the matter of any extension of any such approval is not being proceeded with." 17. The application of Gillette was allowed on 18-2-1998 by the CLB as : "The grounds on which we decided to direct Gillet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleadment of Gillette as a party and as such we dismiss the application with liberty to the petitioners to approach us with full and proper particulars." 21. This order is the subject-matter of appeal before us. 22. The arguments of the parties can be resolved into the following broad questions : (a)Whether the application of the appellant for recall of the order dated 18-2-1998 was maintainable ? (b)Whether the impugned order was appealable ? (c)Whether any question of law had been raised under section 10F ? (d)Whether the discretion of the CLB warranted interference particularly in view of the order of the Supreme Court dated 20-10-1993 ? 23. At the outset we note that the respondents conceded that the appellants could have made a fresh application for impleading Gillette as a respondent but could not apply for review of the order deleting Gillette as a respondent. In essence, a prayer for recalling the order deleting Gillette as a respondent is a prayer that Gillette should be a respondent. Besides, the appellants did not contend that the CLB has the power to review its earlier order. Therefore, the several decisions on order 47 of the Code of Civil Procedure, 1908 ('the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gillette still had the intention to enter into collaboration with the company. 28. The order dated 18-2-1998 speaks for itself whatever may be the construction put on it by the CLB on 27-9-1998. It must be observed in passing that as long as the allegations against Gillette remain on the record, then it is debatable whether the truth or falsity of that allegation can be decided at an interim stage of the proceeding. However, the parties did not question the order dated 18-2-1998 by way of appeal and we refrain from determining the propriety of that order in this proceeding. But the fact remains that the grounds on which Gillette was impleaded as a party continue to remain on record, namely, an apprehended collaboration between Gillette and the company to the detriment of the company. The CLB deleted Gillette's name as respondent not only on the finding that there was no collaboration agreement but also that Gillette had no further intention nor any interest to enter into any collaboration agreement with the company. That was also the basis on which Gillette's addition was upheld by the appeal court. In dismissing Gillette's appeal from the order impleading it as a party, this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of the High Court under section 100 of the Code, the following observations of the Supreme Court in Mattulal v. Radhe Lal AIR 1974 SC 1596 are apposite: "... It is only an error of law which can be corrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate Court is one of law or of mixed [question of] law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse..." (p. 1601) 34. The allegations against Gillette by the appellants in their main application under sections 397 and 398 are still in record. Their grievance was in respect of any collaboration between the company and Gillette. The earlier agreement was evidence of the intention of the company and Gillette to collaborate. In the last application by the appellants, they have reiterated the stand. No affidavit has been filed controverting the statements in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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