9911796707
TMI Blog1994 (4) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the company and respondents Nos. 4 to 6 who are his wife and sons. The ninth respondent R. N. Jalan, the brother of the third respondent is sailing with the applicants. The parties will be referred to as they are arrayed in Company Petition No. 27 of 1987 for convenience. Pending Company Petition No. 27 of 1987, the first petitioner, Mr. R. N. Jalan, filed Company Applications Nos. 184 to 188 of 1988 seeking reconstitution of the board of directors with representatives of R. Khemka and R. N. Jalan proportionate to the shareholding as on December 31, 1984, or in the alternative, to suspend the board of directors constituted on July 5, 1988 ; and that the joint managing director be appointed representing R. Khemka and R. N. Jalan and a direction be issued to the managing director to carry on the management along with the joint managing director jointly ; a fresh audit of books of account of the company be ordered for the period ending with March 31, 1988, and March 31, 1987, and to declare the resolution passed in the annual general meeting held on April 5, 1988, as void. When these applications came up before a learned single judge, the learned single judge holding that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in a special leave petition. The net result is that the appointment of an interim administrator has become final. While so, Mr. R. N. Jalan, respondent No. 9, filed C. A. No. 37 of 1992 for various reliefs, to declare that there was no annual general meeting on February 18, 1985, or on October 18, 1986 ; the allotment of shares to respondents Nos. 3 to 6 in 1985 and 1986 is void and illegal ; and to appoint another administrator to take over the management and administer the company with specific instructions relating to duties and functions. The learned single judge by an order dated August 20, 1992, observed that since the term of Sri Justice Ramachandra Raju, appointed as interim administrator, has already expired and he is not acceptable to one group of shareholders of substantial strength, with a view to avoid further controversy, C. B. Desai, advocate is appointed as an interim administrator, pending disposal of Company Petition No. 27 of 1987. This order is again the subject-matter of appeal in O. S. A. No. 8 of 1992. However, the Bench while practically confirming the order of the learned single judge, restricted the period of appointment of C. B. Desai as an interi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reviewed. Accordingly, learned counsel informed the Division Bench of this court that he will seek review of the order passed by Justice N. D. Patnaik in Company Applications Nos. 9 and 10 of 1991. Therefore, the appeal was accordingly dismissed leaving the appellants to seek the remedy by way of a review of the orders under appeal. Consequently, Company Application No. 73 of 1994 is filed seeking review of the order of Justice N. D. Patnaik which is also pending. These are only a few instances where this court has examined this matter in some detail. There are a number of other applications filed and orders passed but I need not refer to them for the purpose of the present applications. P. Chidambaram, learned senior counsel appearing for the applicants submits that the order passed by Justice Waghray in Company Applications Nos. 184 to 188 of 1988 as confirmed in O. S. A. No. 28 of 1989 and 3 of 1990 by a Division Bench of this court, as stated earlier, or as a matter of fact confirmed eventually by the Supreme Court by dismissing the special leave petition, will not in any way come in the way of the applicants with regard to the maintainability of this application. For this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder like the one appointing an interim administrator could also be changed or altered to suit the changed circumstances. Learned counsel further submits that it is always open to the court to modify or alter the interim orders on the authority of the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar , AIR 1964 SC 993, wherein the Supreme Court has ruled that all interlocutory orders are not final and the orders which do not affect the rights of parties cannot operate as res judicata and they can be reviewed or altered on proof of new facts at any time during the pendency of the proceeding. For the same proposition, learned counsel has relied upon two other decisions reported in Abhi Prosad Sen v. Puspa Doshi, AIR 1984 Cal 250 and Gulam Abbas v. State of U. P. , AIR 1981 SC 2198. The core of the contention of learned counsel is that several misstatements have crept into the order of Justice Waghray while passing the order and consequently, miscarriage of justice has resulted. He invites my attention to the counter-affidavit filed by R. N. Jalan (9th respondent) dated January 18, 1993, wherein he states that in regard to issue of shares of Nucon Industries P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not interested in making any further contribution in "DEPL" to increase their shareholding. Learned counsel has also placed a copy of the agreement dated April 9, 1987, entered into between Mahesh Khemka on behalf of his family group with R. N. Jalan (ninth respondent) stating that in case the ninth respondent obtains more than Rs. 60 per share of "DEPL" from the third respondent, the respondent Khemka group shall be entitled to 25 per cent, of excess over Rs. 60 per share and the Khemka group shall extend support by pleading ignorance about the issue of additional capital of "DEPL" in 1985. This, according to learned counsel is the secret understanding by which the petitioners and the ninth respondent have colluded together to defraud the third respondent. Even earlier Mahesh Khemka who was representing "DEPL" on the board of "ARIL" has entertained an idea to set up a rival joint venture foreign company, and, accordingly, he wrote a letter to his father on January 4, 1982, stating that he has collected all formulations, technical process and information from "ARIL" and that they need not agree for holding of shares in "DEPL" as Mr. Robert I. Aki has assured him of his full support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of not less than 3 and not more than 12 as may be determined by the joint meeting and as per the resolution of the general assembly, one Indian partner must be represented on the board. Mahesh Khemka has withdrawn from "ARIL" on May 7, 1985, as per resolution No. 6 of 1985 and the third respondent was elected for a period of three years. The third respondent by his efforts succeeded in convincing the committee of "ARIL" to increase the dividend by an extra half million to the Indian company "DEPL" and nothing is said against the third respondent in view of his sincerity in not only floating a joint venture company, but he has also taken it across the seas and the same is evident from the letter of "ARIL" dated November 20, 1993, requesting the third respondent to use his good offices to secure good orders from Gulf Atter-nity and AMRON Gulf. The letter written by the board of directors of "ARIL" dated March 9, 1993, that the interim administrator-C. B. Desai cannot be allowed to represent the board of "ARIL" and if the third respondent is not allowed to represent the Indian company, "DEPL" will go unrepresented in the next meeting and the minutes of the meeting of ARIL executive c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration. He also relies upon two other decisions in Alapati Sivaramakrishnayya v. Alapati Kasiviswanadham , AIR 1957 AP 584, and in Lakshmamma v. M. Jayaram , AIR 1952 Mysore 114, in support of his contention that when once a signature or thumb impression is admitted or proved on a document, the external tenor of the document must be prima facie accepted and the burden lies upon the person to establish under what circumstances he put his signature. Learned counsel has also relied upon a decision in S. P. Chengalvaraya Naidu v. Jagannath [1994] 1 SCC 1 and in Ramchandra Ganpat Shinde v. State of Maharashtra [1993] 4 SCC 216 ; [1995] 82 Comp. Cas. 276 and contends that any order obtained without disclosing the truth, by suppressing the true facts and on misrepresentation or order obtained by playing fraud can be reviewed at any subsequent stage. Learned counsel has finally submitted that the agreement dated April 9, 1987, between R. Khemka and the ninth respondent, the letter dated April 14, 1987, of the ninth respondent confirming the said agreement, the letter of Mahesh Khemka dated January 4, 1982, to his father and the letter dated January 21, 1985, of the ninth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court of first instance. The Bombay High Court in Mallikarjun Sadashiv Honrao v. Suratram Shivlal , AIR 1971 Bom 45, held that when an appeal is filed even though the same is dismissed, the trial court decree would necessarily merge in the decree of the appellate court, with the result, the trial court decree has no independent existence, apart from the appellate court's decree. Therefore, an application for review of the decree has to be filed before the appellate court or the revisional court as the case may be. In a decision in Devaraju Pillai v. Sellayya Pillai , AIR 1987 SC 1160, the Supreme Court has severely criticised the interference of a single judge of the High Court in a review petition with the decree passed in the second appeal by another learned judge who had since left the court, as having totally exceeded his jurisdiction. Learned counsel also contends that the provision of Order 47, rule 1 of the Civil Procedure Code can be resorted to if no appeal has been preferred and since an appeal has been preferred in this case, the review petition is not maintainable and for this proposition, reliance is placed on a judgment of a single judge of this court in Velu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., AIR 1973 AP 27, provides a precedent for resorting to section 151 of the Civil Procedure Code, when the provisions of section 144 of the Civil Procedure Code cannot be made applicable for restitution of an order or decree passed not by a civil court, but by a tribunal. In a decision in Arjun Singh v. Mohindra Kumar , AIR 1964 SC 993, the Supreme Court has laid down as follows (page 1003): "It is common ground that the inherent power of the court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates." Therefore, Mr. Srinivasa Murthy, learned counsel for the respondent, contends that in view of specific provisions available under rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as there is a specific provision available under the Civil Procedure Code. As I have taken the view that it is only a review petition that is maintainable under Order 47, rule 1 of the Civil Procedure Code it necessarily follows in view of the aforesaid discussion of the relevant case law, that I have no jurisdiction to entertain the review petition since I am not a member of the Bench that has disposed of the appeal against the order of Justice Waghray who has since retired. On both the counts, as mentioned above, the application as filed, is not maintainable. K. Srinivasa Murthy, learned counsel for the respondents, opposing this application submits that even on the merits there are no grounds to review the order of Justice Waghray. Learned counsel has invited my attention to the observations of the Bench in O.S.A. No. 8 of 1992 to the effect that "the decision directing appointment of an interim administrator in supersession of the board of directors to manage the affairs of Dec-can Enterprises Private Limited, pending disposal of Company Petition No. 27 of 1987 has become final". It is also pointed out about the further observation of the Bench which is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. So, when these documents are disputed, no reliance can be placed on these documents at this stage. Placing reliance on a decision of a Division Bench of the Madras High Court in N. Ethirajulu Naidu v. K. R. Chinnikrishnan Chettiar , AIR 1975 Mad 333, 335, it is contended that "... the execution of a document implies intelligent and conscious appreciation of the contents thereof, and the facts connected therewith; and where the defendant admitted only that he had put his signature in a blank piece of paper which he alleged had possibly been utilised for fabricating exhibit A-l, it cannot be regarded as his having admitted execution of exhibit A-l". For the same proposition he relies upon a decision in Ramadhin Singh v. Siaram Singh, AIR 1957 Patna 64, to show that the onus of proving that a particular document was duly executed by the defendant under those circumstances, should be upon the plaintiff only. To similar effect is the decision in Seithammarakkath Mammad v. Koyommatath Mammad , AIR 1957 Ker 63. Learned counsel for the respondents has also canvassed that the review petition cannot be entertained unless "where a glaring omission or a patent mistake of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication and appeals and as the said argument did not find favour, the interim administrator is appointed since prima facie it is established that he has abused his fiduciary capacity and manipulated records, etc. Finally, learned counsel for the respondents submitted that the company petition itself was part heard ; one witness Mahesh Khemka, was examined in full; three witnesses have filed affidavits and they are ready to make themselves available for cross-examination at any time and at this stage, it is not open to the applicants to seek for modification of the earlier orders. S. Ravi, learned counsel appearing for R. N. Jalan has submitted that the issuance of additional shares of Rs. 5 lakhs is only a make-believe affair and even the nominal fee payable to the Registrar of Companies which would be paid within a period of one month was not paid on the transfer of shares, but it was only paid in September, 1985. Notices which are supposed to have been sent to the shareholders about the increase of share capital bear the postal stamp of Sanjeevareddy Nagar post office while the office is situated at Secunderabad ; when Deccan Enterprises Private Limited is flourishing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications filed till now]. I have referred to some of the applications filed in the company petition and orders thereon at the threshold of this order to show the nature of the applications and elaborate pleadings and arguments with meticulous details at great precision placed before the court only to show the amount of the time spent by the parties on those applications. In the main company petition the dispute is about the allotment of shares in the year 1985. All other issues revolve round this main issue, viz., the validity of the issue of shares. [Most of the documents on which the parties are relying in support of their respective contentions have been either filed or disclosed and they are before the court. The remaining witnesses have to be examined either to prove the documents or for their denial. Hence, it should not take much time now as was the case in the year 1990, when the Bench observed "that the company petition is likely to take a long time". According to me the best and simple course for the parties is to proceed with the trial with right earnestness and complete the trial expe-ditiously. The evidence of P.W.-l was already recorded by my learned Brother Dasa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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