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TMI Blog2003 (8) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... his younger brother Chandra Prakash, and who is the appellant. 5. The Company was incorporated sometime in or about 1962, at which time Tarachand was all in all there. The authorised share capital of the company numbered only 5000 units. Initially Dankha had 3010 shares, Tarachand 10 shares and the two sons 10 shares each. 6. Sometime after about 10/12 years, i.e., in the mid' 70s, Dankha Devi transferred about half her shareholding to her two sons and as a result thereof, although Tarachand continued to hold only 10 shares, Bhagirath had 750 more shares than his original 10 and Chandra Prakash 600 more than his original 10. 7. In 1983 and 1984 it appears that returns were filed with the Registrar of Companies showing that Dankha had transferred 1650 of her balance 1660 shares to Bhagirathi and his group. 8. These 1650 shares from one large major controversy in this appeal. Bhagirath's case is that the shares were duly transferred on consideration. On the 6th November, 1989 Dankha filed a suit against Bhagirath claiming cancellations of the transfer documents of these 1650 shares and alleging that she had never signed any transfer deed. 9. On the same day an interlocutory orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chand's death, a meeting was ordered to be held by an order dated the 8th July, 1998, passed by the Hon'ble Mr. Justice Sujit Kumar Sinha, as his Lordship then was. An appeal was preferred from that order which was disposed of by the Court of Appeal on the 4th August, 1998. As and by way of an interim measure Bhagirath was permitted to vote on the disputed additional shares issued without notice was also separately recorded by the learned Chairman of the meeting. 17. By the said order dated 4-8-1998, the opposition raised by Chandra Prakash, his sisters and his mother, to the additional 1650 shares of Bhagirath was turned down principally on the basis that the withdrawal of the suit of Dankha, meant withdrawal of Dankha's allegations against Bhagirath, regarding the transfer of those very shares. 18. It was said also that no steps had been taken for undoing the order of dismissal of the suit which had been passed on the 28th July, 1995. 19. After the order of 4-8-1998 meetings were duly held under the learned Chairman as the Appeal Court had cleared the holding of such meeting. 20. Soon thereafter Dankha made an application (sometime on or about the 2nd of September, 1998) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench judgment of 13-9-1999. That special Leave Petition is not yet disposed of. During its pendency Dankha died. 28. The problem after Dankha's death is, that her estate no longer speaks with one voice with regard to the revival of her suit. As a result of this problem, only those of Dankha, who still actively wish to have her suit revived, applied for substitution in her place, in the SLP and got themselves substituted, by an order passed by the Hon'ble Supreme Court. Needless to mention, Bhagirath was not one of these applicants; he is the main opponent of the SLP. 29. Several authorities were cited before us on various points of law, both on behalf of the appellants, by My Mr. Chatterjee on behalf of the supporting respondents, as well as by Mr. Sen. Only the basics of those authorities we deal with, for the purpose of discharging the very little task, which remains for us to do in this appeal. 30. Mr. Sen contended, amongst other things, that the 1650 shares of Bhagirath were finally pronounced upon, in the Division Bench order of 4-8-1998. That was the order which permitted the meetings to be held, and Bhagirath to vote on the said 1650 shares. The language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Committee in the case of Maharajah Moheshur Singh v. Bengal Government [1865] 7 Moo Ind. APP 283 that: "...the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the Superior Courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the Higher Courts for redress of the grievances, even though it may very well be that though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the Appeal Court at all. ...It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case." (p. 945) 35. In the next paragraph, i.e., paragraph 14 of the judgment. Their Lordships quoted from section 363 of the Code of 1859 as follows: "...'but if the decree be appealed against, any error, defect or irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /398 petition. But this is not a matter of turning importance. The matter of turning importance, is, that both the 1650 shares of Bhagirath, and the 1950 shares of Tarachand and Chandra Prakash, were still to be decided upon finally, at the final disposal of the main company petition. Accordingly, Mr. Sen's submission that Bhagirath's shares are finally determined as the order of 4-8-1998 is not accepted by us. That order was an interlocutory order and subject to final adjustment by us now, if necessary. 39. Mr. Chatterjee's clients and Chandra Prakash lost with regard to these 1650 shares in the First Court. The reason for loss was substantially the same as the reason given in the order of 4-8-1998. Justice Ghose felt bound by the withdrawal of Dankha of her own suit. The decision of his Lordship is, that as the suit is gone, the challenge to the 1650 shares is gone too. 40. Mr. Chatterjee was at pains to submit, that in law, the withdrawal of Dankha's suit, has no more effect than this, that she could not file another suit afresh, for the same reliefs, no leave having been taken in that regard, at the time of the withdrawal or dismissal of the suit. 41. He said, that Bhagirath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session and alleged ownership of the 1650 additional shares is still available. The non-prosecution of Dankha's suit does not rob Chandra Prakash and his group of this defence in law. 47. On facts, Mr. Chatterjee's submission was, that Bhagirath is unable to show anything in support of his case, that he acquired these shares for valuable consideration from his mother. There is no shred of paper evidence to show that he paid any money or that Dankha signed any deed. There are no amounts; there are no dates; to cap it all, there are no share scripts. Mr. Chatterjee submitted, that in these circumstances the Court can very well, and should, do substantial justice. 48. Mr. Sen replied on facts. If there are no share scripts of Bhagirath, there are no share scripts of Chandra Prakash either. It so happens that the company and the shareholders have proceeded on the basis of returns filed with the Registrar of Companies only. There is no members register. Signature, share transfer deeds, delivery of shares to the purchasers, rectification of the share register, which is to be kept in the registered office these are all foreign concepts to the company. 49. Mr. Sen's submissions are quit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same effect is not barred in law. We, therefore, do not have to rule on this point, even if we can treat Chandra Prakash as the petitioner on Bhagirath's petition. But we must mention, if only in passing that suit for the reliefs against Bhagirath, has not yet been finally abandoned. If the litigation proceeds in one particular way, it might be, that after a successful conclusion of the SLP, the suit originally filed by Dankha will revive, and the parties will fight it out in the suit Court. That method of obtaining remedy has not been abandoned. 53. The suit not being abandoned, and the matter being a pending matter before the Supreme Court, it would not been possible for the same party, in any event, to pursue two remedies for identical reliefs, one by way of suit, and another by way of relief in a company petition. This would lead to the most undesirable possibility of a conflict of decisions, which the Court is always careful to avoid. 54. In these circumstances, we find nothing to interfere with the ordering portion of the impugned order. The appeal is accordingly dismissed. All interim orders will stand vacated with immediate effect but the actions taken until date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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