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TMI Blog2010 (8) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... fair value. What would be the fair value was not agreed to which is apparent from the subsequent order dated 21-5-2008 when a sum of ₹ 12 crores offered by the respondents was not accepted. Order dated 25-2-2009 passed by the Board is not sustainable in law. The Board has wrongly presumed that the proceedings before it stands settled and led to an executable order in favour of the respondents. Consequently, the application filed by the respondents under section 634A of the Act is dismissed. The matter is remitted back to the Company Law Board to decide the petition filed by the appellants under sections 397 and 398 of the Act in accordance with law. - COMPANY APPEAL NO. 5 OF 2009 - - - Dated:- 4-8-2010 - HEMANT GUPTA, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is not agreeable to the amount and seeks time to indicate his price for the share. For doing so, he desires to have some information of the affairs of the company. He may write to the company as to what information he desires the company will furnish the same within 10 days from the date of receiving the request. To report on 21-7-2008 at 4.00 p.m." 5. As per order dated 21-5-2008, the matter was listed for hearing on 21-7-2008. On the said date, the learned Tribunal passed the following order:- "Senior counsel for the petitioners desired to file an affidavit in respect of the order dated 13-5-2008 and 21-5-2008. To be done by 15-8-2008 and reply of affidavit to be filed by 31-8-2008 will be heard on 22-9-2008 at 2.30 p.m." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that an executable order came into existence, the execution of which can be sought by the respondents under section 634A of the Act. It is contended that an executable order by the Board was necessary to be passed which alone could be executed and such an order must have reasons, howsoever brief it may be, to confer any right in favour of the respondents in terms of the provisions of section 634A of the Act. Learned counsel for the appellants further contended that unless a fair value arrived at or mechanism to arrive at fair value is agreed upon, it cannot be said that there is an executable order passed by the Board, the execution of which can be sought by the respondents. 9. On the other hand, Mr. Chaudhary, learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention. 10. I have heard learned counsel for the parties at length but find that the order of the learned Board holding that there was a conclusive settlement and, thus, execution by the respondent is maintainable before the Board is not sustainable in law. The order passed by the learned Tribunal on 13-5-2008 regarding willingness of the appellants to go out of the company at fair value does not amount to a concluding executable agreement. In the order dated 13-5-2008, the appellants have expressed their willingness to go out of the company for a fair value. What would be the fair value was not agreed to which is apparent from the subsequent order dated 21-5-2008 when a sum of Rs. 12 crores offered by the respondents was not accepted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations ( e ) and ( f ) read as under: "29. Agreements void for uncertainty . Agreements, the meaning of which is not certain, or capable of being made certain, are void. Illustrations ( e )A agrees to sell to B "one thousand maunds of rice at a price to be fixed by C". As the price is capable of being made certain, there is no uncertainty here to make the agreement void. ( f )A agrees to sell to B "my white horse for rupees five hundred or rupees one thousand". There is nothing to show which of the two prices was to be given. The agreement is void". As per illustration ( e ), if the parties agreed on a price to be fixed by a third person, there is no uncertainty which may render the agreement void. In the present case, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the petition disposed of, whereas in the present case, there was no final disposal by the Board and, in fact, the matter was adjourned to 21-7-2008 and again on that date the matter was adjourned for filing of affidavit. The said judgment referred by Sh. Chaudhary is of no help to the argument raised by him. 13. In Smt. Shanti Devi Mehra s case ( supra ), a Division Bench of Calcutta High Court held that a decree can be in two parts (1) substantive rights of the parties (2) mechanism to execute the substantive rights of the parties. The substantive rights were the shares of the parties but the property was to be sold at a value to be determined by "Talbot and Company". The auction was to be conducted by one Fateh Chand Dhingra an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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