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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 ..... the Act by the respondents herein. 2. In a petition under sections 397 and 398 of the Act filed by the appellants herein, the Board passed an order on 12-2-2008. The said order reads as under :- "Counsel for the respondents sought time to file a surrejoinder. To be done by 1-4-2008. The petition will be heard on 25-4-2008 at 10.30 a.m. Petitioner may consider my suggestion whether he would be willing for a compromise which the respondents are willing. Interim order to continue." 3. Subsequently on 13-5-2008, the Board records another order which reads as under: "The learned Senior counsel for the petitioner submits that his client is willing to go out of the company for a fair value for his shares. Respondents are agreeable. On 21-5-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said application by way of affidavit dated 2-9-2008. The said application has been allowed by the learned Board vide the order impugned in the present appeal. 7. The learned Board has found that the appellants have agreed for selling of their shareholding which is apparent from the orders dated 13-5-2008 and 21-5-2008 and, therefore, the question of fair value on which the shareholding is to be sold is required to be determined by the independent valuer, i.e., Chartered Accountant to be appointed by the Board. Thus, the Board sought a mutually acceptable valuer and in case the parties are not in a position to decide on the name of the valuer, the Board itself will appoint a valuer to determine the fair price of the shares held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed their willingness to go out of the company for a fair value for their shares, even if fair value is not determined, it can always be determined by a Chartered Accountant in terms of the norms prepared by the Institute of Chartered Accountants of India. It is argued that the appellants have not dissented from the offer made before the Board on 13-5-2008 and 21-5-2008. Such offer was made by the senior counsel appearing for the appellants and after much deliberation and analysis of the affairs of the company. Therefore, there was a conclusive agreement, execution of which can be sought by the respondent under section 634A of the Act. Learned counsel for the respondents relied upon Division Bench decisions of Kuki Leather (P.) Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board and, thus, executable order came into existence is untenable. There was an offer and counter offer but it cannot be said that a concluding contract came into existence. It is well settled that consent decree is a concluded contract between the parties with a seal of Court or authority superimposed on it. 11. The question which is required to be examined is whether the proceedings taken by the Board on 12-2-2008 and 13-5-2008 amounts to a concluded contract. Section 10 of the Indian Contract Act, 1872 (for short "the Contract Act") contemplates that all agreements are contract if they are made for a lawful consideration and with a lawful object. Obviously, the proceeding does not show that there was a consent of the parties on a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenging it in appeal or that the fair value can be determined as per established practice in the corporate world or known method of accounting set up by the Institute of Chartered Accountants of India. Such option unless agreed to by the appellants cannot be introduced as consent of the appellants. 12. The judgment in Kuki Leathers (P.) Ltd.'s case (supra) arose out of a case where both the parties agreed to sell 2.4 lakh shares at par. The consideration was required to be paid in one or more instalments within a period of six months. The petitioner was handed over blank transfer form and on receipt of final instalment, the company was to register the transfer. The petition was disposed of accordingly. The issue raised in the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties. In the present case, the basic ingredient of settlement, i.e., consideration was not settled nor there was any settlement in respect of the claim to arrive at fair value. Therefore, even the said judgment is of no help to the argument raised by the learned counsel for the respondents. 14. In Ahmadasahab Abdul Mulla's case (supra), there was no date fixed for execution of the sale deed, i.e., an agreement to sell. It does not decide the issue conclusively. The case was referred to the larger Bench and the issue is not even remotely connected with the issue raised in the present appeal. 15. In view of the above, order dated 25-2-2009 passed by the Board is not sustainable in law. The Board has wrongly presumed that the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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