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TMI Blog2010 (8) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... for correc-tion of an order dated 12-4-2007 dismissing a company application No. 302 of 2007 as not pressed instead of dismissal of a company petition No. 252 of 1985. 3. The predecessor-in-interest of the present appellants initiated a proceeding under sections 397 and 398 of the Companies Act being company petition No. 252 of 1985 seeking various reliefs as would appear therefrom. 4. An interlocutory application was taken out in which the company court passed an order dated 21-6-1985 directing the maintenance of status quo in respect of the shares of the company being the subject-matter of the dispute. 5. During the pendency of the said company petition the original applicant, predecessor-in-interest of the present appellants, died and substitution was duly made. It further transpires that some of the substituted heirs also expired and an application to such effect was made. 6. While the said company petition was pending before the Hon ble High Court one Ajit Kumar Agarwal initiated proceeding before the Company Law Board for recording his name as a shareholder of the company. Amidst pendency of the said company petition, the parties thereto settled their dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12-4-2007. 13. By an impugned order the Hon ble First Court dismissed both the applications, i.e., an application filed by the said Ajit Kumar Agarwal for being added as a party to the main company petition and the petition filed by the appellants for correction of the order dated 12-4-2007. 14. Against the said order three appeals have been filed, one by Nischintapur Tea Co. Ltd. being ACO No. 47 of 2010 another by Subrata Sen Anr. being ACO No. 48 of 2010, in both the appeals challenge is thrown against such part of an order dated 11-3-2010 by which an application for correction was rejected by the Hon ble First Court and other appeal filed by Ajit Kumar Agarwal being ACO No. 41 of 2010 challenging the other part of an order dated 11-3-2010 so far as it relates to the dismissal of their application for addition. 15. Though we do not wish to hear the appeal filed by Ajit Kumar Agarwal being ACO No. 41 of 2010 as the fate of the said appeal is in some way dependant upon the decision that would be passed in the present two appeals but for the purpose of doing the complete justice we have allowed the learned Counsel appearing on behalf of the said Ajit Kumar Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali Molla v. Sonargon Housing Co-operative Society Ltd. AIR 2008 SC 225, M.M. Thomas v. State of Kerala [2000] 1 SCC 666 and CC CE v. Hongo India (P.) Ltd. [2009] 5 SCC 791, that not only the mistake committed by the court is capable of being corrected but the mistake on the part of an Advocate is also capable of being corrected by the court. 22. He further cited a judgment in Mellor v. Swire [1885] 30 Ch. D 239 that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. By invoking the doctrine "Actus curiae neminem gravabit", the act of court could do no harm to litigant. Mr. Mukherjee contends that such a mistake which is a mistake apparent on the face of the record is allowed to stand would occasion grave injustice to the litigant, and should be resorted to the position he would have occupied but for that mistake he relies upon a decision in Jang Sing v. Brij Lal AIR 1966 SC 1631, Jai Berham v. Kedar Nath Marwari AIR 1922 PC 269, Union of India v. Kamal Kumar Goswami AIR 1974 Cal. 231. 23. Mr. S.B. Mukherjee, learned Senior Counsel further cited a judgment in Hongo India (P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have it corrected. He further submits that in the instant case there has been lapses on the part of the appellant in approaching the court promptly admittedly after a gap of more than three years such an application should not be entertained. 28. Mr. Chatterjee further relies upon a judgment in Bela Debi v. Bon Behary Roy AIR 1952 Cal. 86 for the proposition that the power of the court to correct the clerical and/or accidental and/or typographical and/or arithmetical error, mistake and/or omission is vested under section 152 of the Code of Civil Procedure but such power cannot be extended to resolve the controversy and/or disputes and/or a decision as to what the rights intended or did not intend to do. 29. Mr. Chatterjee further relies upon a judgment in Salil Dutta v. T.M. (P.) Ltd. [1993] 2 SCC 185 that if the court finds that the client is an innocent litigant, he cannot suffer for the negligence and/or misdemneour of the advocate but the said principle can be extended to a restrict villager but not to a private limited company having head office in metropolitan city and administered and managed by the educated persons. 30. He further argues that an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch controversy as we find that those are not so vital and material in deciding the instant application. We are proceeding on the basis that the judge s summon has been taken out and an affidavit in support thereof has been filed which from its tenet and purport is an application for withdrawal of the main company petition being CP No. 252 of 1985. 33. The company application No. 302 of 2007 from its very first page is an application for withdrawal of the company petition No. 252 of 1985 and all connected applications. Even from prayer ( a ) the same prayer is reflected. Thus there cannot be any dispute and/or controversy over the purport of the said application which is primarily an application for withdrawal of the main company petition No. 252 of 1985. 34. The said company application No. 302 of 2007 appeared before the Hon ble First Court and by an order dated 12-4-2007 as it appears from the recording made therein, that the said company application No. 302 of 2007 itself was dismissed as not pressed and not the company petition No. 252 of 1985. 35. The controversy which needs to be decided and the parties are not ad idem is whether the said company petition No. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts : "6. In the aforesaid circumstances, the then petitioners including the applicants had caused an application to be prepared and filed before this Hon ble Court for withdraw of the company petition being CP No. 252 of 1985 and all applications connected thereto. This company application was affirmed and filed before this Hon ble Court on 5th April, 2007. The Judge s Summons was made returnable before the Hon ble Company Court on 12th April, 2007. A copy of the Judge s Summons along with a copy of the affidavit in support of the Judge s Summons are annexed hereto and collectively marked "A". The petitioners in CA No. 302 of 2007 had engaged on Mr. Sushil Kumar Saha as the Advocate-on-Record for moving the said application and for withdrawal of CP No. 252 of 1985 and all applications connected thereto. The intention of the applicants was to withdraw the petition and to have all interim orders vacated so as to give effect to the Memorandum of Understanding as they had no further interest in the said company matter. 7. We say that an order was passed on the said application on 12th April, 2007. A copy of the said order dated 12th April, 2007 is annexed hereto and marked "B". T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in connection thereto on and from 12th April, 2007." 39. The argument advanced by Mr. S.B. Mukherjee, learned Senior Counsel that there cannot be any manner of doubt on a bare look of the said application being CA No. 302 of 2007 that the said application is an application for withdrawal of the company petition No. 252 of 1985 and order for dismissal would mean an order of dismissal of the said company petition No. 252 of 1985 as withdrawn, cannot be accepted for the reason that the said application for withdrawal of the main company petition itself is capable of being not pressed if the parties so chooses and subsequently changed their stand and/or decision to have the said company petition alive and/or pending. 40. The correction as embodied under section 152 is a correction of such nature which on bare look does not require any submission and/or argument to be advanced we are afraid that such is not the situation herein. The said company application No. 302 of 2007 has three fates. One is if allowed shall make the said company petition No. 252 of 1985 dismissed as withdrawn. Secondly the said application may be dismissed in view of the original proceeding being in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court on April 12, 2007 cannot honestly be recounted with clarity either by counsel then representing these applicants or by court. It is, thus, that the order has to been seen to assess whether such order can pass off as an order dismissing a petition under section 397/398 of the Act or permitting the withdrawal thereof. In recording the submission of the then applicants, the expression used in the order is, "the matter need not be proceeded with". The word "matter" may have been used in course of oral submission to imply the petition. The word "matter" may have been understood by court to mean the application. If it were so, it would be a case of miscommunication and somewhat of an error, no doubt, on the part of the court but even if it was submitted that the petition was not to be proceeded with, it was incumbent on the part of the petitioners to draw the attention of the court that it was a petition under section 397/398 of the Act. It is, indisputably, the duty of the Judge to go through the papers before pronouncing an order and take responsibility therefor. It has also come to pass, undesirable as it may be, in this docket-fatigued system where the sheer number of matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. The Hon ble First Court while passing an impugned order was conscious of the position that the company petition in such fashion as has been argued by the learned Advocate for the appellants to be dismissed in view of the embargo created under Rule 88(2) of the Companies (Court) Rules and thus observed as follows : "To deal with the past point first, it does not appear that the surviving petitioners in CP No. 252 of 1985 assumed that an order of dismissal of the petition under section 397/398 of the Act would be made for the asking. It is evident that they were aware of Rule 88(2) of the Companies (Court) Rules and the discretion that the Company Judge had to refuse to dismiss the suit despite the petitioners bidding. A formal application was taken out by the surviving petitioners with apparent knowledge that dismissal of the proceedings was not a matter of course. If the applicants in CA No. 53 of 2010 had said that they intended to withdraw the petition without having made a formal application for withdrawal, the court may not have lent any credence to such submission. There was, indeed, a formal application for withdrawal of the petition and in its head and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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