9911796707
TMI Blog2017 (5) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... eep chasm between law and justice that it would defeat the very purpose, for which these provisions are enacted. More often than not a single infraction, which has a continuing impact, as in this case can be more oppressive than a series of acts. This is not, in substance, a case of a single act of oppression, as was sought to be portrayed by the counsel for the respondents. Therefore, the removal of the Director in a widely held public limited company may not always compare, with the removal of a Director in a closely held private company, where, as in this case, each branch of the family is expecting to be represented on its BOD. In such cases, removal of a member from the BOD, can amount to oppression and mismanagement, when, it is carried out on made-up and flimsy grounds, as in this case and would, thus, in my opinion, bring the action within the ambit of provisions of Sections 397 and 398 of the 1956 Act. In a public limited company, much would depend on the facts obtaining in that case. Say, for example, where, controlling interest is centered in one or more groups, and shares, though, listed on the Stock Exchange, are not freely traded. In such cases, different connot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.06.2009 either on 27.06.2009 or any other dates. (ii).Permanent injunction restraining the respondents from interfering with the carrying on duties enjoined on the petitioner in relation of Unit 'C' at NP 23 24 Developed Plot, Ekkattuthangal, Chennai 600 097 of the first respondent. (iii).Permanent injunction restraining the respondents from disqualifying / removing the petitioner from the post of Executive Director of the first respondent company. (iv).For costs and such other further reliefs that the Honourable Company Law Board deem fit and proper given the facts and circumstances of the case and thus render justice. 3. As is usual the case in such like actions, this petition was filed under Sections 397, 398, 402 and 403 of the Companies Act, 1956 (in short the 1956 Act ). The immediate instigation for instituting the action and seeking the aforementioned reliefs, was the clear possibility of the appellant being removed from the post of Executive Director of DPPL. 3.1. Coupled with the plea for grant of injunction, the assertion made was that the appellant would be prevented from managing the affairs of Unit C, which is one of the units of respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LB has returned findings qua the appellant's conduct in the context of him having set up DCS. 4.6. I may also indicate that against the aforementioned order, a review petition was filed by DPPL. This revision petition was numbered as : Review Petition (Criminal) No.668 of 2016. The Supreme Court, however, rejected the said review petition in limine, vide its order dated 23.11.2016. Background Facts : 5. In order to adjudicate upon the present appeal, briefly, the following facts are required to be noticed : 5.1. The appellant is a member of the family, which, to begin with, had set up a partnership firm by the name of Devi Reinforced Plastics Products (in short the firm ). The said firm was set up by late Shri.K.N.Gnanaprakasam along with nine other persons. Each partner held equal shares. To begin with, the partnership firm set up an unit in a rented premises. This unit commenced production in 1975. The appellant, along with respondents No.4 and 8, to begin with, were in-charge of the said unit. 5.2. The appellant, evidently, visited U.K., in and about 1973- 74. During his visit, the appellant purchased a Sheet Moulding Compound (SMC) plant, along with requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... high quality of its fibreglass enclosures attracted the attention of Stahlin Fibreglass Enclosures, U.S.A. 5.8. In sum, the appellant claims that, in trying to achieve high quality, the appellant made innovations on several fronts. It is the appellant's case that due to his efforts, the sales of Unit C grew from Rupees (Rs.)1 to 2 crores to Rupess (Rs.)29.56 Crores in 2008-2009. 5.9. It is also the appellant's case that several tools and machines were built in-house, and that, the in-house technology led to the development of 1500 tonnes hydraulic press and door moulds. The appellant claims that DPPL manufactured high quality SMC door skins, which compared with the best in the world. 6. The appellant also claims that he had obtained approval from DPPL's BOD for a capital budget of ₹ 4.50 Crores, to further develop and expand the projects at Unit C. The appellant asserts that Unit C has the ability to produce world class products. 6.1. It is, thus, the appellant's assertion that he is a well known and respected business leader in the Composite Fibreglass Industry. 7. The record shows that the appellant's troubles, so to say, started, when, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the BOD. (iii).The appellant had registered certain patents at the expense of DPPL, albeit, in the name of his son and daughter. In this behalf, it was also stated that one of the patents was registered in the joint names of the appellant, his son and, one, Mr.Martin Fitzer. Though, the appellant had promised to assign the said patent to DPPL, no assignment in favour of DPPL had happened till that date. 7.6. Notably, the notice convening the EOGM also drew attention to the fact that DPPL had issued a communication dated 17.06.2009, to the appellant, calling upon him to explain his conduct in writing prior to the date of the meeting. 8. Evidently, on 19.06.2009, DPPL, via its Advocate, published a notice in The Hindu , cautioning the public, at large, that the appellant was carrying out parallel business , which had nothing to do with DPPL, and that, anyone, who dealt with DCS, would do so, at his/her own risk and cost. Furthermore, the notice also indicated to the public, at large, that the DPPL was contemplating initiation of action against the appellant and others, who, had colluded with him in carrying on a parallel business, without the knowledge and authority of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd New Basis, it had earned during 2006-2008, revenue to the extent of USD 3,46,000, and, since, there was a huge potential to earn further revenues that he had entered into a MOU with Michael Jackson. (vi).The appellant also provided an explanation, as to what, necessitated the creation of a website. It was indicated that, since, the business approach of U.S. Companies had changed, on account of domestic pressures, it was decided to provide technical solutions to manufacturing problems encountered by U.S. Companies. This decision was taken, according to the appellant, on account of the fact that the U.S. Companies had decided to go for Knowledge Process Outsourcing , as against Business Process Outsourcing , since, they were desirous of providing employment to its U.S. based, Citizens. (vii).The appellant, thus, asserted that it was for this reason that DCS was conceived as a part of a larger strategy to market DPPL's business. The appellant, also, indicated that it was to further this end that Mr.Michel Jackson, who was part of Stahlin Enclosures, U.S.A. was roped-in, to lend his expertise in the matter. (viii).Thus, in effect, the appellant argued that DCS was set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich according to him, got fructified in the family meetings held on 14.09.1982, 19.01.1984 and 27.03.1997. 9.2. The appellant's case is that the said arrangement was recorded in the memorandum dated 27.03.1997. Based on the family arrangement, a consequential relief of permanent injunction was also sought by the appellant, against individual defendants, impleaded as parties in the suit, with regard to his participation in the management of entities, which were arrayed as defendants 1 to 6. 9.3. The record shows that, in the suit, initially, interim injunction was granted by this Court, which was extended from time to time, and that, vide order dated 13.09.2010, the extension of the injunction was discontinued. Liberty, however, was given to the appellant to raise all contentions with regard to family arrangement in the proceedings pending before the CLB, for seeking the appropriate reliefs. The defendants were, likewise, given liberty to contest assertions, if any, put forth by the appellant, in that behalf, before the CLB. 9.4. The appellant contends that even though, the family arrangement, i.e., memorandum, dated 27.03.1997, was placed before the CLB, no finding was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, since, such a notice in writing had been given as per provisions of the said article, no fault could be found with the resolution passed at the EOGM. (vi).The CLB went on to hold that the decision taken at the EOGM to remove the appellant from the office of the Director was valid, as not only, the appellant was served with the notice qua the EOGM, but also on account of the fact that he was given an opportunity to make a representation before the shareholders. (vii).The CLB also held that the principles of quasi partnership were not applicable to the instant case, as the appellant only held 10% of the total shareholding, and that, there was no deadlock in the management of DPPL. In coming to this conclusion, the CLB relied upon the judgment of the Supreme Court in the matter of : Kilpest Private Limited and Others V. Shekhar Mehra, (1996) 10 SCC 696 and, went on to distinguish the judgment of the Supreme Court rendered in : Sangraminh P.Gaekwad and Others Vs. Shantadevi P.Gaekwad, AIR 2005 SC 809. (viii).Furthermore, according to the CLB, there was no force in the argument that there was lack of probity displayed by the respondents in as much as the appellant himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Advocate, assisted by Ms.Preeti Mohan, while on behalf of the respondents, submissions were advanced by Mr.R.Venkatavaradan. 15. Mr.Murari, learned Senior Advocate for the appellant, broadly, submitted that none of the charges levelled against the appellant, which, apparently, formed the basis of his removal as the Director, and consequent thereto, his removal from the post of Executive Director, were sustainable. In this behalf, Mr.Murari made the following submissions : (i).The allegation that the appellant was running a parallel business was false. DCS was set up with a view to attract business for DPPL. The charge levelled against the appellant, in this behalf, was contradictory in as much as, on the one hand, it was alleged that the business carried on by the appellant under DCS was outside the scope of DPPL's MOA, while on the other hand, it was alleged that the appellant was running a parallel business under the name and style of DCS. A perusal of the website would show DCS was only an offshoot of DPPL. There was no attempt, as alleged or at all to set up a parallel business. To buttress this submission, it was emphasized that there was no diversion, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed judgment and order of the CLB was concerned, learned counsel submitted that it suffered from various apparent errors, which included the lack of appreciation of the fact that despite, the respondents having failed to establish the alleged breach of fiduciary duty by the appellant, in his capacity as the Executive Director, the CLB had sustained his removal as the Director, which led to his consequential removal from the post of Executive Director. In support of this submission, learned counsel contended that there is no basis set out in the impugned judgement, which could have led one to come to a conclusion that setting up of DCS involved running of parallel business by the appellant. (v).Furthermore, it is stated that the CLB had wrongly concluded that the decision of removing the appellant as the Director at the EOGM held on 27.06.2009, was cured by the fact that the appellant had attended the meeting. The submission made, in this behalf, was that, the provisions of Section 190 of the 1956 Act, which required the issuance of special notice, in the mode and manner stipulated therein, was mandatory for triggering the removal of a Director. The participation by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra and Another, MANU/MH/0463/1987 ; (v) Shoe Specialties P. Ltd. and Others V. Standard Distilleries and Breweries P. Ltd. and Others, MANU/TN/0114/1996; (vi) Dipak G.Mehta and Others V. Anupar Chemicals (India) Pvt. Ltd. and Others, MANU/CL/0051/1999; (vii) Queens Kuries and Loans (P.) Ltd. V. Sheena Jose and Others, MANU/KE/0097/1992; (viii) Order of the CLB, Chennai Bench, dated 03.12.2010, in CP No.96 of 2010, titled : Natwarlal Pranlal Patel and Another V. Patel Veneers Pvt. Ltd. and Others. (ix) B.S.Chopra V. The Management of Karnataka Handloom Development Corporation Limited and Another, MANU/DE/2005/2005 ; (x) B.V.Thirumalai and Others V. Best Vestures Trading (P) Ltd., (2004) 4 Comp.L. J. 519 (CLB); (xi) N.Murali (HUF) and Others V. Kasturi and Sons Ltd., and Others, MANU/CL/0078/2010; (xii) Ebrahimi (A.P.) V. Westbourne Galleries Limited and Others, MANU/UKHL/0019/1972; (xiii) Sudershan Singh Sethi and others V. Sakhi Resorts and Farmlands P. Ltd. and others, (2015) 190 Comp Cas 349 (CLB); (xiv) V.Natarajan V. Nilesh Industrial Products Private Limited, MANU/CL/0097/2002; (xv) Naresh Trehan V. Hymatic Agro Equipment (P) Ltd., (1999) 4 Comp LJ 369 (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention was drawn to the fact that the appellant had not only received special notice but had also attended the EOGM, and thereupon, presented his defense to the proposed resolution. It was, thus, stated that given these circumstances, no fault could be found with the decision taken to remove the appellant as the Director of DPPL. 16.6. It was the submission of the learned counsel that no case of oppression was made out, and that, the only grievance, as indicated above, which was articulated by the appellant, was with regard to his removal as the Director of DPPL. The said grievance, according to the learned counsel, did not fall within the scope of the provisions of Sections 397 and 398 of the 1956 Act. It was sought to be emphasised that it was not only a case pivoted on a directorial complaint, but was also an isolated act, which, even, if, it is assumed to be true, cannot form the basis, on which, a petition for oppression and mismanagement can be instituted and/or maintained. 16.7. In support of the submissions, learned counsel placed reliance on the following judgements : (i) I.T. Commissioner V. S.S.Navigation Co., Ltd., AIR 1961 SC 1633; (ii) Iqbal Singh Marwah and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia, consider the aspect involving setting up of DCS by the appellant outside the shores of India. (xi).The appellant was issued a SCN dated 17.06.2009, to explain his conduct which, inter alia, included setting up of DCS and non-assignment of patents in favour of DPPL. (xii).The appellant responded to the aforementioned SCN by dispatching a reply dated 18.06.2009. (xiii).DPPL, via its Advocate, issued a public notice dated 19.06.2009. By this notice, the public, at large, was informed that the appellant was running a parallel business via DCS, and therefore, dealings, if any, with the said entity could only be at the concerned person's own risk and cost, since, the said entity had nothing to do with DPPL. (xiv).On 23.06.2009, a special notice was issued to the appellant to remove him from the position of the Director. (xv).The special notice dated 23.06.2009, was received by the appellant along with the proposed resolution seeking his removal, only on 24.06.2009. (xvi).The appellant presented his reply to the said notice dated 23.06.2009, only, at the EOGM held on 27.06.2009. (xvii).At the EOGM held on 27.06.2009, a resolution was passed removing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olders, via DPPL, decided to issue a SCN to the appellant with regard to the setting up of DCS. The inter-office memorandum dated 09.06.2009, does indicate that the appellant had informed DPPL that he would be proceeding on leave for a period of two weeks. Therefore, the respondents could not but have known, that the SCN was being issued to the appellant, at a time, when, he would not be present in the country. 20.1. The appellant, upon receiving the SCN, did file a reply dated 18.06.2009. In the interregnum, the BOD of DPPL held a meeting on 17.06.2009, pursuant to a notice issued, in that behalf, on 15.06.2009, whereat, the appellant's conduct concerning setting up of DCS was discussed. At this meeting, a decision was taken to convene an EOGM. Therefore, de hors, the fact that the events, which transpired between 15.06.2009 and 17.06.2009, had the blessings of the respondents, what one has to examine is as to whether the charges levelled against the appellant are made out. In this connection, one would, to my mind, thus, have to discern, the outcomes of the following sub-issues : 20.2. The first sub-issue, which arises for consideration, is : as to whether the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was approached by the appellant, to hasten, the enhancement of DPPL's business prospects in the field of consultancy and design services. The fact that the Michael Jackson was an employee of Stahlin Enclosures has not been refuted by the respondents. To that extent, Michael Jackson was not an unknown or an untested professional. 21.2. The respondents, however, submit that there was no need and/or necessity to set up DCS, as the same business could have been carried on under the name and style of DPPL. The appellant, however, appears to have taken this decision, given the fact that he was the Executive Director of DPPL and had been given a free rein to run and manage exclusively the affairs of Unit C. The appellant, therefore, as in the past, executed the MOU dated 05.03.2009, with Michael Jackson, as it appears, to enhance the business prospects of DPPL. 21.3. The fact that the appellant had executed such like MOUs in the past was sought to be demonstrated by relying upon seventeen (17) MOUs, which had been executed by him between January 1991 and July 2008. The list of seventeen (17) MOUs executed by the appellant, in his capacity as the Executive Director, and as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had explained that, since, the said person had provided inputs in respect of the subject invention, his name was also included in the patent, and that, on the appellant's request, the said patent would be assigned to DPPL. Accordingly, by way of an example, reference was made to the patent dealing with hole plugs , qua which, it was stated by the appellant, in the said reply, that the original concept was that of Michael Jackson, and, since, the appellant had provided additional inputs to make the invention workable, his name was added as a joint patentee. The appellant asserted that the patent pertaining to hole plugs had generated revenues for DPPL on a continuous basis upon its obvious assignment in favour of DPPL. 48. ...... 'words' just and equitable' are a recognition of the fact that a limited company is more than a mere legal entity the patents held by the appellant along with his daughter, in favour of DPPL. For this purpose, reliance was placed by the appellant on the assignment deed dated 26.06.2009 and the letter of even date, i.e., 26.06.2009, given by the De Penning and De Penning; Patents, Trademarks, Designs and Copyright Agents . 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , qua the accusation of diversion of funds, levelled against the appellant. The Supreme Court has observed in no uncertain terms that the allegation of misappropriation, forgery and fraud levelled against the appellant was not made out, and that, these allegations emanated from a personal and a private grudge of the complainants, i.e., respondents vis-a-vis, the appellant. 29.1. Having said so, while I am conscious of the fact that this judgement was rendered by the Supreme Court in the context of a criminal proceeding, it would, however, lend some weight, to my mind, to the contention advanced on behalf of the appellant that there was not a shred of evidence available to even begin considering the allegation of diversion of funds. The strength of this argument, quite obviously, flows from the fact that the Supreme Court quashed the FIR at the incipient stage, thus, declining the request of the State to even consider commencing an investigation qua the allegations. 29.2. In this context, one cannot, but agree with Mr.Venkatavaradan's submission that finding returned in a criminal proceeding may not be final and/or binding on a Court dealing with civil proceeding, as each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - the special notice dated 23.06.2009, enclosing therewith, the intended resolution, proposed to be moved to bring about the removal of the appellant as the Director of DPPL, was served upon him, only on, 24.06.2009. 30.3. The notice convening the EOGM, which is, dated 17.06.2009, only indicated that the discussion would be held with regard to various infractions allegedly committed by the appellant with regard to setting up of DCS and the purported failure displayed by the appellant in executing assignment deeds in respect of patents registered at the cost and expense of DPPL. Pertinently, the notice dated 17.06.2009, convening the EOGM, did not advert to the purported intention to remove the appellant, as the Director of DPPL. 30.4. Therefore, the first communication to the appellant, with regard to, DPPL having received a notice of intimation from a shareholder, seeking to move a resolution qua his removal as the Director, was the notice dated 23.06.2009, which was received by him, as indicated above, only on 24.06.2009. 30.5. Clearly, notice of intention to move a resolution for removal of the appellant as the Director was not issued in consonance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, a special notice has to be given in the manner, in which, the special notice is provided for in Section 190 of the 1956 Act. Therefore, the time lines given therein cannot be shortened, when, it involves a business, qua which, special notice is required to be served. 31.1. The provision incorporated in Article 15 of the AOA of short notice qua general meetings other than AGMs, is pivoted on the provisions of Section 170 of the 1956 Act. Notably, the provisions of Section 170 are applicable only qua provisions of Sections 171 to 186 of the 1956 Act. Section 170 does not make any reference to Section 190 of the 1956 Act. Therefore, the conclusion reached by the CLB that the EOGM, at which, the resolution for removal of the appellant as the Director was intended to be moved could be moved without following the mandate of Section 190 of the 1956 Act, is, clearly, flawed. 31.2. The minimum notice period, which is prescribed in Section 190 of the 1956 Act is required to be strictly adhered to, as the purpose appears to be, to not only to bring to the notice of the company and its members that special business is afoot, but also to give the affected party adequate time to prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not detain me, as even otherwise, I have come to the conclusion, de hors, the said aspect of the matter, that the acts of the respondents (other than DPPL), which led to removal of the appellant from the BOD were harsh and unfair and without foundation, and thus, constituted oppression. Therefore, the judgment of the Division Bench of this court in V.M.Rao V. V.L.Dutt and Others, 1987 (61) Company Cases 20, may not have much relevance, given the reasons and conclusions reached by me in the matter. 32.1. Furthermore, as regards, Mr.Venkatavaradan's submission that there was an apparent contradiction between what the appellant has stated in paragraph 52 of the plaint, filed in C.S.No.701 of 2010 and that, what was sought to be portrayed before CLB, with regard to setting up of DCS - I am of the view that there is no contradiction whatsoever. In both actions, the appellant has sought to demonstrate that the respondents were all along aware of the fact that DCS was being set up to enhance the business prospects of DPPL by taking recourse to the surrounding circumstances. Therefore, this submission advanced on behalf of the appellant is only stated to be rejected. 33. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management of the company. Appellant's family had an equal share of the corporate pie, when, compared with the share of other branches of the family. The fact that in the instant case four branches were pitted against one branch did not militate against the principle of quasi partnership. 34. The principle of quasi partnership gets into the fray in actions filed under Section 397 of the 1956 Act, by virtue of the expression just and equitable used in Sub-Section (2), clause (b) of the very same section. In sum, for an action to be sustainable under Section 397 of the 1956 Act, in which, the principle of quasi partnership is invoked, the aggrieved party would have to demonstrate to the Court : (i) that the affairs of the company were being conducted in a manner prejudicial to the public or, in a manner oppressive to any member or members ; and (ii) that to wind up the company would, unfairly, prejudice such member or members, and that, otherwise, the facts obtaining in the matter would justify that the company should be wound up on the ground that it is just and equitable . 34.1. The word oppressive would include, in its widest sense, an action, which is burdensome, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced to the sum of particular instances. (pp 374-375) (emphasis is mine) 34.2. It is important to note that in Ebrahimi's case, wherein, the just and equitable clause was applied, the company against whom action had been filed, was a closely held company, where, one of the Directors was being removed by votes cast by the other two (2) Directors on the Board. 34.3. Furthermore, in this regard, the observations made in paragraph 50 of the Needle Industries (India) Limited case (cited supra) , are also required to be noted. The Supreme Court, in nutshell, held that the fact that a company is prosperous and/or makes substantial profits, is not an obstacle to it being wound up, if, it is otherwise, just and equitable to do so. 34.4. This apart, the Supreme Court observed in the very same case that there may be situations, where, a resolution passed against a Director, which may be, otherwise, perfectly, legal, may yet be oppressive. Similarly, it went on to observe that the converse may also be triggered, which is, that a resolution, which is, in contravention of the law could be in the interest of the shareholders and the company. 34.5. This principle was ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out on made-up and flimsy grounds, as in this case and would, thus, in my opinion, bring the action within the ambit of provisions of Sections 397 and 398 of the 1956 Act. 34.9. In a public limited company, much would depend on the facts obtaining in that case. Say, for example, where, controlling interest is centered in one or more groups, and shares, though, listed on the Stock Exchange, are not freely traded. In such cases, different connotations may arise. The acts of oppression, in my view, will, thus, have to be examined, bearing in mind the totality of circumstances obtaining in a case, without being unduly burdened by the fact that it is a family company, or a private limited company, or even a public limited company. For grant of relief, qua oppression, the principles of quasi partnership are applicable, even to a public limited company. This is clearly borne out from the following observations made in paragraph 238 of the judgment of the Supreme Court in Sangramsinh P.Gaekwad and Others V. Shantadevi P.Gaekwad, MANU/SC/0052/2005 : 238. It is now well-known that principles of quasipartnership is not foreign to the concept of Companies Act. For the purpose of gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, I am inclined to allow the appeal and set aside the impugned order of the CLB dated 28.05.2015. Resultantly, the decision taken at the EOGM convened on 27.06.2009, to remove the appellant as the Director of DPPL and as a consequence thereof, his removal as the Executive Director is held to be bad in law. 37. As a logical corollary, status quo ante, would prevail, as was obtaining prior to the decision taken, qua the appellant, at the EOGM held on 27.06.2009. 38. Accordingly, in terms of what is stated above, the captioned appeal is allowed. 39. While, the appeal has been allowed, the question, which, to my mind, still remains to be answered is, as to whether the contesting parties ought to be forced to continue as part of DPPL, by a judicial fiat, albeit, against their will. 39.1. At the moment, the respondents 2 to 10, represent one group, while, the appellant represents the other group. The fact that the appellant has succeeded in the appeal, would be, in the long run, quite clearly, be a pyrrhic victory, as the respondents, would, perhaps, learn the lessons of this litigation and would tackle the very same issue in a manner, which would, perhaps, be closer and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. It is relevant to note that in that case, the Supreme Court was required to interpret the provisions of Section 66(1) of the Income Tax, 1922. The Court, in that context, was called upon to rule as to what would constitute a question of law arising from the order of the Tribunal. The Court, inter alia, ruled that, when a question of law is neither raised before the Tribunal, nor considered, it cannot be a question arising out of its order, notwithstanding the fact that it may arise in the context of findings given in the order. 39.6. It is relevant to note that the nature of jurisdiction, which stood vested upon the High Court under Section 66 of the Income Tax, 1922, is different from the jurisdiction, which is conferred on the CLB under Sections 402 of the 1956 Act. In the given case, the failure to exercise such jurisdiction may give rise to a question of law under Section 10F. That the power of CLB under Section 402 of the 1956 Act is of the widest amplitude, is statutorily exemplified by clause (g) of the very same provision. Clause (g) of Section 402 brings within its sway, all other matters, qua which it is just and equitable for CLB to make a provision. 39.7. As i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
