- (1.) These appeals have been preferred against the judgment and final order dated 24.11.2003 passed by the High Court of Calcutta in APO Nos. 346 and 347, by way of which the High Court rejected the claim of the appellant to maintain the Company Petition filed under Sections 397 & 398 of the Companies Act, 1956 (hereinafter referred to as the 'Act 1956').
(2.) Facts and circumstances giving rise to these appeals are that: A. Shri S.K. Roy (Respondent No. 2) issued and allotted 30,000 shares of the Respondent No. 1 company to himself and his relatives, and being the majority share holder therein, hence acquired control over the respondent-company. B. Shri Ajit Kumar Chatterjee (3.66% shares) and Shri Arghya Kusum Chatterjee (1.01% shares) filed Company Petition No. 222 of 1991 under Sections 397 and 398 of the Act 1956, before the High Court of Calcutta with the consent of M/s Bhagwati Developers Pvt. Ltd. (4.78% shares) (hereinafter referred to as 'the appellant') and Shri R.L. Gaggar (7.61% shares), alleging mis-management and oppression. C. Respondent No. 2 contested the said Company Petition by raising the preliminary issue of maintainability, stating that the valid shares held by the petitioners and consenting parties therein, were valued at less than 10 per cent of the total shareholding, and thus, the petition itself was not maintainable. The Company Court Judge vide order dated 13/14.1.1992, dismissed the said Company Petition as not maintainable, allowing the aforementioned preliminary objection, without entering into the merits of the case. D. Shri Ajit Kumar Chatterjee and Shri Arghya Kusum Chatterjee, both petitioners therein, filed two appeals being Nos. 40 and 35 of 1992 respectively, before the Division Bench of the Calcutta High Court challenging the dismissal of the Company Petition on the ground of maintainability. Both the appeals were consolidated and heard together. E. On 16.11.1993, Shri Ajit Kumar Chatterjee joined the Board of Directors of the company and filed applications for withdrawal of the appeals. The Division Bench of the High Court, vide order dated 16.11.1993 allowed the said applications, and dismissed his appeal as withdrawn. A similar order was passed by the Division Bench on 18.11.1993 while allowing a similar application filed by Shri Arghya Kusum Chatterjee, and therefore, his appeal was also dismissed as withdrawn. F. The appellant filed two applications before the Division Bench on 22.12.1993 for the purpose of recalling the order of dismissal of the said appeals, and for the transposition of the Chatterjee brothers as proforma respondents, whilst substituting the appellant as the sole appellant therein. The Division Bench, vide order dated 2.2.1995 dismissed the said application by a detailed judgment, labelling the appellant as a stranger having no locus standi whatsoever, and observing that as the appeal was no longer pending, the question of transposition of parties did not arise. Moreover, it was observed that there had been an inordinate delay in the filing of such an application. G. Aggrieved, the appellant preferred S.L.P.(C) Nos. 19193 and 19217 of 1995 before this court, challenging the order dated 2.2.1995. This Court entertained the said petitions, granted leave, and disposed of the appeals vide judgment and order dated 26.4.1996, observing that the appellant may prefer independent appeals, challenging the judgment and order dated 13/14.1.1992, passed by the learned Single Judge, further stating that if such an appeal was infact filed, the same would not be dismissed by the Division Bench on grounds of limitation or locus standi. However, it would be open for Respondent No.2 to contend, that the ground upon which the Company Court Judge had dismissed the Company Petition, was indeed just, i.e. the respondent could defend the order passed by the Company Court Judge. Further, the effect of withdrawal of the appeals by Chatterjee brothers on the appeals filed by the appellant, would also be examined. Additionally, the dismissal of the appeals as withdrawn, preferred by Chatterjee brothers, would not come in the way of the appellant raising such contentions as are permissible and available to it in law. This Court disposed of the said appeals without expressing any opinion on merit. H. In pursuance of the order dated 26.4.1996 passed by this Court, the appellant preferred appeal Nos. 346 and 347 of 1996, which have been dismissed vide impugned judgment and order dated 24.11.2003. Hence, these appeals.
(3.) Shri Sunil Kumar Gupta, learned senior counsel appearing on behalf of the appellant, has submitted that the High Court, while dismissing the appeals filed by the appellant, failed to appreciate the judgment and order of this Court dated 26.4.1996, wherein this Court had held, that the issues of limitation and the locus standi of the appellant would not be questioned. The Division Bench of the High Court hence, ought not to have non-suited the appellants on the issue of locus standi. The Chatterjee brothers had withdrawn their appeals, and thus, the High Court has erred in its interpretation of the order of this Court in correct perspective, and has therefore, rendered the appellant remediless. Even if the said Company Petition had been withdrawn, the appellant with whose consent the Company Petition had been filed, was certainly entitled to revive the said Company Petition, and to challenge the order of the Company Court Judge before the Division Bench. It was not permissible for the Division Bench to dismiss the applications filed by the appellant without so much as going into the merits of the case, simply relying upon the earlier Division Bench judgment and order dated 16.11.1993. Such a course adopted by the High Court, has rendered the order of this Court dated 26.4.1996, a nullity. Thus, the appeals deserve to be allowed.;