- (1.) In these two revisional applications under Article 227 of the Constitution of India, the petitioners have challenged the order No. 3 dated 24th January, 2013 passed by the learned District Judge, Alipore in Misc. Appeal No. 36 of 2013 (Sarkar Soumitra 85 Anr. vs. Girish Neelam & Associates & Ors.). It is submitted by Mr. Partha Sarathi Sengupta, learned advocate for the petitioners in C.O. 494 of 2013 that though the learned Civil Judge (Junior Division) 1st Court, Alipore in his order dated 18th January, 2013 declined to grant ad-interim injunction as the plaintiffs failed to satisfy the Court that there was urgency in the matter on the ground that the cause of action arose on 24th September, 2012, however the first Appellate Court while passing an interim order of injunction did not at all consider the fact that the appellant had failed to satisfy that there was urgency in the matter more so as the memo of appeal did not contain specific grounds. In support of his submission reliance has been placed on the judgments of the Apex Court in Shiv Kumar Chadha vs. Municipal Corporation of Delhi, 1993 3 JT 238; Morgan Stanley Mutual Fund vs. Kartick Das, 1994 4 SCC 225; The Secretary & Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity, 2010 3 SCC 732 and on the judgment of the High Court in Supratik Ghosh vs. M/s. Pasari Housing Development Pvt. Ltd., 2000 1 CalHN 614.
(2.) Mr. Kapoor, learned senior advocate appearing for the petitioner in C.O. 479 of 2013 supporting the stand taken by the petitioner in C.O. 494 of 2013 and referring to the prayers in the plant has submitted that as the plaintiff is not a shareholder but an auditor of the company whose appointment was validly terminated under the provisions contained in the Companies Act, the suit itself is not maintainable and while passing the order of injunction as the provisions contained in Order 35 sub-rule (3) were not adhered to by the first Appellate Court, necessary directions may be passed setting aside the order under challenge.
(3.) Mr. P.C. Sen, learned senior counsel appearing on behalf of the respondents supporting the impugned order submits that since removal of the auditor was not in accordance with the provisions contained in section 190, 224(1) and (2) and 225 of the Companies Act and was ex-facie illegal, the order is valid in law. In support of his contention reliance has been placed on the judgments of the Supreme Court in Estralla Rubber vs. Dass Estate (P) Ltd., 2001 8 SCC 97 and on the judgment of the High Court in NEPC Micon Ltd. vs. Magma Leasing Ltd. Anr., 1999 1 CalHN 617.;