Bhaskar Bhattacharya, J. - (1.) This Letters Patent appeal is directed against the order dated 23rd February, 2004 passed by a learned Single Judge of this Court by which His Lordship rejected an application filed by the appellant for setting aside the order dated May 10, 2000 passed by His Lordship in C. P. No. 178 of 2000 in connection with C. A. No. 122 of 2000.
(2.) The facts giving rise to filing of the present appeal may be summed up thus: (a) The appellant before us is a shareholder of two companies being AHIL and AHL. On January 31, 2000, the Board of Directors of AHIL and AHL duly approved the scheme of arrangement, reconstruction, and consequent reduction of capital and necessary Board-resolution was passed. (b) On February 1, 2000, AHIL intimated the Bombay Stock Exchange and the Calcutta Stock Exchange about the said scheme of arrangement and the report was prepared by SBI Capital Markets Limited to determine sustainable capital and financial structure of AHIL. (c) On February 28, 2000, Company Application No. 122 of 2000 was filed before a learned Single Judge of this Court on behalf of AHIL and AHL seeking directions for convening meetings of the shareholders of the said two companies whereupon on March 1, 2000, an order was passed directing holding of the meetings of the shareholders of AHIL and AHL. (d) On March 10, 2000, pursuant to the said order dated March 1, 2000. the notices were issued by the Chairman of the respective meeting for convening of the meeting of the shareholders and advertisements were duly published for the said meeting in the daily issue of 'Business Standard' and 'Pratidin' as per the order of the learned Single Judge. Such notice was published on March 11, 2000. (e) There is no dispute that the notice convening the said meeting also received by the son of the appellant on March 18, 2000. (f) Meeting of the shareholders of AHIL and AHL was duly held 011 April 5, 2000 but in spite of service of notice, neither the appellant nor his son attended the said meeting. (g) On April 12, 2000, a proceeding being C. P. No. 178 of 2000 was filed before this Court for confirmation of the scheme of arrangement and by order dated April 17, 2000, the learned Single Judge admitted the Company Petition No. 178 of 2000 and necessary advertisements were published for the second time in the daily issue of 'Business Standard' and 'Pratidin' on April 20, 2000. (h) Ultimately, on May 10, 2000, the learned Single Judge passed an order sanctioning the said scheme of arrangement after the Central Government gave its "no-objection" for sanctioning of the said scheme. (i) On May 19, 2000, the certified copy of the said order dated May 10, 2000 was made available to AHIL and AHL and the certified copy of the said order was filed by AHIL and AHL with ROC, Kolkata. (j) On June 14, 2000, the Bombay Stock Exchange and the Calcutta Stock Exchange were informed about the coming into effect of the scheme of arrangement. It further appears from the record that the appellant was aware of the fact that the meeting would be held as the notice of the meeting was received through his son in the month of June, 2000 and on July 27, 2000, the annual account of AHIL including balance- sheet for the financial year 1999-2000 giving due effect to the scheme of arrangement was drawn up which was received by the appellant and other members of his family in the month of August, 2000 but they did not raise any objection. (k) On September 5, 2000, the Annual General Meeting was held and the annual accounts for the financial year 1999-2000 giving due effect to the scheme as above were adopted by the shareholders and in spite of such receipt of annual accounts, neither the appellant nor any of his other family members raised any objection to the same nor did they attend the Annual General Meeting. It further appears that on October 25, 2000, the appellant and his son duly encashed the dividend warrants dated October 10, 2000 issued on the reduced share capital of AHIL without raising any objection. (1) The annual return of AHIL for the year 2000 was prepared 011 the basis of sanctioned scheme and was filed before the Registrar of Companies on November 2, 2000 and the Income-Tax Return for the previous year 1999-2000 made on the basis of the sanctioned scheme was submitted on November 30, 2000. (m) On November 30, 2000 the appellant and his son including all the shareholders were given stickers showing that the share capital of AHIL comprised of face value of Rs. 6/- each instead of Rs. 10/- each and the same was duly accepted by the appellant without raising any objection. (n) It appears from the record that on December 21, 2000, the Trial Suit Nos. 18/19 of 2000 were filed by the appellant against AHIL in the Small Causes Court at Bombay praying for decree of eviction directing the AHIL to quit, vacate and deliver the peaceful possession of the premises at Currimbhoy Road, Ballard Estate, Mumbai-400 038. (o) On June 27, 2001, the annual accounts of AHIL including balance- sheet for the financial year 2000-2001 were given due effect and the scheme of arrangement was drawn up and thereafter, on September 27, 2001, the Annual General Meeting was held and the annual accounts for the financial year 2000-2001 was drawn up on the basis of sanctioned scheme of arrangement adopted by the shareholders. In spite of receipt of such annual accounts, neither the appellant nor any of his family members raised any objection to the same nor did they attend the Annual General Meeting. (p) The Income-Tax Return for the previous year 2000-2001 made on the basis sanctioned scheme was submitted on October 29, 2001 and at the same time, the appellant and his son duly encashed the dividend warrants dated October 17, 2001 issued on the reduced share capital of AHIL without raising any objection. (q) On November 13, 2001, the annual return of AHIL for the year 2001 was prepared on the basis of the sanctioned scheme filed before the Registrar of Companies and subsequently, on November 29, 2001, AHIL applied for and was granted certificate for registration by the Reserve Bank of India to function as a non-banking financial company under the RBI Act, 1934. (r) On December 26, 2001, the learned Advocate for AHIL informed the learned Advocates for the appellant that in the title suits pending before the Bombay Court reliance would be placed upon the order dated May 10, 2000 passed by the learned Single Judge of this Court in C.P. No. 178 of 2000 connected with C.A. No. 122 of 2000 and thereafter, on February 14, 2002, the appellant made an application for amendment of the plaint filed in the suits in Mumbai seeking amendment as per schedule annexed to the notice. The said application for amendment of the plaint, however, was dismissed on March 27, 2002 and against the order of dismissal, a civil revision was filed in the High Court of Judicature at Bombay on April 17, 2002 but the same was withdrawn on June 18, 2002. (s) On June 29, 2002, the annual accounts of AHIL including balance- sheet for the financial year 2001-2002 giving due effect to the scheme of arrangement were drawn up and thereafter, on September 27, 2002, the Annual General Meeting was held and the annual accounts for the financial year 2001-2002 were drawn up on the basis of sanctioned scheme of arrangement adopted by the shareholders. In spite of receipt of such annual accounts, neither the appellant nor any of his other family members raised any objection nor did they attend the Annual General Meeting. (t) Even on October 21, 2002, the appellant and his son duly encashed the dividend warrants dated October 1, 2002 issued on the reduced share capital of AHIL without raising any objection. (u) Ultimately, on May 19, 2003, the Company Application No. 269 of 2003 was filed for recalling the order dated May 10, 2000 passed by the learned Single Judge.
(3.) As indicated earlier, the learned Single Judge by the order impugned herein has rejected such application.;