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Sunday, April 7, 2013

In a company petition, when the petitioner not gave fair fight and when compromised to the prejudice of other share holders, any share holder can question the same = 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 said application is maintainable under Section 397, where the affairs of the company are being conducted in a manner that is prejudicial to public interest, or in a manner that is oppressive with respect to any member or members of the company.- where the Company Petition is filed with the consent of the other shareholders, the same must be treated in a representative capacity, and therefore, the making of an application for withdrawal by the original petitioner in the Company Petition, would not render the petition under Sections 397 or 398 of the Act 1956, non-existent, or non-maintainable. The other persons, i.e., the constructive parties who provide consent to file the petition, are in fact entitled to be transposed as petitioners in the said case. Additionally, in case the petitioner does not wish to proceed with his petition, it is not always incumbent upon the court to dismiss the petition. The court may, if it so desires, deal with the petition on merit without dismissing the same. Further, there is no requirement in law for the shareholder himself, to give consent in writing. Such consent may even be given by the power of attorney holder of the shareholder. If the shareholder who had initially given consent to file the Company Petition to help meet the requirement of 1/10th share holding, transfers the shares held 11Page 12 by him, or ceases to be a shareholder, the same would not affect the maintainability and continuity of the petition.


Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 361-362 of 2005
Bhagwati Developers Private Ltd. … Appellant
Versus
The Peerless General Finance … Respondents
Investment Company Limited & Ors.
J U D G M E N T
Dr.B.S.Chauhan, J.
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:Page 2
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.
2Page 3
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
3Page 4
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
4Page 5
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
5Page 6
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.
4. Per contra, Shri Ashok H. Desai, Shri Bhaskar P. Gupta, Shri
Abhijit Chatterjee, Shri Jaideep Gupta, learned senior counsel
appearing on behalf of the respondents, have opposed the appeal
contending that Chatterjee brothers had withdrawn both their appeals,
as well as Company Petition No. 222 of 1991. Therefore, it was not
permissible for the appellant to move applications for impleadment
and transposition. It is evident that such applications cannot be
entertained where the Company Petition itself is not pending.
Furthermore, the learned Single Judge had rightly held, that the
present appellant and Shri R.L. Gaggar, the consenting parties, were
neither eligible nor competent to give such consent, as they did not
possess valid shares. Moreover, one of them had given consent
6Page 7
through the Power of Attorney holder, which is not in accordance with
law. This Court, vide its order dated 26.4.1996 did not set aside the
judgment and order of the High Court dated 16.11.1993. Thus, the
same has rightly been relied upon by the High Court in its impugned
judgment. The appeals are devoid of any merit, and are hence, liable
to be dismissed.
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the records.
6. The right to apply for the winding up of a company is available,
provided that the applicant satisfies the requisite requirements under
Sections 397, 398 and 399 of the Act 1956, with respect to holding
10% shares in the total share-holding of the company. It is not
necessary that the petitioner(s) must hold the same individually. Such
a winding up petition can even be filed after obtaining the consent of
other shareholders, so as to meet the requirement of having an
aggregate of 10 per cent out of the total share-holding.
7. The said application is maintainable under Section 397, where
the affairs of the company are being conducted in a manner that is
7Page 8
prejudicial to public interest, or in a manner that is oppressive with
respect to any member or members of the company. (Vide: M.S.D.C.
Radharamanan v. M.S.D. Chandrasekara Raja & Anr., AIR 2008
SC 1738)
8. In Rajahmundry Electric Supply Corporation Ltd. by its
Vice-Chairman, Appanna Ranga Rao v. The State of Andhra, AIR
1954 SC 251, this Court, while dealing with a case under Section 397
of the Act 1956 and Section 153(c) of the Indian Companies Act,
1913, which were analogous to the provisions of Section 397 of the
Act 1956, held, that the issue of whether the petitioner had obtained
consent of the members of the company in order to meet the
requirements of holding 1/10th of the total shares, is to be examined in
light of whether such a number was infact attained and maintained on
the actual date of presentation of the Company Petition in court, and
in the event that a member later withdraws consent, the same would
not affect either the right of the applicant-petitioner to proceed with
the application, or the jurisdiction of the court to dispose of it on
merits.
8Page 9
9. In M/s. Dale and Carrington Invt. (P) Ltd. & Anr. v. P. K.
Prathapan & Ors., AIR 2005 SC 1624, this Court dealt with the
issue of transfer of shares without seeking the permission of the
Reserve Bank etc. and held as under:
“ On the question of locus standi the
learned counsel for the respondent cited
Rajahmundry Electric Supply Corporation
Ltd. v. A. Nageshwara Rao and others, AIR
1956 SC 213, wherein it was held that the
validity of a petition must be judged from
the facts as they were at the time of its
presentation, and a petition which was valid
when presented cannot cease to be
maintainable by reason of events
subsequent to its presentation. In S.
Varadarajan v. Venkateswara Solvent
Extraction (P) Ltd. and others (1994) 80
Company Cases 693, a petition was filed by
the applicant and four others under Sections
397 and 398 of the Companies Act. During
the pendency of the petition, the four other
persons who had joined the applicant in
filing the petition sold their shares thereby
ceasing to be shareholders of the company.
It was held that the application could not be
rejected as not maintainable on the ground
that the four shareholders ceased to be
shareholders of the company. The
requirement about qualification shares is
relevant only at the time of institution of
proceeding. In Jawahar Singh Bikram
Singh v. Sharda Talwar (1974) 44
Company Cases 552, a Division Bench of
the Delhi High Court held that for the
purposes of petition under Sections 397/398
it was only necessary that members who
9Page 10
were already constructively before the
Court should continue to proceedings. It is a
case in which the petitioner who had filed a
petition died during the pendency of the
petition. While filing the petition he had
obtained consent of requisite number of
shareholders of the company, among them
his wife was also there. The Court further
observed that since wife of the petitioner
was already constructively a petitioner in
the original proceedings, by virtue of her
having given a consent in writing, she was
entitled to be transposed as petitioner in
place of her husband.”
(Emphasis added)
10. Section 399 of the Act 1956, neither expressly nor by
implication requires, that the consent to be accorded therein, should be
given by a member personally, as the same can also be given by the
Power of Attorney holder of such a shareholder. Furthermore, the
issue of consent must be decided on the basis of a broad consensus
approach, in relation to the avoidance and subsistence of the case. The
same must be decided on the basis of the form of such consent, rather
on the substance of the same. There is hence, no need of written
consent, or even of the consent being annexed with the Company
Petition. (Vide: P. Punnaiah & Ors. v. Jeypore Sugar Co. Ltd. &
Ors., AIR 1994 SC 2258; and J. P. Srivastava and Sons Pvt. Ltd. &
Ors. v. M/s. Gwalior Sugar Co. Ltd. & Ors., AIR 2005 SC 83)
10Page 11
11. In view of the above, the case at hand is required to be
considered in the light of aforesaid settled propositions of law, which
provide that where the Company Petition is filed with the consent of
the other shareholders, the same must be treated in a representative
capacity, and therefore, the making of an application for withdrawal
by the original petitioner in the Company Petition, would not render
the petition under Sections 397 or 398 of the Act 1956, non-existent,
or non-maintainable. The other persons, i.e., the constructive parties
who provide consent to file the petition, are in fact entitled to be
transposed as petitioners in the said case. Additionally, in case the
petitioner does not wish to proceed with his petition, it is not always
incumbent upon the court to dismiss the petition. The court may, if it
so desires, deal with the petition on merit without dismissing the
same. Further, there is no requirement in law for the shareholder
himself, to give consent in writing. Such consent may even be given
by the power of attorney holder of the shareholder. If the shareholder
who had initially given consent to file the Company Petition to help
meet the requirement of 1/10th share holding, transfers the shares held
11Page 12
by him, or ceases to be a shareholder, the same would not affect the
maintainability and continuity of the petition.
12. The Company Court Judge dismissed the petition on merits,
vide judgment and order dated 13/14.1.1992. Appeals were preferred,
and the first appeal was withdrawn by Shri Ajit Kumar Chatterjee,
vide order dated 16.11.1993.
13. The said application was also opposed by another appellant,
namely, Shri Arghya Kusum Chatterjee. However, the court passed
the following order:
“In the instant case, as the applicant No. 1
goes out of the picture and the appeals in so
far as the appellant No.1 stand dismissed for
non-prosecution, the Company Petition is
not maintainable and the appeals are also not
maintainable in the same ground in view of
the fact that with regard to two other
appeals, one on the question of
maintainability of the appeal and the other
on the question of merit of the appeal. If the
maintainability of the appeal could not be
proceeded within that event the other appeal
also could not be proceeded with.
Accordingly, when one of the parties in
appeals does not want to proceed with the
appeals the Court has no jurisdiction to
compel that party to continue with the
appeals against his will. Further, if that party
is allowed to withdraw from the appeals and
if it is evident that the petition itself could
12Page 13
not be maintainable in the absence of that
party in that event the entire petition and/or
the appeal shall fail and could not be
proceeded with under the law. Accordingly,
both the appeals stand dismissed as the same
could not be proceeded with because of the
facts and circumstances stated above. The
applications filed today are allowed.”
14. The aforesaid order makes it clear that the Division Bench has
reasoned, that if a party is allowed to withdraw from the appeal, and it
is evident that in the absence of such party, the petition itself could not
be maintainable, then the entire petition and/or the appeal shall fail,
and cannot be proceeded with under the law. Such an observation has
been made by the Division Bench without examining the issue of
maintainability of the Company Petition on merits.
15. Another Chatterjee brother, namely, Shri Arghya Kusum
Chatterjee withdrew his Appeal No. 40 of 1992, vide order dated
18.11.1993. The Court observed, that in view of the order dated
16.11.1993, no order was necessary, for the reason that if one appeal
fails, the other cannot be maintained. The court further held:
“We place it on record that the appellant No.
2 does not wish to proceed with the above
appeals and also prays for dismissal of the
applications under Sections 397 and 398 of
13Page 14
the Companies Act which stand dismissed
by the order passed by the learned Trial
judge. So, it is placed on record that both
the appellant Nos. 1 and 2 do not wish to
proceed with the appeals which were already
dismissed by us for non – prosecution on
16th November, 1993.
Accordingly, both the applications are
disposed of.”
16. Immediately after the said withdrawal of the appeals, the
present appellant moved an application dated 22.12.1993, to recall the
aforesaid orders dated 16.11.1993 and 18.11.1993, and for transposing
the appellant in place of the Chatterjee brothers, while making them
proforma respondents. The said application was rejected by order
dated 2.2.1995, on the premise that the petitioners, as well as the
constructive parties, i.e., the consent givers had not obtained their
share holding validly. The appeals filed by the Chatterjees had been
withdrawn. Thus, in light of such a fact-situation, the question of
entertaining any application for either the addition or transposition of
parties, could not arise. The court further made a distinction between
the present case and Rajahmundry’s case, observing that the facts of
the case at hand, were quite distinguishable from those in
Rajahmundry’s case, as in the latter, the consenting party had
14Page 15
withdrawn its consent, while here, the constructive consenting party
has withdrawn its case.
17. The appellant being aggrieved, preferred appeals before this
Court, which were disposed of vide judgment and order dated
26.4.1996, giving liberty to the appellant to file an independent appeal
against the order of the Company Court Judge dated 13/14.1.1992.
Further, it was also open to the respondents to contend that the
company petition itself was not maintainable for the reason given by
the Company Court Judge, i.e. not having the requisite 10% share
holding. The said order dated 26.4.1996, was passed at the behest of
the respondents, with their consent, stating that they would not raise
the issues of limitation, or of the locus standi of the appellant.
18. In view of the above, the appellant preferred the appeals which
were dismissed vide impugned judgment and order dated 24.11.2003,
relying upon an observation made by the Division Bench earlier, to
the effect that, in view of the fact that the Chatterjee brothers had
withdrawn their appeals, and that the Company Petition had been
declared as not maintainable by the Company Court Judge, the
question of entertaining any appeal with respect to the same, could not
15Page 16
arise. After the withdrawal of the said appeals by the Chatterjees, the
appellant did not have any right to proceed with the original
application by any means, whatsoever.
19. The High Court in the impugned judgment, did not take into
consideration the effect of the order of this Court dated 26.4.1996, and
rendered the same a nullity, giving unwarranted weightage to the
earlier orders of the Division Bench dated 16.11.1993 and 18.11.1993,
for the reason that this Court, while passing an order on 26.4.1996, did
not set aside those orders, and therefore, the same remained intact.
Furthermore, the Court did not examine whether a petition filed in
representative capacity can be withdrawn unilaterally by the party
before the court, and what effect Order XXIII Rule 1 (5) CPC which
provides that court cannot permit a party to withdraw such a case
without the consent of the other parties, would have.
20. The courts have consistently held, that a suit filed in
representative capacity also represents persons besides the plaintiff,
and that an order of withdrawal must not be obtained by such a
plaintiff without consulting the category of people that he represents.
The court therefore, must not normally grant permission to withdraw
16Page 17
unilaterally, rather the plaintiff should be advised to obtain the
consent of the other persons in writing, even by way of effecting
substituted service by publication, and in the event that no objection is
raised, the court may pass such an order. If the court passes such an
order of withdrawal, knowing that it is dealing with a suit in a
representative capacity, without the persons being represented by the
plaintiffs being made aware of the same, the said order would be an
unjustified order. Such order therefore, is without jurisdiction. (Vide:
Mt. Ram Dei v. Mt. Bahu Rani, AIR 1922 Pat. 489; Mt. Jaimala
Kunwar & Anr. v. Collector of Saharanpur & Ors., AIR 1934 All.
4; and The Asian Assurance Co. Ltd. v. Madholal Sindhu & Ors.,
AIR 1950 Bom.)
21. The relevant parts of the impugned order provided as under:
I. Now the crucial question comes for consideration that when it
is established fact as evident from the reading of the order of the
Hon’ble Supreme Court that there was no existence of the original
Company Petition since withdrawal of the Chatterjee brothers, can
there be any existence of any appeal arising out of the said Company
Petition and in our considered view the only answer to this crucial
question must be in the negative.
17Page 18
II. According to the observation of the learned Single Judge the
Company Petition was invalid and ineffective at the time of its
institution, because, one of the Chatterjee brothers was not a
"member" within the meaning of the Companies Act and at the same
time one of the consenting parties namely, R.L. Gaggar had
withdrawn his consent soon after filing of the original application and
on both these counts, even if the Chatterjee brothers had not
withdrawn, the Company Petition could not be accepted as a valid
petition in the eye of law and we have already recorded that these
findings of the learned Single Judge were upheld by the Division
Bench while disposing of the petitions filed by the BDPL and even
taking the risk of repetition it can be stated that the Hon'bIe Supreme
Court did not interfere with the findings of the Division Bench in this
regard while recording its order dated 26th April, 1996.
III. We are of the view that the order of the previous Division Bench
dated 16th November, 1993 and 2nd February, 1995 were not touched
by the Hon'ble Supreme Court regarding recognition of the
withdrawal of Chatterjee brothers both from the appeals as well as
from the original Company Petition and in that background the
present appellant being a consenting party, and that consent too not
being above legal scrutiny, has no legal right to proceed with the
present appeals without the original application out of which the
appeals arose and which is non-existent in the eye of law.
And finally, it was held as under:
18Page 19
IV. Thus, for the reasons recorded hereinabove, we are of the view
that the present appeals are not maintainable and on this ground alone
the present appeals are liable to be dismissed and there is no
requirement in the eye of law to enter into the other aspect of the
matter touching maintainability of the original Company Petition.
22. In our humble opinion, the Division Bench has gravely erred in
taking the aforesaid view, as the same renders the order of this Court
dated 26.4.1996, a nullity. This Court had passed the order after
hearing the present respondents on the basis of suggestions made, and
concessions offered by them. It was in fact, suggested by the learned
counsel appearing on behalf of the respondents, that if the appellant
prefers such appeals in the High Court even now, the respondents
shall not raise any objection on the ground of limitation, and that they
would not also object on the ground of the locus standi of the
consenting shareholders. Thus, the same makes it clear, that the right
of maintenance of an appeal against the judgment of the learned
Single Judge dated 2.2.1995, was in fact an offer made by the
respondents themselves, with a further undertaking being provided by
them with respect to the question of limitation and locus standi of the
appellant, stating that the same would not be raised. What was granted
to them, was only permission, to raise the contention that, as on the
19Page 20
date of actual filing of the Company Petition before the company
court Judge, the petitioners alongwith the constructing parties, had 10
per cent share holding out of the total stakeholding of the company .
 The aforesaid terms of this Court have made it crystal clear, that
this Court was entirely oblivious of the fact that there had been two
orders passed by the Division Bench, permitting the withdrawal of the
appeals and further, dismissing the application of the appellant for
recalling the said orders. If this Court did not set aside the said
orders, we fail to understand the purpose of asking the appellant to file
an appeal against the judgment and order of this Court dated 2.2.1995.
Thus, by the impugned order, the High Court has rendered the entire
exercise undertaken by this Court, a futile one. In our humble
opinion, the Division Bench has hence, erred gravely.
23. We do not find any force in the submissions made by Shri
Desai, to the effect that in view of Rule 88(2) of the Rules 1959, the
CPC had no application to the facts of the instant case. Rule 88(2)
reads, that a petition under Sections 397 and/or 398 of the Act 1956,
shall not be withdrawn without the leave of the court, and therefore, as
per Shri Desai, the provisions of the CPC, as have been applied in the
20Page 21
case on which Shri Gupta has relied upon, have no application in the
instant case. Rule 6 reads as under:
“Save as provided by the Act or by these
rules the practice and procedure of the Court
and the provisions of the Code so far as
applicable, shall apply to all proceedings
under the Act and these rules. The Registrar
may decline to accept any document which
is presented otherwise than in accordance
with these rules or the practice and
procedure of the Court.”
24. It has been submitted by Shri Ashok H. Desai, learned senior
counsel appearing on behalf of the respondents, that the phrase “so far
as applicable”, excludes the application of the CPC where a particular
procedure is prescribed in the Rules itself, and as Rule 88(2) provides
that any withdrawal will only be permitted with the leave of the court,
no further requirement can be presumed.
25. We do not agree with such an interpretation, particularly with
respect to a phrase, which has been considered by this Court time and
again.
26. In City Improvement Trust Board, Bangalore v. H.
Narayanaiah etc. etc., AIR 1976 SC 2403, this Court held, that the
21Page 22
aforesaid phrase means, “what is not either expressly provided for, or
applicable by way of necessary implication, must be excluded”.
27. Similarly, in the case of Maktool Singh v. State of Punjab,
AIR 1999 SC 1131, this Court held, that this phrase means, that a
court/authority can exercise power only to the extent that such powers
are applicable. In other words, if there is an interdict against the
applicability of the said provisions, the court cannot use such
provisions.
28. If the interpretation given by the Division Bench of the High
Court is accepted, it would not merely render the appellant remediless
at whose instance, this Court had passed the order dated 26.4.1996,
but would also defeat the doctrine embodied in the legal maxim, ‘Ubi
jus ibi idem remedium’ (where there is a right, there is a remedy).
This Court dealt with the aforesaid doctrine in Dhannalal v.
Kalawatibai & Ors., AIR 2002 SC 2572 and held, that “if a man has
a right, he must have the means to vindicate and maintain it, and also
a remedy, if he is injured in the exercise and enjoyment of the said
right, and that it is indeed, a vain thing to imagine a right without a
22Page 23
remedy, for the want of a right and the want of a remedy, are
reciprocal”. (See also: Smt. Ganga Bai v. Vijay Kumar & Ors., AIR
1974 SC 1126)
29. It was respondent no.1 who had suggested to this Court to
dispose of the appeal filed by the appellant, while giving it liberty to
file an appeal against the order of the Company Court Judge.
Therefore, it was not permissible for respondent no.1 to agitate the
issue with respect to the fact that as the Supreme Court had not set
aside the orders dated 16.11.1993 and 18.11.1993, passed by the
division bench of the Calcutta High Court, the same remained intact.
Such an argument could not have been advanced by respondent no.1
before the division bench, in view of the legal maxim, ‘Actus Curiae
Neminem Gravabit i.e. an act of Court shall prejudice no man’. This
Court dealt with the said maxim in Jayalakshmi Coelho v. Oswald
Joseph Coelho, AIR 2001 SC 1084, and explained its scope,
observing:
“….where the order may contain something
which is not mentioned in the decree would
be a case of unintentional omission or
mistake. Such omissions are attributable to
23Page 24
the Court who may say something or omit to
say something which it did not intend to say
or omit. No new arguments or rearguments on merits are required for such
rectification of mistake.”
The order of this Court dated 26.4.1996, if given strict literal
interpretation, would render the appellant remediless, which is not
permissible in law. (Vide: Rameshwarlal v. Municipal Council,
Tonk & Ors., (1996) 6 SCC 100).
30. In view of the above, we are of considered opinion that the
Division Bench erred in holding that after the judgment of this Court
dated 26.4.1996, it was permissible for the High Court to hold that the
Company Petition under Sections 397/398 of the Act 1956, was nonexistence in the eyes of law while placing reliance on the earlier
judgments of the Division Bench of the High Court dated 16.11.1993
and 18.11.1993.
Thus, the appeals are allowed, the impugned judgment and
order of the High Court dated 24.11.2003 is hereby set aside and the
matters are remanded to be decided by the High Court of Calcutta
afresh giving strict adherence to judgment of this Court dated
26.4.1996. While deciding the case afresh, the Division Bench shall
24Page 25
not take note of the earlier judgments of the High Court dated
16.11.1993 and 18.11.1993.
As the matters are pending since long, in the facts and
circumstances of the case, we request the Hon’ble High Court to
decide the appeals expeditiously preferably within a period of six
month from the date of filing of certified copy of this judgment and
order before the High Court. There shall be no order as to costs.
….……………………………...................................J.
 (Dr. B.S. CHAUHAN)
…..………………………….. ...................................J.
 (FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
April 4, 2013.
25

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