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Friday, October 2, 2015

whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per valuation to be determined. =The order of the learned Single Judge dated 17.3.2004 refers to the an earlier order dated 7.5.2003 which records that in course of hearing of application for winding up, the parties agreed that the shares of the company be valued so that the management could offer purchase of the shares of the petitioner (respondent herein). At the first instance the cost of valuation of shares was ordered to be borne by the respondent herein. On 17.3.2004 the Court noted that the Valuation Report declared the value of the shares as Rs.2,530/- per share and at that rate the respondent herein was agreeable to sell his three hundred shares. The company however offered to buy the shares at Rs.500/- per share. The Court found such variation in the stand of the company without any reason and hence it directed the company to purchase the shares as per Valuation Report. The Court also directed the appellant to bear 50% of the cost paid to the valuer by reimbursing the respondent herein for a sum of Rs.12,900/-. As noted earlier the above order was modified partly on 29.3.2004 by adding a default clause in case the company failed to make the required payment and further by order dated 20.4.2004 the time for payment was fixed as - on or before 1.6.2004. The Division Bench noted the aforesaid relevant facts and came to the view, and in our opinion rightly, that the case of the parties rested on the issue whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per the valuation to be determined. The only submission advanced before the Division Bench was that the company or its management was not bound to offer for purchase of the shares at the rate determined by the Valuation Report. The Division Bench found such submission to be unacceptable in the light of the gist/substance of the order dated 7.5.2003. The Division Bench inferred that the learned Single Judge could not have forced the parties to reach to an agreement and nearly Rs.26,000/- spent for finding out valuation of the shares could not have been just for fun. The Division Bench dismissed the appeal with costs. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference. The appeal is dismissed with cost of Rs.25,000/-.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2923 OF 2006

Bagri Synthetics Private Ltd.                       …..Appellant

      Versus

Hanuman Prasad Bagri                         ...Respondent



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

Appellant is a company against whom a  winding  up  petition  filed  by  the
respondent under Sections 433, 434 and 439  of  the  Companies  Act  bearing
Company Petition No. 112 of 2002 is pending in the High Court  at  Calcutta.
The plea for winding up is based upon just and  equitable  grounds.  In  the
facts of the case, after hearing the parties  the  Court  ordered  that  the
shares of the company be valued by  an  approved  auditor  so  that  company
would settle the dispute by purchasing the three hundred shares held by  the
respondent in the company and bring the dispute to a quietus. The  Valuation
Report was submitted in January 2004. The  appellant  raised  objections  to
the report to which reply was filed by the respondent.  The  learned  Single
Judge on 17.3.2004 directed the appellant company to purchase the shares  of
the respondent as per Valuation  Report  in  respect  of  the  rate  of  the
shares. That order was partly modified on 29.3.2004 to provide that in  case
of default by the company, the respondents  shall  be  at  liberty  to  make
publication in “The Statesman” and “Anand Bazar  Patrika”.  By  yet  another
order dated 20.4.2004 learned  Single  Judge  fixed  1.6.2004  as  the  time
schedule by which the appellant company was required to pay the due  amount.
All the aforesaid three orders were challenged by the appellant  through  an
intra-court appeal before the Division Bench bearing Civil  Appeal  No.  266
of 2004. Ultimately that appeal was dismissed by an  order  dated  12.7.2004
and that order of the Division Bench is the subject matter  of  the  present
appeal.

The order of the learned Single Judge dated 17.3.2004 refers to  an  earlier
order dated 7.5.2003 which records that in course of hearing of  application
for winding up, the parties agreed that the shares of the company be  valued
so  that  the  management   could  offer  purchase  of  the  shares  of  the
petitioner (respondent herein). At the first instance the cost of  valuation
of shares was ordered to be borne by the  respondent  herein.  On  17.3.2004
the Court noted that the Valuation Report declared the value of  the  shares
as Rs.2,530/-  per  share  and  at  that  rate  the  respondent  herein  was
agreeable to sell his three hundred shares. The company however  offered  to
buy the shares at Rs.500/- per share. The Court found such variation in  the
stand of the company without any reason and hence it  directed  the  company
to purchase the shares as per Valuation Report. The Court also directed  the
appellant to bear 50% of the cost paid to  the  valuer  by  reimbursing  the
respondent herein for a sum of  Rs.12,900/-.  As  noted  earlier  the  above
order was modified partly on 29.3.2004 by adding a default  clause  in  case
the company failed to make the required payment and further by  order  dated
20.4.2004 the time for payment was fixed as - on  or  before  1.6.2004.  The
Division Bench noted the aforesaid relevant facts and came to the view,  and
in our opinion rightly, that the case of the parties  rested  on  the  issue
whether the parties had agreed on 7.5.2003 that the purchase of  the  shares
by the  present  management  will  be  made  as  per  the  valuation  to  be
determined. The only submission advanced before the Division Bench was  that
the company or its management was not bound to offer  for  purchase  of  the
shares at the rate determined by the Valuation Report.  The  Division  Bench
found such submission to be unacceptable in the light of the  gist/substance
of the order dated 7.5.2003. The Division Bench inferred  that  the  learned
Single Judge could not have forced the parties to reach to an agreement  and
nearly Rs.26,000/- spent for finding out valuation of the shares  could  not
have been just for fun. The Division Bench dismissed the appeal with costs.
On hearing the parties we find that the same contention which was raised  by
the appellant before the Division Bench has been reiterated.  We  also  find
no merit in the contentions. There is no infirmity factual or legal  in  the
order  of  the  Division  Bench  to  warrant  interference.  The  appeal  is
dismissed with cost of Rs.25,000/-.

             

                       …………………………………….J.
                       [VIKRAMAJIT SEN]



..…………………………………..J.
                             [SHIVA KIRTI SINGH]
New Delhi.
September 29, 2015.
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