AJIT KUMAR AGARWAL Vs. NISCHINTAPUR TEA COMPANY LTD

JUDGEMENT

(1.) The above appeal is against a portion of the judgment and order of the learned First Court of the Learned Company Judge dated 11th March 2010, whereby and whereunder the appellant's application being CA No. 40 of 2010 was dismissed. By the said judgment the learned Trial Judge also dismissed the application being CA No. 53 of 2010. The short fact which is relevant to deal with the present appeal is set out hereunder: On or about 21st June 1985, one Amita Sen since deceased the sole petitioner before this Hon'ble Court brought action being C.P. No. 252 of 1985 under sections 397 and 398 of the Companies Act. 1956 (hereinafter in short the said Act) praying for various reliefs as mentioned in the petition. Amita Sen. since deceased died during pendency of the said application. Her four sons viz. Sudipta Sen (since deceased), Ranjan Sen, Subrata Sen and Sanjoy Sen were substituted in the said petition as the petitioners in her place and stead. Subsequently Sudipta Sen a bachelor died intestate and as such there was no need to substitute nor to bring his heirs and legal representatives in the proceedings as his brothers being heirs and legal representatives were already on record. It appears that in the said application on 21st June 1985 an order of status quo was passed by the then learned Company Judge and the same was and still is subsisting. On subsequent development, during pendency of the aforesaid application substituted applicants decided to withdraw the said Company Petition in CP No. 252 of 1985 and all applications connected thereto. Accordingly they through Mr. Sushil Kumar Saha, learned Advocate applied for withdrawing the petition as they were and are not interested any more in the said application. An order was passed on 12th April 2007 on the said application. They were under impression that by this order prayer for withdrawal of the original application under sections 397 and 398 of the said Act being CP No. 252 of 1985 was allowed. However, having found the impression to be wrong going by the records as the said order dated 12th April 2007 really did not allow the prayer for withdrawal of the said original application, an application (CA No. 53 of 2010) was made for correction of the said order dated 12th April 2007 by Subrata and Sanjoy. Having noticed pendency of the said application (CP No. 252 of 1985) the appellant herein filed the said application on Judge's Summons and prayed for the following reliefs:

(2.) The application for addition of the appellant and transposition of the present petitioner, and application for correction as above were opposed mutually by the parties. By the impugned judgment and order the learned Trial Judge dismissed both the applications. However, the learned Trial Judge observed that the application filed by the appellant is premature and the same must wait for the decision of the Company Law Board, accordingly leave was granted to bring similar action in future. In effect the learned Trial Judge for the time being refused to grant prayer for addition or transposition but right for bringing separate action has not been destroyed. It is worthwhile to mention that apart from the aforesaid application for addition of party the applicant has also filed comprehensive civil suit seeking reliefs against the Company, which essentially could be had by filing application under sections 397 and 398 of the said Act.

(3.) Mr. Pramit Kumar Roy learned Advocate led by Mr. Chatterjee contends appearing for the appellant that the refusal to add as party petitioner by the learned Trial Judge on the question of fact stated in the affidavit in support of the Judge's Summons is legally erroneous. The leave granted by the learned Judge to apply after disposal of the application under section 111 of the said Act before Company Law Board is meaningless since Company Petition No. 252 of 1985 is sought to be withdrawn and the same might be allowed in future. The learned Trial Judge failed to appreciate that refusal to add appellant as party causes prejudice and will render his client remediless. At the time of filing of CP No. 252 of 1985 predecessor-in-interest of the appellant had been holding 2440 shares in aggregate in the company. The brother of the applicant was owner of 2021 shares in the company, all the shareholdings of his parents and brother consisting of 11.91 per cent has been acquired by the applicant. On 21st June 1985, an order was passed by this Hon'ble Court directing maintenance of status quo with regard to the shareholding. Therefore, the said shareholding of appellants' parents and brothers and their respective percentage in the total share capital of the Company would not have been altered. It is surprising how the said shareholding of 11.91 per cent as above could be reduced to 0.17 per cent on the face of the order of status quo. Therefore, there must be some illegality and surreptitious change and alteration in the shareholding pattern and also the share capital of the company. In order to legalize this illegal action in derogation of order of the Court repeated attempts have been made to withdraw CP. No. 252 of 1985 so that appellant and its groups are reduced to comprehensive minority. Such act and omission per se are oppression and this proposition is based on decisions of Supreme Court in the cases DALE & CARRINGTON INVT (P) LTD vs P K PRATHAPAN, 2005 1 SCC 212: KAMAL KUMAR DUTTA vs RUBY GENERAL HOSPITAL LIMITED, 2006 7 SCC 613. According to Mr. Chatterjee leading Mr. Roy. in order to maintain or support the proceedings under sections 397 and 398 of the said Act a person need not be on the Registrar of the Members. If the said Company Petition No. 252 of 1985 is disposed of, then it will adversely affect the interest of the appellant. He urges that as and when a proceeding under section 397 of the said Act is sought to be withdrawn even if by consent of the parties, the Court is to apply its own mind independently and order of withdrawal is not an automatic exercise. In support of this submission he has relied on the decisions of this Court reported in (1985) 3 CLJ 209, RAI MATHURA PRASAD vs HANUMAN PRASAD BHAGAT, 1984 56 CompCas 467. To buttress the submission on the plea of appealability, he has referred to the decision of this Court reported in AIR 1984 Cal. 191 and 68 All. Eng. Reporter 328.