HANUMAN PROSAD VERMA Vs. STOCK AND FINANCE LTD

JUDGEMENT

(1.) This application has been taken out by Hanuman Prosad Verma Shyam Chandra Ghosh and Upendra Charan Pal against the Company Messrs. Stock & Finance Ltd. & Ors. For various relief's in the nature of directions on the special officer to prepare a correct list of members and upon approval of the said list the special officer be authorized to issue share certificates to members who have not received the same, a direction upon the special officer to assess in respect of each of the directors of the amount of remuneration drawn by them in violation of S. 314 of the Companies Act and upon such determination necessary orders be passed directing each of the directors to refund to the Company the amounts received by them in violation of the provisions of the Companies Act, a direction upon the special officer to calculate the amounts taken by H.C. Mitra, P.C. Mitra, A. Mitra and Tarun K. Mukherjee either individually or jointly by different methods without proper accounting or supporting documents including cash shortages, detected in the cash book, direction upon the special officer to calculate the rent received from the company by Sri H.C. Mitra, and also for a declaration that H.C. Mitra, P.C. Mitra, A. Mitra, Tarun K. Mukherjee have conducted either individually or jointly the affairs of the company with the intent to defraud and/or deceive the other members, creditors and public an large and have falsified books and have altered records to avoid liabilities and/or punishments, enquiry as to non-maintenance of the statutory booms, enquiry as to the damages suffered by the Company on account of various acts of misfeasance committed by H.C. Mitra, P.C. Mitra and Tarun K. Mukherjee and for other consequential reliefs. This application has been taken out in the matter of Company petition No. 323 of 1975.

(2.) Mr. S.B. Mukherjee, appeared in support of this application and sub-mitted this application is arising out of the said Company petition being NO. 323 of 1975 which was taken out on 20th September, 1975 under Ss. 397, 398, 399, 403, and 406 of the Companies Act for various reliefs. On the aid application various orders were passed from time to time and finally an order was passed by Mr. Justice Salil k. Roy Chowdhury on 1st of March, 1977. Against the judgment and order the learned Trial Court an appeal was preferred on May 7, 1979 and the appeal was disposed of by the Learned Appeal Court presided over by Mr. Justice A.N.Sen and Mr. Justice B.C. Basak. The order passed both by the trial Court as also by the Appeal Court have been annexed to the petition.

(3.) Under clause 15 of the Appeal Court's order liberty was given to the special officer and all parties to apply to Court for appropriate direction and it was further directed in the said order that such application for any direction whether oral or written must be made before the learned company Judge. As Mr. Bimalesh Roychowdhury, a Chartered Accountant was appointed the special officer and the learned Company Judge being known to the said Mr. Roy Chowdhury did not take up the present application and it was a specially assigned to this court for determination the said application. The main point of opposition in this application is that the said company petition under Ss. 397 & 398 being disposed of by the Appeal Court there is no lis pending in which the present application could be made. It has been submitted that schedule II to the Companies Act could only apply in a case where an application had been taken out in the course of proceedings of such petition. Under the circumstances the application under Ss. 397 & 398 being finally disposed of by the learned Appeal Court there is no proceedings under Ss. 397 & 398 in which the present application could be made. It has been submitted by the respondents that not only a novel procedure had been adopted by the petitioner but in fact the petitioners had lost their case under S. 397 as also S. 398 proceedings, by not being able to obtain a by order in their favour. On the contrary after having taint part in the election directed to be held by the Appeal Court in which not only all the applicants participated in the said meeting but some of the parties allowed themselves to be held as the candidates for such election and after having lost at such meeting held by the Special Officer Pursuant to the order of the Appeal Court, by overwhelming majority, they have frantically come before this Court for getting reliefs on an application which is not maintainable in law. Under the Company Court Rules 11 sub-rule 18 and 19 all such petitions could be made in the course of the proceedings taken under S. 397 and 398 of the Companies Act.