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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:

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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.  

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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  

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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  

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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  

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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  

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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  

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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.   

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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   

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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)  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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:

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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  

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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  

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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  

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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  

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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   

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the Court who may say something or omit to   say something which it did not intend to say   or  omit.   No  new  arguments  or  re- arguments 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 non-

existence  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  

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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.

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