Rule 88(2) of Companies (Court) Rules, 1959 – Appellate Court is bound to accept statement of judges recorded in their judgment as to what transpired in Court and contradiction to such statement made by judge should not be allowed by affidavit or other evidences
SUMMARY OF THE CASE LAWS
The party if it feels that such recording of statement of fact is wrongly recorded it is incumbent on its part to approach the said judge promptly and without any delay or before the same feeds the memory and to invite the attention of the said judge that there is an error.
CASE LAWS DETAILS
DECIDED BY: HIGH COURT OF CALCUTTA, IN THE CASE OF: Nischintapur Tea Co. Ltd. v. Subrata Sen. & Ors. , APPEAL NO: ACO No. 47 of 2010 APOT No. 188 of 2010 CA No. 53 of 2010 CA No. 302 of 2007 In CP No. 252 of 1985, DECIDED ON August 5, 2010
The appeal is filed against an order rejecting an application for correction of an order dated April 12, 2007 dismissing a company application No. 302 of 2007 as not pressed in stead of dismissal of a company petition No. 252 of 1985.
The predecessor-in-interest of the present appellants initiated a proceeding under section 397 and 398 of the Companies Act being company petition No. 252 of 1985 seeking various reliefs as would appear therefrom.
An interlocutory application was taken out in which the company court passed an order dated June 21, 1985 directing the maintenance of status quo in respect of the shares of the company being the subject-matter of the dispute.
During the pendency of the said company petition the original applicant, predecessor-in-interest of the present appellants, died and substitution was duly made. It further transpires that some of the substituted heirs also expired and an application to such effect was made.
While the said company petition was pending before the Hon’ble High Court one Ajit Kumar Agarwal initiated proceeding before the Company Law Board for recording his name as a shareholder of the company. Amidst pendency of the said company petition, the parties thereto settled their disputes and compromise was effected in the form of Memorandum of Understanding on February 26, 2007.
Pursuant to such Memorandum of Understanding, so entered into, the appellants took out a judge’s summon for an order that the company petition No. 252 of 1985 be treated as withdrawn and affidavit in support of the Judge’s summon was filed and registered as company application No. 302 of 2007.
By an order dated April 12, 2007 the company court dismissed the company application No. 302 of 2007 as not pressed. a certified copy of the said order dated April 12, 2007 was obtained by the company within few days of the said order. The said matter was neither mentioned nor did appear before the company court thereafter.
However, the application filed by the said Ajit Kumar Agarwal before the Company Law Board was dismissed on June 29, 2009 for non prosecution. The said Ajit Kumar Agarwal thereafter filed an application for restoration of the said application which was eventually dismissed and an appeal filed against the said order is pending.
While the said application for restoration filed by the said Ajit Kumar Agarwal was pending before the Company Law Board he filed a suit being Civil Suit No. 10 of 2010 before this Hon’ble Court on January 27, 2010 challenging the transfer of the various shares by the company in gross violation of an order of status quo passed as far back as on January 21, 1985 in the said company petition No. 252 of 1985. He further seeks a declaration that he is shareholder of the company.
A company application being CA No. 40 of 2010 was also filed by the said Ajit Kumar Agarwal for addition as party to the said company petition No. 252 of 1985. The said application was taken out on January 30, 2010.
To counter the situation the appellants filed an application being CA No. 53 of 2010 on February 1, 2010 praying for the correction of an order dated April 12, 2007. It is contended in the said application that there is a mistake occurring in the order dated April 12, 2007 to the effect that in stead of recording dismissal of CP No. 252 of 1985 it is recorded CA No. 302 of 2007 is dismissed as not pressed. The company court passed a direction for filing affidavits in both the company applications being 40 of 2010 filed by the said Ajit Kumar Agarwal for his addition as a party and another being CA No. 53 of 2010 filed by the appellants for correction of the order dated April 12, 2007.
By an impugned order the Hon’ble First Court dismissed both the applications i.e. an application filed by the said Ajit Kumar Agarwal for being added as a party to the main company petition and the petition filed by the appellants for correction of the order dated April 12, 2007.
Against the said order three appeals have been filed, one by Nischintapur Tea Co. Ltd. being ACO No. 47 of 2010 another by Subrata Sen & Anr. being ACO No. 48 of 2010, in both the appeals challenge is thrown against such part of an order dated March 11, 2010 by which an application for correction was rejected by the Hon’ble First Court and other appeal filed by Ajit Kumar Agarwal being ACO No. 41 of 2010 challenging the other part of an order dated Mach 11, 2010 so far as it relates to the dismissal of their application for addition.
The controversy which needs to be decided and the parties are not ad idem is whether the said company petition No. 252 of 1985 was intended to be dismissed as not pressed or the said company application No. 302 of 2007 was in fact dismissed as not pressed.
The Court of Appeal while dealing with the situation where the court below have recorded the happenings of the event occurred on the day of passing of the order which is reflected in the order itself, should not embark on an inquiry and find out the veracity of such happening. The Appellate Court is bound to accept the statement of the Judges recorded in their judgment as to what transpired in the court and contradiction to such statement made by the Judge should not be allowed by affidavit or other evidences. The Judge states in its judgment something that happens or done in the court and that should be treated as the last word on the subject statement of fact recorded in the judgment are conclusive of the fact so stated and should not be readily interfered unless such recording per se without looking any other affidavit or evidences, is illogical and does not stand for a moment’s scrutiny.
The party if it feels that such recording of statement of fact is wrongly recorded it is an incumbent on its part to approach the said Judge promptly and without any delay or before the same feeds the memory and to invite the attention of the said Judge that there is an error. We are not unmindful that in a case where the concession is recorded as statement of fact by the Judge in its order the Appellate Court may permit obviously on rare of rarest and/or appropriate cases to resile from such concession only on the ground that such concession was made on a wrong appreciation of law and have led to gross injustice but still then he cannot call any question the very fact of making the concession as recorded in the judgment (see AIR 2003 SC 511), AIR 2003 SC 4043. There is no dispute with regard to such proposition of law as submitted by Mr. S. B. Mukherjee, Senior Advocate that the court has power to rectify its mistake if the said mistake is clerical, clinical and ministerial and there has been an omission or typographical error which does not require any reconsideration of a statement of fact either by affidavit or evidence.