Calcutta High Court
M/S Jay Bee Properties Private Limited & ... vs Sri Pawan Kumar Budhia & Others on 22 December, 2015
Equivalent citations: AIRONLINE 2015 CAL 9
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
APO No. 227 of 2014
With
ACO No. 119 of 2014
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
M/S JAY BEE PROPERTIES PRIVATE LIMITED & OTHERS
-Versus-
SRI PAWAN KUMAR BUDHIA & OTHERS
For the Appellants: Mr Joy Saha, Adv.,
Mr Suvadeep Saha, Adv.,
Mr Sudhakar Prasad, Adv.,
Mr P. Basu, Adv.
For the Respondents: Mr Ratnanko Banerji, Sr Adv.,
Mr Aniruddha Roy, Adv., Mr Prantik Garai, Adv.
Hearing concluded on: December 18, 2015.
BEFORE SANJIB BANERJEE, Judge Date: December 22, 2015.
SANJIB BANERJEE, J. : -
The question of law raised is so trivial that the appeal under Section 10F of the Companies Act, 1956 does not call for a judgment; a two-page order dictated in five minutes would have sufficed. It is the other aspect of the matter that needs to be recognised and highlighted, particularly in the light of the back- breaking numbers of pending cases of every description in courts and tribunals.
2. The appeal is at the behest of the company in respect whereof a petition under Sections 397 and 398 of the Companies Act, 1956 has been launched in 2009 before the Company Law Board, complaining of oppression and mismanagement by the management of such company. The order appealed against is one of May 23, 2014 on the application by the company and its management for vacating an ex parte ad interim order of August 20, 2009. The appellants maintain that since the names of the petitioners before the CLB did not figure in the company's register of members, the petitioners lacked the qualification under Section 399 of the said Act of 1956 to launch any proceedings complaining of oppression or mismanagement in the affairs of the company. The appellants insist that notwithstanding the petitioners before the CLB asserting in the relevant petition that the second petitioner controlled 50 per cent of the undisputed paid up capital in the company, since the second petitioner's claim to such shareholding was by virtue of orders passed on two successive schemes of amalgamation without such petitioner before the CLB having its name recorded in the company's register of members, the relevant petitioner's claim as to its shareholding in the company had to be altogether disregarded.
3. The inane question of law that arises in this appeal is whether a transferee company can cite the shareholding of a transferor company in a third company, upon the sanction of a scheme of amalgamation, as requisite qualification under Section 399 of the said Act of 1956 to institute proceedings under Section 397 or Section 398 of the said Act of 1956 against the third company.
4. In order to attach a modicum of seriousness and confer a degree of respectability to the question so that a negative answer thereto may even be considered, the appellants have referred to Sections 41, 84 and 108 of the said Act of 1956. The appellants suggest that since the compliance with the provisions of Section 108 of the Act 1956 has been judicially regarded to be mandatory, there is no escaping from its applicability in every situation. The appellants submit that since Section 41 of the Act of 1956 defines a "member" of a company, the corollary would hold good: that unless the conditions are satisfied in print, any charlatan claiming as a member of a company should not be regarded as such. With equal aplomb, the appellants claim that since a share certificate is prima facie evidence of the title of the member to such shares as indicated in Section 84 of the Act of 1956, a person cannot pass off as a member of a company without producing the share certificates in support of his assertion as a member.
5. The tenacity in stretching the tenuous argument is amplified in the citing by the appellants of the judgments reported at (2005) 11 SCC 73 (Claude-Lila Paruleker v. Sakal Papers (P) Limited); (2010) 155 Comp Cas 431 (CLB) (Morgan Ventures Limited v. Blue Coast Hotels and Resorts Limited); (2011) 4 Comp LJ 23 (Del) (In the Matter of: Spice Communications Limited); (2007) 4 CHN 678 (In the Matter of: Areva T & D India Limited); (1986) 2 SCC 656 (General Radio and Appliances Company Limited v. M. A. Khader) and (2007) 2 SCC 431 (Peerless General Finance & Investment Company Limited v. Poddar Projects Limited). But before the law as was recognised in such cases is deciphered, it is necessary to notice the essential facts leading up to the legal issue raised in this appeal.
6. There is no dispute that the first petitioner before the CLB holds 20 shares in the company. One Calcutta Capital Private Limited held 2,40,000 shares in the company prior to the further issue of shares in the company that is the principal ground of challenge before the CLB in the Section 397/398 proceedings. Such shareholding of Calcutta Capital in the company made it the 50 per cent owner of the paid up capital therein. Calcutta Capital was one of several companies that merged into Krupa Agencies Private Limited pursuant to the sanction of a scheme of amalgamation by this court on March 11, 2003. By reason of such merger and consequent upon the sanction of the relevant scheme of amalgamation, all assets, properties and liabilities of Calcutta Capital stood vested in and merged with Krupa Agencies. Under a further scheme of amalgamation sanctioned by this court on April 18, 2008, Krupa Agencies along with two other companies merged in Padmavati Properties and Trusts Private Limited. As in the case of the first amalgamation, all assets, properties and liabilities of Krupa Agencies stood vested in and merged with Padmavati Properties, the second petitioner before the CLB.
7. To be fair to the appellants, it needs also to be recorded that neither Krupa Agencies nor the second petitioner before the CLB formally asked the company to record their names as the holders of the shares in the company originally standing in the name of Calcutta Capital. The company apparently made a further issue of 11,91,500 shares. Such further issue, apparently made without reference to the petitioners before the CLB, has been questioned in the petition complaining of oppression and mismanagement.
8. The CLB held in the impugned judgment that the second petitioner or its immediate predecessor-in-interest "should have taken adequate steps for getting its name registered on the Register of Members, nevertheless, in an equitable jurisdiction as envisaged in Section 397/398 of the Act, I do not consider it proper to allow sheer technicalities to become mischief towards lodging of the petition." The Board went on to add that it was "settled law that when the scheme provides for transfer for all assets and liabilities of the transferor companies, even if any asset or liability is omitted to be mentioned in the schedule of assets yet it would get transferred to and vested in the transferee company without any further act or deed." The CLB opined that since an order under Sections 391 and 394 of the said Act of 1956 operates in rem, the "consequential transmission of shares is by operation of law and, therefore, execution of transfer deed is not required or possible because transferor company ceases to exist."
9. To return to the judgments cited in this appeal by the appellants, it must be noticed that these were a part of several judgments carried before the CLB and noticed in the judgment, though not discussed in any detail therein. The judgments cited are discussed somewhat elaborately herein, if only to emphasise on a matter of grave public importance. In Sakal Papers (P) Limited, the matter before the Supreme Court arose out of proceedings instituted under Section 155 (as it stood in 1986) of the Act of 1956. Such provision has undergone a sea change since then. The matter in dispute related to the transfer of 3,417 shares in the company belonging to the estate of a deceased shareholder by three of the four executors of the Will of such shareholder. The challenge by the petitioners in the petition under the then Section 155 of the Act of 1956 was to the failure to allow their right of pre-emption in respect of the shares. The other feature of the challenge pertained to the issue of an allotment of a further 17,666 shares of the company. The trial court upheld the contention of the petitioners but made a conditional order in their favour. Dissatisfied with the condition of making a substantial deposit of money, the petitioners preferred an appeal. Cross-appeals were also filed. The petitioners' appeal failed and the cross-appeals succeeded on the observation of the Division Bench that the perceived violation of Section 108 of the Act of 1956 in course of the impugned transfers of shares was a mere irregularity which was curable. In assailing the transfers of shares, one of the grounds urged by the petitioners (who were, later, the appellants before the Supreme Court) was that all the executors of the Will had not executed the deeds of transfer. Apropos such challenge, the Supreme Court held thus at paragraph 57 of the report:
"57. For the purposes of registration of the transfer under Section 108 the instrument of transfer must be executed by the transferor or it must be executed on behalf of the transferor. But there must be execution. The learned single Judge has found as a fact that the instrument of transfer had been signed by only three of the joint shareholders. Shanta had not signed. There were three signatures on the transfer deed. Each transferor had therefore, executed qua shareholders in respect of their own interest. There was no fourth signature on behalf of the fourth joint shareholder. This was also the finding of the Division Bench. But the Division Bench held that it was a mere irregularity which did not vitiate the registration. It was also held that the irregularity could be cured by one of the Executors signing on his behalf. But compliance with the provisions of Section 108 was and is mandatory. ..."
10. The dictum of the Supreme Court covers two aspects: that in case of a simpliciter transfer of shares inter vivos, the compliance with Section 108 of the Act of 1956 is mandatory; and, the execution of a share-transfer deed is incomplete in the absence of all joint owners, or all trustees representing a single owner, signing or executing the same. The issue involved in the instant matter did not arise before the Supreme Court. The facts in Sakal Papers (P) Limited that led to the enunciation of the law therein are far removed from the facts of the present case.
11. In Morgan Ventures Limited, a petition under Sections 397 and 398 of the Act of 1956 was filed, claiming the consent of 106 members of the company other than the eo nomine petitioners. On an application challenging the maintainability of the petition, two grounds were urged: that the verification of the petition was false; and, that at the time of the petition being lodged the consent of the other members had not been obtained. In effect, the challenge was as to the numerical qualification under Section 399 of the Act of 1956. The CLB considered Section 41(3) of the Act of 1956, which pertains to shares in dematerialised form, and found, on facts, that the consenting members on whose numerical strength the petitioners claimed to be qualified under Section 399 of the Act of 1956 to apply under Sections 397 and 398 of such Act, could not be regarded as the members of the company as on the date that the letters of consent were obtained from them. The appellants herein seek to draw sustenance from the reference to Section 41 of the Act of 1956 in the judgment and the fact that persons whose names were not recorded as beneficial owners of the share in the records of the depository could not be regarded as members of the concerned company. The dictum is inapposite in the present context, particularly as there is a distinction between the ownership in shares passing upon a transfer inter vivos and the seamless transition of the ownership upon the act of transfer being completed by an order sanctioning a scheme of amalgamation.
12. There is no doubt that a scheme of amalgamation involves the transfer of the assets (and liabilities) of a company to another but there is a key distinction between a transfer of shares simpliciter and a transfer pursuant to the sanction of a scheme of amalgamation. In a simple, one-off transaction of a transfer of shares in a company from A to B, the transfer is complete as regards the company concerned only when this statutory compliance of the transfer is made by lodging the share-transfer forms with the relevant company. In case of dematerialised shares, which is not relevant in this context, the necessary instructions must be received by the depository for the transfer to be completed. In either case - of shares in physical form or in dematerialised form - an order sanctioning a scheme of amalgamation is the perfection of the transaction of transfer. Section 394(2) of the Act of 1956 mandates that "Where an order under this section provides for the transfer of any property or liabilities, then, by virtue of the order, that property shall be transferred to and vest in, and those liabilities shall be transferred to and become the liabilities of, the transferee company ..."
13. The title to a property can never be in vacuo. Just like the property of a deceased passes instantaneously upon his death to the executor of such person's Will, if he has executed one, subject to the later proof of the Will, the properties of a transferor company vest in the transferee company upon the scheme of amalgamation being sanctioned by court subject to the order sanctioning the scheme being filed with the registrar of companies. But that does not imply that the passing of property from the transferor company to the transferee company pursuant to the sanction of a scheme of amalgamation amounts to a transmission of the shares held by the transferor company in a third company to the transferee company.
14. The CLB has noticed in the impugned judgment at least one old authority that postulates that orders sanctioning schemes of amalgamation or arrangement operate in rem. The CLB has also accepted the argument put forth by the petitioners before it that the second proviso to Section 108(1) of the Act of 1956 would be applicable where the property in the shares held in a third company passes from the transferor company to the transferee company pursuant to the sanction of a scheme of amalgamation. In accepting such legal contention, the CLB has equated the transfer of shares in a third company pursuant to a sanction scheme of amalgamation or arrangement with the transmission of shares by operation of law.
15. Section 108(1) of the Act of 1956 declares, in its material part, that "A company shall not register a transfer of shares in ... the company, unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee and specifying the name, address and occupation, if any, of the transferee, has been delivered to the company along with the certificate relating to the shares ..., or if no such certificate is in existence, along with the letter of allotment of the shares ..." The first proviso to such sub-section deals with the loss of an instrument of transfer and permits the company to register the transfer by seeking an indemnity, if thought fit. The second proviso to the sub-section excludes the operation of the substantive provision for registering, inter alia, shares "transmitted by operation of law."
16. It does not appear appropriate to regard the transfer of shares in a third company sanctioned by an order under Sections 391 and 394 of the Act of 1956 as a transmission by operation of law. There is no need to dilute the finality of an order under Section 394 of the Act of 1956 by taking recourse to the excuse under the second proviso to Section 108(1) thereof. The concept of transmission of shares is more appropriately covered in Section 109A and 109B of the Act of 1956. Though such provisions are recent entrants in the statute in 1998 and the expression "transmitted by operation of law" in the second provision to Section 108(1) of the Act of 1956 cannot be seen to take colour therefrom, original Section 111 of the Act of 1956, prior to the Companies (Amendment), 1988 becoming effective on May 31, 1991, carried the expression "transmission by operation of law" in the sense of making it distinct from transfer of shares also covered by the same provision.
17. The approach to the issue ought to be more wholesome than by tailoring the act of transfer to fit a few words in the provision that may not be applicable at all. That an order sanctioning a scheme of amalgamation or arrangement operates in rem does not imply that it binds the world unconditionally or amounts to an absolute declaration of title in every case. Just as the grant of probate of a Will does not declare the testator's title to any property covered by the Will, an order sanctioning a scheme of amalgamation or arrangement does not amount to an imprimatur of the title in any property claimed by the transferor and intended to be transferred to the transferee by virtue of the scheme, unless the order sanctioning the scheme expressly provides so. Again, Section 394(2) of the Act of 1956 recognises such a situation: that a property passes from the transferor to the transferee with all attendant conditions unless the order sanctioning the scheme directs any charge or condition to be freed. But when a scheme of amalgamation or arrangement is sanctioned and the title of the transferor in any property is not in doubt, it passes on to the transferee company by virtue of the order of sanction without any further formality - not being in the nature of a duty or obligation - being required to be complied with. An order sanctioning a scheme of amalgamation or arrangement has been judicially recognised as a single-window clearance.
18. Section 108(1) is, in essence, a statutory protective shield for the company whose shares are involved in the transfer. That such provision is couched in a negative instruction to the company cannot detract from its purpose. The transfer of any shares in a company amounts to property in such shares passing from one to another. Ideally, the company cannot have any interest in who its shareholders are or who sells the shares in the company to whom, subject to the requirements in the company's articles of association. But in as much as the transfer of shares from one to another involves the passing of property or title, the company can have complete indemnity in a dispute qua title if it registers a transfer in accordance with the mandate of the provision. The company's action in registering a transfer can only be called into question if it has acted in derogation of such mandate.
19. Section 394 of the Act of 1956, on the other hand, recognises that when an order thereunder "provides for the transfer of any property ..., then, by virtue of the order, that property shall be transferred to and vest in ... the transferee company ...". Ordinarily, the passing of the property in any share in a company is not complete qua the company unless it is registered. The passing of the property from a transferor company to a transferee company under a scheme of amalgamation or arrangement is complete upon the order sanctioning the scheme and takes effect after the order is filed with the registrar of companies. By virtue of the extraordinary transfer recognised in Section 394(2) of the Act of 1956, the compliance with Section 108(1) thereof becomes redundant. In any event, the negative mandate in Section 108(1) of the Act of 1956 operates on the concerned company and does not affect the transfer of the property in the shares recognised by Section 394(2) of the statute that is completed upon an order sanctioning a scheme of amalgamation or arrangement becoming effective.
20. There is no doubt that the second petitioner before the CLB or its immediate predecessor-in-interest, Krupa Agencies, should have informed the company that such entities were entitled to the shares in the company standing in the name of Calcutta Capital. But merely because the second petitioner before the CLB or its immediate predecessor-in-interest failed to intimate the company regarding the vesting of the relevant shares in the company in their favour pursuant to the sanction of the schemes of amalgamation, it would not follow that their title to such shares would vanish into thin air. It would be grossly disproportionate to the acts of omission on the part of the second petitioner before the CLB or its immediate predecessors-in-interest to rob them of their valuable rights in the shares on account of a minor transgression.
21. The appellants have referred to four other judgments that need to be discussed in somewhat lesser detail as the appellants have indicated that such judgments may not have a direct bearing on the issue but are otherwise instructive on related aspects. In Areva T & D India Limited, the question was whether the authorised capital of a transferor company would merge with the authorised capital of the transferee company consequent upon the sanction of a scheme of amalgamation. It was held by the company court that since authorised capital is notional in nature, there could be no merger thereof. However, the view was not accepted in appeal; not directly, but indirectly in the sense that it was held that since the issue had been pronounced upon against the Central Government by some other High Courts, the Central Government was barred by the principle of issue estoppel from reagitating the same matter. No part of the discussion in the judgment is relevant for the present purpose. In Spice Communications Limited, the Delhi High Court held that the merger of companies pursuant to a scheme of amalgamation does not result in the merger in licences but necessarily results in the transfer of licences. It is trite law that if a condition is attached to any property, particularly in the nature of a licence or grant, the transfer thereof consequent upon merger pursuant to a scheme of amalgamation will be with the condition. The proposition is emphasised in the context of the General Radio and Appliances Company Limited judgment of the Supreme Court placed by the appellants. In such case, the transfer of a tenanted property from the transferor company to the transferee company pursuant to the scheme of amalgamation or arrangement was regarded as a voluntary transfer with the benefits and liabilities attached to the act of transfer. In that case the tenancy rights and possession in respect of a property stood vested in the transferee company pursuant to the sanction of a scheme of amalgamation. Under the relevant Rent Control Act a transfer of the tenancy without the permission of the landlord made the transferee susceptible to eviction. The Supreme Court held that such transfer would fall within the vice of the relevant provision, rendering the transferee company liable to be evicted.
22. A long tradition in this court has been recently upset by requiring stamp duty to be paid for transfer of properties pursuant to any scheme of amalgamation or arrangement. For long, the revenue had been defrauded by transfer of immovable properties being engineered through schemes of amalgamation or arrangement on the strength of concepts such as an order sanctioning such a scheme operates in rem or a transfer under such schemes amounts to an involuntary transfer. There is nothing involuntary in the shareholders of two companies getting together and agreeing to transfer all or some of the assets of one to the other under a scheme of amalgamation or arrangement. Though an order sanctioning a scheme of amalgamation or arrangement operates in rem, if does not relieve a property of any charge or condition attached to the incidence of ownership, unless it expressly specifies as such. If the transferor company has the title to any property with certain conditions attached, the property passes with the conditions to the transferee company unless the conditions are undone by the order sanctioning the scheme. A court would scarcely undo a condition attached to the ownership of a property without reference to the person entitled to the benefit of the condition. That is the dictum in General Radio and Appliances Company Limited. That is also the rationale in recognising that the State will be entitled to stamp duty for registration of the transfer of any property pursuant to the sanction of a scheme of amalgamation or arrangement in accordance with law.
23. But the discussion on such aspect is not germane to the issue here. The appellant company cannot claim title to the shares nor does it cite the lodgement of a rival claim in respect thereof. Since there is no dispute that Calcutta Capital held the shares that ultimately stood transferred to and vested in the second petitioner before the CLB, the petitioners before the CLB had the requisite qualification under Section 399 of the Act of 1956 to launch the petition. It is true that the second petitioner before the CLB kept the company in the dark as to its entitlement in the relevant shares; but that entitlement was by virtue of the order sanctioning the relevant scheme of amalgamation. Since it is the admitted position that Calcutta Capital held 2,40,000 shares in the undisputed paid up capital of the company, such shares stood vested in Krupa Agencies pursuant to the first of the two schemes of amalgamation and, subsequently, stood vested in the second petitioner before the CLB upon the second scheme being sanctioned. To boot, both orders pertaining to the schemes used the words "without any further act or deed" which emphasised, if it at all was necessary, that the transfer was complete upon the orders sanctioning the scheme becoming effective. The appellants' contention that the schedule of assets pertaining to the later scheme did not expressly include the subject shares, is of no consequence in the context of a scheme of amalgamation. The schedule of assets becomes relevant when some properties are transferred and others are left behind with the transferor company as in a scheme of arrangement. In a scheme of amalgamation where all the assets go from one to the other, the schedule of assets is of little relevance.
24. The legal issue should not have detained either the CLB or this court in view of the clear finding in such regard in the judgment reported at (2007) 136 Comp Cas 160 (Peerless General Finance & Investment Company Limited v. Poddar Projects Limited). In that case, the concerned company resisted an application for rectification of its members' register on similar grounds as cited by the appellants herein. This court held, at page 169 of the report, as follows:
"In my view, when the second application was made by Project to record such transfer Peerless was obliged to record such transfer and their refusal on the ground of non-compliance of section 108 was not tenable and the Company Law Board was right in rejecting such plea. In my view, such application although in technical sense was an application under section 108(1) second proviso read with section
109. The same was nothing but an intimation to the company of the scheme of compromise so that the company could rectify their register. The documentation contemplated in section 108 was not required to be done and such plea of Peerless was not tenable and the Company Law Board rightly rejected the same."
The appellants have referred to the judgment in the special leave petition arising from the judgment of this court in Peerless General Finance & Investment Company Limited where the Supreme Court did not address the legal issue and left it open. But the Supreme Court did not set aside the finding on the legal question rendered by this court.
25. Indeed, the grounds canvassed by the appellants in this appeal were not open to discussion in view of the binding view rendered by a bench of coordinate determination in Peerless General Finance & Investment Company Limited. It was only upon the Supreme Court judgment in Peerless being cited by the appellants that the respondents herein have referred to the judgment of this court. When the legal issue has already been pronounced upon by the company court, the appellants could not have urged the legal ground without citing the view and inviting a contrary opinion to be rendered. Instead, judgments which have no bearing on the issue have been placed without reference to the only one that was relevant, to needlessly prolong the matter that did not merit the consideration in terms of the court time that was extracted.
26. Judgments of court, when cited as precedents, are binding in the context in which they were rendered. It may do well to remember the classical pronouncement on the doctrine of precedents in the opinion of the House of Lords reported at (1991) AC 495 (Quinn v. Leathem), which has been quoted with approval by the Supreme Court in a plethora of judgments:
"Now, ... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
27. Court time is a valuable national resource. It has to be judiciously spent, both by the judge and the lawyer. A system made for the public cannot be permitted to be hijacked to become a lawyer-centric process, where the judge has to silently suffer however much time is taken to flog a dead horse. With increasing number of legal journals churning out judgments and orders - whether or not they lay down any new law or any new angle to an aspect of law - one is spoilt for choice in citing judgments on the peripheries of the legal issue that arises in a matter. It is both for the judge and the lawyer to stem this rot, if only to ensure that the back-breaking numbers of pending cases are tackled. In particular, costs must be used as a deterrent in commercial matters that are needlessly dragged on.
28. The question of law is answered with the observation that the transfer of shares in a third company pursuant an order sanctioning a scheme of amalgamation does not require compliance with the provisions of Section 108(1) of the Act of 1956 and the transferee of the shares pursuant to an order sanctioning a scheme of amalgamation is entitled to cite such shareholding to meet the qualification under Section 399 thereof any time after the order sanctioning the scheme becomes effective. As a consequence, the appeal and the application, APO No. 227 of 2014 and ACO No. 119 of 2014, are dismissed. The appellants will pay costs assessed at Rs. 2 lakh, half of it to the petitioners before the CLB and the rest to the West Bengal State Legal Services Authority within four weeks from date. Such payment of costs would be a condition precedent to the appellants herein being entitled to a defence on merits in the proceedings under Sections 397 and 398 of the Act of 1956 before the CLB.
29. It is recorded that Advocate for the appellants was put on notice as to costs, if ultimately found to have wasted time, within 15 minutes of the appeal being taken up. The appellants continued their submission thereafter for more than two hours.
30. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) Later:
The appellants seek a stay of operation of this judgment which is declined.
(Sanjib Banerjee, J.)