Kerala High Court
Mar Jacob Thoomkuzhy vs M/S.Jeevan Telecasting Corporation ... on 6 February, 2013
Bench: K.Hema, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
&
THE HON'BLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934
Co.Appeal.No. 15 of 2012 ()
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AGAINST THE ORDER IN CP.94/2012 of COMPANY LAW BOARD, CHENNAI BENCH
APPELLANT(S)/APPLICANTS:
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1. MAR JACOB THOOMKUZHY, HONORARY CHAIRMAN/DIRECTOR,
M/S.JEEVAN TELECASTING CORPORATION LIMITED,
ST.MARY'S MINOR SEMINARY, MADONA NAGAR,
THRISSUR - 680 005,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
FR.GEO KADAVI, CATHOLIC ARCH BISHOP HOUSE, THRISSUR.
2. ARCHBISHOP ANDREWS THAZHATH,
CHAIRMAN/DIRECTOR,
M/S.JEEVAN TELECASTING CORPORATION LIMITED,
CATHOLIC ARCH BISHOP'S HOUSE,
EAST FORT, THRISSUR - 680 005,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
FR.BIJU ALAPPAT, CATHOLIC ARCH BISHOP HOUSE,
THRISSUR.
3. ARCHBISHOP ANDREWS THAZHATH, TRUSTEE,
MATHA JEEVAN TRUST, CATHOLIC ARCH BISHOP'S HOUSE,
EAST FORT, THRISSUR - 680 005, REPRESENTED BY ITS
SECRETARY REV. FR.RAPHAEL AKKAMATTATHIL.
4. MAR JACOB THOOMKUZHY, CHAIRMAN, JEEVA TRUST,
CATHOLIC ARCH BISHOP'S HOUSE, EAST FORT,
THRISSUR - 680 005, REPRESENTED BY ITS GENERAL SECRETARY,
FR.GEO KADAVI, CATHOLIC ARCH BISHOP HOUSE, THRISSUR.
BY ADV. SRI.SAJU JOHN
RESPONDENT(S)/RESPONDENTS:
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1. M/S.JEEVAN TELECASTING CORPORATION LIMITED,
RASHTRA DEEPIKA BUILDING, PALARIVATTOM, KOCHI,
KERALA - 682 025.
2. MR.P.J.ANTONY, DIRECTOR,M/S.JEEVAN TELECASTING
CORPORATION LIMITED,
RASHTRA DEEPIKA BUILDING, PALARIVATTOM, KOCHI,
KERALA - 682 025.
COMPANY APPEAL NO.15/2012 2
3. MR.N.S.JOSE, DIRECTOR,M/S.JEEVAN TELECASTING
CORPORATION LIMITED,
RASHTRA DEEPIKA BUILDING, PALARIVATTOM, KOCHI,
KERALA - 682 025.
4. MR.DINESH NAMBIAR, DIRECTOR,
M/S.JEEVAN TELECASTING CORPORATION LIMITED,
RASHTRA DEEPIKA BUILDING, PALARIVATTOM, KOCHI,
KERALA - 682 025.
5. MR.BABY MATHEW, ARAMBANKUDY, SOMATHEERAM,
CHOWARA P.O., BALARAMAPURAM,
TRIVANDRUM - 695 501.
6. MR.K.K.THOMAS, KONDEKKERIL HOUSE, PE NO.7,
PALACE ENCLAVE, TRIPUNITHURA, COCHIN - 682 301.
7. MR.JAYASANKAR MANNATHAZAT, JAYAKAARTHI,
C.M.C. 10, CHERTHALA - 688 524.
8. MR.M.S.JAYAKUMAR, "MAKAM",
KESURAM BUILDINGS, PONDUMOOD,
MEDICAL COLLEGE P.O.,
TRIVANDRUM - 695 011.
R2 RI R4 BY ADV. SRI.KALEESWARAM RAJ
R1,R5,R6,R7,R8 BY ADV. SRI. BADRI NADARAJAN
THIS COMPANY APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.HEMA & A.HARIPRASAD, JJ.
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Company Appeal No.15 of 2012
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Dated this the 6th day of February, 2013.
JUDGMENT
Hema, J.
Appellants filed a company petition before the Company Law Board ('the Board', for short). In the said petition certain interim reliefs were sought for, which are as follows:
"a) To restrain the Respondents 2 to 4 from convening any Board Meetings or General Meetings without the approval of this Hon'ble Bench;
b) For an interim injunction restraining the holding of purported EGM proposed to be held on 12.11.2012, based on the alleged requisitions and notice issued by the 3rd respondent; and consequently, restrain any General Meetings of the Company from being held without the approval of the Hon'ble Bench; and
c) For an injunction restraining the Board from making any alteration to the Board of Directors, without the permission of this Hon'ble Bench.Company Appeal No.15/2012 2
d) For an injunction restraining the Respondents from giving effect to or in any manner acting upon the resolutions purportedly passed at the Board Meeting held on 11.10.2012."
2. After hearing both sides, the Board passed the impugned order, in which it is observed as follows:
"The EOGM is scheduled to be held on 12.11.2012 at 09.30 A.M. to transact the business as stated in the notice. Since the decisions are to be taken in the general meeting by the shareholders at large, I refrain from interfering in the wisdom of the shareholders. However, the meeting should be held in a cordial and democratic manner. The respondents may file their counter to the petition within a period of four weeks and serve copies on the other side. The petitioners, thereafter, may file rejoinder. The matter is posted on 06.02.2013 at 1.30 A.M."
3. Aggrieved by the above order by which the interim reliefs sought for were refused, this appeal is filed by the appellants, under Section 10F of the Companies Act, 1956 (Act, for short).
4. Heard both sides. Perused the relevant records. Sri.Saju John, learned counsel for appellants strongly argued that the impugned order is not sustainable, for various reasons. Company Appeal No.15/2012 3 Several grounds are raised in the appeal memorandum. It is submitted by him that as per Section 397 of the Act, any member of the company who complains that the affairs of the company are being conducted in a manner oppressive to any member or members may apply to the Board for an order under the said Section. The affairs of the company in this case were being conducted in a manner which is oppressive to members of the company and that is why certain interim reliefs were sought for by appellants.
5. Drawing our attention to various alleged discrepancies in the manner in which the Board meeting was held, notices were issued etc., it was strongly argued that all these were done to deliberately evade participation of certain individuals and hence, the matter comes squarely under Section 397 of the Act. It is also vehemently argued that none of these facts were considered in the impugned order and it is per se illegal and is liable to be set aside, it is strongly.
6. Sri. Badri Natarajan and Sri.Kaleeswaram Raj, learned counsel for the respondents vehementally argued that this appeal is not maintainable. As per Section 10F of the Act, an Company Appeal No.15/2012 4 appeal can be entertained only if any question of law arises out of the order which is challenged in appeal. But, absolutely no question of law is involved in this case and hence, the appeal has to be dismissed, it is argued. Various aspects were pointed out by the learned counsel for the respondents in reply to the arguments advanced by learned counsel for appellants and it was strongly argued that on facts of this case also, appellants contentions cannot be accepted. (Since it is not quite necessary to state the details of the arguments on facts, for the disposal of this appeal, we would avoid mentioning those details in this judgment).
7. A reading of Section 10F of the Act shows that an appeal to the High Court against any order or decision of the Board will lie, if any question of law arises out of such order. The expression "question of law arising out of such order" is very significant. By virtue of this, it is necessary to establish that a question of law arises out of impugned order and then only, an appeal from any decision or order of the Board (whether interim or final) can be entertained by the High Court. Company Appeal No.15/2012 5
8. Even though several grounds are raised in appeal memorandum and the matter was argued at length also on the various facts, it is unnecessary to resolve such disputed facts, for disposal of this appeal. But, what is necessary to be looked into is whether any question of law arises out of the impugned order. Even on a plain reading of the impugned order, it can be seen that the Board has merely narrated the contentions taken up by the appellants. But, there is absolutely nothing in the impugned order to show whether the contentions raised by the appellants are sustainable or not, at least prima facie.
9. It is not considered by the Board whether appellants made out a prima facie case for granting the interim reliefs which are sought for. No reasons are also assigned for refusing the interim reliefs sought for by the appellants. The Board ought to have stated in the impugned order why the relief is refused. It is needless to say that an order passed without assigning any reasons is opposed to the principles of natural justice and is unsustainable in law.
10. Even when a relief sought for by a party is refused, the authority or court concerned is bound to state reasons for doing Company Appeal No.15/2012 6 so. Since objections were not filed in the petition, and the matter was disposed of ex parte, it was more incumbent on the Board to state the reasons for refusal to grant the relief. Even in a matter considered ex parte (in the absence of the rival contentions from the side of the opposite party), relief sought for by petitioner can be refused, only if the authority concerned or court finds that the person who seeks the relief is not entitled for such relief. The reasons must also be stated why the relief is refused or why it cannot be granted.
11. The Board also ought to have considered from the pleadings whether the appellants have any legal right to obtain any interim reliefs as prayed for. It ought to have also considered, whether such legal right is dependent on the assertions made by appellants. It also ought to have considered whether such assertions if any, are supported by evidence and such assertions are prima facie proved. But, the Board has not considered any of these facts, before refusing the interim reliefs which are sought for by the appellants. A mere repetition of the assertions made by petitioner in the order will not suffice to make the order legal.
Company Appeal No.15/2012 7
12. In such circumstances, a question of law certainly arises out of the impugned order. The question is whether an order passed without assigning any reasons while refusing the relief sought for by a party is legal or sustainable in law. Hence, appeal is maintainable and the order under challenge is unsustainable also.
13. It is revealed from the impugned order that the respondents were granted four weeks time to file counter to the petition and even before filing the counter, time was also given for filing rejoinder and the matter was adjourned. It is posed before the Board to today. Learned counsel for respondents submitted that the counter is being prepared and it would be filed, shortly. Even if counter is filed, depending upon the nature of the counter the appellants may also file rejoinder.
14. It is thus clear from the submissions made before this Court that respondents have some serious objections to raise even against the maintainability and against the interim reliefs sought for and also on facts as well as law. Both sides would admit that the extra ordinary general meeting of the company which was proposed to be held on 12.11.2012 which is a subject Company Appeal No.15/2012 8 matter of this appeal has already been held.
15. It is also pointed out that this Court had passed an order during the pendency of the appeal that "any decision taken or resolution adopted by the AGM will be subject to the outcome of the company appeal". Since the appeal is to be allowed and the impugned order has to be set aside, we find that in the interest of justice some order has to be passed so that no prejudice will be caused to either side.
16. Learned counsel for the appellants submitted that a direction may be given to the respondents not to implement the decision taken in the extra ordinary general body meeting held on 12.11.2012. We are unable to grant any such request, since on the peculiar facts, we have not gone into the merits of the case and observation made by this Court, if any, is likely to prejudice the rights and liabilities of the parties. It is also submitted that at least notice may be directed to be given to all Directors if any meeting is proposed to be held. Therefore, the following order is passed:
i. The impugned order is set aside.
ii. The matter is remitted to the Board for fresh consideration and disposal, in Company Appeal No.15/2012 9 accordance with law.
iii. The matter will be disposed of within a period of one month from the date of receipt of a copy of this judgment.
iv. We make it clear that any decision taken or resolution adopted by the extra ordinary general body meeting which was held on 12.11.2012 will be subject to the order to be passed by the Board.
v. It is also made clear that till the disposal of the matter by the Board as directed above, if any decision is being taken in any meeting or any meeting is held at the instance of the respondents, notice shall be given to all the Directors, irrespective of whether respondents have a contention that the Directors are not entitled to receive any such notice.
This appeal is allowed.
K. HEMA, JUDGE.
A.HARIPRASAD, JUDGE.
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