Rajasthan High Court - Jaipur
M/S Rajasthan Hospitals Ltd vs Dr G L Purohit And Others on 26 April, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D. B. Special Appeal Civil (Company) No. 31 / 2015
In
S.B. Company Appeal No. 12/2013
M/s Rajasthan Hospital Limited, Opposite Government Jaipuria
Hospital J.L.N. Marg, Jaipur (Rajasthan) through authorised
signatory Mr. Shyam Bihari Agarwal S/o Shri Kalyan Prasad Ji
Agarwal, aged about 57 years, Director M/s Rajasthan Hospitals
Limited, B-202, Rajendra Marg, Bapu Nagar, Jaipur.
Appellant
Versus
1. Dr. G.L. Purohit, Director, M/s. Rajasthan Hospitals Limited,
Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur
(Rajasthan).
2. Shri M.L. Purohit, Director, M/s. Rajasthan Hospitals Limited,
Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur
(Rajasthan).
3. Mrs. C.K. Purohit W/o Dr. G.L. Purohit, Director, M/s. Rajasthan
Hospitals Limited, Opposite Government Jaipuria Hospital, J.L.N.
Marg, Jaipur (Rajasthan).
Respondents
4. Mr. Arjun Kr. Bohra, Ex-Director, M/s Rajasthan Hospitals Limited, Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur (Rajasthan).
5. Mr. Dharmesh Purohit, Ex-Director, M/s. Rajasthan Hospitals Limited, Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur (Rajasthan).
6. Mr. Vijay Shankar Vyas, Ex-Director, M/s. Rajasthan Hospitals Limited, Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur (Rajasthan).
7. Mr. Sudesh Purohit, Ex-Director, M/s. Rajasthan Hospitals Limited, Opposite Government Jaipuria Hospital, J.L.N. Marg, Jaipur (Rajasthan).
8. Dr. S.S. Agarwal, 5449, Prem Bhawan, KGB Ka Rasta, Johari Bazar, Jaipur (Rajasthan).
9. Ms. Ashu Agarwal, 5449, Prem Bhawan, KGB Ka Rasta, Johari Bazar, Jaipur (Rajasthan).
10. M/s. Shyam Sunder Agarwal, HUF, through its Trustees, 5449, Prem Bhawan, KGB Ka Rasta, Johari Bazar, Jaipur (Rajasthan).
(2 of 4) [SAC-31/2015]
11. Shri Puranmal Phooladevi Memorial Trust, through its Trustee, 5449, Prem Bhawan, KGB Ka Rasta, Johari Bazar, Jaipur (Rajasthan).
12. M/s. Swasthya Kalyan Securities (P) Ltd., 5449, Prem Bhawan, KGB Ka Rasta, Johari Bazar, Jaipur (Rajasthan).
13. M/s. Santosh Kumar HUF through its Karta Mr. Santosh Kumar 63A-1, Anand Bhawan, Near Swasthya Kalyan Blood Bank, Milap Nagar, Jaipur.
14. Mrs. Sarita Singh, C-93, Shastri Nagar, Jaipur.
15. Mrs. Manak Devi Khawad, 1696, Jadiya Ka Rasta, Chowra Rasta, Jaipur.
16. Dr. Virendra Singh, C-93, Shastri Nagar, Jaipur.
Proforma Respondents
17. The Company Law Board, Northern Region Bench, New Delhi.
Respondents _____________________________________________________ For Appellant(s) : Mr. R.P. Garg with Mr. Gaurav Sharma, Mr. Ankit Sethi and Mr. Shubham Jain.
For Respondent(s) : Mr. Sandeep Taneja. _____________________________________________________ HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA Judgment 26/04/2017 (PER HON'BLE MR. MOHAMMAD RAFIQ,J.) This appeal is directed against order dated 29.06.2015 passed by the learned Company Judge whereby application filed by the appellant for withdrawal of the appeal has been allowed in part in the terms that the appellant, M/s. Rajasthan Hospital Limited, which was appellant No. 1 in the company appeal has been ordered to be transposed as respondent and the appeal now continues with Dr. G.L. Purohit; Shri M.L. Purohit and Mrs. C.K. (3 of 4) [SAC-31/2015] Purohit wife of Dr. G.L. Purohit, Directors of M/s. Rajasthan Hospital Limited, Jaipur as appellants.
Mr. R.P. Garg, learned counsel for the appellant submits that since the appeal was filed by the aforementioned three persons in their capacity as Directors of the company, the learned Company Judge ought to have permitted the appellant to withdraw the entire appeal, particularly when he upheld the argument that there was no Resolution by the Board of Directors of the Company authorising them to file appeal. It is submitted that they were removed as Directors by resolution passed by the Board of Directors dated 07.11.2013 and Registrar of Companies was accordingly notified on the prescribed performa.
Mr. Sandeep Taneja, learned counsel for the respondents cited judgment of the Supreme Court in Kamal Kumar Dutta and Another Vs. Ruby General Hospital Limited and Others, (2006) 7 SCC 613 and argued that in view of the authoritative pronouncement of the Supreme Court, this appeal is not maintainable. It is argued that the Supreme Court in the aforesaid judgment held that power of letters patent in the matters where Single Judge hears an appeal from original order, has been taken away by amendment of Section 100-A CPC by Act No. 22 of 2002. Since the power of special appeal, exercised by Division Bench is akin to letter patent, the present appeal would not be maintainable.
Mr. R.P. Garg, learned counsel for the appellant rejoined and submitted that Section 100-A CPC refers to an appeal against the judgment and decree in appeal passed by the Single Judge of (4 of 4) [SAC-31/2015] the High Court and since the impugned order does not qualify to be judgment and decree, the appeal would be maintainable. Impugned order is only final order, therefore, in terms of Rule 134 of the Rajasthan High Court Rules, appeal against "final order"
would be maintainable. It is also argued that provisions of CPC, in view of Section 10-FZA of the Companies Act, would not be applicable to the present proceedings. If at all, Respondent No. 1 to 3 wanted to file appeal, they should have filed a fresh appeal by permitting the appellant herein to withdraw the entire appeal.
We need not go into the question whether the appeal is maintainable or not, as we do not find any error in the order passed by the learned Company Court directing transposition of M/s. Rajasthan Hospital Limited as the respondent because remaining three appellants had filed appeal in their personal names. However, we leave it open to the appellant herein to raise and the respondents to contest, the question whether the remaining three appellants could maintain the appeal which they filed addressing themselves as Directors of the Company, as that issue can even now be decided by the Company Court.
With the aforesaid liberty, appeal is disposed off. Consequently, interim order also comes to an end.
Stay application and Application No. 5495/2017 also stand disposed off.
(KAILASH CHANDRA SHARMA)J. (MOHAMMAD RAFIQ) J. Manoj