Calcutta High Court
Priyamvada Devi Birla, Rajendra Singh ... vs Laxmi Devi Newar And Anr. on 23 March, 2005
Equivalent citations: 2005(4)CHN544
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. First three mentioned applications have been taken out by one Smt. Laxmi Devi Newar, one Smt. Radha Devi Mohta defendant No. 1 herein, defendant No. 2 herein and, jointly by four persons viz. one K.K. Birla, Basant Kr. Bina, Ganga Prasad Birla, Y.B. Birla, for identical interlocutory reliefs viz. for appointment of Administrator and/or a committee headed by an independent and impartial Administrator be appointed in and over the estate left by the said Priyamvada Devi Birla, since deceased (hereinafter referred to as the said deceased) and also order of injunction restraining the propounder/plaintiff from dealing with disposing of any of the assets or properties of the deceased and/or exercising any right and control of the companies. The two ladies above being the defendants in the suit are the sisters-in-law of the said deceased (husband's sisters) and they have been contesting the grant of probate in relation to the will said to be the last one of the said deceased while the abovementioned four persons viz. the Birlas have lodged their caveats intending to oppose the grant but they have not been made parties defendant as yet. Their caveats are sought to be discharged on the ground that the aforesaid persons have no interest in the estate of the said deceased. All these three applications contain identical prayers even in word by word.
2. The last three applications have been taken out by the plaintiff R.S. Lodha for dismissal of all the three respective applications for interlocutory reliefs, in limine and with costs and/or stay of all further proceedings in connection with the aforesaid all the three applications.
3. All the aforesaid six applications were moved for obtaining ad interim relief as prayed for in the respect applications.
4. Mr. S.B. Mukherjee learned, Senior Advocate, Mr. P.K. Roy, Senior Advocate (now deceased) with Mr. S. Pal Senior Advocate at the time of moving of their respective applications upon instructions clearly submit that they are not pressing for interim order of appointment of Administrator and such prayer shall be made after completion of filing of affidavit at the final hearing, if these three applications are admitted for hearing.
5. The ground for obtaining interim order of injunction in all the three applications are identically similar even I find the averments made in the respective petitions are verbatim reproduction of each other. Basic argument of all the learned appearing Counsels of the applications' group are common and identical but the respective learned Counsels while appearing separately has put forward their individual brand of final touch of their argument in specialized manner.
6. Mr. S.B. Mukherjee has in essence spearheaded their attack against Lodha for ad interim relief for injunction. He while highlighting the statements and averments made in the petition submits that the document which is alleged to be last testamentary instrument is an unnatural one apart from other illegalities. It will appear that entire estate of the said deceased lady has been given away to Lodha who is a rank stranger. Admittedly this gentleman is neither a relation nor lineal descendant, but he developed a close connection with the said deceased during last few years of her life in connection with business activities. This gentleman is a Chartered Accountant and was Auditor of several group companies belonging to larger Birla Family. Taking advantage of his fiduciary position, this gentleman was able to influence the mind of the said deceased to execute the Will and thereby entire estate of this lady is sought to be acquired by him. This gentleman is not an industrialist nor he had or has any experience in running industry. The Universally well-known Birla family knows how to control, manage and run industry with their inborn capacity and skill. Therefore, according to him this large business activities with the vast assets and properties should not be allowed to be controlled and managed by this inexperienced man who knows only the accounting and auditing system. The grounds made out in the written statement is quite strong to challenge the Will. It is an in genuine document. As such in all certainty the probate proceeding will fail. This lady actually bequeathed all by her previous Will of 1982 in favour of public charitable trust. There has been serious apprehension of the properties being misappropriated and mismanaged by the said plaintiff. By virtue of this Will the shareholding of the said deceased lady in respect of the two holding companies and through it controlling power over other subsidiary companies have developed upon him. Shares in all the four companies viz. Eastern India Investment Co. Pvt. Ltd, Gawalior Webbging Pvt. Ltd., Mazbat Pvt. Ltd. and Mazbat Investment Pvt. Ltd. shares held by the said deceased are majority in number at a percentage of 74.92 per cent, 50.43 per cent, 78.48 per cent and 78.40 per cent. With this majority shareholding of these four holding companies Lodha has now gained control over other subsidiary companies in which the said deceased or the Lodha has no individual or insignificant shareholding. Through shareholding of these M.P. Birla group of companies the management and control of all companies were being really held by the said deceased significantly with the son of Lodha viz. Harsha Bardhan Lodha. The other shareholders though having larger shares in other companies are absolutely remediles. The appointment, removal of all the directors of all these companies will be really controlled and manipulated by Lodha.
7. He submits that Lodha very carefully conceals actual extent of estate and assets of the said deceased and as he has not disclosed all the assets in the affidavit-of-assets in the testamentary proceedings. Because of the enormity and stake in the estates viz. which largely consists of profit making company in the important industrial sphere and management thereof should not be rested with Lodha. In the event, he contends the probate proceedings is dismissed and Lodha is allowed to remain in control and management without any guard or check by this Court, the estate of the deceased which will eventually comes to sister-in-laws will be destroyed. Actually the property remains in hand of Court in real sense so long the probate proceeding is pending.
8. In support of his contention he has relied on the following decisions reported in :
, AIR 1930 Bom. 342(346), , .
9. Mr. Pal learned Senior Advocate while pressing his client's application basically supports the submission of Mr. S.B. Mukherjee, and adds that the Court must take such measure that protects and preserves the estate of the deceased in probate proceeding till probate of the Will is granted and carried out. The probate proceeding is seriously challenged and nobody knows what would be the fate. The alleged Will is clouded with various strong suspicions and so strong is the suspicion that it will lead to pronouncement of forgery. In the Will, Lodha is executor and beneficiary, the properties are vast, so these cannot be left with him for absolute control and administration of the same.
10. He has drawn my attention to Section 211 of the Indian Succession Act, and says the words 'property of the deceased person' are of wider meaning and connotation. It not only means real or tangible property but the same includes the right to control or manage the affairs of companies and business.
11. He submits good Will is also assets and property like intellectual property. All these properties are intended to cover by the word used in the said section.
12. He has borrowed the meaning and expression used in the repealed Estate Duty (Controlled Companies) Rules, 1953. He has drawn my attention to Rule 15 of the aforesaid Rules, as to how valuation of estate duty on shares and debentures of certain companies, could be done for the purpose of imposition of estate duty. In the Estate Duty Act and Rules (since repealed) the controlling block of shares were used to be treated as an estate. So, the meaning and expression of the 'estate' in the said Act can usefully be brought and accepted in this case also. He has also drawn my attention to Sections 20 and 37 of the Estate Duty Act.
13. He further contends that Lodha immediate after death of the deceased Lady on the strength of the alleged Will of 1999 without applying for grant of probate started acting to act as beneficiary of the said Will and has drastically changed management and controlling pattern of all the M.P. Birla Group of Companies. He taking advantage of the majority of shareholding in interlinking shareholding pattern amongst all other companies has started mismanaging the core company Birla Corporation Ltd. as such the majority shareholders have already resorted to appropriate proceedings before the Company Law Board. According to him the alleged Will of 1999 is an outcome of fraud and forgery and the same was procured from the said deceased on the basis of fraudulent representation. As such the appropriate criminal proceedings has been initiated, before the appropriate forum.
14. He contends that though these proceedings are arising out of and/or in connection with probate proceedings in relation to the Will of 1999 the same are perfectly maintainable and entertainable by the appropriate forums. Lodha has been contesting the said proceedings and none of the forums has held as yet such proceeding is abuse of process of the Court. Therefore, question of commission of criminal contempt or Contempt of Court with initiation of these proceedings do not and cannot arise. In support of his submission he has relied on the following decisions :
;
AIR 1912 PC 440;
127 ITR 855 (858);
1948(1) AER 271;
CLJ (10) page 264.
15. On earlier occasion learned Counsel Mr. P.K. Roy appeared but during pendency of this proceeding he died unfortunately. So, I cannot have the benefit of listening and recording his argument. Mr. S.P. Sarkar learned senior Advocate appearing with him has adopted the argument of Mr. S.B. Mukherjee and Mr. Pal as he thought his argument will be a matter of repetition. However, he adds that the Probate Court is a Court of conscience and entire estate in real sense vests in it until and unless probate is granted. When contesting parties have raised serious doubts questioning the propriety and ability of the sole executor and beneficiary, Court must do something so that the properties remain intact and safe.
16. Mr. A.K. Mitra learned senior Advocate submits while opposing the application for appointment of Administrator pendente lite and the prayer for ad interim order of injunction that no ground has been made out in the petition showing necessity of appointment or for passing order of injunction. He has drawn my attention to the Section 211 of the Indian Succession Act, 1925 and submits that all the properties under the law on death of testatrix vest unto the executor. Under the law he is the de jure owner and is entitled to control and manage the entire estate left behind by the deceased. Unless there is allegations against the executor as to mismanagement and act of waste and devastation the executor cannot be removed. Executor is not like a Receiver. There has been no allegation in the petition of any act of waste and mismanagement. From the petition of his client he demonstrates how the executor was a man of confidence of the deceased Lady. Long before her death his client was brought in the helm of affairs of all the M.P. Birla Group of Companies. His client has served various Governmental and non-Governmental departments in various high and prestigious position and offices. His efficiency and competence in running industry is well-accepted and recgonized. He submits that appointee and/or nominee of the testatrix should not be deprived of his right lightly or by mere asking.
17. He submits that whatever estate and assets left behind by the deceased as disclosed in the affidavit of assets and whatever will come to his client's hands he assures this Court will be kept intact. The shares received by him qua executor of the said deceased Lady will not be transmitted nor the same be sold to any third party. That apart few left out assets which have not been indicated in the affidavit of assets in this probate proceedings and in the probate proceedings of the rival Will of 1982 of the said deceased Lady will also be kept intact. According to him the word 'property' mentioned in Section 211 should be construed and meant what have been stated in the affidavit of assets by his client, which have come in his hand.
18. He while pressing his client's application for dismissal of this application for interlocutory relief submits that this application is made in sheer and shameless abuse of the process of the Court. On the basis of identical allegations and averments this Birla petitioners as well as these two ladies have caused criminal proceedings as well as the proceedings before the Company Law Board to be initiated. The complainant in the criminal proceeding and the petitioners in the Company Law Board are the men, agents and henchmen of all these petitioners. It is significant to note probate proceeding was initiated in the month of August, 2004, whereas these applications for appointment of Administrator pendente lite have been taken out in the month of December, 2004. No explanation has been given as to why such delayed action has been taken. Actually having found no effective result in the Company Law Board's proceeding these applications have been made, the Company Law Board did not pass any interim order in their favour, now what they could not get there, is sought to be achieved with these frivolous applications.
19. Mr. Mitra then contends that shareholders have no right, title and interest in the assets and properties of the company so long the same will be in existence. Shareholders have right amongst others to participate in the profit arising out of the income of the business activity. The shares, therefore, do not represent the value of the assets and properties of the company.
20. He further submits that the order of injunction sought for in this petition, cannot be passed affecting the management and control of the company and also its business activities. The company is not a party in this proceeding and it is settled law that company is a legal and juristic entity and it has its character distinct and different from that of the shareholders and directors.
21. He further submits that controlling block of shareholding is neither asset nor property and the same cannot be said to have devolved under Section 211 of the Indian Succession Act, 1925 of the executors. According to him most of the shares in the M.P. Birla Group of Companies are unquoted and the valuation thereof are understood and recognized by the Legislator in a way different from the proprietary right or interest. In support of his contention he has relied on following decisions :
;
;
AIR 1994 SC 1375;
.
22. Mr. Sakti Nath Mukherjee, learned senior Advocate appearing for the Lodha in the application being G.A. No. 4374 of 2004, not only opposes the application of one of the two sisters M.P. Birla namely Laxmi Devi Newar but also presses his client's separate application for dismissal of the related application of the sister/defendant. He basically supports the argument of Mr. Mitra. In addition thereto he contends the present application is really grossest abuse of process of the Court and the same is an act of contempt. The mala fide motive of the defendants and the other caveators would be apparent from the fact that at the time of making application for grant of probate or immediately thereafter no action was taken for appointment of Administrator pendente lite.
23. He submits further that his client Lodha is a man of confidence of the deceased Lady from the time not immediately before the date of execution of the Will. Since 1991 his client has been unquestionably enjoying confidence of this Lady. He has placed various documents annexed to his client's application wherefrom he wants to demonstrate how his client was gradually brought into the helm of the affairs of the M.P. Birla Group of Companies. It is the said deceased Lady who took initiative appreciating Lodha's performance and ability in running industry, to make him Vice-Chairman in various Group of Companies of the said deceased couple. He negatives the meaning of the property or the terms 'estate' what is sought to be argued by learned Counsels for the Birlas. He placed Black's Law Dictionary (VII Edn.) to understand the meaning and expression of the word 'estate', wherefrom it appears that the property means in real and tangible sense not in notional and fictional sense. He has also placed Earl Jowitt's Dictionary of English Law (1959th Edn.) page 735.
24. He also relied on the Whartton's Law Lexicon ASOPPE (IV Edn.) to supply the meaning of ''estate', which also means that interest in land or property in real sense.
25. Mr. Mukherjee then contends that the Court of equity should not support or encourage contumacious act of the plaintiff by entertaining the instant application. He has explained while placing the textbook "the Law of Contempt of Anthony Arlidge how vexatious litigation one after another causes interference with the administration of justice. For the similar proposition he has also placed the Law of Contempt of Borrie and Lowee (1973 Edn.) page 223.
26. He contends further that, if any party to any litigation, is prevented by the adversary from getting access to the "justice delivery system" by the vexatious litigation, the affected party is victim to the act of interference with administration of justice.
27. His contention as against the prayer for interim order of injunction and the appointment of Administrator pendente lite that the Court cannot pass any order on this interlocutory application as a matter of course or mere asking. The Court will certainly see that there has been necessity for appointment. There is no complaint or allegation against Lodha as to his competency and integrity and no ground has been made out for passing order of injunction or for appointment of Administrator pendente lite. In support of his submission he has relied on a passage from a textbook of Mortimer on Probate (2nd Edn.) page 378, William Mortimer and Snmucks of Executors Administrators and Probate (16th Edn.) page 268.
28. Mr. Mukherjee, Mr. Pal and Mr. Ray, since deceased, very fairly submitted in the very beginning that their clients were not praying for any ad interim order of appointment of Administrator pendente lite at this stage and this would be prayed for after filing of affidavit in the event three instant applications are admitted for hearing. So, at this stage my endeavour would be to see whether the three applications on the face of the opposition of Lodha can be admitted for hearing and further any ad interim order of injunction as prayed for in the application should be passed or not. Mr. Mukherjee and Mr. Mitra at the time of hearing were agreeable to maintain status quo with regard to the assets and properties as mentioned in the affidavit of assets. However, Mr. Mukherjee and Mr. Pal were not satisfied with this concession and they want that the sates quo order should be passed not only in relation to the shareholding, assets and properties left behind by the deceased Lady, but also in relation to the composition of Board of Directors for control and management of the M.P. Birla Group of Companies and others Trust Estates.
29. Having heard the learned Counsels and upon considering the authorities cited before me I am of the opinion, prima facie that, once the application for grant of probate is made in relation to estate of the deceased the Probate Court's anxiety would be to see properties are preserved and protected either by appointing Administrator pendente lite if called for, or passing suitable interim relief allowing the executors if appointed by the testator, to administer the property during pendency of this probate proceeding. I am of the prima facie view that on death of testators the named executor of a deceased person is his legal representative for all purposes, as all the properties of the deceased vest in him as such. This position has been made clear by the legislator under Section 211 of the Indian Succession Act, 1925. (hereinafter referred to as "the said Act") Apparently the executor's right to control and administer the property during pendency of this probate proceeding is a legal one and the same cannot be interfered with by the Court lightly or easily.
30. In this case it is seriously disputed about the extent of the properties of the deceased as defined in Section 211 of the Indian Succession Act, 1925, vests in Lodha in reference to the affidavit of assets. Mr. S.B. Mukherjee, learned senior Counsel has referred to paragraph 4 of the Testamentary Instrument dated 18th April, 1999 (for arguments sake). He contends that testatrix referred to her assets and properties namely right of management, administration, financial and legal and every other aspects relevant to complete ownership, of all the businesses and properties possessed or owned by the testatrix either directly or indirectly and the entire right, title and interest all of which she had. The above exhaustive expression of the testatrix covers right to manage or control of all the businesses. This contention has been refuted by Mr. A.K. Mitra and Mr. S.N. Mukherjee saying that right to control the company is to a property irrespective of number of holding of the shares. I will deal with this aspect little later. Whatever may be the contention of the learned Counsels for the parties; in my view a Hindu testatrix or testator cannot dispose of anything otherwise than mentioned in the provision of Section 30 of the Hindu Succession Act, 1956. The said section is quoted hereunder:
"30. Testamentary Succession.--Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation--. The interest of a male Hindu in a Mitakshar a coparcenary property or the interest of a member of tawed, tavazhi, illom, kutumba shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."
31. In my view the disposition of property means an act by which property can be transferred by executing a deed inter vivos in case of immovable property or interest therein, by parting with possession in case of movables. Here there is no dispute as regards the transferability character of the movable and immovable properties including shareholding. I accept the argument of Mr. Mitra and Mr. S.N. Mukherjee that shareholder stands on a different footing from that of the company, which is a separate legal entity. This settled position though does not require any support of any authorities as it is so firmly settled, still, since learned Lawyers have brought a few authorities on this subject, I refer to the same namely :
(Bacha F. Guzdar v. Commissioner of Income Tax, Bombay):
(Electronics Corporation of India Limited v. Secretary Revenue Department, Government of Andhra Pradesh and Ors.).
32. However, I do not accept the contention of Mr. A.K. Mitra the properties, which are described in the affidavit of assets, can be said to be the properties as mentioned in Section 211 of the said Act.
33. In my view the description in the affidavit of assets affirmed by Mr. Lodha cannot at this stage be an exhaustive one as there may be properties of any description remaining undiscovered or untraced. Therefore, the 'estate" of the said deceased should be the properties both movable and immovable which have been stated in the affidavit of assets of Lodha or which might be discovered by inventory or otherwise.
34. Next question is whether the majority of the shareholdings held the deceased Lady by which she used to control either directly or indirectly or indirectly M.P. Birla Group of Companies or any other companies assumes any significance in relation to the share structure and administrative affairs of the company or not. In my view as has been rightly contended by Mr. S.B. Mukherjee that with single or group of shareholding not forming majority there is no impact in the affairs of the Company as they do not have separate or significant character or position in the company except the right to get dividend meaning thereby right to participate in the profit of the company, and on dissolution to have ratable distribution of the surplus assets, but the majority shareholding in one hand is really something more than holder of individual or minority shareholder. Apparently the strength or impact of majority shareholding cannot be perceived in the affairs and fate of the company. But if one sees the provisions of the Companies Act deeply regarding formation of the Board of Directors who are really responsible for control, management and affairs of the company it is to be found that a person holding major shares really control the affairs of the company. Under the provision of Section 255 of the Companies Act, the directors of the company are appointed in the Annual General Meeting of all the shareholders. Therefore, it is quite natural the majority shareholding will have the decisive role in the matter of appointment of directors. All the powers of the company are exercised by the Board of Directors as conferred under the provision of Sections 291 and 292 of the Companies Act. Therefore, the Directors appointed by the majority shareholders are the de facto controller and manager of the company. So, in my prima, facie view, majority shareholding to put differently controlling bock of shares, constitute undefined or unspecified right or status which has got far-reaching effect in affairs of the company and the same is nothing short of the property in real sense. It is an admitted position that Lodha has already got possession of the majority of the shares of the holding companies from the said deceased lady and by the mechanism of interlinking shareholding with other groups of companies, the entire M.P. Birla Group of Companies can in fact be controlled and managed either by Lodha himself or his nominee. It is also admitted position that Lodha has already got his name registered as the transferee qua executor of the Will yet to be probated in the company register and then he has consolidated his position. The proceeding has been initiated before the Company Law Board alleging mismanagement. I should not make any observation in this regard. The forum concerned will obviously decide the matter.
35. Mr. A.K. Mitra and S.N. Mukherjee have agreed upon instruction from their client that the shareholding of all these companies shall not be transferred and/or disposed of till the disposal of the present application. I, therefore, direct Lodha to maintain the status quo with regard to the transfer of shares received and/or got hold of already in respect of the companies from the said deceased Lady. This order of status quo will also cover any other shareholding in respect of other companies, which might be coming to his hands. This order shall cover other immovable property also. The decision cited by both the learned Counsel are mostly related to the appointment of administrator pendente lite, therefore, those decisions are not germane of the matter at this stage.
36. The Probate Court, apart from the provision of the said Act, has inherent power to pass suitable interim order for protection and preservation of the properties, as so long the probate proceeding remains pending the properties really remains in the hands of the Court. It is true as it appears from the judicial pronouncement cited by the learned Counsels at the bar in order to pass any interim order relating to the administration of the estate, case of necessity has to be established. In my view, the case of necessity is not only looked from the statement and averment of the petition above but also from the mere fact of enormity of the estate and the nature of the disposition made by the testatrix. From the provision of the Will the Court itself may feel necessity in order to protect and preserve the estate for passing interim order. It is not the feeling of the parties to the proceeding matters, what matters, is Court's sense of insecurity of the estate of deceased. From the affidavit of assets furnished by the propounder/Lodha it appears properties are of different character and nature namely majority shareholding of core companies of the M.P. Birla Group, co-ownership in the immovable property. Apart from the immovable properties other properties are not very specific because the shares themselves cannot be termed to be a property but the value represented by these shares is in real sense the property. This value is liable to be fluctuated depending upon the stock exchange market if the shares are quoted but in case of unquoted ones it depends upon the profitability and viability of the company concerned. Necessity of passing interlocutory order regulating management and control in relation to the fixed assets, real properties, must be founded on a stronger ground and as the ascertained properties with their ascertained income can easily be managed and controlled and even the properties are left at the hands of the executors for it is unlikely the same can be wasted or damaged. But in case of the property value of which is volatile in nature necessity may arise and the supervision and vigilance of the Court, may be called for its protection and preservation. This necessity may be felt in a case where there has been serious challenge against the Will in the probate proceeding and further and in particular where the executor himself is beneficiary. Human mind is very flexible in nature and in any moment for his own interest executor/sole legatee can change his mind forgetting his obligation to the estate vis-a-vis the Court, particularly if though occurs in his mind that probate is unlikely to be granted, it is not impossible for him to destroy, misappropriate or dissipate for his own interest. The Probate Court cannot afford to take even remote or possible risk and cannot wait till the grant of the probate. But balance between convenience and inconvenience is to be weighed in the interest of the estate particularly where a vast portion whereof concerns with running companies and business and it has significantly contributory role to the nation's economy. In the petition, I do not find any allegation of mismanagement, destruction and devastation of the estate only an allegation has been made that a jute mill is sought to be closed and the same is sought to he shifted. Explanation has been given by Lodha in his separate application stating that for economic viability of the above jute mill the said decision was taken to shift the jute mill at a different place as the existing site does not have any scope for expansion. Unless it is expanded the viability of the company cannot be maintained, however, the workmen concerned did not understand this root problem, so they became agitated and company had not option but to suspend the business. So, I think, keeping in view the interest of the group of companies on the one hand and to safeguard the interest of the estate of the deceased lady on the other hand slightly regulatory measure is to be taken. It is suggested by Mr. S.B. Mukherjee, Mr. S. Pal and S.P. Sarkar that status quo as regards composition of Board of Directors as on today shall be maintained. I think, if this restrain order is passed the Board of Directors cannot function independently, consequently the company cannot be run freely. If any of the Board of Directors commits any misconduct or incur any disqualification he cannot be legitimately removed from the Board. Under these circumstances this restrain order is not passed considering the situation in the share market, which is very volatile in nature. This form of suggestion is not accepted by the Court. However, it is made clear in the event any step is taken for removal of any of the Directors only prior seven days notice shall be served upon the defendants. I direct the propounder by his controlling shareholding shall not move any resolution nor support any resolution aiming to sell, incumber any assets of the M.P. Birla group of companies nor closure thereof, without express leave of the Court. The propounder shall also, maintain status quo in relation to the other properties.
37. The application taken out by Mr. Lodha for dismissal of the present application on the ground of abuse of the process of Court does not call for any interim order at this stage as I am of the prima facie view that the criminal proceeding initiated allegedly at the instance of Birlas are being seriously contested and challenged in the proceeding itself by Lodha and I am told the same has been challenged in this Court in Criminal Revisional Jurisdiction. When this issue is pending before another forum I cannot make any comment as to whether those are abuse of process of Court or not. Similar is the situation as regards proceeding before the Company Law Board. This proceeding has been entertained and is being looked into by the said Board. I cannot make any comment.
38. The appointment of administrator pendente lite is permissible and entertainable under the provision of law undisputedly. Therefore, I cannot prima facie hold that this proceeding is an abuse of process of Court. It may be or may not be found later on upon affidavits.
39. At this stage appointment of administrator pendente lite is not called for however, the aforesaid interim order will continue till the disposal of this application.
40. Affidavit-in-opposition shall be filed by the respective parties in their mutual application within four weeks from date.
41. Reply two weeks thereafter.
42. Matter to appear 8 weeks hence.
43. It is made clear having regard to the nature of application, which are identical and in fact verbatim reproduction of each and every set of applications therefore, one affidavit-in-opposition may be filed in both the rival applications.