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(2001) 107 Comp. Cases 63.

I have considered the submissions of learned counsels for the parties and perused the voluminous records placed before this Court. At the outset it would be appropriate to deal with the submission of learned counsel for the respondents that the present appeal being under Section 10F of the Companies Act, is maintainable only on the question of law and, therefore, the finding of fact rendered by the CLB with regard to the MMS Group having no knowledge of surrender of excess land prior to 1998-99 cannot be agitated before this Court and in the absence of any plea or any allegation of perversity in the finding recorded by the CLB. The proposition that an appeal under Section 10F is only on a question of law can hardly be challenged by any one. But to state that the findings regarding MMS Group having no knowledge Patna High Court COMP. APP.(SJ) No.3 of 2010 dt.16-12-2016 of the surrender of excess land prior to 1998-99 being a finding of fact and not open to re-agitation before this Court because of the absence of plea of perversity, does not appear to be made out on a broad consideration of the grounds taken in the memo of appeal. The principal thrust of the memo of appeal is assailment of the said finding of fact with regard to the lack of awareness of the MMS Group regarding the surrender or required to be surrendered surplus land which has been sought to be done not only by challenging the finding regarding misrepresentation by the appellants but also with regard to the finding that Mr. B.M. Sharma has never been part of MMS Group. The findings have been assailed in an appeal which relates only to question of law. It is evident that such proposition can be supported only on the ground of perversity and not otherwise. Thus, it cannot be said that the appellants are excluded from assailing the said findings. Right from the stage before the CLB in the written statement as also before this Court the submission of the appellants has been that the MMS Group had actual knowledge of surrender of land much before 1998-99 and that Mr. B.M. Sharma was at all stages involved right from the inception when the sale of the Tea Estates was negotiated with TTE. In the said background the contention of learned counsel for the respondents that it is not open to the appellants to urge the said ground tantamounts to saying that the appellants have no right to argue their Patna High Court COMP. APP.(SJ) No.3 of 2010 dt.16-12-2016 appeal under Section 10F of the Companies Act. The said objection of learned counsel for the respondents is, accordingly, rejected.

From 1.6.1998 under the Joint Management Agreement, five tea estates were given to the management of MMS Group although it has been sought to be argued on behalf of the MMS Group that certain administrative work alone was handed over to it, which does not appear to be acceptable as otherwise there would be no sense in stating that five estates were to be managed by the MMS Group under the JMA. The said plea appears to be completely false. While under the joint management the land tax was also paid by MMS Group by receipt dated 4.3.1999 on the basis of actual acreage.

The next issue which has serious bearing in the present matter relates to the position of Mr. B.M. Sharma and whether his knowledge can be attributed as knowledge of the MMS Group. As pointed out earlier the MMS Group is nothing but the family members of Mr. B.M. Sharma and he had throughout acted on its behalf even during the course of negotiations with the CBS Group for arriving at the family arrangement. It is Mr. B.M. Sharma who had played the lead role on behalf of the MMS Group, which aspect of the matter has been completely overlooked by the CLB in the impugned order dated 29.11.2010 relying upon the technicality of the description of the MMS Group, which does not include his name and the fact that he has been Patna High Court COMP. APP.(SJ) No.3 of 2010 dt.16-12-2016 separately defined in Clause 2.1.4 of the TD. This Court is surprised at the hyper-technicality invoked by the CLB in the impugned order to hold that he was never part of MMS Group. Moreover, merely because the final order of Taluk Land Board was passed on 13.11.1976 it has been held by the CLB that it would be impossible for Mr. BM Sharma to know details of the land surrendered in 1975. The issue is not as to which particular area had been surrendered before the sale deed but the fact that the area of land to be surrendered was almost 10% of the total sale area and was going to be surplus immediately after the sale deed which fact could not have been unknown to Mr. B.M. Sharma who was the key negotiator in London on behalf of the Company.

Once the aforesaid issue of knowledge of the MMS Group with regard to the surrender of land is accepted then the next question which arises would be as to how there can be finding of Patna High Court COMP. APP.(SJ) No.3 of 2010 dt.16-12-2016 fraudulent misrepresentation on behalf of the CBS Group to the MMS Group as has been held by the CLB in its impugned order. A fraudulent misrepresentation is only possible if the party making such representation is aware of certain facts whereas the other party to whom misrepresentation is made is not aware of the same. Since the materials on the record lead to the unequivocal conclusion that both the Groups were equally aware about the fact of surrender, it cannot be said that there was any fraudulent misrepresentation about the area of land. This would also be clear from the fact that what was being divided were the assets of RBT belonging to the two Groups, even if it was ultimately given the shape of a Transfer Document by RBT to the MMS Group. Further it is stated in the order dated 19.08.1999 of the CLB that even the suggestion, that the five estates already under the management of the MMS Group under the Joint Management Agreement should be given to the said group as its share on division, had been made by the CLB, and thus it could not be said that deliberately an attempt was made to hand over those very tea estates which had suffered maximum amount of lands being surrendered. As a matter of fact, the issue of area comprising the said estates does not appear to have been expressly brought out in the course of negotiation of more than 14 months by any of the parties and both sides were simply talking in terms of five tea estates regarding which it was Patna High Court COMP. APP.(SJ) No.3 of 2010 dt.16-12-2016 evidently known to the parties managing them under the Joint Management Agreement that the five tea estates comprised approximately 55% of the over all 9 tea estates and accordingly, the JMA provided for 55% cost of the expenditure of Kochi office to be borne by the MMS Group and remaining 45% to be borne by the CBS Group.