P. Ramakrishnam Raju, J.
1. This company application is filed under section 151 of the Civil Procedure Code, 1908, read with rule 9 of the Companies (Court) Rules, 1959, and under section 403 of the Companies Act, 1956, to discharge the interim administrator and assistant administrators and to restore the board of directors of Deccan Enterprises Pvt. Ltd., hereinafter called 'DEPL' as it existed on November 23, 1989, and for other reliefs.
2. This case has a chequered career and an unending story. To appreciate the rival contentions, a brief history of the case is necessary.
3. Company Petition No. 27 of 1987 was filed by Mr. R. Khemka, his wife and son-referred to as the Khemka group. The main contestants of the said petition are O. P. Jalan - the third respondent who is the managing director of the company and respondents Nos. 4 to 6 who are his wife and sons. The ninth respondent - R. N. Jalan, the brother of the third respondent is sailing with the applicants. The parties will be referred to as they are arrayed in Company Petition No. 27 of 1987 for convenience. Pending Company Petition No. 27 of 1987, the first petitioner, Mr. R. N. Jalan, filed Company Applications Nos. 184 to 188 of 1988 seeking reconstitution of the board of directors with representatives of R. Khemka and R. N. Jalan proportionate to the shareholding as on December 31, 1984, or in the alternative, to suspend the board of directors constituted on July 5, 1988; and that the joint managing director be appointed representing R. Khemka and R. N. Jalan and a direction be issued to the managing director to carry on the management along with the joint managing director jointly; a fresh audit of books of account of the company be ordered for the period ending with March 31, 1988, and March 31, 1987, and to declare the resolution passed in the annual general meeting held on April 5, 1988, as void. When these applications came up before a learned single judge, the learned single judge holding that the reason for increasing the share capital of the company is to gain the overall control of the company by the third respondent and that continuance of the third respondent and his supporters on the board of directors may result in preventing the profits reaching all the shareholders; that the respondents have abused the fiduciary powers as directors by increasing the shareholding in a manner oppressive to the other shareholders like respondent No. 9, etc., appointed Sri Justice P. Ramachandra Raju, retired judge, as interim administrator for a period of two years in the first instance, assisted by two assistant administrators, representing the petitioners and respondent No. 9 as one block and the third respondent as another block. Questioning the said order, the company represented by its secretary and also O. P. Jalan (the third respondent) filed O.S.A. No. 28 of 1989, while the 8th respondent-Subahkaran Jalan filed O.S.A. No. 3 of 1990 and both the appeals were disposed of by a common judgment dated April 26, 1990. The Bench observed that there was no advantage to the company by the issue of capital and the contentions of the ninth respondent that it was only done to alter the shareholding in favour of the third respondent is prima facie justified. Here, it may be stated that respondents Nos. 3 and 4 held board meetings on November 26, 1984 and January 5, 1985, wherein they took a decision to increase the share capital of the company by Rs. 5 lakhs and by their resolution dated February 28, 1985, allotted those shares to respondents Nos. 3 to 6, i.e., the first applicant and his wife and son.
4. The core of the problem for filing the company petition is only this. As the petitioners and respondent No. 9 are criticising this action of the third respondent to alter his shareholding in order to secure majority shares and to have control over the company without notice to them, the Bench while considering the source of finance of Rs. 5 lakhs paid by the third respondent, observed that if really it was a case where the third respondent had obtained a loan from Poddar Project for payment of share capital of Rs. 5 lakhs, the matter would have been simple and the various entries in the accounts prima facie show that there is something fishy about this transaction and, consequently, dismissed the appeals. Eventually, the said orders were confirmed by the Supreme Court in a special leave petition. The net result is that the appointment of an interim administrator has become final.
5. While so, Mr. R. N. Jalan, respondent No. 9, filed C.A. No. 37 of 1992 for various reliefs, to declare that there was no annual general meeting on February 18, 1985, or on October 18, 1986; the allotment of shares to respondents Nos. 3 to 6 in 1985 and 1986 is void and illegal; and to appoint another administrator to take over the management and administer the company with specific instructions relating to duties and functions. The learned single judge by an order dated August 20, 1992, observed that since the term of Sri Justice Ramachandra Raju, appointed as interim administrator, has already expired and he is not acceptable to one group of shareholders of substantial strength, with a view to avoid further controversy, C. B. Desai, advocate is appointed as an interim administrator, pending disposal of Company Petition No. 27 of 1987. This order is again the subject-matter of appeal in O.S.A. No. 8 of 1992. However, the Bench while practically confirming the order of the learned single judge, restricted the period of appointment of C. B. Desai as an interim administrator to a period of two years from August 25, 1992, or for any shorter period as may be directed by the company court. Accordingly, the interim administrator is continuing as he has got his term till August 25, 1994.
6. I may have to mention certain developments which have taken place by this time. R. N. Jalan, the ninth respondent, filed Company Applications Nos. 9 and 10 of 1991 in C.P. No. 27 of 1987 to set aside the proceedings dated August 31, 1990, of the interim administrator and to restrain the third respondent, O. P. Jalan from representing the company with the joint venture company and instead appoint another suitable representative from out of the panel to be submitted in this regard from the parties respectively. The respondent-company holds 20 per cent. of shares in Amiantic Rubber Industries Ltd., incorporated in Saudi Arabia-hereinafter called ARIL. Therefore, respondent No. 9 wants that the third respondent should not attend the board meeting of 'ARIL' representing the respondent-company 'DEPL'. The learned single judge who heard the said applications, felt that the third respondent is not competent to represent 'DEPL' on the board of directors of 'ARIL'. The learned single judge has also noticed the orders passed by Justice Ramanujulu Naidu dated July 27, 1987, and the orders passed by Justice M. N. Rao in C.A. No. 197 of 1987 dated October 14, 1987, wherein the very same question-whether the third respondent should be permitted to represent 'DEPL' on the board of directors of 'ARIL' was considered. This order of the learned single judge was again the subject-matter of appeal in O.S.A. No. 14 of 1992. When this appeal came up before the Hon'ble Chief justice and Sri Justice Syed Shah Mohammed Quadri, learned counsel appearing for respondents Nos. 3 and 8, Mr. O. P. Jalan and S. K. Jalan respectively, represented that the order under appeal is more or less based on the earlier order passed by Justice Upendralal Waghray in Company Applications Nos. 184 to 188 of 1988. A review application was filed seeking review of the order of Justice Upendralal Waghray and, therefore, as these applications are interdependent and when once Company Applications No. 81 of 1993 gets allowed reviewing the order made in Company Applications Nos. 184 to 188 of 1988, the order in Corn any Applications Nos. 9 and 10 of 1991 will have to be consequently reviewed. Accordingly, learned counsel informed the Division Bench of this court that he will seek review of the order passed by Justice N. D. Patnaik in Company Applications Nos. 9 and 10 of 1991. Therefore, the appeal was accordingly dismissed leaving the appellants to seek the remedy by way of a review of the orders under appeal. Consequently, Company Application No. 73 of 1994 is filed seeking review of the order of Justice N. D. Patnaik which, is also pending. These are only a few instances where this court has examined this matter in some detail. There are a number of other applications filed and orders passed but I need not refer to them for the purpose of the present applications.
7. P. Chidambaram, learned senior counsel appearing for the applicants submits that the order passed by Justice Waghray in Company Applications Nos. 184 to 188 of 1988 as confirmed in O.S.A. No. 28 of 1989 and 3 of 1990 by a Division Bench of this court, as stated earlier, or as a matter of fact confirmed eventually by the Supreme Court by dismissing the special leave petition, will not in any way come in the way of the applicants with regard to the maintainability of this application. For this purpose, learned senior counsel has invited my attention to the order of Justice Waghray, wherein it is stated that when an interim administrator is being appointed 'to manage the affairs of the company during the pendency of the company petition, or till further orders' as well as to another observation that, accordingly, P. Ramachandra Raju, retired judge, is appointed as 'an interim administrator to conduct the affairs of the company in supersession of the board of directors for a period of two years in the first instance'. He has also further relied upon the observation of the learned judge that 'it is open to any of the parties, or the administrator to move this court for directions'. So, according to learned counsel a reading of the order makes it abundantly clear that it is only an interim arrangement contrived in order to meet the circumstances as obtaining on that day having regard to the material placed before the court. He even relies upon the judgment in appeal - O.S.A. Nos. 28 of 1989 and 3 of 1990 in support of this contention and submits that the learned judges have taken sufficient precautionary measures in stating that the view expressed by them regarding the entries in the accounts show that there is something fishy about it prima facie, or as a matter of fact the same view is seen in the observation that 'the directions given by the court are sufficient to safeguard the rights of all parties during the pendency of the main company petition'. It is his stand that this application is not for review of the order passed by Justice Waghray earlier under Order 47, rule 1 of the Civil Procedure Code, but this application is moved under section 151 of the Civil Procedure Code as well as under rule 6, read with rule 9 of the Companies (Court) Rules, 1959. With a view to substantiate this contention, he relied upon a decision reported in G. T. Swamy v. Goodluck Agencies [1989] 1 Comp LJ 212; [1990] 69 Comp Cas 819 (Kar) and contends that there is no bar to recall an order of winding up under the inherent powers of the court under rules 6 and 9 of the Companies (Court) Rules read with section 151 of the Civil Procedure Code.
8. In the said case, an order of winding up was passed under section 433(e) of the Act. So, according to learned counsel, when a final order of winding up can be revoked in view of the changed circumstances, an interim order like the one appointing an interim administrator could also be changed or altered to suit the changed circumstances. Learned counsel further submits that it is always open to the court to modify or alter the interim orders on the authority of the judgment of the Supreme Court in Arjun Singh v. Mohindra Kumar, : [1964]5SCR946 , wherein the Supreme Court has ruled that all interlocutory orders are not final and the orders which do not affect the rights of parties cannot operate as res judicata and they can be reviewed or altered on proof of new facts at any time during the pendency of the proceeding. For the same proposition, learned counsel has relied upon two other decisions reported in Abhi Prosad Sen v. Puspa Doshi, : AIR1984Cal250 and Gulam Abbas v. State of U.P., : 1981CriLJ1835 .
9. The core of the contention of learned counsel is that several misstatements have crept into the order of Justice Waghray while passing the order and consequently, miscarriage of Justice has resulted. He invites my attention to the counter-affidavit filed by R. N. Jalan (9th respondent) dated January 18, 1993, wherein he states that in regard to issue of shares of Nucon Industries Private Limited, 'no statement was made before the Division Bench that the said company had not increased the share capital' and that in fact the share capital has been increased. In juxtaposition to this statement, it is seen from the order of Justice Waghray that counsel for the ninth respondent has pointed out that the shareholding of Nucon Industries Private Limited has not been altered and the learned judge has proceeded on the basis of the said statement by observing that 'as pointed out by the ninth respondent, the shareholding of Nucon Industries Private Limited has not been altered and the petitioners and the third respondent continued to be its shareholders', and, therefore, this misstatement has materially affected the course of the judgment.
10. Mahesh Khemka wrote a letter to R. N. Jalan on January 16, 1985, wherein he admitted that 'DEPL' has gone to the third respondent's share in the family separation and he is not willing to contribute to 'DEPL' under the capital issue by their group. This letter clearly establishes that applicants' group is not willing to contribute to 'DEPL' towards the increase of the share capital. Respondent No. 8 who is the father, in his affidavit sworn to on December 20, 1989, has stated that in the distribution of the family business in about September, 1984, DEPL, Golconda Investment Ltd., Kohinoor Trading Pvt. Ltd., Jalan Commercial and Industrial Corporation, Sanjay Commercial Corporation, Anand Trading Corporation have fallen to one group exclusively of which himself, his fourth son G. M. Jalan and fifth son O. P. Jalan (third respondent) are members. This according to learned counsel is the reason why the other partners have not contributed while the share capital was increased by 'DEPL'. Learned counsel has drawn my attention to a copy of the draft settlement which is in the handwriting of the ninth respondent and contends that it is not open to the ninth respondent to deny the said arrangement. The other reason for not responding to contribute towards the increased share capital by the Khemkas and the ninth respondent is that as they have promoted a new company, viz., Andhra Polymers Limited (hereinafter called 'APPL') and also joined in a joint venture company UMM-Al-Quwain Rubber Industries Ltd., U.A.E., hereinafter called 'URIL' and as the ninth respondent has also joined hands with the petitioners, they are not interested in making any further contribution in 'DEPL' to increase their shareholding. Learned counsel has also placed a copy of the agreement dated April 9, 1987, entered into between Mahesh Khemka on behalf of his family group with R. N. Jalan (ninth respondent) stating that in case the ninth respondent obtains more than Rs. 60 per share of 'DEPL' from the third respondent, the respondent Khemka group shall be entitled to 25 per cent. of excess over Rs. 60 per share and the Khemka group shall extend support by pleading ignorance about the issue of additional capital of 'DEPL' in 1985. This, according to learned counsel is the secret understanding by which the petitioners and the ninth respondent have colluded together to defraud the third respondent. Even earlier Mahesh Khemka who was representing 'DEPL' on the board of 'ARIL' has entertained an idea to set up a rival joint venture foreign company, and, accordingly, he wrote a letter to his father on January 4, 1982, stating that he has collected all formulations, technical process and information from 'ARIL' and that they need not agree for holding of shares in 'DEPL' as Mr. Robert I. Aki has assured him of his full support to start a separate rubber company in India. This letter also clearly explains the design and intention of the petitioners to sever their links with 'DEPL'. Summing up the above, learned counsel submits that even as early as in 1982, Mahesh Khemka writes to his father to come out of Jalan's shadow; the agreement of September, 1984, allotting 'DEPL' to the third respondent and his father as one group is in the handwriting of the ninth respondent himself and his father, the fourth respondent has also confirmed the said understanding; the petitioners and the ninth respondent have come to a secret understanding to secure 60 rupees per share to the ninth respondent in 'DEPL' and the two letters dated January 16, 1985, and May 21, 1985, written by Mahesh Khemka to the ninth respondent and the ninth respondent to his father respectively and the signatures there also are undisputed and even the handwriting of the ninth respondent on the settlement of September, 1984, is also not denied. Therefore, learned counsel submits that the earlier order based on certain incorrect, non-existing facts and when all the facts are not placed before the court, the same would afford a good ground to review the said order. Learned counsel has also pointed out that in C.A. Nos. 9 and 10 of 1991 filed by respondent No. 9 seeking to restrain the third respondent from representing 'DEPL' with the joint venture company, etc., the observation of a learned single judge of this court that in view of the prima facie findings recorded by Justice Waghray and for the same reasoning, it will not be proper for the third respondent to represent 'DEPL' on the board of directors of 'ARIL' is materially relevant in the context that notwithstanding the earlier interlocutory order passed by Justice M. N. Rao in C.A. No. 197 of 1987 dated October 14, 1987, permitting the third respondent to represent DEPL in the foreign joint venture company, the learned judge has refused to accord such permission in view of the changed circumstances, viz., prima facie the findings recorded by Justice Waghray and, therefore, this is an instance where the interim orders cannot be treated as final orders and they can be modified to suit the changed circumstances.
11. Under article 8(1) of the articles of association of 'ARIL', the company shall be managed by the board of directors not necessarily partners of the company of not less than 3 and not more than 12 as may be determined by the joint meeting and as per the resolution of the general assembly, one Indian partner must be represented on the board. Mahesh Khemka has withdrawn from 'ARIL' on May 7, 1985, as per resolution No. 6 of 1985 and the third respondent was elected for a period of three years, The third respondent by his efforts succeeded in convincing the committee of 'ARIL' to increase the dividend by an extra half million to the Indian company - 'DEPL' and nothing is said against the third respondent in view of his sincerity in not only floating a joint venture company, but he has also taken it across the seas and the same is evident from the letter of 'ARIL' dated November 20, 1993, requesting the third respondent to use his good offices to secure good orders from Gulf Atternity and AMRON Gulf. The letter written by the board of directors of 'ARIL' dated March 9, 1993, that the interim administrator - C. B. Desai cannot be allowed to represent the board of 'ARIL' and if the third respondent is not allowed to represent the Indian company, 'DEPL' will go unrepresented in the next meeting and the minutes of the meeting of ARIL executive committee of 'ARIL' dated November 29, 1993, shows that exports have decreased by 55 per cent. during 1993, compared to the previous year and the same is likely to decrease by 74 per cent. in 1994, on account of competition from 'URIL' - U.A.E. which reduced the company's profitability considerably. Therefore, relying on these letters and proceedings, learned counsel submits that 'DEPL' is facing competition internally by 'ARIL' and externally by 'URIL'. Article 26 of the articles of association of 'DEPL' exactly prohibits such a practice by its share holders. As the petitioners have promoted 'APPL' and 'URIL', they have clearly acted in violation of the said article. Learned counsel also pointed out the report filed by the interim administrator that there are no exports in 1992-93; there are also no imports from April 1, 1992; there are also no research and developmental work going on and the 'DEPL' has not so far identified any new items; the prices of products manufactured by the company have declined from 14.50 rupees in 1992 to Rs. 11.40 on account of steep competition and the company has suffered operational loss of Rs. 6 lakhs, but sustained due to the dividend received from the joint venture company, and, therefore, it has shown a net profit of Rs. 35 lakhs. The learned interim administrator states that being a practising advocate he is attending to the day-to-day management of the company to the extent possible by him. Learned counsel therefore, submits that the company requires independent management and a person like the third respondent who could take decisions and also implement the same with business zeal and interest could alone give a boost to the company, and, therefore, he suggests that an interim committee to manage the affairs of the company should be constituted consisting of the third respondent and his wife in addition to a representative on behalf of the petitioners and the ninth respondent together and two or three representatives including an auditor and a representative of the financing bank, etc. In view of these circumstances, he relies upon a decision in United Commercial Bank v. Bank of India : [1981]3SCR300 and contends that prima facie a case has been established and the balance of convenience also lies in favour of the third respondent for appointment of a suitable committee for interim administration. He also relies upon two other decisions in Alapati Sivaramakrishnayya v. Alapati Kasiviswanadham, AIR 1957 AP 584, and in Lakshmamma v. M. Jayaram, AIR 1952 Mysore 114, in support of his contention that when once a signature or thumb impression is admitted or proved on a document, the external tenor of the document must be prima facie accepted and the burden lies upon the person to establish under what circumstances he put his signature. Learned counsel has also relied upon a decision in S. P. Chengalvaraya Naidu v. Jagannath : AIR1994SC853 and in Ramchandra Ganpat Shinde v. State of Maharashtra : AIR1994SC1673 and contends that any order obtained without disclosing the truth, by suppressing the true facts and on misrepresentation or order obtained by playing fraud can be reviewed at any subsequent stage.
12. Learned counsel has finally submitted that the agreement dated April 9, 1987, between R. Khemka and the ninth respondent, the letter dated April 14, 1987, of the ninth respondent confirming the said agreement, the letter of Mahesh Khemka dated January 4, 1982, to his father and the letter dated January 21, 1985, of the ninth respondent addressed to his father, as well as the letter dated January 16, 1985, of Mahesh Khemka addressed to the ninth respondent are all fresh material which substantially change the entire scenario or the backdrop against which the earlier order was passed by Justice Waghray, and, therefore, it is eminently a fit case for making certain suitable modifications to the said order, or alternatively making a suitable fresh order in the interest of justice. Even the agreement dated April 25, 1991, among the members of the Jalan family though filed before the Bench is O.S.A. No. 3 of 1990 by the eighth respondent-father, the court did not advert to it.
13. Refuting these arguments, K. Srinivasa Murthy, learned counsel for respondents Nos. 3 to 5 in this application, who are petitioners in the main Company Petition No. 27 of 1987, raised a preliminary objection that, this application is not maintainable. According to learned counsel this application virtually seeking review of the order of Justice Waghray is not maintainable. According to learned counsel as the order of Justice Waghray was the subject-matter of the O.S.A., it is only the said Bench and since one of the judges that constituted the Bench has retired, the remaining judge alone is competent to hear this application. It is true, the prayer in this application, as has been pointed out by learned counsel for the respondents, is to discharge the interim administrator and the assistant administrators and to restore the board of directors of 'DEPL' as existed on November 23, 1989, with O.P. Jalan as the managing director. Learned counsel has placed reliance on a Division Bench judgment of this court in K. Pushpa Leela v. Labour Court [1992] 1 APLJ 399 and submits that as Justice Smt. Amareswari has since retired, the remaining judge Justice Radhakrishna Rao, who formed the earlier Bench alone should hear this application and no other judge has got jurisdiction to hear this application. A Division Bench of the Madras High Court considering the meaning of the expression 'the court which passed the decree or made the order' occurring in sections 37 and 114 of the Civil Procedure Code and Order 47, rule 1 of the Civil Procedure Code held that it means the court of first instance only for purpose of execution of the decree or order, but for the purpose of review, it is only the appellate court and not the court of first instance. The Bombay High Court in Mallikarjun Sadashiv Honrao v. Suratram Shivlal, : AIR1971Bom45 , held that when an appeal is filed even though the same is dismissed, the trial court decree would necessarily merge in the decree of the appellate court, with the result, the trial court decree has no independent existence, apart from the appellate court's decree. Therefore, an application for review of the decree has to be filed before the appellate court or the revisional court as the case may be. In a decision in Devaraju Pillai v. Sellayya Pillai, : AIR1987SC1160 , the Supreme Court has severely criticised the interference of a single judge of the High Court in a review petition with the decree passed in the second appeal by another learned judge who had since left the court, as having totally exceeded his jurisdiction.
14. Learned counsel also contends that the provision of Order 47, rule 1 of the Civil Procedure Code can be resorted to if no appeal has been preferred and since an appeal has been preferred in this case, the review petition is not maintainable and for this proposition, reliance is placed on a judgment of a single judge of this court in Veluri Sitaramasastry v. Isukapalli Sundaramma, : AIR1966AP173 . Learned counsel also submits that no order can be reviewed under section 151 of the Civil Procedure Code, the inherent powers of the court. In the face of specific provisions contained under Order 47, rule 1 of the Civil Procedure Code, no resort can be had to section 151 of the Civil Procedure Code or analogous provisions contained under rules 6 and 9 of the Companies (Court) Rules, in the absence of a specific provision either in the Code of Civil Procedure or in the Companies Act. To substantiate this contention, reliance is placed on a Supreme Court decision in Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas, : [1965]2SCR186 , wherein it is observed as follows (page 1145) :
'Rule 4 of Order 37 of the Civil Procedure Code expressly gives power to a court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to section 151 for setting aside such a decree.'
15. In a decision in H. J. Dorairaj v. Viswanatha Rupa and Co., : AIR1973Mad135 , a Division Bench of the Madras High Court held at that 'it is well settled that the inherent jurisdiction of the court under section 151 of the Civil Procedure Code cannot be resorted to when the aggrieved party has got a specific remedy available under law'. In a decision in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, : AIR1962SC527 , considering the issuance of a temporary injunction in the circumstances not governed by Order 39 or by any rule made under the court, the Supreme Court ruled that the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not governed by the provisions of Order 39 of the Civil Procedure Code if the court is of the opinion that the interest of justice requires issuance of such interim injunction. It is further held that the (headnote) 'question of issuing an order against a party restraining him from proceeding with any other suit in a regularly constituted court of law deserves great care and consideration and such an order is not to be made unless absolutely essential in the ends of justice'.
16. The decision in State Government of Andhra Pradesh v. Manikchand Jeevraj and Co., : AIR1973AP27 , provides a precedent for resorting to section 151 of the Civil Procedure Code, when the provisions of section 144 of the Civil Procedure Code cannot be made applicable for restitution of an order or decree passed not by a civil court, but by a tribunal. In a decision in Arjun Singh v. Mohindra Kumar, : [1964]5SCR946 , the Supreme Court has laid down as follows (page 1003) :
'It is common ground that the inherent power of the court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but, may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.'
17. Therefore, Mr. Srinivasa Murthy, learned counsel for the respondent, contends that in view of specific provisions available under rule 1 of Order 47 of the Civil Procedure Code, for review, in any form or modification of the order, resort cannot be had to the inherent powers under section 151 of the Civil Procedure Code.
18. P. Chidambaram, learned senior counsel for the applicants, countering these arguments, submits that the applicants are not seeking review of the order of Justice Waghray, but in the light of the new material that has surfaced, it is necessary to make suitable modifications or adjustments to the earlier order without resorting to reviewing the said order since these modifications are necessary to suit the exigencies and the conditions as obtaining subsequently. Therefore, learned counsel submits that though in the application, a broad relief of review is sought for the applicants are confining the relief to a limited extent, viz., to supersede the interim administrator and appoint a committee to carry on the day-to-day administration of the company. In other words, learned senior counsel does not insist on restoration of the board of directors as it is, but to alter the set up of interim administration. In my view, in whatever way a modification or alteration or interference with the order passed earlier by this court is sought for, it would amount to reviewing the said order. In this case it is not a mere clerical or arithmetical mistake that has crept in from out of an accidental slip or omission which can be corrected at any time. The main thrust of the argument of learned counsel for the applicants, is that on account of some mistake or error apparent on the face of the record due to misstatements of fact recognised by the court or on account of omission to advert to certain material and relevant evidence and in view of the fact that certain fresh material has not surfaced, the order passed earlier requires modification and correction. This relief is exactly what is contemplated by Order 47, rule 1 of the Civil Procedure Code. Therefore, I have no doubt in my mind that the relief sought for in this application can be granted only by resorting to provisions of Order 47, rule 1 of the Civil Procedure Code. Under these circumstances I cannot accept the contention of learned counsel for the applicants that the relief can be granted under section 151 of the Civil Procedure Code, or under analogous provisions contained under rules 6 and 9 of the Companies (Court) Rules; inasmuch as there is a specific provision available under the Civil Procedure Code. As I have taken the view that it is only a review petition that is maintainable under Order 47, rule 1 of the Civil Procedure Code it necessarily follows in view of the aforesaid discussion of the relevant case law, that I have no jurisdiction to entertain the review petition since I am not a member of the Bench that has disposed of the appeal against the order of Justice Waghray who has since retired. On both the counts, as mentioned above, the application as filed, is not maintainable.
19. K. Srinivasa Murthy, learned counsel for the respondents, opposing this application submits that even on the merits there are no grounds to review the order of Justice Waghray. Learned counsel has invited my attention to the observations of the Bench in O.S.A. No. 8 of 1992 to the effect that 'the decision directing appointment of an interim administrator in supersession of the board of directors to manage the affairs of Deccan Enterprises Private Limited, pending disposal of Company Petition No. 27 of 1987 has become final'. It is also pointed out about the further observation of the Bench which is as follows :
'We have to bear in mind that in view of the order passed by Justice Upendralal Waghray directing appointment of interim administrator in supersession of the board of directors to manage the affairs of the company which has become final, the affairs of the company have to be managed, pending disposal of the company petition, only by an interim administrator appointed by this court.'
20. Therefore, according to learned counsel, the order cannot be interfered with except under a properly constituted review petition before the court competent to hear the same.
21. Disputing the letter dated January 21, 1985, alleged to have been written by the ninth respondent (R. N. Jalan), it is commented by learned counsel that the letter was not produced by the father - S. K. Jalan, to whom it was addressed although he filed an appeal in O.S.A. No. 3 of 1990 as well as a special leave petition in the Supreme Court. The father of R. N. Jalan also filed an affidavit in the Calcutta High Court on June 8, 1985, with several details, but curiously no mention was made about this letter. The so called letter addressed by Mahesh Khemka is on a letter pad at Dammam, Saudi Arabia and it is strange that he should have used the letter pad of Saudi Arabia even though he had left Dammam three years before. Learned counsel has also criticised the agreement dated April 9, 1987, which is signed by Mahesh Khemka alone on a stamped paper purchased eight years ago, i.e., on March 17, 1979, and there is also no signature of the ninth respondent - R. N. Jalan, but peculiarly R. N. Jalan is alleged to have confirmed the agreement by a separate letter dated April 14, 1987, when both of them were at Hyderabad only. According to learned counsel this is a strange way of entering into an agreement inferably on an old stamped paper and the signed leaves of the letter pad of R. N. Jalan are pressed into service for this purpose. Even the letter dated January 4, 1992, alleged to have been written by Mahesh Khemka contains only one million rials as the capital of the company, while in fact, it should be two million rials. Therefore, inferably an old leaf in the letter pad was made use of for typing this letter. Although O. P. Jalan filed a number of affidavits in this court, this letter has not seen the light of day. In fact, Mahesh Khemka who is examined in the company petition as P.W.-1 has denied these documents. So, when these documents are disputed, no reliance can be placed on these documents at this stage. Placing reliance on a decision of a Division Bench of the Madras High Court in N. Ethirajulu Naidu v. K. R. Chinnikrishnan Chettiar, : AIR1975Mad333 , it is contended that '... the execution of a document implies intelligent and conscious appreciation of the contents thereof, and the facts connected therewith; and where the defendant admitted only that he had put his signature in a blank piece of paper which he alleged had possibly been utilised for fabricating exhibit A-1, it cannot be regarded as his having admitted execution of exhibit A-1'. For the same proposition he relies upon a decision in Ramadhin Singh v. Siaram Singh, : AIR1957Pat64 , to show that the onus of proving that a particular document was duly executed by the defendant under those circumstances, should be upon the plaintiff only. To similar effect is the decision in Seithammarakkath Mammad v. Koyommatath Mammad, : AIR1957Ker63 .
22. Learned counsel for the respondents has also canvassed that the review petition cannot be entertained unless 'where a glaring omission or a patent mistake of law, gross error has crept in earlier by a judicial fallibility, as reiterated by the Supreme Court in a decision in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, : [1980]2SCR650 . Learned counsel has cited a decision of the Madras High Court in Ramasami Padayachi v. Shanmuga Padayachi [1959] II MLN 201, in support of his contention that unless the new facts are of reliable nature, review of the order cannot be entertained. In a decision in Collector of 24 Parganas v. Lalith Mohan Mullick, : AIR1988SC2121 , it was expressed by the Supreme Court that where new facts involving investigation are alleged, review cannot be considered. A decision in Chandrakant Jagannath Manjrekar v. Shripad Vaikunth Naik, : AIR1989Bom91 , of the Bombay High Court, is cited to show that a decision cannot be reviewed merely because it is an erroneous one. Learned counsel has also placed reliance on a decision in Raja Shatrunjit (Decd.) v. Mohammad Azmat Azim Khan, : AIR1971SC1474 , wherein the expression 'any other sufficient reason' occurring in Order 47 of the Code would only mean a reason sufficient on grounds analogous to those specified immediately preceding. In Moran Mar Basselios Catholicos v. Most Rev Mar Poulose Athanasius, AIR 1954 SC 526, the words 'any other sufficient reason' as incorporated by the judicial committee, must only mean a reason sufficient on grounds analogous to those specified in the rule has been approved. Learned counsel for the respondents submits that there are no sufficient grounds to review the earlier order in accordance with law.
23. In the appeal filed by the father, if these documents had been filed, before the Division Bench, the Division Bench would have considered them. Without doing so, there is no justification to seek review of the order by filing these disputed documents along with this application. If really, O. P. Jalan has got the necessary dynamism to take the company to prosperity, nothing prevents him to do so, while assisting the interim administrator as he is one of the assistant administrators. The enthusiasm, the zeal and the interest he has got can equally be deployed as an assistant administrator for the benefit of the company. According to learned counsel for the respondents, the very same contentions were advanced before Justice Waghray as well as before the Bench while hearing the application and appeals and as the said argument did not find favour, the interim administrator is appointed since prima facie it is established that he has abused his fiduciary capacity and manipulated records, etc.
24. Finally, learned counsel for the respondents submitted that the company petition itself was part heard; one witness - Mahesh Khemka, was examined in full; three witnesses have filed affidavits and they are ready to make themselves available for cross-examination at any time and at this stage, it is not open to the applicants to seek for modification of the earlier orders.
25. S. Ravi, learned counsel appearing for R. N. Jalan has submitted that the issuance of additional shares of Rs. 5 lakhs is only a make-believe affair and even the nominal fee payable to the Registrar of Companies which would be paid within a period of one month was not paid on the transfer of shares, but it was only paid in September, 1985. Notices which are supposed to have been sent to the shareholders about the increase of share capital bear the postal stamp of Sanjeevareddy Nagar post office while the office is situated at Secunderabad; when Deccan Enterprises Private Limited is flourishing with bumper profits, it is unimaginable why Khemkas have missed to take the advantage of increasing their shareholding.
26. According to learned counsel, his client R. N. Jalan, questioned the action of O. P. Jalan by his letter dated October 29, 1985, and the reply given by O. P. Jalan on November 8, 1985, is silent regarding several allegations made by his client, except stating that for the rest he would depend upon the records of the company. Even the first applicant-R. Khemka also addressed a similar letter dated December 17, 1985, to O. P. Jalan as managing director of 'DEPL' and asked him to send every communication by registered post and for that purpose a sum of Rs. 100 was also sent to cover the postage, etc. For that on January 16, 1986, a reply was given by O. P. Jalan, only to the effect that in view of the negotiations to resolve various pending matters, he is not dealing further with those matters. These circumstances, according to learned counsel clearly establish manipulation of books of account including meeting notices and manoeuvring the shareholding so as to secure overall control of the company resulting in oppression of the other shareholders and thus betraying the fiduciary relationship and, therefore, no grounds are made out for interference.
27. I shall now proceed to consider the merits of the review application on the assumption that I have power to entertain this application. As the documents on the basis of which this review application is filed are disputed, it is not possible for me at this stage to base my order on those documents. The truth or genuineness of those documents can be decided only during the trial, when both the parties will have ample opportunity to explain the circumstances under which they are signed, executed or disputed. As already noticed in a decision in Collector of 24 Parganas v. Lalith Mohan Mullick, : AIR1988SC2121 , disputed documents cannot form the basis for review. [In this case P.W.-1 was already examined in full, three more witnesses filed affidavits and are available for cross-examination. In view of the present situation, it would not take a long time for disposal of the company petition as its trial can be taken up day-to-day. If both the parties had sincerely concentrated on the trial of the company petition, it would have been disposed of in less than half the time spent on several interlocutory applications filed till now]. I have referred to some of the applications filed in the company petition and orders thereon at the threshold of this order to show the nature of the applications and elaborate pleadings and arguments with meticulous details at great precision placed before the court only to show the amount of the time spent by the parties on those applications. In the main company petition the dispute is about the allotment of shares in the year 1985. All other issues revolve round this main issue, viz., the validity of the issue of shares. [Most of the documents on which the parties are relying in support of their respective contentions have been either filed or disclosed and they are before the court. The remaining witnesses have to be examined either to prove the documents or for their denial. Hence, it should not take much time now as was the case in the year 1990, when the Bench observed 'that the company petition is likely to take a long time'. According to me the best and simple course for the parties is to proceed with the trial with right earnestness and complete the trial expeditiously. The evidence of P.W.-1 was already recorded by my learned Brother-Dasaradarami Reddy J. Under these circumstances, as I do not find that there is any imminent urgency to alter the present set up by reconstituting the machinery for interim administration, I am not interfering with the same. This conclusion of mine is reached since I am of the opinion that it may not be proper for me to go into the acceptability or otherwise of the documents filed by the applicants at this stage and express any opinion on them. As the trial had already commenced, it would be appropriate to consider the genuineness, relevancy, admissibility and the probative value of those documents during the course of trial].
28. As already stated though learned counsel for the applicants herein has depicted a very gloomy picture of the company in view of the report of the interim administrator, one letter from 'ARIL', K. Srinivasa Murthy, learned counsel for the respondents, on the other hand, sees a rosy picture of the company and states that during 1993-94, the rail pad despatches have nearly doubled when compared to the previous year which touched six crores and so considering the production capacity of the company, these figures show that the company is over-booked with orders and orders are no problem. Whatever be the degree of improvement, there seems to be a slight swing towards the better side during 1993-94. I may make it clear that I am not embarking on a discussion whether the interim administrator is able to give the necessary boost to the company, but I am only considering whether there is immediate need to interfere with the present interim administrative set up or in other words, whether the urgency is such that it cannot brook a short delay of three or four months which it may take for disposal of the main company petition. Having regard to the facts and circumstances of the case, it cannot be said that there is immediate necessity to interfere with the interim agreement at this stage.
29. For the above reasons, the company application fails as it is devoid of merits and is accordingly, dismissed, but without costs.