HC dismisses appeal against order of Single Judge; says Appellant was seeking review and not recall of the order; states that appeal against an order dismissing a review petition is not maintainable.
In the matter of Gopal Krishan (Appellant) vs. Super Cassettes Industries Ltd. & Ors (Respondents), the question of maintainability of appeal filed by the Appellant against order of Single Judge is addressed. In the impugned order of the Single Judge, the amalgamation of Tony Electronics Ltd (TEL) and Mandakini Aqua Minerals Limited with Super Cassettes Industries Limited) under Section 391 of the Companies Act, 1956 (“Act”) was approved. Appellant filed CA No. 730/2002 Rule 9 of the Company (Court) Rules seeking recall of the impugned order stating that it did not receive notice of the said meeting of shareholders pursuant to which the amalgamation order was succeeded. Appellant contends that although after the scheme of amalgamation TEL should have got dissolved, it was kept alive by the Respondents and it was unaware of the existence of TEL. The learned Single Judge in the impugned order, concluded that the name of the Appellant did not appear in the list of registered members and, therefore, no notice was required to be sent to him. Single Judge noted that since Section 391 (7) of the Act was still in force when the application was filed, the Appellant could well have invoked the appellate remedy thereunder but the same was not availed by the Appellant.
HC analyses the submissions and observes that the decisions of HC in Ram Kohli v. Indrama Investment Pvt. Ltd. (2014) 186 CC 358 (Del) and Government of NCT of Delhi v. Mool Chand Sharma 2013 (135) DRJ 705 [and for that matter even the impugned judgment of the learned Single Judge] proceeded on the premise that Section 391(7) of the 1956 Act stood omitted when in fact it continued in the statute book till 14th May 2015. HC observes that on account of lack clarity on the correct legal position, it is possible that appeals meant to be filed under Section 391 (7) of the Act were being filed under Section 483 of the Act. But the aforementioned legal position didn’t apply to the Appellant because he chose to adopt a different route viz. on 22nd July 2002 he chose to file an application under Rule 9 of the Company (Court) Rules seeking recall of the order dated 20th September 1999 approving the merger of TEL and MAML with SCIL and he persisted with that application and invited a full fledged judgment of the learned Single Judge. Thus, the Appellant could not contend that the said application should in fact be treated as an appeal against the order dated 20th September 1999 under Section 391 (7) of the Act. HC further observes that no attempt was made before the learned Single Judge to withdraw the said application with liberty to file an appeal which would, if filed, lie before the DB.
HC observes that the Appellant filed a petition for review of the impugned order and that correspondingly the impugned order is one rejecting a review petition. HC observes that there is a distinction between an application for “recall” of an order and one seeking its “review‟. HC relies on the observations of the SC in Asit Kumar v. State of West Bengal 2009 (1) SCR 469 :
“There is a distinction between …… a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.”
HC then proceeds to examine whether the present appeal directed against an order dismissing a review petition is maintainable. Thereafter, HC notes that an order declining review is not an appealable order on a collective reading of Order 47 Rule 7 and Order 43 Rule 1 (w) CPC. HC relies on the explanation of the legal position by the SC in Bussa Overseas and Properties Private Limited v. Union of India (2016) 4 SCC 696 and Government of NCT of Delhi v. Mool Chand Sharma and states that
“ an order dismissing a review petition is not a judgment within the ambit of Section 10 of the DHC Act and finds that the present appeal is not maintainable.”
HC states that it is not possible to treat the present appeal as being also directed against the main order, for the reason that all the grounds in the appeal are against the order dismissing CA 730 of 2002. HC further notes that the Appellant’s challenge to the main order was barred by limitation owing to the 14 years delay. HC states that it would be an abuse of process to permit the Appellant at this belated stage to maintain this appeal by treating the review petition as not having been filed at all as the remedy of a review petition under Order XLVII CPC was exhausted.
HC agrees with the views of the Singled Judge that when the remedy of an appeal was available to the Appellant, the inherent jurisdiction was not to be exercised. HC observes that Appellant was indeed seeking a review and the ground for that was the alleged fraud committed by the Respondents, which incidentally has been disbelieved by the learned Single Judge. HC finds that once it is clear that the petition was nothing but a review petition of the impugned order which is one that dismisses a review petition and thus, against such order no appeal is maintainable.
HC adds that the decision of HC in Kuldeep Gandotra v. Union of India 2007 (136) DLT 44 is of no assistance to the Appellant and dismisses the appeal as not maintainable.