Dr. Jayanta Kumar & Ors vs The Union Of India & Ors
2023 Latest Caselaw 4410 Cal

  09
20.07.2023
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              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

                     W.P.A. No. 9049 of 2021

                     Dr. Jayanta Kumar & Ors.
                                Vs.
                     The Union of India & Ors.


                    Mr. Swatarup Banerjee,
                    Mr. Nirmalya Dasgupta,
                    Mr. Jitendra Patnaik
                                      ...for the petitioners



                    The grievance of the petitioners is limited. Since

              none appears for the respondents despite service,

keeping on record the affidavit of service filed in

court today, the matter is taken up for hearing in

the absence of the respondents.

Learned counsel appearing for the petitioners

points out that initially a proceeding was initiated

before the Company Law Board under the

Companies Act, 1956 wherein it was directed that

the respondent no.1/company therein shall appoint

such number of the petitioners therein as directors

of the Company as are just 'one number' less than

the number of Directors representing the

respondents' group having 51% shareholding.

Since the present petitioners were aggrieved

with the same, an appeal was preferred before the

concerned Bench of this Court taking up such

matters, giving rise to A.P.O. 190 of 2016 (A.C.O.

74 of 2016). A coordinate Bench, vide judgment and

order dated September 14, 2016, was pleased to

allow the said appeal, thereby setting aside the

Board resolution dated May 31, 2013 and

consequent allotment of shares in favour of the

respondent nos. 3 and 4. The judgment of the

Company Law Board dated May 09, 2016 was also

set aside accordingly.

Subsequently, when the petitioners approached

the Registrar of Companies (R.O.C.) in terms of and

on the strength of the order of the appellate court

by way of an application making prayers that both

the Form No. 32s be set aside as stated in para A(a)

therein, filed by Mr. Shankar Sharma, to set aside

the Form No. 2 as stated in para A(b) filed for

allotment of 5776 equity shares of the Company,

and to take any other steps as may be necessary in

the premise of the order of the appellate court dated

September 14, 2016, the R.O.C., instead of

complying with such request, gave a peculiar reply

to the effect that the said office was not made a

party before the court and that the parties of the

petition were to take necessary action in order to

comply with the court order dated September 14,

2016, since the court order was binding upon both

parties in the petition.

The apparent tenor of the order of the R.O.C.,

as communicated to the petitioners on December

22, 2016, was that, since the R.O.C. was not a

party to the proceedings before the appellate court

or before the Company Law Board, the R.O.C. was

not bound by the said orders.

However, such proposition is not tenable in the

eye of law since the R.O.C., even if not "bound" as a

party, is bound to comply with the directives

passed therein on the parties, in pursuance of the

observations made by the appellate court.

The order of the appellate court, as passed on

September 14, 2016, apart from being binding on

the parties thereto, are also to be given effect to by

the R.O.C. As such, refusal of the R.O.C. dated

December 22, 2016 cannot be sustained in law.

Accordingly, W.P.A. No. 9049 of 2021 is

allowed, thereby setting aside the communication of

the R.O.C. dated December 22, 2016 (Annexure P-7

at page 209 of the writ petition) and directing the

R.O.C. to grant permissions sought by the

petitioners in their application, which is appearing

at page 208 of the present writ petition, subject to

compliance of all legal formalities and in

accordance with law, in terms of the Judgment and

Order dated September 14, 2016 passed by the

appellate court in A.P.O. 190 of 2016 (A.C.O. 74 of

2016).

The parties, as well as the R.O.C., shall comply

with this order on basis of a server copy of this

order, coupled with a communication of the learned

advocate for the petitioners, without insisting upon

prior production of a certified copy thereof.

The entire exercise shall be completed by the

R.O.C. as expeditiously as possible, positively

within one month from the date of communication

of this order to the R.O.C.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)