Bharti Televentures Limited vs Bell South International Asia ...
2001 Latest Caselaw 1210 Del

ORDER

Vikramajit Sen, J.

1. The Defendant has filed this Review in respect of an Order dated 28th August, 2000 whereby the Plaintiff's application under Order XXXIX was allowed; the Defendant was temporarily restrained from selling or entering into any arrangement/agreement for the sale of its shareholding in SKYCELL with any party other than the Plaintiff.

2. In order to appreciate the scope of a Review, Section 115 of the code of Civil Procedure 1908 has to be read, but this Section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the C.P.C. and for the purposes of this lis, permit the Defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason." The former part of the Rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favorable verdict. This is amply evident from the Explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the Order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to Review its order with the greatest circumspection. This is what was clarified by the Hon'ble Supreme Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes , Anantapur, in this extract:

"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent argument on could point to the error and say here is a substantial point of law which states one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."

3. Fifteen years later a coordinate Bench voiced the same opinion in M/s. Northern Indian Caterers (India) Ltd. vs. Lt. Governor of Delhi, without any reference to its earlier decision in the case of Thungabhadra Industries Ltd. (supra) in these words:

"It is sell settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan, . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment. G.L.Gupta v. D.N. Mehta, . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N. Mohindroo v. Dist. Judge, Delhi, . Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XIVII, Rule 1 of the code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1. Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib, ".

4. Mr. Shanti Bhushan, and Mr. P. Chidambram before him, Learned Senior Counsel for the applicant/Defendant have argued that there is an error apparent on the face of the record in that it had been observed in the impugned Order dated August 28, 2000 that "the circular Resolution dated 13.7.2000, prima facie, represents written consent. I cannot conceive of a greater and more compelling writing than a Resolution of all the erstwhile shareholders acting in unison. The speciousness and unreasonableness of the stance of the Defendant propels me towards granting equitable relief." It is their contentions that the Circular Resolution did not contain the signatures of the Defendant to signify its assent, and a vital mistake had occurred in this regard because the Plaintiff had during arguments handed over an incomplete copy of this Resolution. It is necessary to record that a copy of the paper handed over in the courses of hearing was also passed on to Counsel for the Defendant/Applicant who did not raise any objection that it was incomplete and should have contained the voting memorandum also. This aspect sufficiently demonstrates that this demurrer now raised by the Defendant is actually an after-thought. It is inconceivable that if the Defendant had recorded its dissent to the Circular Resolution, its Learned Counsel would have failed to vociferously and vehemently stress this point when the application for injunction was being argued. In my view, the Review seeks to plug a hole in the defense and cannot be countenanced. The impugned Order, if incorrect, is amenable to change by the Appellate Court. Such a correction cannot be effected through the device of a Review.

5. However, even after having perused the 'entire' Resolution I find no reason to alter my opinion. In all the previous months, the Defendant had neither in words nor in action, recorded any reservations or riders in the grant of approvals; to the contrary the only impression that is discernable is that the delay in completing the transactions was because of inchoate formalities. The "Draft Documents' were in fact submitted by SKYCELL to the Department of Telecommunication at the instance and prompting of the Defendant's Solicitors/Legal Advisors. The Defendant's conduct all through, contains its consent. A Resolution does not necessarily have to be understood in the light of factors not contained in it, unless it specifically mentions such factors. Learned Counsel for the Defendant have not shown any legal provision that mandates the disclosure of the voting pattern or makes the latter an integral part of the Resolution. Even in the instance of a Special Resolution, all that is required by the Companies Act is that the prescribed support (and not just a simple majority as in the case of an Ordinary Resolution) should have been obtained. A Board Resolution, once passed in accordance with law, binds all sections of the Board. In the present case it must also be borne in mind that the circular Resolution did not have the dissent or disapproval of any person and accordingly, there is no material suppression even if the 'entire' Resolution had been failed. The Defendant and any other party should have unequivocally recorded its demurrer and objection at the time of its circulation, and most definitely at the threshold of the hearing. This would perhaps been difficult in the wake of several representations and requests made at the Defendant's instance to the Authorities and Institutions who had to approve of the transaction. I can see no significance in the fact that the documentation was styled as a "Draft". If all these documents contain any message, it is that the transaction had the approval and consent of the Defendant. The fact that the circular Resolution was passed at the instance of the Defendant because it was so demanded by the Department of Telecommunications in its letter dated 26.6.2000, cannot be lost sight of.

6. Mr. Shanti Bhushan has also argued that a Company must act through its Board and the latter's decision can be found out only through its Resolutions. It is contended that in the Defendant's case no such Resolution has been produced and thus the action of the Defendant's Directors or Attorneys cannot bind the Defendant. These arguments were not raised earlier and I decline from considering them in Review proceedings. It is indeed significant however that Mr. John Hartman still represents the defendant.

7. Mr. Bhushan also contended that a binding contract had not come into effect, but this argument has already been considered at the time when the injunction was granted. If the view taken by this Court is erroneous, the Defendant has its remedy by way of an Appeal. Mr. Shanti Bhushan also submitted that if the Review is accepted the Defendant would be forthwith ready to file an undertaking not to sell its shareholding to any third party till the Single Judge passes a fresh order after hearing arguments again. This is also not a aground that should be entertained in Review. It has also been argued that the injunction ought not to have been granted since it is the Plaintiff which has effected and taken benefit from the breach of the collaboration Agreement between the four original partners of SKYCELL. This question has been duly considered in the Order sought to be revived, inasmuch as equitable relief was granted because the Plaintiff had contracted to purchase the stock of Crompton Greaves Ltd. in SKYCELL without any remonstration by the Defendant; infact it was with the Defendant's acquiescence if not its explicit consent. Although Mr. Sibal Learned Counsel for the Plaintiff has relied on the Hon'ble Supreme Court's decision in Indian Oil Corporation Ltd. vs. Amritsar Gas Service and Others, and V.B. Rangaraj vs. V.B. Gopalakrishnan and Others, , since I cannot recall that it had been relied on at the time when the injunction application was being deliberated upon. I refrain from making any observation.

8. The Review is dismissed.