M/S. Tcm Ltd. vs Mr. T.P. Murlidharan And Ors.
2013 Latest Caselaw 3528 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 08.08.2013
+                                  W.P.(C) 4504/2012
    M/S.TCM LTD                                   ..... Petitioner
                          Through : Sh. Rishi Agrawala, Ms. Misha
                          Rohatgi and Ms. Malavika Lal, Advocates.

                          versus

    MR. T.P.MURLIDHARAN AND ORS          ..... Respondents

Through : Sh. Arvind Kumar, Advocate, for Resp. No.1.

Ms. Maneesha Dhir, Ms. Varsha Banerjee and Ms. Mithu Jain, Advocates, for Resp. No.3.

Sh. Shwetank Sailakwal, for Sh. S. Udaya Kumar Sagar, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

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1. The present petition is directed against an order of 24.05.2012 by the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), admitting the appeal filed by the first respondent (hereafter referred to as "Sh. Murlidharan").

2. It is argued that the AAIFR fell into error in entertaining the appeal of Sh. Murlidharan. Learned counsel emphasised

W.P.(C) 4504/2012 Page 1 that the past record established the statement of Sh. T.S. Sanil, who had preferred another appeal against the order of Board for Industrial and Financial Reconstruction (BIFR) dated 28.11.2008, which led a Division Bench of this Court to relegate the matter, i.e. of Sh. T.S. Sanil, to be decided on the merits, thereby precluding Sh. Murlidharan from filing the appeal. It was argued in this context that the statement of Sh. T.S. Sanil was categorical about the involvement and role of Sh. Murlidharan in preferring the latter's appeal on 26.11.2009. It was submitted that in these circumstances, the plea of Sh. Murlidharan, which had also to be viewed in the context of his reply (which in turn admitted to his assisting Sh. T.S. Sanil in the filing of this appeal) was absolutely clear and the appeal should not have been entertained. Learned counsel also relied upon the judgment of this Court reported as Pasupati Fabrics Ltd. & Ors. v. Priyanka Overseas Pvt. Ltd. & Ors. 2006 (86) DRJ 6 for the proposition that shareholders do not have any locus standi to agitate the matters before BIFR unless the DRS implicates or in any manner prejudices the shareholders. Learned counsel also relied upon the decision of the Bombay High Court in Northern Projects Ltd. v. Blue Coast Hotels and Resorts Ltd. 2009 (148) Comp. Cas. 279 (Bom), to say that past transactions before the holding by a shareowner cannot be called into question in legal proceedings.

3. Learned counsel for Sh. Murlidharan resisted the submissions of the petitioner and urged that the AAIFR acted

W.P.(C) 4504/2012 Page 2 within its jurisdiction in entertaining the appeal. It is contended that the words used in the statute - section 25, - are specific, i.e. the limitation period would commence from the date the certified order is "issued to" the concerned party. Learned counsel stressed upon the submission that the statute in such instances has been construed strictly rather than liberally and the Court has previously held that notwithstanding the knowledge of the impugned order, the date that is determinative of the question of limitation is the date of the order itself.

4. It is evident from the above discussion that the AAIFR has entertained the appeal of Sh. T.S. Sanil. It is also evident that the remit order made by the Division Bench on 17.03.2011 [in W.P.(C) 1909/2011] has not worked itself out in the sense that the appeal of Sh. T.S. Sanil has not been decided by AAIFR on its merits. Since the order impugned in that appeal and the order impugned by the first respondent - Sh. Murlidharan are the same, this Court is of the opinion that ends of justice would be met with if Sh. Murlidharan is heard in the said appeal (filed by Sh. T.S. Sanil's Appeal No. 238/2009). The Court's suggestion was acceptable to both parties except that the petitioner wished to reserve its objections as to the maintainability of Sh. T.S. Sanil's appeal on the grounds articulated in the present appeal, i.e. that the shareholders do not have the right to question such decisions and past transactions as are concluded and final, apart from other grounds to be resisted on merits. Learned counsel for Sh.

W.P.(C) 4504/2012 Page 3 Murlidharan did not voice any objection except to state that he too should be heard in support of the appeal.

5. In view of the above development, the independent appeal of Sh. Murlidharan shall be deemed to have been disposed off. At the same time, liberty is granted to him to apply and seek impleadment in the appeal of Sh. T.S. Sanil Appeal No. 238/2009. All objections articulated by the petitioner vis-a-vis the maintainability of Sh. T.S. Sanil's appeal can be agitated vis-a-vis the grievances of Sh. Murlidharan.

6. The impleadment application shall be disposed off within two weeks from today in Sh. Murlidharan's plea in support of and not in addition to pleas of Sh. T.S. Sanil in the appeal. This Court has been informed that the appeal is listed for final hearing on 09.09.2013. The AAIFR shall endeavour to complete the hearing and decide the matter finally since the BIFR order in that instance was made as far back as 2008. Nothing stated in this order shall be construed as an expression on the merits of the case. The writ petition is disposed off in the above terms.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) AUGUST 08, 2013 'ajk'

W.P.(C) 4504/2012 Page 4