Dinesh Sud vs M/S. Stitchwell Qualitex Pvt. ...
2014 Latest Caselaw 1299 Del

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Reserved on: 7th March, 2014
%                                           Date of decision: 11th March,2014

+      CO. APPL. 179/2014 (FOR REVIEW) & CO. APPL. 180/2014
       (FOR DELAY) IN CO.A. (SB) 69/2011

       DINESH SUD                                              ..... Petitioner
                              Through:       Mr. Ajay Goyal with Mr. Shailesh
                                             Tiwari, Mr. Bikash Mohanty and
                                             Ms. Ritu Chhabra, Advocates.
               versus

       M/S. STITCHWELL QUALITEX
       PVT. LTD. & ORS.                        ..... Respondent

Through: Mr. Anish Dayal with Mr. Siddharth Vaid, Advocates.

CORAM:

HON'BLE MR. JUSTICE R.V.EASWAR

R. V. EASWAR, J.:

1. Company Application No.179/2014 has been filed seeking review

of the order passed by this Court on 18.09.2013 in Company Appeal (SB)

No.69/2011. Two points were urged before me for seeking review. The

first is that in paragraph 16 of the impugned judgment, there is a

reference to a letter dated 31.12.1993 written jointly by the review

petitioner (appellant in the appeal) and his father Mr. S.N. Sood to the

Noida authority. The sentence in the said paragraph runs as follows: -

"It is not denied by him that he was a signatory to the letter dated 31.12.1993 written jointly by him and his father S.N. Sud to the Noida authority, under which he withdrew his rights in the company which was allotted the premises at G- 58, Sector 6, Noida"

2. There is another sentence in the same paragraph at page 19 of the

judgment in which also there is a reference to the property at G-58,

Sector-6, Noida. The entire sentence is as follows: -

"Moreover, the letter stated that S.N. Sud would exclusively look after and manage the business of agricultural machines which was being carried on from G-58, Sector-6, Noida, which was allotted to the company and not to the partnership business"

3. It is submitted on behalf of the review petitioner that the aforesaid

property was not allotted to the company as recorded in the judgment, but

was allotted to respondent Nos.2 & 3 and in so far as this Court records to

the contrary, there is a mistake which has crept into the judgment and

accordingly the same should be reviewed.

4. The other mistake pointed out in the judgment is that several

authorities were cited on behalf of the review petitioner which have been

referred to at the end of paragraph 12 of the judgment, in support of the

proposition that Section 108 of the Companies Act is mandatory in

nature, but no finding has been recorded by this Court as to the

applicability of the judgments.

5. Counsel for the respondent raised a preliminary objection to the

review petition on the ground of delay. It is pointed out that there is a

delay of 59 days which has not been properly explained. It is also

submitted that the claim in support of the contention that the property at

G-58, Sector-6, Noida was not allotted to the company but was allotted to

the respondent Nos.2 & 3 is based on a lease deed flaunted by the review

petitioner which has not been accepted by this Court and that the non-

acceptance of a claim by the Court cannot be the subject matter of a

review application. So far as the second point raised by the review

petitioner is concerned, it is contended that the basis of the judgment of

this Court being the unassailability of the family arrangement there is no

error of the Court in not deeming it necessary to deal with the point

relating to Section 108 raised by the appellant, that too after a period of

16-17 years during which he also acted upon the terms of the settlement,

and thus there was no mistake committed by this Court if the authorities

cited by the review petitioner in support of the proposition that Section

108 of the Companies Act is mandatory in nature was not decided; as that

point is subsumed by the proposition upon which the judgment of this

Court is premised.

6. The first point raised by the review petitioner i.e. that the property

at G-58, Sector-6, Noida was not allotted to the company in the family

settlement but was allowed to respondent Nos.2 & 3 is only the thin edge

of the wedge sought to be introduced in the review petition; the broader

proposition sought to be made out is that this Court was not justified in

holding that the said property was part of the family arranagement which

was continued to be run by the father of the appellant, who was separated

from the partnership business, at the said premises in the name of the

company. In other words what is sought to be pointed out is that the

property was never the subject matter of the family settlement so that it

can be said to have been allowed to the father of the appellant and

thereafter on the transfer of the shares of the company which owned the

property, to the respondent Nos.2 & 3. The basis for saying so is a

notarised certified copy of the lease deed dated 29.07.1982, which is

claimed to have been originally issued by the Noida authority in favour of

the partnership firm and not the company, allotting the aforesaid property

to the partnership firm. It is settled law that under Section 114 of the

Code of Civil Procedure, the power of review can be exercised by the

Court only if there is a patent error disclosed in the judgment. The

question whether the claim made on the basis of a lease deed stated to

have been entered into on 27.07.1982, which is filed not in the course of

the appeal proceedings, but only with the review petition, can be

entertained and it can be held that the property could not have been the

subject matter of the family arrangement is a question which requires to

be examined in detail and, therefore, cannot be gone into while exercising

the power of review. The error must be manifest on the face of the

judgment and should be so clear that no Court would permit such an error

or mistake to remain on record. The lease document dated 27.07.1982

admittedly was not before the Court at the time when the appeal was

decided. The review petitioner himself had accepted the family

settlement for a period of 15 to 16 years and did not raise any question.

The review petition itself states that the said lease document is being

placed on record along with the review petition. It thus appears to me

that I cannot examine the claim under Section 114 of the CPC as it would

involve a detailed factual investigation which is beyond the scope of

Section 114.

7. As regards the other point, namely, whether this Court committed

an error in not considering the judgments cited by the review petitioner in

support of the contention that Section 108 of the Companies Act, 1956 is

mandatory in nature, as rightly pointed out on behalf of the respondent,

the judgment of this Court is premised on the validity of a family

arrangement and the acquiescence or acceptance thereof to the

arrangement by the parties thereto without standing on technicalities. It

was because of this reason that this Court found it not necessary to refer

the authorities cited by the review petitioner.

8. In the result the review application is dismissed along with

Company Application No.180/2014 (for condonation of delay). No costs.

(R.V. EASWAR) JUDGE MARCH 11, 2014 hs