BHAGWATI DEVELOPERS PRIVATE LTD.versusTHE PEERLESS GENERAL FINANCE INVESTMENT COMPANY LIMITED & ORS.

                        [2013] 5 S.C.R. 708


A           BHAGWATI DEVELOPERS PRIVATE LTD.
                                 V.
      THE PEERLESS GENERAL FINANCE INVESTMENT
                COMPANY LIMITED & ORS.
            (Civil Appeal Nos. 361-362 of 2005)
8                         APRIL 4, 2013.

        [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                  IBRAHIM KALIFULLA, JJ.]

C       Companies Act, 1956:

       ss. 397 and 398 - Comparw petition - With the consent
  of other share-holders - Withdrawal of, by original petitioners
  - Effect of- Held: The withdrawal would not render the petition
D non-existent, or non-maintainable - The constructive parties
  who provide consent to file the petition, are entitled to be
  transposed as petitioners in the case.

       s. 399 - Company petition - With the consent of other
  share-holders - Form of consent - Held: Consent need not
E be given by the share-holder personally - It can be given by
  Power of Attorney holder of such share-holder - The issue of
  consent must be decided on he basis of broad concensus
  approach, in relation to the avoidance and subsistence of the
  case - If share-holder who had initially given consent to help
F meet the requirement of 1110th share-holding, transfer of
  shares by him or if he cease_s to be share-holder, would not
  affect the maintainability and continuity of petition.

      Companies Rules, 1959 - r. 88(2) - Company petition
G - Withdrawal of - Procedure for, prescribed under r. 88(2) -
  Whether excludes applicability of the procedure under CPC
  - Held: No - Code of Civil Procedure,· 1908.

        Code of Civil Procedure, 1908:

H                               708
 BHAGWATI DE;VELOPERS PVT. LTD. v PEERLESS GEN. 709
            FINANCE INVEST. CO. LTD.
     Or. XX/II r. 1(5) - Withdrawal of case - Without the             A
consent of other parties - Propriety of - Held: A suit filed in
representative capacity also represents persons besides the
plaintiff - Grant of withdrawal of such petition without the
 consent of other parties, is unjustified and such order is without
jurisdiction.                                                         B
     Doctrines:
     'Ubi jus ibi idem remedium' - Applicability.
     'Actus Curiae Neminem Gravabit' - Applicability.
                                                                      c
    The two share-holders of the respondent-Company,
with the. consent of two share-holders, including the
appellant-Company, filed petition u/ss. 397 and 398 of
Companies Act, 1956, alleging mis-management and
oppression. The Company Court dismissed the petition                  D
as not maintainable. The two share-holders filed two
appeals before Division Bench of High Court.
Subsequently they applied for withdrawal of their appeals
and the Division Bench of High Court dismissed the
appeals as withdrawn, by order dated 16.11.1993 and                   E
18.11.1993 respectively.
    The appellant filed two applications for recalling the
order of dismissal of those appeals and for transposition
of appellants therein as proforma respondents and
substituting the appellant as sole appellant therein. The             F
Division Bench of High Court dismissed the applications
holding that the appellant was a stranger having no locus
standi; and that there was inordinate delay in the filing of
such an application. Appellant approached Supreme
Court by way of Special Leave Petition. The same was                  G
disposed of by judgment dated 26.4.1996, observing that
the appellant could prefer fresh appeal against he order
of Single Judge of High Court in the winding up petition
and further observed that the same would not be
dismissed by the' Division Bench on the grounds of                    H
    . 710      SUPREME COURT REPOR:rS           [2013] 5 S.C.R.

A limitation or locus standi; and that withdrawal of the
  appeals by the two share-holders would not come in the
  way of the appellant raising such contentions as are
  permissible and available to it. In pursuance of the order
  dated 26.4.1996 the appellants filed app~als, before the
B Division Bench of High Court, which were dismissed.
  Hence the appeals.
            Allowing the appeals, the Court
       HELD: 1. The right to apply for the winding up of a
C company is available, provided thatlhe applicant satisfies
  the requisite requirements under Sections 397, 398 and
  399 of the Companies Act 1956, with respect to holding
  10% shares in the total share-holding of the company. It
  is not necessary that the petitioner(s) must hold the same
D Individually. Such a winding up petition can even be filed
  after obtaining the consent of other shareholders, so as
  to meet the requirement of having an aggregate of 10 per
  cent out of the total share-holding. [Para 6] [720-C-E]
E           2. The winding up application is maintainable under
    Section 397, where the affairs of the company are being
    conducted in a manner that is prejudicial to public
    interest, or in a manner that ·is oppressive with respect
    to any member or members of the company. [Para 7]
F . [720-E-F]
        M.S.D.C. Radharamanan vs. M.S.D. Chandrasekara
    Raja and Anr. AIR 2008 SC 1738: 2008 (5) SCR 182- relied
    on.
G     3. Section 399 of the Act 1956, neither expressly nor
  by implication requires, that the consent to be accorded
  therein, should be given by a member personally, as the
  same can also be given by the Power of Attorney holder
  of such a shareholder. Furthermore, the issue of conser.t
H must be decided on the basis of a broad consensus
BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 711
           FINANCE INVEST. CO. LTD.
approach, in relation to the avoidance and subsistence A
of the case. The same must be decided on the basis of
the form of such consent, rather on the substance of the
same. There is hence, no need of written consent, or
even of the consent being annexed with the Company
Petition. Such consent may even be given by the power B
of attorney holder of the shareholder. If the shareholder
who had initially given consent to file the Company
Petition to help meet the requirement of 1/10th share
holding, transfers the shares held by him, or ceases' to
be a shareholder, the same would not a.ffect the c
maintainability and continuity of the petition. [Paras 10
and 11) [722-C-E; 723-B-C]
     P. Punnaiah and Ors. vs. Jeypore Sugar Co. Ltd. and
Ors. AIR 1994 SC 2258; J. P. Srivastava and Sons Pvt. Ltd.
and Ors. vs. Mis. Gwalior Sugar Co. Ltd. and Ors. AIR 2005   D
SC 83: 2004 (5) Suppl. SCR 648 - relied on.
      4. Where the Company Petition is filed with the
 consent of the other shareholders, the same must be
 treated in a representative capacity, and therefore, the E
 making of an application for withdrawal by the original
 petitioner in the Company Petition, would not render the
 petition under Sections 397 or 398 of the Act 1956, non-
 existent, or non-maintainable. The other persons, i.e., the
 constructive parties who provide consent to file the F
.petition, are in fact entitled to be transposed as petitioners
 in the said case. Additionally, in case the petitioner does
 not wish to proceed with his petition, it is not always
 Incumbent upon the court to dismiss the petition. The
 court may, if it so desires, deal with the petition on merit G
 without dismissing the same. [Para 11] [722-F-H; 723-A-B]
    Rajahmundry Electric Supply Corporation Ltd. by its
Vice-ChairmanAppanna Ranga Rao vs. The State of Andhra
AIR 1954 SC 251: 1954 SCR 779; Mis. Dale and Carrington
                                                             H
    712     SUPREME COURT REPORTS                [2013] 5 S.C.R.


A   lnvt. (P) Ltd. and Anr. vs. P. K. Prathapan and Ors. AIR 2005
    SC 1624: 2004 (4) Suppl. SCR 334- relied on.
       5. The Division Bench has reasoned, that if a party
  is allowed to withdraw from the appeal, and it is evident
8 that in the absence of such party, the petition itself could
  not be maintainable, then the entire petition and/or the
  appeal shall fail, and cannot be proceeded with under the
  law. Such an observation has been made by the Division
  Bench without examining the issue of maintainability of
C the Company Petition on merits. [Para 14) [724-B-D]
       6. The High Court in the impugned judgment, ·did not
  take into consideration the effect of the order of this
  Court dated 26.4.1996, and rendered the same a nullity,
  giving unwarranted weightage to the earlier orders of the
D Division Bench dated 16.11.1993 and 18.11.1993, for the
  reason that this Court, while passing an order on
  26.4.1996, did not set aside those orders, and therefore,
  the same remained intact. Furthermore, the Court did ~ot
  examine whether a petition filed in representative
E capacity can be withdrawn unilaterally by the party before
  the court, and what effect Order XXlll Rule 1 (5) CPC,
  which provides that court cannot permit a party to
  withdraw such a case without the consent of the other
  parties, would have: [Para 19) [726-A-C]
F      7. A suit filed in representative capacity also
  represents persons besides the plaintiff, and that an order
  of withdrawal must not be obtained by such a plaintiff
  without consulting the category of people that he
  represents. The court therefore, must not normally grant
G permission to withdraw unilaterally, rather the plaintiff
  should be advised to obtain the consent of the other
  persons in writing, even by way of effecting substituted
  service by publication, and in the event that no objection
  is raised, the court may pass such an order. If the court
H
BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 713
           FINANCE INVEST. CO. LTD.
passes such an order of withdrawal, knowing that it is      A
dealing with a suit in a representative capacity, without
the persons being represented by the plaintiffs being
made aware of the same, the said order would be an
unjustified order. Such order therefore, is without
jurisdiction. [Para 20] [726-0-F]                           B

    Mt. Ram Dei vs. Mt. Bahu Rani AIR 1922 Pat. 489; Mt.
Jaima/a Kunwar and Anr. vs. Collector of Saharanpur and
Ors. AIR 1934 All. 4; The Asian Assuranc.e Co. Ltd. vs.
Madho/al Sindhu and Ors. AIR 1950 Bom. 378 - referred       C
to.
   . 8. The view taken by the Division Bench has
rendered the order of the Supreme Court dated 26.4.1996,
a nullity. The Supreme Court had passed the order after
hearing the present respondents on the basis of D
suggestions made, and concessions offered by them. It
was in fact, suggested by the counsel appearing on
behalf of the respondents, that if the appellant prefers
such appeals in the High Court, the respondents shall
not raise any objection on the ground of limitation, and E
that they would not also object on the ground of the locus
standi of the consenting shareholders. Thus, the same
makes it clear, that the right of maintenance of an appeal
against the judgment of the Single Judge dated 2.2.1995,
was in fact an offer made by the respondents themselves, F
with a further undertaking being provided by them with
respect to the· question of limitation and locus stand/ of
the appellant, stating that the same would not be raised.
What was granted to them, was only permission, to raise
the contention that, as on the date of actual filing of the G
Company Petition before the company court, the
petitioners alongwith the consenting parties, had 10 per
cent share holding out of the total stakeholding of the
company. The aforesaid terms of this Court have made
it crystal clear, that this Court was entirely oblivious of
the fact that there had been two orders passed by the H
    · 714   SUPREME COURT REPORTS             (2013] 5 S.C.R.

A Division Bench, permitting the withdrawal of the appeals
  and further; dismissing the application of the appellant for
  recalling the said orders; If this qourt did not setaside
  the said orders, there was no purpose for asking the
  appellant to file an appeal against the judgment and order
B of the Division Bench dated 2.2.1995. Thus, by the
  impugned order, the High Court has rendered the entire
  exercise undertaken by this Court, a futile one. [Para 22]
  [728-C-H; 729-A]
      9. It is not correct to say that the phrase "so far as
C applicable", excludes the application of the CPC where
  a particular procedure Is prescribed in the Rules itself,
  and as Rule 88(2) of 1959 Rules provides that any
  withdrawal will only be permitted with the leave of the
  court, no further requirement can be presumed. [Para 24]
D [729-E-F]
      City Improvement Trust Board, Bangalore vs. H.
  Narayanaiah etc. etc. AIR 1976 SC 2403: 1977 (1) SCR
  178; Maktool Singh vs. State of Punjab AIR 1999 SC 1131:
E 1999 (1) SCR 1156 - relied on.
          10. If the interpretation given by the Division Bench
     of the High Court is accepted, it would not merely render
     the appellant remediless at whose instance, this Court·
     had passed the order dated 26.4.1996, but would also
F    defeat the doctrine embodied in the legal maxim, 'Ubl }us
     ibi Idem remedium' (where there is a right, there is a
     remedy). [Para 28] [730-B-C]
      Dhannalal vs. Kalawatibai and Ors. AIR 2002 SC 2572 :
G 2002 (1) Suppl. SCR 19; Smt. Ganga Bai vs. Vijay Kumar
  and Ors. AIR 1974 SC 1126: 1974 (3) SCR 882- relied
  on.
       11. It was respondent No.1 who had suggested to
  this Court to dispose of the appeal filed by the appellant,
H while giving it liberty to file an appeal against the order
BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 715
           FINANCE INVEST. CO. LTD.

of the Company Court. Therefore, it was not permissible          A
for respondent No.1 to agitate the issue with respect to
the fact that as the Supreme Court had not set aside the
orders dated 16.11.1993 and 18.11.1993, passed by the
Division Bench of the High Court, the same remained
intact. Such an argument could not h.ave been advanced           B
by respondent No.1 before the Division Bench, in view
of the legal maxim, 'Actus Curiae Neminem Gravabit i.e.
an act of Court shall prejudice no man'. The order of this
Court dated 26.4.1996, if given strict literal interpretation,
would render the appellant remediless, which is not              c
permissible in law. [Para 29] [730-E-G; 731-C]
    Jayalakshmi Coelho vs. Oswald Joseph Coelho AIR ·
2001 SC 1084: 2001 (2) SCR 207; Rameshwarfal vs.
Municipal Council, Tonk and Ors. (1996) 6 SCC 100: 199~
(5) Suppl. SCR 227 - relied on.             ·           D

     12. The impugned judgment and order of the High
Court dated 24.11.2003 is set aside and the matters are
remanded to be decided by the High Court afresh giving
strict adherence to the judgment of this Court dated             E
26.4.1996. While deciding the case afresh, the Division
Bench shall not take note of the earlier judgments of the
High Court dated 16.11.1993 and 18.11.1993. [Para 30]
[731-E-F]
                     Case Law Reference:                         F

     2008 (5) SCR 182                relied on     Para 7
     1954 SCR 779                    relied on     Para 8
    2004 (4) Suppl. SCR334           relied on     Para 9        G
    AIR 1994 SC 2258                 relied on     Para 10
    2004 (5) Suppl. SCR 648          relied on     Para 10
    AIR 1922 Pat. 489                referred to   Para 22
                                                                 H
    716       SUPREME COURT REPORTS               [2013] 5 S.C.R.


A         AIR 1934 All. 4                 referred to   Para 22
          AIR 1950 Bom.                   referred to   Para 22
          1977 (1) SCR 178                relied on     Para 26
          1999 (1) SCR 1156               relied on     Para 27
B
          2002 (1) Suppl. SCR 19          relied on     Para 28
          1974 (3) SCR 882                relied on     Para 28
          2001 (2) SCR 207                relied on     Para 29
c         1996 (5) Suppl. SCR 227         relied on     Para 29

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 361-
    362 of 2005.

      From the Judgment and Order dated 24.11.2003 of the
D High Court at Calcutta in Two Appeals being APO Nos. 346 &
  347 of 1996.

          Bijoy Kumar Jain for the Appellant.

E        Ashok H. Desai, K. Rajeev, Kuldeep S. Parihar, H.S.
    Parihar, Radha Rangaswamy for the Respondents.

          The Judgment of the Court was delivered by

       DR. B.S.CHAUHAN, J. 1. These appeals have been
F preferred against the judgment and final order dated
  24.11.2003 passed by the High Court of Calcutta in APO Nos.
  346 and 347, by way of which the High Court rejected the claim
  of the appellant to maintain the Company Petition filed under
  Sections 397 & 398 of the Companies Act, 1956 {hereinafter
G referred to as the 'Act 1956').

         2. Facts and circumstances giving rise to these appeals
    are that:

          A. Shri S.K. Roy {Respondent No. 2) issued and allotted
H 30,000 shares of the Respondent No. 1 company to hims~lf and
                                                        •
 BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 717
   FINANCE INVEST. CO. LJD. [DR. B.S. CHAUHAN, J.]
his relatives, and being the majority share holder therein, hence   A
acquired control over the respondent-company.

     B. Shri Ajit Kumar Chatterjee (3.66% shares) and Shri
Arghya Kusum Chatterjee (1.01 % shares) filed Company
Petition No. 222 of 1991 under Sections 397 and 398 of the          B
Act 1956, before the High Court of Calcutta with the consent
of M/s Bhagwati Developers Pvt. Ltd. (4.78% shares)
(hereinafter referred to as 'the appellant') and Shri R.L. Gaggar
(7.61% shares), alleging mis-management and oppression.

     C. Respondent No. 2 contested the said Company Petition        C
by raising the preliminary issue of maintainability, stating that
the valid shares held by the petitioners and consenting parties
therein, were valued at less than 10 per cent of the total
shareholding, and thus, the petition itself was not maintainable.
The Company Court Judge vide order dated 13/14.1.1992,              D
dismissed the said Company Petition as not maintainable,
allowing the aforementioned preliminary objection, without
entering into the merits of the case.

     D. Shri Ajit Kumar Chatterjee and Shri Arghya Kusum            E
Chatterjee, both petitioners therein, filed two appeals being
Nos. 40 and 35of1992 respectively, before the Division Bench
of the Calcutta High Court challenging the dismissal of the
Company Petition on the ground of maintainability. Both the
appeals were consolidated and heard together.
                                                                    F
     E. On 16.11.1993, Shri Ajit Kumar Chatterjee joined the
Board of Directors of the company and filed applications for
withdrawal of the appeals. The Division Bench of the High
Court, vide order dated 16.11.1993 allowed the said
applications, and dismissed his appeal as withdrawn. A similar      G
order was passed by the Division Bench on 18.11.1 &93 while
allowing a similar application filed by Shri Arghya Kusum
Chatterjee, and therefore, his appeal was also dismissed as
withdrawn.
                                                                    H
    718      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A         F. The appellant filed two applications before the Division
  Bench on 22.12.1993 for the purpose of recalling the order of
  dismissal of the said appeals, and for the transposition of the
  Chatterjee brothers as proforma respondents, whilst substituting
  the appellant as the sole appellant therein. The Division Bench,
B vide order dated 2.2.1995 dismissed the said application by a
  detailed judgment, labelling the appellant as a stranger having
  no locus standi whatsoever, and observing that as the appeal
  was no longer pending, the question of transposition of parties
  did not arise. Moreover, it was observed that there had been
c an inordinate delay in the filing of such an application.
          G. Aggrieved, the appellant preferred S.L.P.(C) Nos.
    19193 and 19217 of 1995 before this court, challenging the
    order dated 2.2.1995. This Court entertained the said petitions,
    granted leave, and disposed of the appeals vide judgment and
D   order dated 26.4.1996, observing that the appellant may prefer
    independent appeals, challenging the judgment and order dated
    13/14.1.1992, passed by the learned Single Judge, furttter
    stating that if such an appeal was infact filed, the same would
    not be dismissed by the Division Bench on grounds of limitation
E   or locus standi. However, it would be open for Respondent
    No.2 to contend, that the ground upon which the Company
    Court Judge had dismissed the Company Petition, was indeed
    just, i.e. the respondent could defend the order passed by the
    Company Court Judge. Further, the effect of withdrawal of the
F   appeals by Chatterjee brothers on the appeals flied by the
    appellant, would also be examined. Additionally, the dismissal
    of the appeals as withdrawn, preferred by Chatt~rjee brothers,
    would not come in the way of the appellant raising such
    contentions as are permissible and available to it in law. This
G   Court disposed of the said appeals without expressing any
    opinion on merit.

       H. In pursuance of the order dated 26.4.1996 passed by
  this Court, the appellant preferred appeal Nos. 346 and 347 of
  1996, which have been dismissed vide impugned judgment and
H order dated 24.11.2003.
  BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN.                71~
    FINANCE INVEST. CO. LTD. [DR. B.S. CHAUHAN, J.]

      Hence, these appeals.                                            A

       3. Shri Sunil Kumar Gupta, learned senior counsel
  appearing on behalf of the appellant, has submitted that the
  High Court, wJ:lile dismissing the appeals filed by the appellant,
  failed to appreciate the judgment and order of this Court dated      B
. 26.4.1996, wherein this Court had held, that the issues of
  limitation and the locus sU!!!di of the appellant would not be
  questioned. The Division Bench of the High Court hence, ought
  not to have non-suited the appellants on the issue of locus
  standi. The Chatterjee brothers had withdrawn their appeals,
  and thus, the High Court has erred in its interpretation of the      C
  order of this Court in correct perspective, and has therefore,
  rendered the appellant remediless. Even if the said Company
  Petition had been withdrawn, the appellant with whose consent
  the Company Petition had been filed, was certainly entitled to
  revive the said Company Petition, and to challenge the order         D
  of the Company Court Judge before the Division Bench. It was
  not permissible for the Division Bench to dismiss the
  applications filed by the appellant without so much as going into
  the merits of the case, simply relying upon the earlier Division
   Bench judgment and order dated 16.11.1993. Such a course            E
  adopted by the High Court, has rendered the order of this Court
  dated 26.4.1996, a nullity. Thus, the appeals deserve to be
  allowed.

      4. Per contra, Shri Ashok H. Desai, Shri Bhaskar P. Gupta,       F
 Shri Abhijit Chatterjee, Shri Jaideep Gupta, learned senior
 counsel appearing on behalf of the respondents, have
 opposed the appeal contending that Chatterjee brothers had
 withdrawn both their appeals, as well as Company Petition No.
 222 of.1991. Therefore, it was not permissible for the appellant      G
 to move applications for impleadment and transposition. It is
 evident that such applications cannot be entertained where the
 Company Petition itself is not pending. Furthermore, the
 learned Single Judge had rightly held, that the present appellant
 and Shri R.L. Gaggar, the consenting parties, were neither            H
    720      SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A eligible nor competent to give such consent, as they did not
  possess valid shares. Moreover, one of them had given consent
  through the Power of Attorney holder, which is not in
  accordance with law. This Court, vide its order dated 26.4.1996
  did not set aside the judgment and order of the High Court
B dated 16.11.1993. Thus, the same has rightly been relied upon
  by the High Court in its impugned judgment. The appeals are
  devoid of any merit, and are hence, liable to be dismissed.

         5. We have considered the rival submissions made by the
    learned counsel for the parties and perused the records.
c
       6. The right to apply for the winding up of a company is
  available, provided that the applicant satisfies the requisite
  requirements under Sections 397, 398 and 399 of the Act
  1956, with respect to holding 10% shares in the total share-
D holding of the company. It is not necessary that the petitioner(s)
  must hold the same individually. Such a winding up petition can
  even be filed after obtaining the consent of other shareholders,
  so as to meet the requirement of having an aggregate of 10
  per cent out of the total share-holding.
E
       7. The said application is maintainable under Section 397,
  where the affairs of the company are being conducted in a
  manner that is prejudicial to public interest, or in a manner that
  is oppressive with respect to any member or members of the
  company. (Vide: M.S.D.C. Radharamanan v .. M.S.D.
F Chandrasekara Raja & Anr., AIR 2008 SC 1738)
          8. In Rajahmundry Electric Supply Corporation Ltd. by its
  Vice-Chairman, Appanna Ranga Rao v. The State of Andhra,
  AIR 1954 SC 251, this Court, while dealing with a case under
G Section 397 of the Act 1956 and Section 153(c) of the Indian
  Companies Act, 1913, which were analogous to the provisions
  of Section 397 of the Act 1956, held, that the issue of whether
  the petitioner had obtained consent of the members of the
  company in order to meet the requirements of holding 1/10th
H of the total shares, is to be examined in light of whether such a
 BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 721
  ·FINANCE INVEST. CO. LTD. [DR B.S. CHAUHAN, J.]
number was infact attained and maintained on the actual date         A
of presentation of the Company Petition in court, and in the
event that a member later withdraws consent, the same would
not affect either the right of the applicant-petitioner to proceed
with the application, or the jurisdiction of the court to dispose
of it on merits.                                                     B

     9. In Mis. Dale and Carrington lnvt. (P) Ltd. & Anr. v. P.
K. Prathapan & Ors., AIR 2005 SC 1624, this Court dealt with
the issue of transfer of shares without seeking the permission
of the Reserve Bank etc. and held as under:
                                                                     c
      " On the question of locus standi the teamed counsel for
      the respondent cited Rajahmundry Electric Supply
      Corporation Ltd. v. A. Nageshwara Rao and others, AIR
       1956 SC 213, wherein it was held that the validity of a
      petition must be judged from the facts as they were at the D
      time of its presentation, and a petition which was valid
      when presented cannot cease to be maintainable by
      reason of events subsequent to its presentation. In S.
       Varadarajan v. Venkateswara Solvent Extraction (P)
      Ltd. and others (1994) 80 Company Cases 693, a E
      petition was filed by the applicant and four others under
      Sections 397 and 398 of the Companies Act. During the
    · pendency of the petition, the four other persons who had
      joined the applicant in filing the petition sold their shares
       thereby ceasing to be shareholders of the company. It F
       was held that the application could not be rejected as not
       maintainable on the ground that the four shareholders
       ceased to be shareholders of the company. The
       requirement about qualification shares is relevant only
       at the time of institution of proceeding. In Jawahar Singh G
       Bikram Singh v. Sharda Ta/war (1974) 44 Company
       Cases 552, a Division Bench of the Delhi High Court
      held that for the purposes of petition under Sections 3971
      398 it was only necessary that members who were
   , already constructively before the Court should continue H
    722      SUPREME COURT REPORTS                 [2013] 5 S.C.R..


A         to proceedings. It is a case in which the petitioner who
          had fifed a petition died during the pendency of the
          petition. While filing the petition he had obtained consent
          of requisite number of shareholders of the company,
          among them his wife was also there. The Court further
B         observed that since wife of the petitioner was already
          constructively a petitioner in the original proceedings,
          by virtue of her having given a consent in writing, she was
          entitled to be transposed as petitioner in place of her
          husband. n (Emphasis added)
c      10. Section 399.of the Act 1956, neither expressly nor by
  implication requires, that the consent to be accorded therein,
  should be given by a member personally, as the same can also
  be given by the Power of Attorney holder of such a shareholder.
  Furthermore, the issue of consent must be decided on the
D basis of a broad consensus approach, in relation to the
  avoidance and subsistence of the case. The same must be
  decided on the basis of the form of such consent, rather on the
  substance of the same. There is hence, n'o need of written
  consent, or even of the consent being annexed with the
E Company Petition. (Vide: P. Punnaiah & Ors. v. Jeypore
  Sugar Co. Ltd. & Ors,, AIR 1994 SC 2258; and J. P.
  Srivastava and Sons Pvt. Ltd. & Ors. v. Mis. Gwalior Sugar
  Co. Ltd. & Ors., AIR 2005 SC 83)

F      11. In view of the above, the case at hand is required to
  be considered in the light of aforesaid settled propositions of
  law, which provide that where the Company Petition is filed with
  the consent of the other shareholders, the same must be treated
  in a representative capacity, and therefore, the making of an
G application for withdrawal by the original petitioner in the
  Company Petition, would not render the petition under Sections
  397 or 398 of the Act 1956, non-existent, or non-maintainable.
  The other persons, i.e., the constructive parties who provide
  consent to file the petition, are in fact entitled to be transposed
  as petitioners in the said case. Additionally, in case the
H
 BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 723
  . FINANCE INVEST. CO. LTD. [DR. S.S. CHAUHAN, J.]

  petitioner does not wish to proceed with his petition, it is not       A
  always incumbent upon the court to dismiss the petition. The
  court may, if it so desires, deal with the petition on merit without
  dismissing the same. Further, there is no requirement in law
  for the shareholder himself, to give consent in writing. Such
· consent may even be given by the power of attorney holder of           B
  the shareholder. If the shareholder who had initially given
  consent to file the Company Petition to help meet the
  requirement of 1/10th share holding, transfers the shares held
  by him, or ceases to be a shareholder, the same would not
  affect the maintainability and continuity of the petition.             c
      12. The Company Court Judge dismissed the petition on
 merits, vide judgment and order dated 13/14.1.1992. Appeals
 were preferred, and the first appeal was withdrawn by Shri Ajit
 Kumar Chatterjee, vide order dated 16.11.1993.
                                                                         D
     13. The said application was also opposed by another
 appellant, namely, Shri Arghya Kusum Chatterjee. However, the
 court passed the following order:

      "In the instant case, as the applicant No. 1 goes out of the
                                                                         E
      picture and the appeals in so far as the appellant No.1
      stand dismissed for non-prosecution, the Company
       Petition is not maintainable and the appeals are also not
      maintainable in the same ground in view of the fact that
      with regard to two other appeals, one on the question of
     · maintainability of the appeal and the other on the question       F
       of merit of the appeal. If the maintainability of the appeal
       could not be proceeded within that event the other appeal
       also could not be proceeded with.

      Accordingly, when one of the parties in appeals does not           G
      want to proceed with the appeals the Court has no
      jurisdiction to compel that party to continue with the
      appeals against his will. Further, if that party is allowed to
      withdraw from the appeals and if it is evident that the
      petition itself could not be maintainable in the absence of        H
    724       SUPREME COURT REPORTS                   [2013] 5 S.C.R.


A         that party in that event the entire petition and/or the appeal
          shall fail and could not be proceeded with under the law.
          Accordingly, both the appeals stand dismissed as the
          same could not be proceeded with because of the facts
          and circumstances stated above. The applications filed
B         today are allowed."

         14. The aforesaid order makes it clear that the Division
  · Bench has reasoned, that if a party is allowed to withdraw from
   the appeal, and it is evident that in the absence of such party,
   the petition itself could not be maintainable, then the entire
C petition and/or the appeal shall fail, and cannot be proceeded
    with under the law. Such an observation has been made by the
    Division Bench without examining the issue of maintainability
   of the Company Petition on merits.

D      15. Another Chatterjee brother, namely, Shri Arghya
  Kusum Chatterjee withdrew his Appeal No. 40 of 1992, vide
  order dated 18.11.1993. The Court observed, that in view of
  the order dated 16.11.1993, no order was necessary, for the
  reason that if one appeal fails, the other cannot be maintained.
E The court further held:

          "We place it on record that the appellant No. 2 does not
          wish to proceed with the above appeals and also prays
          for dismissal of the applications under Sections 397 and
          398 of the Companies Act which stand dismissed by the
F         order passed by the learned Trial judge. So, it is placed
          on record that both the appellant Nos. 1 and 2 do not wish
          to proceed with the appeals which were already dismissed
          by us for non - prosecution on 16th November, 1993.

G               Accordingly, both the applications are disposed of."

          16. Immediately after the said withdrawal of the appeals,
    t~e present appellant moved an application dated 22.12.1993,
  to recall the aforesaid orders dated 16.11.1993 and
H 18.11.1993, and for transposing the appellant in place of the
 BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 725
   FINANCE INVEST. CO. LTD. [DR. B.S. CHAUHAN, J.]
 Chatterjee brothers, while making them proforma respondents.         A
 The said application was rejected by order dated 2.2.1995, on
 the premise that the petitioners, as well as the constructive
 parties, i.e., the consent givers had not obtained their share
 holding validly. The appeals filed by the Chatterjees had been
 withdrawn. Thus, in light of such a fact-situation, the question     B
 of entertaining any application for either the addition or
 transposition of parties, could not arise. The court further made
·a distinction between the present case and Rajahmundry's
 case, observing that the facts of the case at hand, were quite
 distinguishable from those in Rajahmundry's case, as in the          c
 latter, the consenting party had withdrawn its consent, while
 here, the constructive consenting party has withdrawn its case.

      17. The appellant being aggrieved, preferred appeals
before this Court, which were disposed of vide judgment and
order dated 26.4.1996, giving liberty to the appellant to file an     D
independent appeal against the order of the Company Court
Judge dated 13/14.1.1992. Further, it was also open to the
respondents to contend that the company petition itself was not
maintainable for the reason given by the Company Court Judge,
i.e. not having the requisite 10% share holding. The said order       E
dated 26.4.1996, was passed at the behest of the respondents,
with their consent, stating that they would not raise the issues
of limitation, or of the locus standi of the appellant.

       18. In view of the above, the appellant preferred the          F
appeals which were dismissed vide impugned judgment and
order dated 24.11.2003, relying upon an observation made by
th~ Division Bench earlier, to the effect that, in view of the fact
that the Chatterjee brothers had withdrawn their appeals, and
that the Company Petition had been declared as not                    G
maintainable by the Company Court Judge, the question of
entertaining any appeal with respect to the same, could not
arise. After the withdrawal of the said appeals by the
Chatterjees, the appellant did not have any right to proceed with
the original application by any means, whatsoever.
                                                                      H
    726      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A       19. The High Court in the impugned judgment, did not take
   into consideration the effect of the order of this Court dated
   26.4.1996, and rendered the same a nullity, giving unwarranted
   weightage to the earlier orders of the Division Bench dated
   16.11J993 and 18.11.1993, for the reason that this Court, while
·B passing an order on 26.4.1996, did not set aside those orders,
   and therefore, the same remained intact. Furthermore, the Court
   did not examine whether a petition filed in representative
   capacity can be withdrawn unilaterally by the party before the
   court, and what effect Order XXlll Rule 1 (5) CPC which
c  provides that court cannot permit a party to withdraw such a
   case without the consent of the other parties, would have.

        20. The courts have consistently held, that a suit filed in
  representative capacity also represents persons besides the
  plaintiff, and that an order of withdrawal must not be obtained
D by such a plaintiff without consulting the category of people that
  he represents. The court therefore, must not normally grant
  permission to withdraw unilaterally, rather the plaintiff should be
  advised to obtain the consent of the other persons in writing,
  even by way of effecting substituted service by publication, and
E in the event that no objection is raised, the court may pass such
  an order. If the court passes such an order of withdrawal,
  knowing that it is dealing with a suit in a representative capacity,
  without the persons being represented by the plaintiffs being
  made aware of the same, the said order would be an unjustified
F order. Such order therefore, is without jurisdiction. (Vide: Mt.
  Ram Dei v. Mt. Bahu Rani, AIR 1922 Pat. 489; Mt. Jaima/a
  Kunwar & Anr. v. Collector of Saharanpur & Ors., AIR 1934
  All. 4; and The Asian Assurance Co. Ltd. v. Madho/a/ Sindhu
  & Ors., AIR 1950 Born. 378.)
G
          21. The relevant parts of the impugned order provided as
    under:

          I. Now the crucial question comes for consideration that
          when it is established fact as evident from the reading of
H         the order of the Hon'ble Supreme Court that there was· no
BHAGWATI DEVELOPERS PVT. LTD. v PEERl..ESS GEN. 727
  FINANCE INVEST. CO. LTD. [DR. S.S. CHAUHAN, J.]
   existence of the original Company Petition since                 A
   withdrawal of the Chatterjee brothers, can there be any
   existence of any appeal arising out of the said Company
   Petition and in our considered view the only answer to this
   crucial question must be in the negative.
                                                                 B
   II. Ac:Cording to the observation of the learned Single Judge
   the Company Petition was invalid and ineffective at the
   time of its institution, because, one of the Chatterjee
   brothers was not a "member" within the meaning of the
   Companies Act and at the same time one of the C
   consenting parties namely, R.L. Gaggar had withdrawn his
   consent soon after filing of the original application and on
   both these counts, even if the Chatterjee brothers had not
   withdrawn, the Company Petition could not be accepted
   as a valid petition in the eye of law and we have already
   recorded that these findings of the learned Single Judge . D
   were upheld by the Division Bench while disposing of the
   petitions filed by the BDPL and even taking the risk of
   repetition it can be stated that the Hon'ble Supreme Court
   did not interfere with the findings of the Division Bench in
   this regard while recording its order dated 26th April, E
   1996.

   Ill. We are ofthe view that the order of the previous Division
   Bench dated 16th November, 1993 and 2nd February,
   1995 were not touched by the Hon'ble Supreme Court               F
   regarding recognition of the withdrawal of Chatterjee
   brothers both from the appeals as well as from the original
   Company Petition and in that background the present
   appellant being a consenting party, and that consent too
   not being above legal scrutiny, has no legal right to proceed    G
   with the present appeals without the original application out
   of which the-appeals arose and which is non-existent in
   the eye of law.

  · And finally, it was held as under:
                                                                    H
    728       SUPREME COURT REPORTS                [2013) 5 S.C.R.


A         IV. Thus, for the reasons recorded hereinabove, we are of
          the view that the present appeals are not maintainable and
          on this ground alone the present appeals are liable to be
          dismissed and there is no requirement in the eye of law
          to enter into the other aspect- of the matter touching
B         maintainability of the original Company Petition.

        22. In our humble opinion, ,the Division Bench has gravely
  erred in taking the aforesaid view, as the same renders the
  order of this Court dated 26.4.1996, a nullity. This Court had
  passed the order after heari~ the present respondents on the
C basis of suggestions made; ~nd concessions offered by them. \
  It was in fact, suggested by the learned counsel appearing on
  behalf of the respondents, that if the' appellant prefers such
  appeals in the High Court even now, the respondents shall not
  raise any objection on the ground of limitation, and that they
D would not also object on the ground of the locus standi of the
  consenting shareholders. Thus, the same makes it clear, that
  the right of maintenance of an appeal against the judgment of
  the learned Single Judge dated 2.2.1995, was in fact an offer
  made by the respondents themselves, with a further undertaking
E being provided by them with respect to the question of
  limitation and locus standi of the appellant, stating that the
  same would not be raised. What was granted to them, was only
  permission, to raise the contention that, as on the date of actual
  filing of the Company Petition before the company court Judge,
F the petitioners alongwith the consenting parties, had 10 per cent
  share holding out of the total stakeholding of the company .

       The aforesaid terms of this Court have made it crystal clear,
  that this Court was entirely oblivious of the fact that there had
  been two orders passed by the Division Bench, permitting the
G withdrawal of the appeals and further, dismissing the application
  of the appellant for recalling the said orders. If this Court did
  not set aside the said orders, we fail to understand the purpose
  of asking the appellant to file an appeal against the judgment
H and order of the High Court dated 2.2.1995. Thus, by the
  BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 729
    FINANCE INVEST. CO. LTD. [DR B.S. CHAUHAN, J.]

 impugned order, the High Court has rendered the entire                A
 exercise undertaken by this Court, a futile one. In our humble
 opinion, the Division Bench has hence, erred gravely.

      23. W,e do not find any force in the submissions made by
 Shri Desai, to the effect that in view of Rule 88(2} of the Rules     8
 1959, the CPC had no application to the facts of the instant
 case. Rule 88(2) reads, that a petition under Sections 397 and/
 or 398 of the Act 1956, shall not be withdrawn without the leave
 of the court, and therefore, as per Shri Desai, the provisions
 of the CPC, as have been applied in the case on which Shri            C
 Gupta has relied upon, have no application in the instant case.
 Rule 6 reads as under:

      "Save as provided by the Act or by these rules the practice
      and procedure of the Court and the provisions of the Code
      so far as applicable, shall apply to all proceedings under       D
      the Act and these rules. The Registrar may decline to
      accept any document which is presented otherwise than
      in accordance with these rules or the practice and
      procedure of the Court."
                                                                    E
       24. It has been submitted by Shri Ashok H. Desai, learned
 senior counsel appearing on behalf of the respondents, that the
 phrase "so far as applicable", excludes the application of the
 CPC where a particular procedure is prescribed in the Rules
 itself, and as Rule 88(2) provides that any withdrawal will only F
 be permitted With the leave of the court, no further requirement ·
 can be presumed.

       25. We do not agree With such an interpretation, particularly
· with respect to a phrase, which. has been considered by this
  Court time and again.                                                G

      26. In City Improvement Trust Board, Bangalore v. H.
 Narayanaiah etc. etc., AIR 1976 SC 2403, this Court held, that
 the aforesaid phrase means, "what is not either expressly
 provided for, or applicable by way of necessary implication,          H
 must be excluded".
    730      SUPREME COURT REPORTS                   [2013] 5 S.C.R.

A      27. Similarly, in the case of Maktool Singh v. State of
  Punjab, Al R 1999 SC 1131, this Court held, that this phrase
  means, that a court/authority can exercise power only to the
  extent that such powers are applicable. In other words, if there
  is an interdict against the applicability of the said provisions,
B the court cannot use such provisions.

          28. If the interpretation given by the Division Bench of the
    High Court is accepted, it would not merely render the appellant
    remediless at whose instance, this Court had passed the order
    dated 26.4.1996, but would also defeat the doctrine embodied
C in the legal maxim, 'Ubi jus ibi idem remedium' (where there
    is a right, there is a remedy). This Court dealt with the aforesaid
    doctrine in Dhannalal v. Kalawatibai & Ors., AIR 2002 SC 2572
    and held, that "if a man has a right, he must have the m~ans to
    vindicate and maintain it, and also a remedy, if he is injured in
D the exercise and enjoyment of the said right, and that it is
    indeed, a vain thing to imagine a right without a remedy, for
    the want of a right and the want of a remedy, are reciprocal".
    (See also: Smt. Ganga Bai v. Vijay Kumar & Ors., AIR 1974
    SC 1126)
E
          29. It was respondent no.1 who had suggested to this
    Court to dispose of the appeal filed by the appellant, while giving
    it liberty to file an appeal against the order of the Company
    Court Judge. Therefore, it was not permissible for respondent
F no.1 to agitate the issue with respect to the fact that as the
    Supreme Court had not set aside the orders dated 16.11.1993
    and 18.11.1993, passed by the division bench of the Calcutta
    High Court, the same remained intact. Such an argument could
    not have been advanced by respondent no.1 before the division
    bench, in view of the legal maxim, 'Actus Curiae Neminem
G Gravabit i.e. an act of Court shall prejudice no man'. This Court
    dealt with the said maxim in Jayalakshmi Coelho v. Oswald
    Joseph Coelho, AIR 2001 SC 1084, and explained its scope,
  . observing:

H
BHAGWATI DEVELOPERS PVT. LTD. v PEERLESS GEN. 731
  FINANCE INVEST. CO. LTD. [DR. S.S. CHAUHAN, J.] ·

    " .... where the order may contain something which is not      A
    mentioned in the decree would be a case of unintentional
    omission or mistake. Such omissions are attributable to
    the Court who may say something or omit to say
    something.which it did not intend to say or omit. No new
    arguments or re-arguments on merits are required for           B
    such rectification of mistake. n

      The order of this Court dated 26.4.1996, if given strict
literal interpretation, would render the appellant remediless,
which is not permissible in law. (Vide: Rameshwarlal v.            C
Municipal Council, Tonk & Ors., (1996) 6 SCC 100).

     30. In view of the above, we are of considered opinion that
the Division Bench erred in holding that after the judgment of
this Court dated 26.4.1996, it was permissible for the High
Court to hold that the Company Petition under Sections 397/        D
398 of the Act 1956, was non-existence in the eyes of law while
placing reliance on the earlier judgments of the Division Bench
of the High Court dated 16.11.1993 and 18.11.1993.

     Thus, the appeals are allowed, the impugned judgment          E
and order of the High Court dated 24.11.2003 is hereby set
aside and the matters are remanded to be decided by the High
Court of Calcutta afresh giving strict adherence to judgment of
this Court dated 26.4.1996. While deciding the case afresh,
the Division Bench shall not take note of the earlier judgments
of the High Court dated 16.11.1993 and 18.11.1993.                 F

     As the matters are pending since long, in the facts and
circumstances of the case, we request the Hon'ble High Court
to decide the appeals expeditiously preferably within a period
of six month from the date of filing of certified copy of this     G
judgment and order before the High Court. There shall be no
ordier as to costs.

K.K.T                                        Appeals allowed.
                                                                   H