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aakashi lodha

SEBI was Right

Diwakar Kishore 13 October 2011 02:57

Reply-To: when-relatives-moot@googlegroups.com

To: when-relatives-moot

MANU/KE/0051/2009

Equivalent Citation: [2009]148CompCas411(Ker), ILR2009(1)Kerala596,[2009]90SCL351(Ker)

IN THE HIGH COURT OF KERALA

W.A. No. 2086 of 2008

Decided On: 02.01.2009

Appellants: V.O. JohnVs.

Respondent: Catholic Syrian Bank Ltd. and Ors.

Hon'ble Judges:J.B. Koshy, Actg. C.J. and Thomas P. Josiph, J.

Counsels:For Appellant/Petitioner/Plaintiff: K.P. Dandapani and Mullu Dandapani, Advs.

For Respondents/Defendant: P. Santhalingam and S. Sharan, Advs.

Subject: Company

Catch Words

Mentioned IN

Acts/Rules/Orders:Companies Act, 1956 - Sections 10F, 67, 67(3), 81, 81(1), 81(1A), 85, 89(1), 111and 397 to 405; Kerala High Court Act, 1958 - Section 5;Karnataka High Court Act,

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1962 - Section 4; High Courts Act, 1861 - Section 15; Government of India Act, 1915- Section 107; Government of India Act, 1935 - Section 224 and 224(2); Madhya

Pradesh Municipal Corporation Act, 1956 - Section 138; Rent Control Act; UnlistedPublic Companies (Preferential Allotment) Rules, 2003 - Rule 4; Bombay High Court

Appellate Side Rules - Rule 18; Constitution of India - Articles 37, 38(1), 226 and

227; Civil Procedure Code (CPC) - Section 9 and 115 - Order 43, Rule 1

Cases Referred:

Arumugham Chettiar v. Joseph [1961] KLT 823; India v. Vijaya Mohini Mills [1992] 1KLT 404; Umaji Keshao Meshram v. Radhikabai AIR 1986 SC 1272 : [1986] Suppl.

SCC 401; Gurushanth Pattedar v. Mahaboob Shahi Kulburga Mills AIR 2005 Karn377; Shahu Shikshan Prasarak Mandal v. Lata P. Kore [2008] 12 Scale 792; Hari

Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233; Aidal Singh v. Karan Singh AIR

1957 All 414 [FB]; Raj Kishan Jain v. Tulsi Dass AIR 1959 Punj 291; Barham Dutt v.Peoples' Co-operative Transport Society Ltd. AIR 1961 Punj 24; Sushilabai

Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha [1993] Suppl. (1) SCC

11; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1; T.C. Basappa v.T. Nagappa AIR 1954 SC 440; Surya Dev Rai v. Ram Chander Rai [2003] 6 SCC

675; Dr. T.M. Paul v. City Hospital P. Ltd. [1999] 97 Comp Cas 216; AmmoniaSupplies Corporation P. Ltd. v. Modern Plastic Containers P. Ltd. [1998] 94 Comp Cas

310 : [1998] 7 SCC 105; Waryam Singh v. Amarnath AIR 1954 SC 215; State v.Navjot Sandhu alias Afshan Guru [2003] 6 SCC 641; Nanalal Zaver v. Bombay LifeAssurance Co. Ltd. [1949] 19 Comp Cas 26 : AIR 1949 Bom 56; Sebastian M.

Hongray v. Union of India AIR 1984 SC 1026; Union of India v. G. M. Kokil AIR 1984SC 1022;Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [1986] 4 SCC447; Pannalal Bansilal Patil v. State of Andhra Pradesh AIR 1996 SC 1023;Municipal

Corporation, Indore v. Smt. Ratnaprabha AIR 1977 SC 308

Disposition:Appeal dismissed

*Case Note:

Constitution of India - Article 227--Writ Appeal is not maintainable againstthe judgment rendered by a Single Judge in exercise of supervisory

jurisdiction vested in the Court under Article 227 of the Constitution of India.

The Writ Appeal was filed challenging the judgment of the Single Judge, whoset aside the temporary injunction order passed by the Munsiff's Court,

restraining the Respondent-bank from proceeding further with its rights

issue, on the ground that the Civil Court did not have jurisdiction in thematter. The Respondent-bank is registered as Banking Company with an

authorised share capital of Rs. 100 crores. The Appellant is a shareholder of

two hundred shares with a face value of Rs. 10 each. At present, there are10,87,79,655 equity shares of Rs. 10 each, held by about 28,000shareholders. The Reserve Bank of India has issued directions to the bank to

fulfill the requirement of attaining a minimum net worth of Rs. 300 crores onor before 30-9-2007. Being a mandatory requirement, the Bank decided toincrease the Subscribed Capital by further issue of shares by offering right

shares to the existing shareholders. The special resolution was passed

unanimously at the Annual General Meeting to achieve the above purpose.Accordingly, letter of offer was issued by the Respondent-bank offering

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1,02,26,307 equity shares of Rs. 10 each at a premium of Rs. 110 per share,but adding a rider that the option for renunciation could be exercised only in

favour of existing shareholders of the bank. The resolution authorized andempowered the Board of Directors of the Bank to issue further shares of the

Bank by way of right issue, private placement, preferential or firm allotment,

public issue or by anyone or more of the above methods. The resolution alsoauthorised the Board of Directors as per Section 81 (1A) of the Companies

Act to issue shares through private placement on preferential basis as perRules. The Appellant along with 103 other shareholders filed an applicationunder Sections 397 and 398 of the Act before the Company Law Board,

alleging oppression and mismanagement by imposing such restrictions on

the basis of the resolution under Section 81(1A) of the Act. An interim orderwas passed on 29-6-2006 by the Company Law Board restraining the issue of

shares but it was vacated on 30-6-2006 itself and the Company Law Board

also held that the bank is at liberty to implement the resolution passed at theAnnual General Meeting and posted the case for further hearing. The casefiled before the Company Law Board was dismissed as withdrawn.

Immediately after vacation of the interim order by the Company Law Board,

the Bank approached the Reserve Bank of India for permission to issue theright shafts in implementation of the resolution passed in the Annual General

Meeting and though there was some delay, immediately on getting the

consent, the offer of Right Share was issued as per letter of offer. As per theabove offer, issue of share was to open on 15th August, 2007 and the issuewas to close on 29th August, 2007. Appellant filed a suit before the Munsiff's

Court, Thrissur to restrain the Bank from proceeding further with rights issuein pursuance of the letter of the offer and for other incidental reliefs.According to the Appellant, the above rights shares were issued in violation

of Sections 67 and 89(1) of the Act. The Appellant also prayed for temporary

injunction restraining the Bank from proceeding further with the rights issue.The bank, opposed that application contending that the offer of right shares

is issued perfectly in accordance with the law and it was issued on the basis

of the Special Resolution in the Annual General Meeting. As per the aboveresolution, the Board of Directors was given the power to restrict the sale ofshares to the existing shareholders and therefore, there is no violation of the

provisions of the Act. It was also contended that the suit is no maintainable

and that after filing a petition for alleged oppression and mismanagement ofthe company under Sections 397 and 398 of the Act before the Company Law

Board and obtaining an interim order against it, the Appellant cannot

approach the civil court for the same relief merely because the petition filedbefore the Company Law Board was withdrawn. It was further contendedthat only the Company Law Board can interfere in the matter, the matter is

within the exclusive jurisdiction of the Company Law Board and hence the

suit is not maintainable and the civil court had no jurisdiction over the

matter. The Munsiff Court found that the petition before the Company LawBoard was not maintainable and that the suit is maintainable. The MunsiffCourt further held that there is violation of Section 81(1)(c) of the Act, and

therefore granted the temporary injunction as prayed for by the Appellant.

The said order was challenged by the Respondent--bank in the Writ Petition.The Single Bench of the High Court, invoking the powers under Article 227,

set aside the injunction order, observing that the Civil Court did not havejurisdiction in the matter and the suit was not maintainable. The Single

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jurisdiction to deal with the same and civil court cannot interfere. But,whether the resolution taken to issue rights shares is correct or not, is not a

matter vested with Company Law Board for decision and Company Law Boardhas no jurisdiction to interfere with the resolution passed to issue rights

shares. Therefore, we are of the opinion that the civil court has jurisdiction

to deal with the matter.

Constitution of India--Article 227--The High Court, notwithstanding theappellate remedy, will be justified in interfering under supervisoryjurisdiction if the error is manifest or apparent on the face of the record, or

the order passed is in utter disregard of the provisions of law.

Held:

When an efficacious remedy is provided under the Code, a Writ Petitionunder Article 227 ought not to have been filed in the cloak of an appeal indisguise. But at the same time, jurisdiction under Article 227 cannot be

limited or fettered even by any Act of the Legislature. The supervisory

jurisdiction is very wide and can be used to meet the ends of justice andinterlocutory orders also can be set aside. Curtailment of revisional

jurisdiction of the High Court by amendment of Section 115 Code does not

take away or whittle down the power of superintendence, a constitutionalpower, conferred on the High Court under Article 227 of the Constitution. Asheld by the Hon'ble Supreme Court in State v. Navjot Sandhu [(2003) 6

S.C.C. 641], the power must be exercised sparingly, only to keep subordinatecourts and tribunals within the bounds of their authority to see that theyobey the law. The power is not available to be exercised to correct mere

errors. But if the error is manifest or apparent on the face of the record, or

the order was passed in utter disregard of the provisions of law, or graveinjustice or gross failure of justice has occasioned, High Court will be

justified in interfering under supervisory jurisdiction even with an appealable

interlocutory order to prevent grave injustice.

Companies Act, 1956 (Central Act 1 of 1956)--Sections 81(1A), 81(1)(C)--

The non obstante clause used in Section 81(1A) is with respect to a specific

provision under Section 81(1)(C) of the Act.

Held:

Section 81(1A) starts with a non obstante clause to the effect thatnotwithstanding anything contained in Sub-section (1), further shares can be

offered to any persons whether or not those persons are included in clause

(c) of Sub-section (1) provided, a special resolution is passed to that effect

by the company in the general meeting. A non obstante clause is a devicewhich is employed to give overriding effect to certain provisions over somecontrary provisions that may be found either in the same enactment or some

other enactment, that is to say, to avoid the operation and defects of all

contrary provisions, as held by the Supreme Court in Sebastian M. Hongraryv. Union of India (A.I.R. 1984 S.C. 1022). It is well-settled law that by a non

obstante clause, the legislature wants to give overriding effect to a section.The words, 'notwithstanding anything contained' is appended to a particular

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provision in the Act in the beginning with a view to give the enacting part ofthe section in case of conflict, an overriding effect over the provisions

mentioned in the non obstante clause. Here, the non obstante clause is usedin Section 81 (1A) of the Act with respect to a specific provision under

Section 81(1)(C) of the Act. It is true that under Section 81(1)(C), the offer

of shares shall include the right to renounce the shares offered to him or anyof them in favour of any other person, but that clause is not applicable

because as provided under Section 81(1A) a special resolution was passedunanimously in the Annual General Meeting allowing curtailment of the rightto renounce the shares offered to any other person. In view of the above

resolution, the Directors were entitled to decide that renunciation is

exercisable only in favour of existing shareholders of the Bank and this wasspecifically mentioned in the notice of offer and therefore, there is noviolation of Section 81(1)(C) and there is no illegality.

JUDGMENT

J.B. Koshy, Actg. C.J.

1. The first respondent-bank is registered as a banking company with an authorised

share capital of Rs. 100 crores. Now the bank is having 344 branches throughoutIndia with 9 zonal offices. The appellant is a shareholder of two hundred shares with a

face value of Rs. 10 each. At present, there are 10,87,79,655 equity shares of Rs. 10

each, held by about 28,000 shareholders. The Reserve Bank of India has issueddirections to the bank to fulfil the requirement of attaining a minimum net worth of

Rs. 300 crores on or before September 30, 2007. Exhibit P1 is the communication ofthe Reserve Bank of India to that effect. Even before issuance of the above

communication, the Reserve Bank has also formulated guidelines on ownership and

governance in private sector banks as can be seen from exhibit P2. Being amandatory requirement, the bank decided to increase the subscribed capital by

further issue of shares by offering right shares to the existing shareholders. Exhibit P3special resolution was passed unanimously at the annual general meeting held on

June 30, 2006, to achieve the above purpose. Accordingly exhibit P4, letter of offer,offering 1,02,26,307 equity shares of Rs. 10 each at a premium of Rs. 110 per share,

but adding a rider that the option for renunciation could be exercised only in favour of

existing shareholders of the bank was issued. Exhibit P3 would show that resolutionNo. 10(1) authorised and empowered the board of directors of the bank to issuefurther shares of the bank by way of right issue, private placement, preferential or

firm allotment, public issue or by anyone or more of the above methods. Resolution

No. 10(ii) shows that the board of directors was also authorised as perSection 81(1A) of the Companies Act, 1956 (for short, "the Act") to issue shares

through private placement on preferential basis as per Rule 4 of the Unlisted Public

Companies (Preferential Allotment) Rules, 2003 See [2004] 118 Comp Cas (St.) 3.The above rule provides for issue of shares on preferential basis on specific conditionsonly--(i) There should be an authorisation under articles of association; and (ii) There

should be a special resolution passed by the members in the general body meeting.Here the special resolution was passed authorising the board of directors to raiseadditional capital by issue of equity shares on preferential basis and/or throughprivate placement. Resolution No. 10(i) reads as follows:

Resolved pursuant to Section 81(1A) and other applicable provisions, if any, of

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the Companies Act, 1956, or any statutory amendment/modification or re-enactment thereof from time to time in force and the relevant provisions of the

articles of association of the bank, that the board of directors of the bank beand is hereby authorised and empowered to offer, issue and allot all or any of

the remaining unissued 6,59,04,921 equity shares of Rs. 10 each and

20,00,000 preference shares of Rs. 100 each in the capital of the bank at paror at such premium, at such time and on such terms and conditions as the

board may determine including by way of conversion of debt into equity, toany person or persons who may include non-resident Indians, foreigninstitutional investors, overseas corporate bodies, financial/investment

institutions, qualified institutional buyers, banks, mutual funds, other bodies

corporate, other entities, whether domestic or foreign, employees and/or anyother persons/individuals whether or not those persons/individuals/ institutions

include the holders ofequity shares in the bank, by way of rights issue. Private

placement, preferential or firm allotment. Public issue or by any one or more ofthe above methods, whether on the same terms and conditions or with varyingterms and conditions and whether at one time or from time to time or in such

manner and on such terms and conditions, whatsoever as may be deemed

appropriate by the board of directors.

(emphasis here printed in italics supplied)

2. Thereafter, resolution No. 10(ii) was passed in pursuance of Rule 4 of the UnlistedPublic Companies (Preferential Allotment) Rules, 2003 See [2004] 118 Comp Cas(St.) 3, read with Section 81(1A) of the Act and subject to the approval of the

Reserve Bank of India to authorise the board of directors to issue such number of

equity shares on such terms and conditions as may be deemed appropriate. This isevident from exhibit P3. Exhibit P4, letter of offer was issued as soon as the stay

issued by the Company Law Board was vacated and the Reserve Bank of India gave

permission. Articles 37 and 38(1) of the articles of association also provide for

increase in share capital subject to the directions issued by the company in thegeneral meeting in a special resolution effecting increase of capital. In exhibit P4,

letter of offer with regard to the renunciation of shares, the following restriction wasimposed:

...the board of directors after considering the legal opinion received by the bank on thescope of the first proviso to Section 67(3) of the Companies Act, 1956, getting attractedto the present rights issue, have decided to restrict the option for renunciation

exercisable only in favour of the existing shareholders of the bank so that the rights

offer, even remotely, does not become and cannot be treated as an offer made to thepublic.

3. The appellant along with 103 other shareholders filed an application (C.P. No. 36 of2006) under Sections 397 and 398 of the Act before the Company Law Board, alleging

oppression and mismanagement by imposing such restrictions on the basis ofresolution No. 10(ii) under Section 81(1A)of the Act. An interim order was passed onJune 29, 2006, by the Company Law Board restraining the issue of shares but it was

vacated on June 30, 2006 itself by exhibit P5 order and the Company Law Board also

held that the bank is at liberty to implement the resolution passe4 at the annualgeneral meeting held on June 30, 2006, pursuant to item No. 10 of the notice datedMay 3l, 2006 and posted the case for further hearing. C.P. No. 36 of 2006 filed

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alleging oppression and mismanagement was dismissed as withdrawn by order datedFebruary 15, 2008. Immediately, after vacation of the interim order and passing of

exhibit P5 order, the petitioner-bank approached the Reserve Bank of India forpermission to issue the rights shares in implementation of the resolution passed in the

annual general meeting and though there was some delay, immediately on getting the

consent, the offer of rights shares was issued by exhibit P4, letter of offer dated July27, 2007. As per the above offer, issue of shares was to open on August 15, 2007 and

was to close on August 29, 2007. The appellant filed a suit (O.S. No. 2141 of 2007)before the Munsiff s Court, Thrissur, to restrain the bank from proceeding further withrights issue in pursuance of exhibit P4, letter of offer and for other incidental reliefs. It

is stated in exhibit P6, plaint that the cause of action for that suit arose on July 23,

2007, when the offer was published in the Malayala Manorama daily and on August11, 2007, on which day, the appellant (plaintiff in the suit) obtained letter of offer

received by another shareholder. According to the appellant, the above rights shares

were issued in violation of Sections 67 and 81(1) of the Act. In the suit, the court feepaid is only Rs. 20 showing the valuation for the prayer as Rs. 500. The appellant alsoprayed for temporary injunction vide I. A. No. 77669 of 2007.

4. The bank, opposing that application, inter alia, contended that offer of rights sharesis issued perfectly in accordance with the law. It was issued on the basis of the special

resolution in the annual general meeting unanimously. The board of directors wasgiven the power to restrict the sale of shares to the existing shareholders as per theabove resolution and therefore, there is no violation of the provisions of the Act. It

was also contended that the suit is not maintainable, that after filing a petition foralleged oppression and mismanagement of the company underSections397 and 398 of the Act before the Company Law Board and obtaining an

interim order against it, it cannot approach the civil court for the same relief merely

because the petition filed before the Company Law Board was withdrawn. It wasfurther contended that only the Company Law Board can interfere in the matter, the

matter is within the exclusive jurisdiction of the Company Law Board and hence the

suit is not maintainable and the civil court had no jurisdiction over the matter. It isalso pointed out that the suit was filed by paying a court fee of Rs. 20 with a valuationof Rs. 500 by which the issuance of shares worth more than Rs. 2 crores, if got stayed

would cause irreparable loss and hardship, as no other shareholder out of 28,000shareholders challenged the above offer. It is also contended that when there is aneffective remedy of approaching the Company Law Board, approaching the civil courtis not at all justified and, if the Reserve Bank's direction to increase the share capital

is not allowed, the bank's future also will be affected. Learned munsiff found that thepetition before the Company Law Board was not maintainable and that the suit ismaintainable. It was further held that there is violation of Section 81(1)(c) of the Act,

and therefore by exhibit P9 order, the injunction order already passed was affirmed.

Exhibit P9 order was challenged by the bank in a writ petition on the very samecontentions raised in the civil suit. According to the appellant, if the order of the civil

court is in anyway illegal, it could have availed the appellate remedy instead of filing awrit petition under Articles 226 and 227 of the Constitution of India (for short, "theConstitution"). It is contended that if there is any vitiating factor in exhibit P9

injunction order passed by the civil court, the remedy of the bank was to approachthe appellate court as provided under Order XLIII, Rule 1 of the Code of Civil

Procedure (for short, "the Code"). Since efficacious remedy is available, the writpetition is not maintainable.

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5. By the impugned judgment, learned single judge found that prima facie the civilcourt has no jurisdiction. It is stated that, there is no violation of the mandatoryprovisions of the Act in the issue of rights shares. Learned single judge observed that:

If better materials are supplied, the question of jurisdiction can be considered at

appropriate time by the learned munsiff.

6. The learned single judge also noticed that the Company Law Board in its orderdated August 4, 2006 in C.P. No. 36 of 2006 has permitted the bank to implement the

resolution and allowed the bank to issue shares, the remedy of the appellant was to

challenge that order as per the provisions of the Companies Act and not by filing acivil suit. In any event, while issuing the shares, prima facie there is no violation of

the provisions of law and while passing exhibit P9 order, the material provisions of lawwere not considered. Learned single judge by invoking the jurisdiction under

Article 227 of the Constitution, set aside exhibit P9 order. It is stated at paragraph 10of the impugned judgment as under:

Since this Court is prima facie convinced of lack of jurisdiction as well as non

consideration of a material provision of law which goes to the root of the matter,jurisdiction is invoked under Article 227 of the Constitution of India to set aside exhibitP9 order.

7. This judgment is challenged by the appellant before this Court by contending thatthe view of the learned single judge that civil court has no jurisdiction to entertain the

matter is not correct, that there was violation of mandatory provisions of law whileissuing the rights shares, that writ petition ought not to have been entertained as it is

not maintainable, etc. Apart from the contentions raised earlier, the respondent-bank

contended that by the impugned judgment, learned judge exercised the jurisdictionunder Article 227 of the Constitution, which is a supervisory jurisdiction, no writ

appeal will lie against the impugned judgment and hence, the writ appeal is liable to

be dismissed at the threshold itself. It is further contended that civil suit itself wasdismissed subsequently as without jurisdiction based on the impugned judgment andtherefore, exhibit P9 order has become invalid and the appeal is infructuous.

8. The first question to be considered is, whether the writ appeal is maintainable. The

second question to be considered is, whether the view of the learned single judge thatthe suit is not maintainable is correct or not. Thirdly, if the suit is maintainable,

whether against the injunction order exhibit P9, a writ petition can be filed bypassingthe remedy provided under the Code. The next question to be considered is, if the suit

as well as the writ petition are maintainable, whether there is any violation of themandatory provisions of the Act in issuing the shares, and whether any prejudice is

caused so as to warrant interference under Article 227 of the Constitution. We shall

consider these questions in seriatum.

9. The preliminary question for our consideration is, whether the writ appeal ismaintainable when relief is granted by the learned single judge exercising supervisory

jurisdiction under Article 227 of the Constitution. Section 5 of the Kerala High CourtAct, 1958, provides as follows:

5. Appeal from judgment or order of single judge.--An appeal shall lie to a

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Bench of two judges from-

(i) a judgment or order of a single judge in the exercise of originaljurisdiction; or

(ii) a judgment of a single judge in the exercise of appellate jurisdictionin respect of a decree or order made in the exercise of originaljurisdiction by subordinate court.

10. After considering the above provision, this question was considered by a DivisionBench of this Court and it was held that supervisory jurisdiction under Article 227 isnot an original jurisdiction and therefore, no writ appeal is maintainable (see

Arumugham Chettiar v. Joseph [1961] KLT 823 and Union of India v. Vijaya Mohini

Mills [1992] 1 KLT 404). Section 5 of the Kerala High Court Act provides for intra

court appeal only against the orders passed by a learned single judge under theoriginal jurisdiction. The order passed under Article 227 is under supervisory

jurisdiction. After considering Clause 15 of the Letters Patent of the Bombay HighCourt, the Hon'ble Supreme Court in Umaji Keshao Meshram v.Radhikabai

MANU/SC/0132/1986 : [1986]1SCR731 , held that no appeal would lie against asingle judge's order or judgment passed in exercise of the supervisory jurisdiction

under Article 227 of the Constitution. The Full Bench of the Karnataka High Court(Bench consisting of five judges) in Gurushanth Pattedar v. Mahaboob Shahi Kulburga

Mills AIR 2005 Kar 377, also has taken the same view, after considering all the

decisions and after considering an identical provision for appeal, i.e., Section 4 of theKarnataka High Court Act, 1962. It was held that Article 227 of the Constitution

confers power of superintendence over all courts and tribunals throughout theterritory in relation to which the High Court exercises jurisdiction and such power of

superintendence is administrative as well as judicial and is capable of being invoked at

the instance of any person aggrieved or may even be exercised suo motu. It isequally needless to point out that there is difference between the writ of certiorari

under Article 227 and the supervisory jurisdiction under Article 227 of theConstitution. The proceedings under Article 226 are in exercise of the original

jurisdiction of the High Court while proceedings under Article 227 are not original butonly supervisory. By virtue of powers under Article 227, the High Court can keep

subordinate courts and tribunals within the bound of their authority and not correcting

mere errors. If the errors committed by the lower court or tribunal are manifest andapparent on the face of the record based on clear ignorance and in utter disregard ofthe provisions of law causing grave injustice, the supervisory jurisdiction can be

exercised under Article 227 to prevent injustice even when alternate remedies are

available, though such actions are done very sparingly. Section 4 provides for anappeal to the Division Bench from the judgment of learned single judge if the

judgment is passed in exercise of original jurisdiction and not in exercise of

supervisory jurisdiction. The right of appeal is a statutory right and where the statutehas provided for a right of appeal against the order passed by the learned singlejudge in exercise of its original jurisdiction, it has to be held that no appeal will lie

against the order passed under Article 227 of the Constitution. In this case, eventhough the writ petition was filed under Articles 226 and 227 of the Constitution ofIndia, the learned judge while disposing of the writ petition expressly stated that he

has interfered with the impugned order by exercising power under Article 227 of the

Constitution of India. Since the impugned judgment is passed under Article227 of theConstitution, a writ appeal is not maintainable. Therefore, we are of the view that the

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writ appeal is not maintainable and is liable to be dismissed.

11. However, learned Counsel for the appellant argued that even though learned

judge has exercised jurisdiction under Article 227 of the Constitution, since the writpetition was filed under Articles 226 and 227 and many of the pleadings in the writ

petition will attract the jurisdiction under Article 226, the writ appeal is maintainable.Learned Counsel placed reliance on the decision, of the apex court in Shahu ShikshanPrasarak Mandal v. Lata P. Kore MANU/SC/4178/2008 : (2009)ILLJ247SC , wherein

the Supreme Court has remanded the matter to the Division Bench of the High Courtfor deciding the question of maintainability of the writ appeal filed against a judgment

passed by a learned single judge in a writ petition under Articles 226 and 227 of theConstitution. In Umaji Keshao Meshram v. Radhikabai MANU/SC/0132/1986 :[1986]1SCR731 , the apex court held as follows, at paragraph 107 (page 473):

Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case

of Hari Vishnu Kamath v. Ahmad Ishaque MANU/SC/0095/1954 : [1955]1SCR1104 ,before this Court was of such a type. Rule 18 provides that where such petitions are filedagainst orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the

Appellate Side Rules or against decrees or orders of courts specified in that rule, they

shall be heard and finally disposed of by a single judge. The question is whether anappeal would lie from the decision of the single judge in such a case. In our opinion,

where the facts justify a party in filing an application either under Article 226 or 227 of

the Constitution, and the party chooses to file his application under both these articles,in fairness and justice to such party and in order not to deprive him of the valuable rightof appeal the court ought to treat the application as being made under Article 226 and, if

in deciding the matter, in the final order the court gives ancillary directions which may

pertain to Article 227, this ought not to be held to deprive a party of the right of appealunder Clause 15 of the Letters Patent where the substantial part of the order sought to

be appealed against is under Article 226. Such was the view taken by the Allahabad High

Court in Aidal Singh v. Karan Singh MANU/UP/0134/1957 : AIR1957All414 and by the

Punjab High Court in Raj Kishan Jain v. Tulsi Dass MANU/PH/0088/1959 and BarhamDutt v. Peoples' Co-operative Transport Society Ltd. MANU/PH/0011/1961 and we are in

agreement with it.

12. In Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha

MANU/SC/0042/1992 : AIR1992SC185 , at paragraph 4, it was held by the apex courtas follows (page 14):

The Full Bench of the Bombay High Court wrongly understood the above Umaji KeshoMeshram case. In Umaji case, it was clearly held that where the facts justify a party in

filing an application either under Article 226 or 227 of the Constitution of India and the

party chooses to file his application under both these articles in fairness to justice toparty and in order not to deprive him of valuable right of appeal the court ought to treatthe application as being made under Article 226 and if in deciding the matter, in the final

order the court gives ancillary directions which may pertain to Article 227, this ought notto be held to deprive a party of the right of appeal under Clause 15 of the Letters Patentwhere the substantial part of the order sought to be appealed against is under

Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15

of the Letters Patent provides for appeal to the Division Bench of the High Court fromthe judgment of the learned single judge passed on a writ petition under Article 226 ofthe Constitution. In the present case, the Division Bench was clearly wrong in holding

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that the appeal was not maintainable against the order of the learned single judge. Inthese circumstances we set aside the order of the Division Bench and direct that the

Letters Patent appeal filed against the judgment of the learned single judge would nowbe heard and decided on merits.

13. Therefore, it was argued vehemently that the writ appeal is maintainable.

14. In this case, in the impugned judgment in the writ appeal, learned single judgehas exercised jurisdiction under Article 227 and in view of the express statement

regarding the same in the judgment, there is no doubt for the same. The earlier view

that Article 226 will not lie against the orders passed by the civil court and writ ofcertiorari cannot be issued against a civil court's order has undergone a significant

change. After considering the decision of the nine member Bench of the apex court inNaresh Shridhar Mirajkar v. State of Maharashtra MANU/SC/0044/1966 :

[1966]3SCR744 , wherein it was held that a writ of certiorari will not lie to quash the

order of inferior court of civil jurisdiction and considering the decision of theConstitution Bench in T.C. Basappa v. T. Nagappa MANU/SC/0098/1954 :[1955]1SCR250 and Naresh Shridhar Mirajkar's caseMANU/SC/0044/1966 :

[1966]3SCR744 , the Supreme Court in Surya Dev Rai v. Ram Chander RaiMANU/SC/0559/2003 : AIR2003SC3044 , has held that (page 688):

19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court

subordinate to the High Court are amenable to writ jurisdiction of the High Court underArticle 226 of the Constitution.

15. But here, the question whether a writ under Article 226 can be issued or not is not

an issue to be considered as the learned judge has set aside exhibit P9 order of the

civil court exercising supervisory jurisdiction under Article 227 of the Constitution.Considering the wording of Section 5 of the Kerala High Court Act, we are of the view

that an appeal against an order under Article 227 is not maintainable. Assuming that

the writ appeal is maintainable against such order, we consider the other aspects ofthe case argued by the appellant, as both sides raised contentions on all points.

16. The second question raised for our consideration is whether a suit can be filed

against a special resolution passed by the bank for issuing rights shares. It is argued

by the appellant that learned single judge exercised jurisdiction under Article 227 ofthe Constitution on the assumption that suit was not maintainable. There is no

express provision in the Act barring jurisdiction of the civil court. Under Section 9 ofthe Code, the civil court has jurisdiction to try all suits of a civil nature except those of

which cognisance by the civil court is either expressly or impliedly barred. Suchexclusion cannot be readily inferred and the presumption should be made in favour of

existence of jurisdiction rather than exclusion of jurisdiction of the civil courts. In this

connection, we shall refer to the Division Bench decision of this Court in Dr. T.M. Paulv. City Hospital P. Ltd. [1999] 97 Comp Cas 216. The Hon'ble Supreme Court inAmmonia Supplies Corporation P. Ltd. v. Modern Plastic Containers P. Ltd.MANU/SC/0585/1998 : AIR1998SC3153 has held as follows (page 328 of 94 CompCas):

Unless jurisdiction is expressly or implicitly barred under a statute, for violation orredress of any such right, the civil court would have jurisdiction. There is nothing under

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the Companies Act expressly barring the jurisdiction of the civil court, but thejurisdiction of the 'court' as defined under the Act exercising its powers under various

sections where it has been invested with exclusive jurisdiction, the jurisdiction of thecivil court is impliedly barred.

17. It is true that certain provisions are specifically stated in the Act to be dealt withby the company court ("court" as defined in that Act) and certain provisions by theCompany Law Board (or Tribunal). The Company Law Board is not vested with the

power to hear appeals or applications alleging violation of Sections 81 and 81(1A) ofthe Act. It can exercise and discharge the powers and functions specifically conferred

on it as provided under Section 10F of the Act. It is also not a matter to be dealt withby the company court. If it is within the powers and functions conferred on the

Company Law Board, the aggrieved party can approach the Company Law Board and

not by filing a suit before the civil court. From the decisions of the Company LawBoard, an appeal is provided to the High Court (section 10F). With regard to matters

provided to be redressed by the "court" as defined under the Act, one can approach

only the company court and no civil suit can be filed. An appeal from the decision ofthe company court is also provided to the Division Bench of the High Court. It is

submitted by learned Counsel for the appellant that Sections 81 and 81(1A) dealswith further issue of capital and if rights shares are issued on the basis of the

resolution passed by virtue of the powers conferred under Section 81, finally thecompany has to register those shares. The appeal against refusal to register thetransfer of shares is specifically vested with the Company Law Board. Section 111 of

the Companies Act provides that if a company refuses to register the transfer ofshares or refuses to rectify the register of shares, the Company Law Board (now,Tribunal) can interfere in the matter. Hence suit is not maintainable. Registration of

transfer of shares is entirely different from the power to issue rights shares. It is true

that if the rights shares are issued and for any reason, the company refuses toregister the shares of a party, aggrieved party can approach the Company Law Board

and only the Company Law Board has exclusive jurisdiction to deal with the same and

civil court cannot interfere. But, whether the resolution taken to issue rights shares iscorrect or not, is not a matter vested with the Company Law Board for decision andthe Company Law Board has no jurisdiction to interfere with the resolution passed to

issue rights shares. Therefore, we are of the opinion that the civil court hasjurisdiction to deal with the matter.

18. It is contended by the respondent that earlier, writ appellant along with othersapproached the Company Law Board questioning; the resolution passed underSection 81(1A) contending that the clause that rights shares can be renounced only in

favour of an existing shareholder is an act of oppression and mismanagement, but the

appellant withdrew from the above case and finally that application itself waswithdrawn. Since the application was withdrawn, the interim stay was vacated and

the bank was permitted to issue rights shares in implementation of the special

resolution. It is true that Company Law Board (Tribunal) is vested with powersregarding relief in case of oppression and mismanagement as provided underSections 397 - 405 of the Act. What is contended in the suit is that the special

resolution under Section 81(1) of the Act itself is illegal as sufficient notice was notgiven to the shareholders as provided under the section and also because of therestriction in the right to renounce the rights shares offered, in favour of a non-

shareholder. Since C.P. No. 36 of 2006 was finally withdrawn, and that petition was

originally filed alleging oppression and mismanagement, we are of the view that

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merely because appellant was a party along with others in the petition filed underSections 397 and 398 and later appellant withdrew from the matter, that will not be a

bar in challenging the illegality in the resolution passed under Section 81(1A) of theAct before the civil court, if the appellant is alleging violation of statutory provisions.

Therefore, we are of the view that the suit was maintainable. Even the learned single

judge did not say that suit is not completely maintainable. Learned single judge hastaken the view that prima facie, the civil court has no jurisdiction and if better

materials are supplied, the question of jurisdiction can be considered at theappropriate time by the learned munsiff.

19. The next question is, whether the writ petition is maintainable challenging theimpugned order passed by the civil court. It is contended that if the suit is

maintainable, the exhibit P9 order impugned in the writ petition is not passed without

jurisdiction and therefore, writ petition cannot be filed against the above order andthe remedy of the petitioner-bank was to file appeal before the civil court as provided

under Order XLIII of the Code and not a writ petition. When an efficacious remedy is

provided under the Code, a writ petition under Article 227 ought not to have beenfiled in the cloak of an appeal in disguise. But at the same time, jurisdiction under

Article 227 cannot be limited or fettered even by any Act of the Legislature. Thesupervisory jurisdiction is very wide and can be used to meet the ends of justice and

interlocutory orders also can be set aside. Curtailment of revisional jurisdiction of theHigh Court by amendment of Section 115 of the Code does not take away or whittledown the power of superintendence, a constitutional power, conferred on the High

Court under Article 227 of the Constitution. The supervisory jurisdiction of the HighCourt is explained by the Supreme Court in Surya Dev Rai v. Ram Chander RaiMANU/SC/0559/2003 : AIR2003SC3044 , as follows (page 688):

22. Article 227 of the Constitution confers on every High Court the power of

superintendence over all courts and tribunals throughout the territories in

relation to which it exercises jurisdiction excepting any court or tribunal

constituted by or under any law relating to the armed forces. Without prejudiceto the generality of such power the High Court has been conferred with certain

specific powers by Clauses (2) and (3) of Article 227 with which we are not

concerned hereat. It is well-settled that the power of superintendence soconferred on the High Court is administrative as well as judicial, and is capableof being invoked at the instance of any person aggrieved or may even be

exercised suo motu. The paramount consideration behind vesting such widepower of superintendence in the High Court is paving the path of justice andremoving any obstacles therein. The power under Article 227 is wider than the

one conferred on the High Court by Article 226 in the sense that the power of

superintendence is not subject to those technicalities of procedure ortraditional fetters which are to be found in certiorari jurisdiction. Else theparameters invoking the exercise of power are almost similar.

23. The history of supervisory jurisdiction exercised by the High Court, and

how the jurisdiction has culminated into its present shape under Article 227 ofthe Constitution, was traced in Waryam Singhv.Amarnath MANU/SC/0121/1954 : [1954]1SCR565 . The jurisdiction can be

traced back to Section 15 of the High Courts Act, 1861, which gave a power of

judicial superintendence to the High Court apart from and independently of theprovisions of other laws conferring revisional jurisdiction on the High Court.

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Section 107 of the Government of India Act, 1915 and then Section 224 of theGovernment of India Act, 1935, were similarly worded and reproduced the

predecessor provision. However, Sub-section (2) was added in

Section 224 which confined the jurisdiction of the High Court to suchudgments of the inferior courts which were not otherwise subject to appeal or

revision. That restriction has not been carried forward in Article 227of theConstitution. In that sense Article 227of the Constitution has width and vigourunprecedented.

(emphasis here printed in italics supplied)

20. As held by the Hon'ble Supreme Court in State v. Navjot Sandhu alias Afshan

Guru MANU/SC/0396/2003 : (2003)6SCC641 , the power must be exercisedsparingly, only to keep subordinate courts and tribunals within the bounds of their

authority to see that they obey the law. The power is not available to be exercised to

correct mere errors. But if the error is manifest or apparent on the face of the record,or the order was passed in utter disregard of the provisions of law, or grave injusticeor gross failure of justice has occasioned, the High Court will be justified in interfering

under supervisory jurisdiction even with an appealable interlocutory order to preventgrave injustice.

21. The next question to be considered is, whether the impugned judgment passed by

the learned judge exercising jurisdiction is justifiable. According to the bank, exhibit

P9 order is patently illegal and passed in utter disregard to the provisions of lawcausing irreparable hardship or grave injustice to the writ petitioner warranting

interference under the supervisory jurisdiction. According to the appellant, passing ofthe special resolution is violative of Section 67(3). Section 67(3) is admittedly not

applicable as that is applicable only with regard to offer of shares made to the public.

No arguments were placed before us by the appellant regarding this. With regard toviolation of Section 81(1), we quote the relevant portion of Section 81, which reads as

follows:

81. Further issue of capital.--(1) Where at any time after the expiry of two

years from the formation of a company or at any time after the expiry of one

year from the allotment of shares in that company made for the first time afterits formation, whichever is earlier, it is proposed to increase the subscribedcapital of the company by allotment of further shares, then,-

(a) such further shares shall be offered to the persons who, at the date

of the offer, are holders of the equity shares of the company, inproportion, as nearly as circumstances admit, to the capital paid-up onthose shares at that date;

(b) the offer aforesaid shall be made by notice specifying the number of

shares offered and limiting a time not being less than fifteen days fromthe date of the offer within which the offer, if not accepted, will bedeemed to have been declined;

(c) unless the articles of the company otherwise provide, the offer

aforesaid shall be deemed to include a right exercisable by the person

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concerned to renounce the shares offered to him or any of them infavour of any other person; and the notice referred to in Clause (b)shall contain a statement of this right;

(d) after the expiry of the time specified in the notice aforesaid, or on

receipt of earlier intimation from the person to whom such notice isgiven that he declines to accept the shares offered, the board ofdirectors may dispose of them in such inanner as they think mostbeneficial to the company.

Explanation.--In this sub-section 'equity share capital' and 'equity shares' havethe same meaning as in Section 85.

(1A) Notwithstanding anything contained in Sub-section (1), the further

shares aforesaid may be offered to any persons whether or not thosepersons include the person referred to in Clause (c) of Sub-section (1)in any manner whatsoever-

(a) if a special resolution to that effect is passed by the companyin general meeting, or

(b) where no such special resolution is passed, if the votes cast(whether on a show of hands, or on a poll, as the case may be)

in favour of the proposal contained in the resolution moved in

that general meeting (including the casting vote, if any of thechairman) by members who, being entitled so to do, vote inperson, or where proxies are allowed, by proxy, exceed the

votes, if any, cast against the proposal by members so entitled

and voting and the Central Government is satisfied, on anapplication made by the board of directors in this behalf, that

the proposal is most beneficial to the company.

(2) Nothing in Clause (c) of Sub-section (1) shall be deemed-

(a) to extend the time within which the offer should beaccepted; or

(b) to authorise any person to exercise the right of renunciation

for a second time on the ground that the person in whose favourthe renunciation was first made has declined to take the sharescomprised in the renunciation....

22. Section 81 comes into play whenever it is proposed to increase the subscribedshare capital of the company by allotment of further shares. The new shares must be

offered to the existing holders of equity shares in the proportion of the shares held bythem as provided under Section 81(1)(a). That is done here. The object of the sectionas held by the Bombay High Court in Nanalal Zaver v. Bombay Life Assurance Co.

Ltd. [1949] 19 Comp Cas 26 : AIR 1949 Bom 56, is that there should be an equitable

distribution of shares and the ratio of the holding shall not be affected by the issue ofnew shares. Section 81(1)(b) provides that notice should fix a time which should not

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be less than 15 days from the date of offer within which the offer must be accepted.Section 81(1)(c) provides that the notice shall inform the shareholders that they have

the right to renounce all or any of the shares offered to them in favour of theirnominees. But the operation of Section 81(1)(a) to (c) can be excluded and new

shares can be offered to outsiders to the total exclusion of the shareholders if the

company passes a special resolution to allot the new shares in a different mannerthan what is provided in the section. Here a special resolution was also passed in

accordance with the provisions of Section 81(1A) of the Act authorising the board ofdirectors to make deviation from the provisions of Section 81 of the Act.

23. It is the contention of the appellant that there is violation of Section 81(1)(b) ofthe Act as 15 days time was not given from the date of offer. Exhibit P4 is the offer

for issue of rights shares. It is dated July 21, 2007. The issue was open on August 16,

2007 and the closing date was on August 29, 2007. The date of offer and the date ofopening of issue of shares are different. The contention of the appellant is that issue

opens on August 16, 2007 and before its closing, 15 days is not there and hence it is

violative of Section 81(1)(b). The wording of Section 81(1)(b) is very clear that thereshould be 15 days time from the date of offer so that the person offered with rights

shares has sufficient time to mobilise money to accept the offer. In the suit, it waspleaded by the appellant that the offer was published in Malayala Manorama daily on

July 23, 2007. Exhibit P4 is dated July 21, 2007. That shows that date of offer was onJuly 21, 2007 and sufficient advance notice was there and more than 15 days timewas given from the date of offer even before the opening of the issue. The second

contention is regarding violation of Section 81(1)(c). Section 81(1A)is an exception toSection 81(1) inclusive of Section 81(1)(c). Section 81(1A) starts with a non obstanteclause to the effect that notwithstanding anything contained in Sub-section (1),

further shares can be offered to any persons whether or not those persons are

included in Clause (c) of Sub-section (1) provided, a special resolution is passed tothat effect by the company in the general meeting. A non obstante clause is a device

which is employed to give overriding effect to certain provisions over some contrary

provisions that may be found either in the same enactment or some other enactment,that is to say, to avoid the operation and defects of all contrary provisions, as held bythe Supreme Court in Sebastian M. Hongray v. Union of India AIR 1984 SC 1026. It is

well-settled law that by a non obstante clause, the Legislature wants to give anoverriding effect to a section. The words, "notwithstanding anything contained" isappended to a particular provision in the Act in the beginning with a view to give theenacting part of the section in case of conflict, an overriding effect over the provisions

mentioned in the non obstante clause, as held by the Supreme Court in Union of Indiav. G. M. Kokil MANU/SC/0210/1984 : (1984)IILLJ20SC and Chandavarkar Sita RatnaRao v. Ashalata S. Guram MANU/SC/0531/1986 : [1986]3SCR866 . A non obstante

clause is a legislative device to modify the ambit of the provision or law mentioned in

the non obstante clause, as held by the Supreme Court in Pannalal Bansilal Patilv. State of Andhra Pradesh MANU/SC/0276/1996 : [1996]1SCR603 . In Municipal

Corporation, Indore v. Smt. Ratnaprabha AIR 1977 SC 308, the hon'ble SupremeCourt considered Section 138(b) of the Madhya Pradesh Municipal Corporation Act,1956, which enacts that the annual value of any building shall notwithstanding

anything contained in any other law for the time being in force be deemed to be thegross annual rent at which such building might reasonably at the time of assessment

be expected to be let from year to year. In view of the non obstante clause, theSupreme Court held that annual letting value determined under Section 138(b) need

not in every case be limited to the standard rent which might be fixed for the building

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under the Rent Control Act. Here, the non obstante clause is used in Section 81(1A) ofthe Act with respect to a specific provision under Section 81(1)(c) of the Act. It is true

that under Section 81(1)(c), the offer of shares shall include the right to renounce theshares offered to him or any of them in favour of any other person, but that clause is

not applicable because as provided under Section 81(1A) a special resolution was

passed unanimously in the annual general meeting allowing curtailment of the right torenounce the shares offered to any other person. In view of the above resolution, the

directors were entitled to decide that renunciation is exercisable only in favour ofexisting shareholders of the bank and this was specifically mentioned in the notice ofoffer and therefore, there is no violation of Section 81(1)(c) and there is no illegality

and exhibit P9 order is patently illegal as it was passed in disregard to the provisions

of law. We have already stated that in view of the Reserve Bank of India's circular,the bank has to increase the share capital and the bank would have obtained by way

of rights shares an amount of Rs. 122,71,56,840 in August, 2007 and interest on the

above amount itself is very huge. When there are more than 28,000 shareholders,appellant who paid Rs. 20 as court fee and who is having only 200 shares filed thesuit and caused this situation. The appellant has no right to represent other

shareholders. Only two or three shareholders came forward and supported the

appellant pursuant to the notice issued. The special resolution was passedunanimously in the annual general meeting and considering the grave injustice caused

by the stay order based on a patently illegal interpretation of law, we are of the view

that the learned single judge was right in interfering with exhibit P9 by exercisingsupervisory jurisdiction to prevent failure of justice.

24. A patent illegality causing grave injustice is prevented by the impugned judgment.In any event, we have already stated that learned judge passed the impugned

judgment only under Article 227 of the Constitution as expressly stated in the

judgment and the writ appeal is not maintainable and even if it is maintainable, norelief can be granted in an intra court appeal as learned judge has correctly exercisedthe supervisory jurisdiction.

The writ appeal is dismissed with costs.

*A reproduction from ILR (Kerala Series)

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