IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14903 of 2011 With SPECIAL CIVIL APPLICATION No. 15402 of 2011 To SPECIAL CIVIL APPLICATION No. 15405 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================== =
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ?
========================================== = PRAMODCHANDRA CHANDULAL PATEL & 4 - Petitioner(s) Versus GREEN SKY FARMS PVT.LTD REG.UNDR.INDIAN COMPANIES ACT & 6 - Respondent(s) ========================================== = Appearance :
MR SUNIT SHAH for PM BHATT for Petitioner(s) : 1 - 4. MR AJ PATEL for Respondent(s) : 1, MR HARSHADRAY A DAVE for Respondent(s) :2, 2.2.1, 2.2.2,2.2.3,2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.2.8,2.2.9 - 3, 3.2.1, 3.2.2,3.2.3 -
6, 6.2.1,6.2.2 - 7.
========================================== = CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 13/09/2012 CAV JUDGMENT
1. Petitioners in all these writ petitions are third parties who had filed an application for joining them as parties in respective suits filed by respondent No.1/original plaintiff against defendant owners.
2. That, suit was filed by the plaintiff against defendants for specific performance in terms of registered agreement to sale dated 1.8.1994 entered into between the plaintiff and the original defendant owners by enforcement in terms of the said agreement.
2.1. That nature of application preferred by third party in each of the civil suit, relief claimed therein and contention raised by the parties and order impugned passed therein of rejecting the application for joining as party are common and therefore all these writ petitions are taken up for final disposal with consent of the parties.
2.2. That, in all these writ petitions grounds of challenge to the order impugned dated 9.9.2011 passed by learned Principal Senior Civil Judge, Ahmedabad Rural, Ahmedabad, below respective exhibit in each of the civil suits are common and facts are taken from Special Civil Applications No.14903 of 2011 arising out of an interim order passed in Civil Suit No.445 of 2008.
2.3. The following Special Civil Suits are filed by the original plaintiff and respondent No.1 herein being 445 of 2008, 448 of 2008, 450 of 2008, 458 of 2008 and 453 of 2008 against original defendant No.1 for specific performance of registered agreement to sale dated 1.8.1994 with respect to various block/survey numbers situated at village: Khoraj, Taluka Sanand, District: Ahmedabad.
3. It is the case of the petitioners that the petitioners made payment to respondent No.1/original plaintiff company by providing financial assistance of Rs.20,000/- each and the registered agreement for sale dated 1.8.1994 was made with the original owners of the land in question in each of the case in favour of respondent No.1/plaintiff company. Thus, the petitioners are co-partners and have interest in the suit land in question which is the subject matter arising out of the above registered agreement to sale and, therefore, they are proper and necessary parties and ought to have been impleaded as such by allowing their applications filed in respective suit as prayed for.
4. Mr. Sunit Shah, learned advocate, for the petitioners in these writ petitions would contend that suits filed by the plaintiff against original defendants was with a view to take away entire benefit of registered agreement to sale and duped the petitioners who had issued cheques towards part payment of Rs.20,000/- from their bank accounts. The petitioners are deprived of the benefits of the above registered agreement to sale and conduct of plaintiff company, respondent No.1 herein and its Directors of not entering name of the petitioners except of one Prabhaben Patel after initial entires. Later on, in a systematic manner name of the petitioners was deleted and false record was created, for which, criminal case was instituted against Directors of respondent No.1/plaintiff company in the Court of learned Judicial Magistrate, Sanand. The above aspect along with written statements were brought to the notice of Civil Court supported by case law relied on and cited by the petitioners about legal position of joining third party in the suit proceedings particularly, when such party has vital interest in the outcome of suit proceedings and collusive suit is filed to deprive and divest the petitioners of legitimate benefits accrued out of their financial contribution while entering into registered agreement to sale as early as on 1.8.1994 made out a case for acceptance of prayer to implead and join them as party in the suit. It is, therefore, submitted that non-consideration of above arguments, written submissions, and case law relied on and rejection of application in each of the suit by order impugned in each of the petitions deserve to be quashed and set aside.
4.1. Learned advocate for the petitioners submit that the trial Court failed to take the notice about the nature of transaction between the parties including the plaintiff, original defendants owners and petitioners who had provided financial assistance towards part payment cheques were drawn accordingly and also signed as witness to the said documents and without assigning any reason and considering the case law, the order impugned passed suffers from vice of arbitrariness and illegality and, therefore, it deserves to be quashed and set aside.
4.2. Only a reference is made to the decisions cited at the bar as well as supplied along with written submissions but no finding is recorded either on fact or law and thus, order impugned in absence of reasons deserves to be quashed and set aside. It is further submitted that the factum of petitioners provided financial assistance from their account and cheque was issued out of such accounts to the original defendants and that no prejudice would have caused to either of the parties if the petitioners were joined as respondents, the trial Court ought to have accepted the application as prayed for.
5. In support of submissions as above, learned advocate for the petitioners relied on following decisions:
1. Jayesh Enterprise [M/s.] & Ors. V. Fakirchand Champaklal Shah & Ors. [1995 (2) GCD 321 (Guj)].
2. ONYX Music Absolute Com. Pvt. Ltd.; Kishore Patel; Rajan Patel; Bharati Patel; Rupa Patel vs. Yash Raj Films Pvt. Ltd; ONYX Mobile Pvt. Ltd.; Virtual Marketing India Pvt. Ltd. Yash Raj Films Pvt. Ltd. [2008 (6) BCR 418].
3. Mrs. Nellie Wapshare v. Pierce Leslie & Co. [AIR 1960 Madras 410].
4. New Horizons Limited v. Union of India [1994 AIR (Del) 126].
5. Spectrum Technologies USA Inc V. Spectrum Power Generation Company Limited [2002 (1) AD (Del) 203].
6. Nirad Amilal Mehta v. Genelec Limited [2008 (146) Company Cases 481]
7. PPN Power Generating Company Limited Rep. By its Managing Director Narayanan v. PPN (Mauritius) Company a Corporation Organised and Existing Under Laws of Mauritius [2006 (129) Company Cases 849]
6. As against above, learned advocate, for the original land owners and private respondents submit that the alleged amount of Rs.20,000/- paid by petitioners towards payment of an earnest money may be independent transaction between two individuals and they are not privy to such an agreement. As there is no privity to contract between the petitioners and private respondents filing of an application for joining them as a party, respondent or plaintiff was not maintainable and of no consequence. It is further submitted that registered agreement to sale is executed between respondent No.1/plaintiff, private respondents and the dispute is pending before the Civil Court and in any case if the petitioners had any grievance or any legal right exist in their favour it would also be open for them to take separate proceedings in this regard. It is submitted that merely signing the agreement as a witness or providing financial assistance or holding meeting with Director respondent No.1/plaintiff Company would by itself not sufficient and entitle the petitioners to raise a plea about entitlement of being the party in the proceedings. It is, therefore, submitted that the order passed by the trial Court rejecting the request of the petitioners to be joined as party respondent or party to the proceedings in Special Civil Suit in each of the case is just, proper and in accordance with law not warranting any interference of this Court in exercise of powers under Article 227 of the Constitution of India.
6.1. That is so, when the Civil Court has neither exceeded to exercise the jurisdiction nor exercised the jurisdiction not vested into it nor it can be said to have failed to exercise the jurisdiction and thus, in absence of any illegality in the order impugned all these petitions deserves to be rejected.
7. That before dealing with submissions of learned advocates for the parties it is necessary to consider case law referred by learned advocate for the petitioners by submitting faint xerox copies containing micro prints of the case law relied on in support of arguments.
So far as decision in the case of Jayesh Enterprise [M/s.] & Ors. (supra), the Court held that ordinarily a third party cannot be impleaded, but to do substantial justice, such party can be allowed to join. In the facts and circumstances of the above case, upon noticing certain factual aspects and the Court was convinced about exit of exceptional circumstances/ex-third party was allowed to join in the suit. The Court also noticed that third party was vitally interested on being assigned right, title and interest in the agreement in respect of immovable property.
In ONYX Music Absolute Com. Pvt. Ltd.; Kishore Patel; Rajan Patel; Bharati Patel; Rupa Patel (supra) where minority shareholders were permitted to initiate action against wrong doer otherwise fundamental principle of law is that Company is a legal person with perpetual succession and common seal and if Company is defrauded it can move against wrong doer.
In the case of Mrs. Nellie Wapshare (supra), it was held that the shareholders of the Company could sue in the circumstances of the case, apart from the company, in their own names, during the existence of the company so far as prevent the fraudulent trustees namely the defendant Secretary in the said case from putting forward the claim that because the company was juristically distinct from its shareholders the suit was not competent. In the peculiar facts and circumstances, the Court thought it fit to pierce the veil the Court based it decision on the principles of “constructive fraud” and “unjust enrichment” and principles of “fiduciary relationship”. In the above case, the Court noticed that the directorate of the law Company who were quasi trustees which later became major shareholders or partners in the new Company and it was further found that constructive fraud was propounded by the defendant-Company which led to their unjust enrichment. In the above circumstances, power of the Court to pierce the veil of corporate body was examined.
In the case of New Horizons Limited v. Union of India [1994 AIR (Del) 126], the Court extensively relied on 25th Edition of Palmer's Company Law. The paragraphs quoted from the above book if seen in paragraph 21 of the above judgment refer to various cases decided but ultimately reiterated the principle about Company being juristic person. A reference was made in the above cases of decision in the case of Life Insurance Corporation v. Escorts Ltd. Ors. [(1986) 1 SCC 264].
So far as Spectrum Technologies USA Inc v. Spectrum Power Generation Company Limited [2002 (1) AD (Del) 203] is concerned it was with regard to proposition that a suit can be brought by individual corporation in its private characters and asking in such character the protection of those rights to which in their corporate character they were entitled.
In Nirad Amilal Mehta v. Genelec Limited [2008 (146) Company Cases 481] is a case again about an exception to the rule that normally an individual shareholder would not be entitled to bring an action for a wrong allegedly done to the company but when a shareholder can show that wrong doers are in control of the Company and such Company would be unable to maintain the action, shareholders can bring forth an action.
In PPN Power Generating Company Limited Rep. By its Managing Director Narayanan v. PPN (Mauritius) Company a corporation Organised and Existing under Laws of Mauritius [2006 (129) Company Cases 849], is a case again about right of minority shareholders to take action against the wrong doers. The dispute was arising out of a Power Purchase Agreement (PPA) by the appellant company with the Tamil Nadu Electricity Board (TNEB) and inspite of failure to adhere to the condition pursuant to the above PPA, the management of the appellant Company had not taken any legal action against TNEB and right of the Company to recover the money would become time barred and issue was raised by nominee Director in the meeting of the Board of Directors and in the above backdrop of facts minority shareholders were permitted to take proceedings to invoke the arbitration clause by way of derivative action.
8. Thus, there is no straitjacket formula either for lifting the corporate veil and or permitting the third party and or a shareholder to initiate action or permission be granted to join in the proceedings. The petitioners in all these petitions were not privy to contract or transactions between plaintiffs and the defendants and had no interest in the land, for which, suit for specific performance was filed. At the most if the amount initially as averred is paid would at the most empower the petitioners to file a separate suit or any other proceedings. But under no circumstances they were justified in moving the application on the ground of issuing the cheque from their bank accounts an amount of Rs. 20,000/- while entering into agreement sale dated 1.8.1994 by the original plaintiff and defendants. The trial Court has noticed the above fact that no material was brought on the record, by which, exceptional circumstances did exist in favour of petitioners and even this Court also noticed that at the most initial payment may have been made from the account of the petitioners but even as per the case of the petitioners they were not in the Board of Directors and only Prabhaben Patel, was shareholder. An independent action in accordance with law is available to the petitioners if they have any grievance but rejection of application for joining as a third party in the suit filed the petitioners have no locus.
9. In the above circumstances, the trial court has not committed any illegality in rejecting the application for impleading the petitioners as parties in respective suits and in absence of any material on record, no case is made out even to lift the corporate veil as prayed.
10. In absence of merit all these petitions are rejected in exercise of powers under Article 227 of the Constitution of India. Notice discharged in each of the petitions.
11. For relying and supplying faint xerox copies containing micro prints the petitioners are fastened with cost of Rs.1,000/- per judgment per petition to be paid to High Court Legal Services Committee.
[ANANT S. DAVE, J.]
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