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Vijay Gupta v/s Sanjoy Kumar Gupta

    C.O. No. 3887 of 2017

    Decided On, 17 January 2018

    At, High Court of Judicature at Calcutta


    For the Petitioner: Shibasis Ghosh, Pran Gopal Das, Advocates. For the Respondents: Soumen Dutta, Pinaki Brata Ghosh, Susmita Mazumdar, Pridarshini Banerjee, Advocates.

Judgment Text

1. This revision is at the instance of the first defendant in a suit, inter alia for declaration that all the authorities of the said first defendant under a power-of-attorney given by the plaintiffs are ceased for ever from the date of execution of the revocation of the said power by the plaintiffs on November 05, 2012 and for other consequential reliefs. In such a suit, the first defendant/petitioner filed an application for being transposed to the category of plaintiff. By virtue of the impugned order dated November 13, 2017, the trial judge has rejected such application upon holding that there is no cogent ground to transpose the defendant no. 1 a

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s plaintiff.

2. It is argued by the petitioner that the impugned order is entirely devoid of reasons and, as such, ought to be set aside on that score alone. In support of such proposition, the petitioner cites a judgment, reported at 2007 (4) CHN 712 (Uniworth Resorts Limited v. Ashok Mittal & Anr.), wherein it was inter alia held as follows:

"11. In passing the order under appeal, the Company Law Board has completely abdicated its jurisdiction, and obligation, as to the decision-making process. The order passed may as well be a rubber stamp prepared to be used in every case where the Company Law Board is of the opinion that the amendments prayed for should be allowed. There is no reference to any fact or the context in which the amendments were sought to be allowed. There is no mention of what grounds were urged in opposition and why such grounds were unmeritorious. The Tribunal need not have expended pages over the matter but it was necessary to indicate why the order came to be passed.

12. Judicial orders of such nature need to meet the twin tests of "why" and "what". It is the "why" that sustains the "what", reasons are the safeguard, against the ipse dixit of the decision making process. They discuss how the judicial mind has been applied to the matter in issue and convey the nexus between the matters that have been considered and the conclusion based thereon. The justification and the reasonableness of a conclusion depend on the reasons given in support thereof. The order impugned has no element of "why" for the "what" therein to stand on.

13. It is also of some significance that the impugned order has been made at the threshold of proceedings where a petitioner has to pass the just and equitable test before he can have a look in. The Company Law Board has inherited a jurisdiction that has a rich legacy. It has the authority, in such jurisdiction, to hold that a perfectly legal act may, in the context, be inequitable or that an apparently illegal act is justified in the context or by necessity.

14. The order impugned does show inadequacy of reasons, it has no reasons at all. And in giving no reasons in making the order, a question of law has arisen that can be taken up under Section 10F of the Act.

15. The order impugned is set aside. The Company Law Board shall hear the matter afresh and, if legal submissions are made and "plethora of cases" are placed, they will be referred to and discussed in the order that may be passed upon the fresh consideration of the matter following this remand."

3. Next, the petitioner submits that where plaintiffs do oppose the prayer for transposition, there could be any reason for the trial court to refuse such prayer. Since the carriage of proceedings lies with the plaintiffs, without any opposition from the plaintiffs, an application for transposition ought to be readily allowed. In support of such proposition, the petitioner relies on a judgment, reported at (2004) 10 SCC 745 (Kiran Tandon v. Allahabad Development Authority & Anr.). In the said report, it was held by the Supreme Court that the court has power under sub-rule (2) of Order I Rule 10 of the Code of Civil Procedure to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made.

4. In the case at hand, a perusal of the plaint shows that the entire body of allegations made therein is against the first defendant. In the event the said defendant is transposed to the category of a plaintiff, the effect would be that the plaintiff has instituted the suit against himself, in the process praying for several decrees against himself. The concept of alter ego cannot be stretched to such a limit that an absurd interpretation of the provisions of Order I Rule 10 of the Code can be arrived at. If in the present suit, the first defendant admits the claims of the plaintiffs, at best a judgment on admission could follow. In the event the first defendant has other claims, he could have filed a separate suit. However, transposition of the first defendant to the category of plaintiff will result in a ridiculous position and cannot thus be encouraged by any court of law.

5. As to the case of Uniworth Resorts Limited (supra), the proposition that judicial orders have to meet the twin tests of "why" and "what" cannot be in doubt. However, mere absence of proper reason cannot vitiate an order to such an extent that a revisional court will set aside the order and grant the prayer refused by such order even if such prayer is maintainable in law. This apart, in the present case, the court below has come to the finding that there is no cogent ground to make transposition of the first defendant to the category of plaintiff, which is otherwise borne out by the materials on record. Hence the impugned order is entirely devoid of reasons.

6. As to the other judgment cited, being Kiran Tandon (supra), in the present case the plaintiffs have not agreed to, or joined in making, any prayer for transposition but have chosen to remain silent on that score. Moreover, although carriage of proceedings lies with the plaintiffs, the absence of opposition or agreement on the part of the plaintiffs cannot justify the court passing an order, which will lead to absurd consequences.

7. In the present case, although the extent of reasons given by the court below may be cryptic and unhappy, such technical flaw in the impugned order cannot justify the prayer for transposition of the petitioner.

8. In view of the above discussions, the impugned order does not justify interference. As a result, C.O. No. 3887 of 2017 is dismissed on contest, but without any order as to costs.

9. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.