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CASE NO.: Appeal (civil)  1156 of 2006

PETITIONER: Avinash Hansraj Gajbhiye

RESPONDENT: Official Liquidator,M/s. V. Pharma. P. Ltd

DATE OF JUDGMENT: 17/02/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  ( @ SPECIAL LEAVE PETITION (CIVIL) NO. 23706 OF 2003)

P.K. BALASUBRAMANYAN, J.

1.              Leave granted. 2.              This appeal, as can be seen from paragraph 1 of  the Petition for Special Leave to Appeal, challenges the  order of the High Court of Bombay, Nagpur Bench dated  18.7.2003 whereby the Division Bench of the High Court  refused to review its judgment in Company Appeal No. 3 of  2002 dated 19.9.2002 dismissing the appeal.  Company  Appeal No. 3 of 2002 was filed by the appellant, the legal  representative of an ex-Director of M/s Vidarbha  Pharmaceuticals Private Limited, a company that went  into liquidation and which was ordered to be wound up in  Company Petition No. 7 of 1985 by order dated 9.11.1998.   Though that appeal was against the order dated 16.8.2002  in Company Application No. 56 of 2001, the appellant  attempted to challenge the earlier orders dated 7.9.2001  and 22.7.1999, passed during the winding up  proceedings.  By the order dated 7.9.2001,  the Company  Judge had dismissed the application No. 40 of 1999 filed  by the appellant for setting aside the order dated  22.7.1999 passed by him in a misfeasance application,  holding that all the ex-Directors of the Company were  jointly and severally liable under Section 543 (1)(a) of the  Companies Act to pay to the Company an amount of  Rs.6,29,220/- with interest thereon at the rate of 18% per  annum with effect from 6.10.1996 along with the costs of  the proceedings.  The order dated 22.7.1999 that was  sought to be challenged was the order on the misfeasance  application.  The order dated 16.8.2002 was one by which  the Company Judge rejected an application for review filed  by the petitioner seeking a review of the order passed on  7.9.2001.  The appeal was in time only as regards the  order dated 16.8.2002 refusing to review the earlier orders  in misfeasance proceedings passed by the Company  Judge.  The appeal was not accompanied by even an  application for condoning the delay in filing the appeal as  against the orders dated 7.9.2001 and 22.7.1999even  though the challenges to them were clearly barred by  limitation.  The Division Bench of the High Court,  therefore, ordered on 19.9.2002 that the orders passed by  the Company Judge on 7.9.2001 and 22.7.1999 were not  amenable to scrutiny for their sustainability in the appeal  filed and the appeal had to be confined to one from the  order dated 16.8.2002.  Thereafter, the appeal was  dismissed holding that the Company Judge was justified

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in refusing to review the orders passed in the Misfeasance  Application.  The appellant then filed a petition to review  the judgment in Company Appeal No. 3 of 2002.  By order  dated 18.7.2003, the application for review was dismissed.   It is that order that is challenged in this appeal.  

3.              For the purpose of this case, we do not think it  necessary to consider the question whether the appeal  filed before the Division Bench under Section 483 of the  Companies Act against an order refusing to review the  orders on the Misfeasance Application was maintainable,  the wide words of Section 483 notwithstanding (an order  rejecting an application for review is not appealable even  under the Code of Civil Procedure either under Order XLIII  Rule 1(w) or Order XLVII Rule 7).  We proceed on the  assumption that the appeal was maintainable. 4.              Learned counsel for the appellant submitted  that the order of the Division Bench sought to be reviewed,  proceeded on the basis that it was an appeal challenging  the order dated 16.8.2002 passed by the Company Judge  dismissing an application for review preferred by the  appellant and the order dated 16.8.2002 passed by the  Company Judge and the challenge thereto, included a  challenge to the prior orders dated 7.9.2001 and  22.7.1999.  This argument cannot be accepted.  The order  dated 16.8.2002 was that the Petition for review filed by  the appellant seeking a review of the order dated 7.9.2001  passed in Company Application No. 40 of 1999, which was  one for recalling the order dated 22.7.1999 was liable to  be dismissed.  The Company Judge after referring to the  facts leading to that application and considering the  merits of that application held that there was no error  apparent on the face of the record which justified a review  of the order dated 7.9.2001.  The application for review  was thus dismissed on 16.8.2002.  It was this order that  was dealt with in Company Appeal No. 3 of 2002 by the  Division Bench in its order which was sought to be  reviewed.  The order specified that the appeal was against  the order dated 16.8.2002.  Therefore, the application for  review filed by the appellant before the Division Bench  could be treated only as an application for review of the  order dated 19.9.2002 refusing to interfere with the order  dated 16.8.2002.  It is not possible to accept the argument  of learned counsel for the appellant that the Division  Bench while exercising its review jurisdiction or when  called upon to exercise its review jurisdiction was bound  to consider the reviewability or correctness of all the prior  orders including the order on the review petition.  5.              While dismissing the Petition for review of the  order dated 7.9.2001, on 16.8.2002, the Company Judge  found on the basis of the material on record of Company  Application No. 40 of 1999 and the contentions sought to  be raised by the appellant that there was no error  apparent on the face of the record in the order dated  7.9.2001.  Therefore, what was involved in Company  Appeal No. 3 of 2002 was only the correctness of that  order of the Company Judge and the Division Bench by its  judgment dated 19.9.2002, found no reason to interfere.    The review was sought by the appellant on the basis of  certain additional material which according to him had  relevance and the Company Judge had found that no  ground based on discovery of new and important matter  which after the exercise of due diligence was not within  the knowledge of the appellant or could not be produced  by him at the time when the original order was passed,

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was made out.  This finding by the Company Judge was  affirmed by the Division Bench in its order dated  19.9.2002.  When the appellant sought a review of that  order, as indicated earlier, the Division Bench considered  the conduct of the appellant right through the proceedings  and found that the appellant was indulging in dilatory  tactics just to thwart the order passed by the Company  Judge on the misfeasance application.  The court also  found that there was no ground made out for reviewing its  order dated 19.9.2002.  On a consideration of the relevant  aspects, we find that the Division Bench and the learned  single Judge were both justified in not acceding to the  prayer for review made by the appellant.  

6.              Learned counsel for the appellant submitted  that the order on the misfeasance application was made  without the appellant, who was only a legal representative  of one of the Directors, really getting an opportunity to put  forward his contentions. But on the materials,  it was  found that he had such an opportunity, a notice in that  behalf having been taken out to him and served on him.   His plea that he had no notice was found to be  unacceptable.  It is also seen that instead of taking  appropriate steps at appropriate times, the appellant had  indulged in initiating proceedings one after another which  were all found to be untenable and without merit.  In the  circumstances, one can only say that the appellant has to  thank himself for the situation he finds himself in, even if  there is any merit in his claims.  The High Court cannot  be faulted for refusing to review its order dismissing the  Company Appeal, or in dismissing the Company Appeal  itself.  

7.              Thus, we are satisfied that no ground is made  out for interference with the order of the High Court  challenged in this appeal.  The order of the High Court is  confirmed and this appeal is dismissed.