JUDGMENT
Vijender Jain, C.J.
1. This appeal has been preferred impugning the order of the learned Single Judge, dated 19.5.2005.
2. Senior counsel appearing for the appellants has contended that
the learned Single Judge has not taken into consideration the prayer made in the application filed by the appellants. In this regard, he has contended that in the application, the appellants specifically demanded interest on dividend. Our attention was drawn to paras 7 and 8 of the application, which are reproduced below:
7. That as such the petitioners are filing the present application before this Hon’ble Court. It is stated that the petitioners are entitled to interest which would have accrued on the said admitted amount of Rs. 1.51 crores deposited before this Hon’ble Court, had the same amount been deposited by the respondent-company with the Central Government in compliance of the provisions of the Companies Act, 1956.
8. That this Hon’ble Court ought to direct the respondent company to pay to the petitioners the amount accrued thereon as interest for the period during which the respondent company defaulted in depositing the said amounts in compliance of the provisions of the Companies Act.
3. Thereafter, Sh. Suri further contended that in para 9 of the application, the following prayer was made:
(a) Direct the respondent company to pay interest on the said amounts for the period during which the respondent company committed defaults in depositing the unpaid interest and dividend before the Central Government in compliance of the provisions of the Companies Act.
4. The other grievance of learned Counsel for the appellants is that the impugned order does not deal with the prayer as set out in the application.
5. The impugned order reads as follows:
Direction is sought for payment of interest in terms of Clause (iv) of the agreement which was recorded before this Court in C.P. No. 51 of 1998 on 30.10.1998. Clause (iv) is as under:
(iv) If any legal proceedings are initiated within the stipulated period by the petitioner and in the event decree is passed against Mr. P.D. Jain, the extent of amount received by him in this case shall be refunded with interest at the rate of 18% per annum for the period for which money is utilized by him. This clause be of no consequence in relation to other petitioners unless some orders are passed by court of competent jurisdiction.
6. The above clause applies only in the event of decree being passed against the petitioner in which event the petitioner is to refund the interest. Since such situation had not arisen, no further order is called for. Petition is disposed of.
7. At first instance the order appears to suggest that it suffers from non application of mind. However, a closer analysis, in the context of the facts of this case reveals otherwise. The appellants filed Company Petition No. 51 of 1998 for winding up of the respondent company. The parties resolved their differences and on 30.10.1998, the Company Court passed a consent order. It would, therefore, be necessary to reproduce the order passed by the Company Judge on 30.10.1998, which is in the following terms:
Learned senior counsel appearing for the respective parties, upon instructions from their respective instructive counsel, Mr. Anand Chhibber and Mr. B.R. Menon and Ms. Moti Chaudhary, respectively have stated in Court that this winding up petition can be disposed of on consented terms and conditions, which would settle this winding up petition. The agreed terms and conditions are as follows:
i. M/s Oswal Agro Mills Limited shall deposit a sum of Rs. 1.51 crores within four weeks from today with the Registrar of this Court.
ii. The petitioner M/s P.D. Jain and others through P.D. Jain, upon authority, would be entitled to withdraw the said amount subject to their furnishing bank guarantee for the said amount. The said bank guarantee shall be kept alive and renewed from time to time till the proceedings, if instituted by the present petitioner, are concluded and one month thereafter.
iii. The petitioner shall be deemed to have waived their right and amount of Rs. 1.51 crores will finally settle the claim of the petitioner, if the legal proceedings are not instituted within four months from today in accordance with law.
iv. If no legal proceedings are instituted within four months from today and the claim in terms of Clause (iii) shall stand settled, the respondent therein could withdraw their bank guarantee and all the claims and disputes between the parties would be deemed to have been settled and fully satisfied in terms of this settlement.
iv. If any legal proceedings are initiated within the stipulated period by the petitioner and in the event decree is passed against Mr. P.D. Jain, the extent of amount received by him in this case shall be refunded with interest at the rate of 18% per annum for the period for which money is utilised by him. The clause will be of the consequence in relation to other petitioners unless some orders are passed by the Court of competent jurisdiction.
v. M/s Oswal Agro Mills Limited under takes that they will supply the tax deduction certificate to the petitioner within a period of one month from today and would also continue to pay dividends in future.
vi. Liberty to either party to move the court in the event of default.
The above terms and conditions have the effective of disposing of this petition. The terms and conditions are accepted as undertaking of the respective parties to the Court. Consequently, this petition is finally disposed of in terms of the above agreed terms and conditions. Copy of the order be given dasti.
8. After the consent order, the respondent deposited a sum of Rs. 1.51 crores, within four weeks from the date of the order. The appellants after receiving the above amount filed a petition before the National Consumer Disputes Redressal Commission. Relevant observations of the Commission are as follows:
In our view, complainants cannot be permitted to choose forums to suit their convenience. In the winding up petition filed before the High Court complainants could have easily contended that apart from the amount stated in the agreement before the High Court they were also entitled to interest as provided under Section 205A(4) of the Companies Act.
Considering the nature of the dispute and the claim of the complainants to recover interest on the dividend/interest on debenture since 1986 onwards, which apparently appears to be stale, is not required to be dealt with or decided under the Consumer Protection Act. Hence, without deciding this complaint on merits, we dismiss the same and permit the petitioners to approach any other appropriate forum for the relief sought in these complaints.
9. Aggrieved by the said order, the appellants also tried their luck in the Supreme Court. When the matter was before the Supreme Court, they sought liberty to move to this Court and thereafter utilising that liberty, filed an application, which was dismissed by the impugned order and after dismissal of the said, the present appeal has been filed, which is before us.
10. We have heard learned Counsel for the parties.
11. The demand of interest on delayed payment is only an after thought. Our view is fortified from the contents of the Company Petition, which was filed by the appellants before the Company Court. In paras 15 and 16 of the Company Petition, the appellants had averred as follows:
15. That the petitioners were not paid any dividend for the entire period starting from 1988 till date, despite having repeated requests.
16. That the petitioners who are also the holders of non-convertible debentures as stated in para 7 above on which the respondent company had to pay an interest at the rate as set out in para 8 have also not been paid to the petitioners. That the said debentures which were to be redeemed on 23.6.1996 along with a redemption premium @ 5% per debenture, the petitioners have till date not received the same. A detail pertaining to the total amount due and payable to the petitioners towards the interest and the principal amount are more fully described in a table annexed to this petition and marked as Annexure.
12. A bare reading of paras 15 and 16 of the winding up petition presented by the appellants, before the learned Company Judge and the terms of the consent order, make it clear that the appellants cannot take a plea that the consent order did not consider the quantum of interst to be paid by the respondent to the appellants. As a matter of fact, the consent order contains two clauses numbered as (iv). The second Clause (iv) of the said consent order, which has been reproduced hereinbefore is absolutely clear.
13. It states that if any legal proceedings, are initiated within the stipulated period and any decree is passed against appellant No. 1, the extent of amount received by him would be refunded with interest @ 18% per annum for the period, for which money is utilised by him. As envisaged by Clause (iv), no decree has been passed. No proceedings could have been initiated by the appellant, as the respondent had agreed to pay a sum of Rs. 1.51 crores, as full and final amount settled between the parties for all the claims, which included the claim of interest. The application and the appeal are a sheer misuse of process of the Court. There is no merit in this appeal. Dismissed.