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OJCA/267/2010 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 267 of 2010
In
COMPANY
PETITION No. 81 of 2009
In
COMPANY APPLICATION No. 65 of 2009
=========================================================
REGIONAL
DIRECTOR (WESTERN REGION) - Applicant(s)
Versus
RELIANCE
PETROLEUM LIMITED & 3 - Respondent(s)
=========================================================
Appearance
:
MR
PS CHAMPANERI for
Applicant(s) : 1,
NANAVATI ASSOCIATES for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR VISHWAS K SHAH
for Respondent(s) : 3,
MR HEMANG M SHAH for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 25/03/2011
ORAL
ORDER
The
present application has been preferred by the Regional Director
(Western Region), seeking correction in the appearance on behalf of
the applicant in the orders dated 8.7.2009, 17.7.2009 and judgement
dated 22nd/29th July 2009 passed by this Court
as well as the appearance of the advocate on behalf of the applicant
at paragraph 15 in the judgement dated 22nd/29th
July 2009 passed by this Court. It may be recorded that four
companies/persons have been impleaded as parties namely; (1)
Reliance Petroleum Limited; (2) Mr.Rasiklal S. Mardia; (3)
Mr.Shailesh Prabhudas Mehta; & (4) Mr.V.M. Raste.
The
learned Counsel appearing for the respondents No.1, 3, and 4 have
declared before the Court that they have no objection if the
correction as prayed for is carried out. However, Mr.Rasiklal
Mardia, who is appearing as party-in-person, has resisted to the
present application by filing the affidavit dated 21st
September, 2010.
Hence,
under these circumstances, Mr.P.S. Champaneri, learned Assistant
Solicitor General and Mr.Rasiklal Mardia are heard by the Court for
the final disposal of the present application.
Reference
to the relevant record of the main proceedings and the order passed
therein shall be made to hereinafter, but it deserves to be
mentioned that as per the practice prevailing in the High Court of
Gujarat, even on the original side like the proceedings of the
Company Petition, rojnama of
the proceedings is neither being
prepared, nor the motion of application for adjournment is being
recorded every time, nor the learned Counsel or the party or either
party are required to submit any written application for adjournment
of the proceedings, unlike in the trial Court conducting the suit in
the original side under C.P.C.
It
is hardly required to be stated that whenever any matter is heard,
may be for some time, but unless it is culminated into orders of the
Court in the concerned proceedings, they are all to be considered as
ineffective hearing. It is in this light and background the present
application for correction is to be considered.
The
contention on behalf of the applicant is that Shri Harin P. Raval,
the then Assistant Solicitor General, representing the applicant,
was appointed as Additional Solicitor General of India vide
Notification dated 6.7.2009 of the Government of India and he took
over the charge of the office on 6.7.2009 and he left the country on
7th
July, 2009 by evening flight and came back to India on 15.7.2009.
Shri Harin P. Raval thereafter stayed at Ahmedabad on 15th
and 16th
July, 2009, but did not attend the Court and thereafter, he left for
Delhi on 19.7.2009. It has been further stated that thereafter,
Shri Raval never came back to Ahmedabad till 28.7.2009 when his
father was admitted into hospital and returned back to 30th
July, 2009 to Delhi. It has also been stated by the applicant that
Shri Raval has continuously appeared before the Hon’ble Supreme
Court of India in the matters of Government of India from 20.7.2009
onwards. Under these circumstances, in the title of the judgement
as well as at paragraph 15, the name mentioned of Shri Harin P.
Raval be corrected and it is also prayed that the appearance shown
in the title of the order dated 8.7.2009, 17.7.2009 may also be
corrected.
Whereas
Mr.Rasiklal Mardia, who has appeared as party-in-person before this
Court mainly raised the contention as stated in the
affidavit-in-reply namely; that there is no authorization to file
the present application and it has been contended that the Registrar
of Companies is acting in collusion with Shri Raval. It is also
submitted that no letter is filed by Shri Raval supporting
the said application and the affidavit is by the clerk working in
the office of Shri Hiran P. Raval at Ahmedabad and it was submitted
that there is no authorization to Mr.P.S. Champaneri, learned
Assistant Solicitor General of India to file the present application
on behalf of the applicant Registrar of Companies or the Regional
Director (Western Region) and it was submitted that the application
be dismissed.
It
deserves to be recorded that prior to the filing of the present
application, Shri Raval, learned Additional Solicitor General of
India had submitted a note for speaking to minutes by a letter to
the Registrar General of Gujarat High Court duly signed by him,
seeking correction in the orders dated 8.7.2009 and 17.7.2009 and
the judgement dated 22nd/29th
July 2009
and the same prayer was made as prayed in the present application
and the said note was filed through Mr.Champaneri, learned Assistant
Solicitor General of India. But thereafter the present application
has been filed. Therefore, when the said note for speaking to
minutes came up
for consideration on 2.7.2010, following order was passed:-
“In
view of the fact that the O.J. Civil Application No.267/10 has been
filed note for speaking to the minutes would not survive. Note
disposed of accordingly.”
Therefore,
it is not a matter where Mr.Raval has not prayed the said aspects in
the proceedings before this Court or that the deponent of the
present application has stated something contrary, which may vitiate
the basis on and behalf of Mr.Raval.
It
is hardly required to be stated that the position of Standing
Counsel of the Central Government or the Assistant Solicitor General
is unlike an individual Advocate, representing a particular client
by filing his Vakalatnama being an authority appointed for
such purpose and representing the matter. The Standing Counsel and
the Assistant Solicitor General of India, after their appointment,
would hold continuous authority to appear for Government of India or
its Department, unless the said Department is having its own panel
so specifically permitted by the Government of India. What may be
required for the Standing Counsel of the Central Government or the
Assistant Solicitor General would be the appearance note that he has
instructions to appear in the matter. Whether the Counsel or the
Assistant Solicitor General of India has, in fact, instruction to
appear and represent the cause of the Government of India or its
Department is a matter between him and the Government of India or
its concerned Department and normally this Court is not supposed to
examine the said aspects, unless the appointment of the very
Counsel has been terminated or any cogent material is produced to
the contrary. It is true that in the Company Petition No.81 of
2009, Regional Director, Department of Company Affairs was party,
representing the Central Government and as per the practice
prevailing, the Regional Director conveyed the instructions to the
Registrar of companies of the State and who, in turn, had passed
over the instructions to the Counsel of Government of India
representing the matter. Further, in any case, Mr.Harin P. Raval,
holding the office as Additional Solicitor General of India, after
6th July 2009 would be, in any case, a law officer of
Government of India, whose cause can be represented through Regional
Director. Mr.Champaneri, learned Assistant Solicitor General, in
any case, has authority to represent any litigation in Gujarat High
Court of Government of India or its Department, which would include
the Regional Director or the Registrar of Companies or even Mr.Harin
P. Raval as Additional Solicitor General of India and as the then
Assistant Solicitor General. Under these circumstances, it cannot
be said that the present application is without there being any
proper authority of the Regional Director or Shri Raval being the
law officer of Government of India.
It
deserves to be recorded that filing of appearance in the proceedings
before this Court and withdrawal and/or substitution of appearance
is administrative job to be discharged and considered by the
Registry/office of this Court, in any case, in the matter of title
generated with the help of computer. It is for the party concerned
or the Counsel concerned to move the office for substitution of the
appearance by following requisite procedure and office does it
without there being any judicial order of this Court. However, once
the proceedings are concluded by judicial order, such power or
authority would not available to the office/registry of the High
Court and under these circumstances, if any such situation arises,
note for speaking to minutes may be filed or if there is some
correction in the body of the judgement, the application may also be
filed for such purpose. But be it noted that such a correction, if
any, is to be made for change of the appearance or otherwise, it is
having no impact on the merit or demerit of the matter or can rather
be said as independent of the merits of the matter concerned. It is
in this light and the background the application is to be further
considered.
The
documents produced do support the application that Mr.Raval after
6th July 2009 since appointed as Additional Solicitor
General was not available at Ahmedabad for conducting the matter.
Mr.Mardia,
party-in-person filed affidavit-in-reply and at paragraph 5 it has
been stated as under:-
“I
am not disputing the fact that after his appointment as Additional
Solicitor General in the Supreme Court of India, he has not
appeared in this Hon’ble Court. However, can it be concluded that
he has withdrawn himself from the case.”
The
aforesaid makes it clear that even as per Shri Mardia, he admits
that Mr.Raval after his appointment as Additional Solicitor General
in the Hon’ble Supreme Court has not appeared before this Court,
which would include his non-appearance in the matter, meaning
thereby he has not appeared before this Court. Therefore, the
documents produced before this Court read with the aforesaid
admission by the party-in-person, makes it clear that after 6th
July, 2009, Mr.Raval has not appeared before this Court and,
therefore, on the basis of the aforesaid admission, the correction
as such can be granted.
The
attempt to contend that it cannot be concluded that Mr.Raval had
withdrawn himself from the case would be beyond the scope of the
preset application, inasmuch as the present application is for his
role, in the matter while conducting the case in this Court and
consequently for correction of the order showing his appearance in
the Court at the relevant point of time and not for any other aspect
which is sought to be agitated by Shri Mardia. Once a Counsel or
Advocate has ceased to appear in the matter before the Court, it is
to be considered that he has withdrawn himself from the case in
capacity as the Counsel or Advocate and, therefore, such aspect is
not required to be gone into further in the present application.
Hence, the said attempt cannot be countenanced.
Therefore,
as observed earlier on 8.7.2009, since Shri Raval had already
assumed the office as Additional Solicitor General on 6.7.2009, he
was physically not available, but in computer generated title his
name has been continued in the order dated 8.7.2009. Same thing has
continued in the computer generated title of the order dated
17.7.2009 as well as in the title of the judgement dated 22nd/29th
July 2009. Therefore, such title of the aforesaid three orders
deserve to be corrected. Further since the title of the order and
the board of the Court the name was so continued of Mr.Harin P.
Raval when the Court dictated the order on 22nd / 29th
July 2009, at paragraph 15, the observations were made to keep it
open to the petitioning Company to pay the cost of the Central
Government to Shri Harin P. Raval, but it appears that as on that
day, the appointment of Shri Harin P. Raval as Additional Solicitor
General was already known, the further description has been stated
as “the learned Assistant Solicitor General then, now
Additional Solicitor General.” Therefore, appropriate
consequential correction would be called for at paragraph 15 of the
said judgement also. But so far as the appearance of Iqbal Shaikh
is concerned, copy of the letter dated 13.7.2009 is produced at page
83 of the compilation showing instructions issued by the Registrar
of Companies to him for forwarding the copy of the affidavit and it
may be that he might have pursued the matter thereafter, but it was
for him to get his appearance substituted in the computerised title
of the matter in place of Mr.Raval.
The
party-in-person, Mr.Rasiklal Mardia has contended, inter alia, that
Mr.Raval had appeared before the Court on 2.7.2009 i.e. prior to his
appointment as Additional Solicitor General and the hearing could
not be concluded, but it appears that on 8.7.2009, the following
order as passed:-
“The
parties may complete the pleadings or exchange the affidavit, if
they so choose, latest by the evening of 13.7.2009. Matter shall be
placed for hearing on 15.7.2009.”
Thereafter,
there was exchange of pleadings also and on 17.7.2009 the effective
hearing had taken place and the Court passed the following order:-
” The
arguments are heard in part. The hearing is concluded of the
petitioner’s side as well as of three objectors’ side by Mr.
V.K.Shah, Mr. Hemang Shah with Mr. Shalin Mehta and Mr. Mardia, who
is appearing as party-in-person. Mr. Nanavati for the petitioner
states that he has to give reply. S.O. to 22nd
July, 2009 at 2:00 O’clock.
Thereafter
on 22.7.2009, order has been dictated in part and as the Court time
was over, it was adjourned to 29.7.2009 in the second sitting for
further dictation and the order has been concluded on that day.
Hence, it can be said that after completion of the pleadings,
effective hearing would begin, which was concluded by the final
judgement in the matter.
It
may be recorded that the attempt was made by the party-in-person,
Mr.Rasiklal Mardia to contend that in the SLP before the Hon’ble
Supreme Court, against the order of the Division Bench of this
Court, he has raised the ground about alleged improper approach on
the part of the Regional Director and the Central Government.
It
appears that such aspect cannot be gone into in the present matter,
since the same would travel beyond the scope of the application.
Further, if the merits of the matter and consequential modification
of the order is to be considered on merits of the case, such may not
be permissible, since after the judgement of this Court, the matter
was carried before the Division Bench and as stated, it has been
further carried before the Apex Court in the SLP and the said SLP is
pending. However, but for the fact that it is only a question of
correction of clerical aspects to be generated with the help of
computer and not at all concerning to the merits or demerits of the
matter, the present application has been considered for such limited
purpose.
In
view of the aforesaid observations and discussions, the following
orders:-
(a) The
name of Mr.Harin P. Raval for respondent No.1 in the computer
generated title of the orders dated 8.7.2009 and 17.7.2009 as well
as in the judgement dated 22nd
/ 29th
July, 2009 be deleted. Further consequently at paragraph 15 of the
judgement dated 22nd
/ 29th
July, 2009, the sentence “It would be open to the petitioning
company to pay the cost of the Central Government to Mr.Harin P.
Raval, learned Assistant Solicitor General then, now learned
Additional Solicitor General, by ‘Account Payee’ cheque directly.”,
be also deleted, leaving it to the Central Government to recover the
cost from the company concerned in accordance with law.
(b) It
is clarified and observed that the present order shall not be
treated as affecting or prejudicing the rights of either party on
the merits of the main cause of sanctioning the scheme of
amalgamation/merger, which was subject matter of Company Petition
No.81 of 2009 disposed of by the judgement dated 22nd
/ 29th
July, 2009.
The
application is disposed of accordingly.
(Jayant Patel, J.)
vinod
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