IN THE HIGH COURT OF JUDICATURE AT PATNA COMPANY APPEAL (DB) No.14 of 2009 MAHENDRA PRASAD SON OF LATE ANANT RAM, RESIDENT OF BARI ROAD, P.S. KOTWALI, DISTRICT GAYA …….. APPELLANT Versus 1. SHREE VISHNU ROLLER FLOUR & OIL MILLS (P) LTD. (IN LIQUIDATION) THROUGH OFFICIAL LIQUIDATOR, MAURYA LOK, DAK BUNGLOW ROAD, PATNA 2. NARESH KUMAR SON OF LATE ANANT RAM, RESIDENT OF BARI ROAD, KATHOKAR TALAB, P.S. KOTWALI, DISTT. GAYA 3. OFFICIAL LIQUIDATOR, BLOCK A, MAURYA LOK COMPLEX, DAK BUNGLOW ROAD, PATNA …… RESPONDENTS. ----------- For the Appellant : Dr. Arun Kumar, Advocate For the Official Liquidator : Mr. Alok Kumar Agrawal, Advocate ---------- 6. 13.8.2009 1. Heard learned Counsel for the appellant and learned Counsel appearing for the Official Liquidator. We have perused the order under appeal dated 9.4.2009 and heard the parties on several dates. The Company Judge has not accepted as true the plea of the appellant that he had submitted his resignation as a Director on 1.6.1993 and has further held him liable to submit Statement of affairs of the Company under the provisions of Section 454 of the Companies Act. 2. On behalf of appellant Mahendra Prasad, a strong objection was taken that this Court cannot hear and decide the appeal on merits under the heading for admission and must admit the appeal in view of judgment of the Apex Court in the case of Vijay Kumar Karwa versus Official Liquidator, Rohtas Industries Limited, reported in (2008) 142 Company Cases 438 (S.C.). The other submissions on merits were mainly to the effect that learned Company Judge has not considered the materials in proper prospective and has failed to notice that the 2 Official Liquidator could not produce any material to refute the claim of the appellant that he had already resigned as a Director of the Company on 1.6.1993. Several sections of the Company Act were placed before us to point out that the Company is required to send to the Registrar of the Companies registration of certain resolutions and agreements and Directors are required to attend the meetings regularly and if they do not do so without taking leave they will suffer disqualification. 3. We have carefully gone through the judgment of the Supreme Court in the case of Vijay Kumar Karwa. That case arose from an order passed by this court in a company petition but for holding that the High Court is bound to entertain the appeal against the order of the learned Single Judge on merits and cannot dismiss it summarily or in limine, reliance was placed upon judgment of the Supreme Court in the case of Shanta Jene Vivek Pommerta vs. Shakal Papers Private Limited, AIR 1983 SC 269 and another judgment in the case of Smt. Arati Dutta vs. Eastern State Private Limited, AIR 1988 SC 325. On going through the judgment in the case of Shanta Jene Vivek Pommerta it is noticed that the legal position relating to admitting the appeal and deciding the same on merit instead of summary rejection or dismissal in limine arose in the context of Rule 966-A of Bombay High Court Rules. It was in view of express provisions contained in that Rule, which is peculiar to Bombay High Court, that the Supreme Court held that the 3 company appeals in Bombay High Court have to be admitted and entertained on merits instead of in limine disposal. Clearly the position would vary for different High Courts as per the provisions in the respective High Court Rules. So far as the judgment in the case of Arati Dutta (supra) is concerned, it arose out of a Company Case in the Gauhati High Court where the High Court Rules contained no rules of procedure for disposal of Company Appeals. The Supreme Court held that if there is no rule providing the procedure for filing an appeal from the decision of the learned Single Judge of the Gauhati High Court, the rules should be framed by the High Court and absence of the procedural rules will not take away a litigant’s right to file such appeal, when the statute confers such a right. Hence the proposition in that judgment was quite different. So far as Patna High Court Rules are concerned, there is no similar provision as the one in Rule 966-A of Bombay High Court Rules. Instead the relevant rules applicable for Patna High Court permit company appeals to be considered in the same manner as other appeals and the provision in the Patna High Court Rules providing for Letters Patent Appeal arising out of judgment and order of a Judge of the same court do not require automatic admission and as per the existing rules and practice they are regularly being disposed of in limine unless found fit to be admitted and heard in detail. 4. In view of the position existing in the Patna High Court 4 Rules, we are of the considered opinion that company appeals do not require any special treatment and can be disposed of at the stage of admission. However it is clarified that this appeal has been heard in detail on several dates. 5. So far as merit of the matter is concerned, we find that the learned Single Judge in the capacity of Company Judge has given detailed and minute consideration to every relevant document available on record specially those on which the appellant placed reliance. After considering all the materials it has come to a finding that the plea of the appellant that he submitted his resignation to the Managing Director of the company, who was his own father, on 1.6.1993 through a letter sent under certificate of posting has been disbelieved for very cogent reasons. In the company petition itself, the claim of the appellant is that the original certificate of posting has been lost and only a photo copy is available. The Company Judge has noticed that the appellant used to send his communications to the concerned persons or authorities either by registered post or by hand and only in the case of his professed resignation he has claimed that it was sent under certificate of posting. The Company Judge has further placed reliance upon letter of the Registrar of Companies dated 15.3.2005 which showed that in the records of the Registrar of Companies the appellant was continuing as promoter Director of the Company and no Form No.32 communicating his alleged resignation from the Board of 5 Directors of the Company was ever filed. 6. The argument advanced on behalf of the appellant that in fact there were no reliable materials to indicate that he continued as a Director of the Company after 1.6.1993, has been replied by learned Counsel for the Official Liquidator by pointing out that along with the application for liquidation, a document was annexed by the appellant as Annexure-2 which is Annual return of the company dated 30th September, 1994. That shows the names of Directors and the same includes the name of the appellant besides the name of his father Sri Anant Ram and one Brijendra Prasad. Learned Counsel for the appellant suggested that the relevant form is meant to disclose the particulars of Directors or Managers, both past and present and hence the name of the appellant might have been shown as a past Director. That submission has no substance because in column no.7, the date of appointment of the Directors is mentioned as same for all the Directors and there is no date mentioned in column no.8 meant for the date of cessation, if any. We also find no merit in the submission on behalf of the appellant that the returns have been signed only by the Managing Director Anant Ram and one other Director and not the appellant. As per statutory requirement such returns require signature of only two Directors. 7. We had permitted by our earlier order dated 28.7.2009, the learned Counsel for the Official Liquidator to bring on record 6 the annual return of the company for the year 1995 through an affidavit because certified copy of that return confirmed the factual position as apparent from the annual return of the Company of the year 1994. That return is now available on record as Annexure-B to the counter affidavit filed on behalf of the Official Liquidator. According to that annual return, on 30th September, 1995 also this appellant was one of the Directors. 8. In reply to the counter affidavit containing Annexure-B, a strong objection has been taken by the appellant that additional evidence cannot be taken on record by this court while exercising appellate jurisdiction. However no provision of law or any judgment could be cited by learned Counsel for the appellant in support of such objection. The powers of the appellate court are co-extensive with that of the original court and it is only a matter of convenience whether the appellate court should take additional evidence on record by itself or get the additional evidence recorded by the trial court. The nature of the document brought on record as additional evidence is clearly a public document as defined under the Evidence Act. Formal proof of such document can always be waived. But in this case the document is supported by an affidavit and the genuineness of the document is not disputed. Learned Counsel for the appellant has placed reliance upon a judgment of the Supreme Court in the case of Radha Amma & Anr. Vs. C. Balakrishnan Nair & Ors, AIR 2006 Supreme Court 3343. On 7 the other hand, learned Counsel for the Official Liquidator has placed reliance upon a judgment of the Supreme Court in the case of Syed Abdul Khader vs. Rami Reddy and others, AIR 1979 Supreme Court 553. 9. On going through the aforesaid judgments, it is found that in the first judgment only the general principles for evaluating evidence are discussed and no law has been laid down that while exercising appellate jurisdiction the High Court can not permit additional evidence to be brought on record. On the other hand in the case of Syed Abdul Khader, the Supreme Court has held that if the court hearing the appeal requires any documents so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. The Supreme Court further held that if the High Court considered the production of such evidence necessary, there is no reason why Supreme Court should be interfered with the discretionary power of the High court exercised in the interest of justice. Of course, that judgment was in context of Order 41 Rule 27 of the Code of Civil Procedure but as noticed earlier, the Patna High Court Rules dealing with Company cases permit the ordinary rules to be followed by this court in Company matters also unless otherwise provided. 10. Learned Counsel for the Official Liquidator placed some judgments to support his plea that in an appropriate cases even those persons who ceased to be Directors can be 8 ordered to submit statement of affairs of the company under the provisions of Section 454 of the Company Act. 11. In our view it is not relevant to consider those judgments for deciding the legality and validity of the order under appeal. 12. After considering all the relevant aspects, we find no merit in this appeal. It is, accordingly, dismissed but without costs. Narendra/ ( Shiva Kirti Singh, J. ) ( Anjana Prakash, J. )