Approbate Reprobate

In this respect, recently in Mumbai International Airports Limited v. Golden Chariot Airports, decided by the Supreme Court on September 22, 2010, the Court has held that a person cannot be allowed to take inconsistent stand in litigation, and once having elected to take a stand cannot be allowed to resile from such a position.

Certificate of posting and presumption

Certificate of posting

119. This general rule regarding certificates of posting has not been changed under Section 53 of the 

Companies Act, although it does provide that if a document is sent by post in the manner specified. "service thereof shall be deemed to be effected". The word "deemed". literally means "thought of" or, in legal parlance "presumed".

120. There is a distinction between "presumption" and "proof". A presumption has been defined as "an inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted" (Izhar Ahmad V. Union of India : AIR1962SC1052 ). They are rules of evidence which attempt to assist the judicial mind in the matter of weighing the probative or persuasive force of certain facts proved in relation to other facts presumed or inferred (ibid). Sometimes a discretion is left with the Court either to raise a presumption or not as in Section 114 of the Evidence Act. On other occasions no such discretion is given to the Court so that when a certain set of facts are proved, the Court is bound to raise the prescribed presumption. But that is all. The presumption may be rebutted.

Madhoosoodanan, 2003(6)ALD1(SC), [2003]117CompCas19(SC), (2003)4CompLJ185(SC),

2003(6)SCALE191, (2004)9SCC204, [2003]46SCL695(SC)

Certificate of posting viewed with suspicion

1981 3 SCR 647
1995 I LLJ 1162 SC

Appeal, when interfered

Dollar Company AIR 1975 SC 1670 A three Judge Bench
of the Apex Court observed, inter alia, that a Court of appeal interferes
not when the judgment under attack is not right, but only when it is shown
to be wrong.

Award / Decree and winding up

433(1)(a) can be invoked after obtaining award / decree.




Title

• Madhuban Private Limited v. Narain Dass Gokul Chand, 1971 (41) CompCas 685

• In re Unique Cardboard Box Mfg Co. Pvt Ltd, 1978 (48) Comp Cas 604

• All India General Transport Corporation Limited v. Raj Kumar Mittal, 1978 (48) Comp Cas 604

• Seethai Mills Limited, 1980 (50) Comp Cas 422

• Sarabhai Machinery v. Haryana Detergents Limited, 1986 (60) Comp Cas 169

• Sugam Constructions Private Limited (unreported Bombay HC)

• National Aluminium Company Limited v. SGN Telecoms (reported on Manupatra)

• 1997 88 Comp Cas 673

• 1971 41 Comp Cas 685

• 1984 56 Comp Cas 165

• 2007 (5) Bom CR 752





Contrary case-laws

Title

• Kitti Steels Ltd. vs. Sanghi Industries Ltd., [2010] 154 Comp Cas 102 (AP)

• National Research Development Corporation vs. Electro Flux (P.) Ltd., [2005] 127 Comp Cas 23 (AP)

• Maharashtra Apex Corporation Ltd. vs. Spartek Ceramics India Ltd., [2005] 57 SCL 467 (AP)

• Manipal Finance Corporation Ltd. vs. CRC Carrier Ltd., [2001] 107 Comp Cas 288 (Bom)

• Ishwar Industries Ltd. vs. Lakshmi Machine Works Ltd., MANU/TN/2947/2009

• Pradeshiya Industrial and Investment Corporation of Uttar Pradesh vs. North India Petro Chemical Ltd. and Another, [1994] 79 Comp Cas 835 (SC)

Kesar Enterprises Ltd. vs. IDI Ltd., [2002] 112 Comp Cas 174 (Bom)

I.C.D.S Ltd. vs. Asha Latex and Allied Industries Pvt. Ltd, [2003]144 Comp Cas 581 (Bom).

Rediffusion – Dentsu, Young & Rubicam P. Ltd vs. Solidaire India Ltd., [2008] 145 Comp Cas 693 (Mad)

Berger Paints India Ltd. vs. Steel Strips Wheels Ltd., MANU/PH/0571/1997.

Pankaj Aluminium Industries P. Ltd. vs. Pankaj Extrusions Ltd., [2009] 149 Comp Cas 660 (Guj)

Arbitrator misconstruing contract and relying on equity

The Arbitrators have proceeded on the erroneous notions of equity by using phrase "Heads I win tails you lose" to describe the contentions of the petitioner. The question of interpreting a legal document voluntarily entered into between two parties is a question of law and the document is required to be construed according to law and notions of equity cannot be imported for construing such a document. An arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law and if he does not he can be set right by the Court provided his error appears on the face of the award. see Seth Thawardas v. Union of India, reported in MANU/SC/0070/1955 : [1955]2SCR48
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Disclosure in Scheme Petition

From RNRL v. RIL, Supreme Court, [2010]156CompCas455(SC), JT2010(5)SC413, 2010(5)SCALE223, 2010(4)UJ2400(SC)   

145. The Companies (Amendment) Act, 1965, based on the recommendations of Daphtary-Sastri Committee specifically provided that the applicants for a scheme shall "disclose by affidavit all material facts". (See: Section 391(2) of the Companies Act, 1956). In as much as the terms and conditions of gas supply, as specified in the MoU, were not specifically informed to all the shareholders and stakeholders, including in this case the GoI (as a party to the PSC), we simply fail to see how the MoU can be read into the Scheme itself. It doesn't matter whether one calls MoU the guiding light or a tool for interpretation or a foundation - the sheer fact that the terms of gas supply contained in the MoU were withheld from the shareholders implies that it cannot now be imported into the Scheme. The argument that contracts are entered into all the time, and are treated as day to day affairs for the management and the Board, fails at the point of division of a company. Where, in regular times a shareholder or a stakeholder can demand and obtain information and have time to try and monitor such contracts and the actions of the management, the act of hiving off an undertaking is a much more crucial point, when the shareholders have to be even more careful about the transfer of value. The whole purpose of Section 293 which prohibits the Board from hiving off an undertaking without shareholders approvals, is to prevent such transfers being effectuated on a permanent basis without the knowledge of the shareholders. The very essence of the requirement that all material facts be disclosed would have been decimated. Consequently, we hold that the Scheme as propounded by the Board, placed before and approved by shareholders and stakeholders and sanctioned by the court is completely different from the MoU. The MoU may have been the starting point. The end point is significantly, substantially and materially different from it and it cannot now be brought back in the guise of interpretation.