Monday, November 20, 2017 | ePaper

When a judge can assume jurisdiction for modification of order?

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APPELLATE DIVISION :
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
Md Nizamul Hoq J
MM Ibrahim ..........
.............. Petitioner
vs
Mizanul Haque Chowdhury and ors .. ......... Respondents
Judgment
September 5th, 2016

Code of Civil Procedure (V of 1908)
Sections 152 and 153
Companies Rules, 2009 Rules 8 and 263
Prayer for modification of the order would not attract the provisions of Sections 152 and 153 of the Code and Rules 8 and 263 of the Rules, 2009….(6)
Functus Officio
After passing the final order rejecting the substantive application and the order having been sealed and signed, the Company Judge became functus officio and had no power to assume jurisdiction by way of modification of the order, he could do so only on a proper application for review of the order. . ..... (6)
Principles of natural justice
The order was passed in complete violation of the principles of natural justice, be. without giving any chance of hearing to the petitioner and, as such, the order cannot he sustained.
Kamal-ul-Alam, Senior Advocate instructed by Zainul Abdin, Advocate-on-Record-For the Petitioner
Ahsanul Karim, Senior Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For Respondent No. 1
 None Represented-For Respondent No 2-29
Judgment
Md Abdul Wahhab Miah J : This petition for leave to appeal has been filed against the order dated the 20th day of November, 2013 passed by the Company Bench of the High Court Division in Company Matter No.69 of 2012 modifying the ordering portion of the order passed on 7-4-2013 in the said company matter.
2. Facts necessary to dispose the petition are that the petitioner herein as the Director of Ahmed Brothers Limited (hereinafter referred to as the Company) filed an application on behalf of the Company under Sections 107 and 233 of the Companies Act, 1994 (the Act, 1994) before the High Court Division which was registered as Company Matter No. 69 of 2012. In that company matter, one Md Mizanul Haque Chowdhury, son of late Obaidul Hoque Chowdhury who was impleaded as respondent No.21 filed an application for rejection of the application giving rise to the above company matter and the learned Company Judge by the order dated 7-4-2013 allowed the modication (and rejected the application filed under Sections 107 and 233 of the Act, 1994. In the same order, the learned Company Judge directed the petitioner to pay Taka 50,000 (fifty thousand) as cost to respondent No. 21 within four weeks. Thereafter, respondent No.21 filed an application for modification of the order dated 7-4-2013 "by way of direction" upon the present petitioner to pay the cost of Taka 50,000 (fifty thousand) to him instead of by the Company. The learned Company Judge by the order dated 20th November, 2013 allowed the application and directed the present petitioner, namely, MM Ibrahim to pay the cost of taka 50,000 (fifty thousand) to respondent No.21; hence this Petition for Leave to Appeal.
3. Heard Mr Kamal-ul-Alam, learned Counsel, for the petitioner and Mr Ahsanul Karim, learned Counsel who entered caveat on behalf of respondent No. I (respondent No. I was respondent No.21 in the Company Matter).
4. Mr Kamal-ul Alam submits that the learned Company Judge erred in law in directing the leave petitioner to pay the cost of Taka 50,000 (fifty thousand) by modifying the earlier order by which the company was directed to pay Taka 50,000 (fifty thousand) inasmuch as after having pronounced the final order, signed and sealed the same on 7-4-2013, he became "Functus Officio" and, as such, had no jurisdiction to entertain a subsequent application by respondent No.21 for modification of his earlier order saddling the leave petitioner with the liability to pay personally the cost of Taka 50,000 to respondent No.21. He further submits that the leave petitioner was not personally a party in Company Matter No.69 of 2012, consequently the learned Judge of the Company Bench was wholly unjustified and wrong in law in passing the impugned order on an application for modification of the earlier order in the selfsame Company Matter No.69 of 2012 directing the leave petitioner herein to personally pay the cost of Taka 50,000 to respondent No. 21 without issuing any notice to him as per requirement of the principles of natural justice and the provisions of rule 261 of the Companies Rules, 2009 and without at all affording him any opportunity of being heard and, as such, the impugned order calls for interference by this Court. He lastly submits that the learned Judge of the Company Bench having himself found in his earlier final order dated 7-4-2013 in Company substantive application that the application has filed by the Ahmed Brothers Limited, i.e. the Company itself and not by any of its member for debenture-holder" committed gross error of law in holding in the impugned order that MM Ibrahim (leave petitioner herein) was not authorized to file Company Matter No.69 of 2012 on behalf of the petitioner company without at all considering the fact that the said company matter was filed by the Company through one of its directors MM Ubrahim and the provisions of Sections n and 225 of the Act, 1994 and rule 18 of the Companies Rules, 2009 which provide that a director of the Company is entitled to start any proceeding or file an application on behalf of a Company.
5. Mr Ahsanul Karim, learned Counsel who entered caveat on behalf of respondent No.1, however, supported the impugned order. But he could not lay his hand under what provisions of law the application for modification was filed and under what provisions of law the learned Company Judge assumed its jurisdiction and entertained the application. In the context, it needs to be mentioned that in the application no provision of law was mentioned.
6. From the statements made in the leave petition, it is clear that the impugned order was passed behind the back of the leave petitioner as it docs not appear that the copy of the application for modification was served upon him and/or he was given any chance of hearing before passing the impugned order. Therefore, we find substance in the submission of Mr Kamal-ul-Alam that the impugned order was passed in complete violation of the principles of natural justice, i.e. without giving any chance of hearing to the petitioner and, as such, the impugned order cannot be sustained. We also hold that after passing the final order on 7-4-2013 rejecting the substantive application under Sections 107 and 233 of the Act, 1994 and the order having been sealed and signed, the Company Judge became functus officio and had no power to assume jurisdiction by way of modification of the said order, he could do so only on a proper application for review of the order. In the context, we would like to further observe that the prayer for modification of the order dated 7-4-2013 would not attract the provisions of Sections 152 and 153 of the Code of Civil Procedure and rules 8 and 263 of the Companies Rules, 2009.
7. It further appears that although, in the order dated 7-4-2013, the learned Company Judge directed the company to pay the cost, but against that order the company did not file any leave petition before this Court. However, considering the fact that the application filed before the High Court Division under Section 233(1) of the Act, 1994 by the Company was, not maintainable and accordingly, the same was rejected and further in the facts and circumstances of the case, the company was not also liable to pay the cost of Taka 50,000. We invoke the power vested in this Court under Article 104 of the Constitution of the People's Republic of Bangladesh for doing complete justice in the matter and expunge the order of the learned Company Judge so far as it relates to giving cost against the Company.
In view of the above, this petition is disposed of in following terms:
The impugned order is set aside: the order dated 7- 4-2013 so far as it relates to the direction upon the Company to pay the cost of taka 50,000 (fifty thousand) to respondent No.21 is expunged.

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