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Judgment
Ina Malhotra, J
Observations of Member (J) upon disposal of CA-191/2020
CA-191/2020 has been filed by the respondents praying for recusal of the undersigned from bearing the final arguments in this case.
Brief background is that the arguments in this ease have been addressed before the undersigned on various dates but unfortunately due to change of the constitution of the Bench from time to time, the matter has remained part heard. Having heard arguments in this case multiple times, it was considered that the matter could be disposed of by the current Bench. The final arguments in this case had commenced and the petitioners had concluded their arguments on 18.02.2020 before the present Bench comprising of the undersigned as member (J) and Mr. L.N. Gupta, Hon'ble Member (T). On the date fixed for the respondent's arguments, ld. Sr. Counsel Mr. Suhail Dutt appeared and sought accommodation for addressing the respondent's arguments. The matter was listed on 24th February, 2020. However, as the regular Bench was not assembling, the next date was notified in the cause list itself for 27th February, 2020 for the respondents to conclude their arguments. In spite of previous accommodation, the respondents have filed this application CA-191/2020 on grounds that there was no pressing urgency in disposing of the petition and the short date given in the part heard matter gives an impression that the Bench is keen to hear and dispose off the case it is the respondent's case that they apprehend that the same was being done without any compelling necessity. Ld. Sr. Counsel Mr. Suhail Dutt submitted that the petition had been adjourned several times at the request of the Petitioner and the same number of opportunities or indulgence has not been shown to the respondents. As their request for adjournment/grant of a longer date had been turned down, for conclusion of the respondent's arguments, it gave an impression that there exists a bias against the respondent. Mr. Suhail Dutt, ld. Sr. Counsel submitted that it was not necessary that a bias should actually exist but as long as an apprehension appeared (sic) in the mind of the litigant, it would be just and expedient for the judge to recuse himself/herself. He has argued that justice should not only be done, but must also be seen to be done. He has quoted the Hon'ble Apex Court in the case of P K Ghosh IAS & Another Vs. J.G. Rajpoot reported in (1995) 6 SCC 744 which has observed the Bench should recuse itself, if it gives a reasonable apprehension in the mind of a litigant that the ld. Judge may sub consciously be influenced in favour of the opposite party. It is further argued by the ld. Sr. Counsel that what is material is the reasonable apprehension in the mind of the party, and not the approach of the Judge in his own mind. In view of the same, he prays that this Bench, particularly the undersigned should recuse herself. Ld. Sr. Counsel has detailed the number of times, the petitioner has taken adjournments. He has also annexed the cause list of various dates to show how the matters are listed/adjourned.
Opposing the prayer, ld. Counsel for the Petitioner has submitted that they have been suffering since 2002. Though they have an equal stake in the company, all rights, privileges, benefits are being availed by the respondents to their exclusion. They had approached the Hon'ble High Court for redressal of their grievance, but their petition had been disposed of with the observation that being a case of oppression and mismanagement, resort be taken under Section 397-398 of the Companies Act, 1956 before the Hon'ble CLB. The said order of the ld. Single Judge (Company court) was impugned before the Division Bench, but was withdrawn by them as it was considered expedient to approach the CLB. This Petition, which was filed in the year 2014 continues to linger on for some reason or another, adding to the travails of the petitioners who have not borne benefit from company despite having made huge financial inputs.
As per the arguments of the ld. counsel for the Petitioner, there exists a complete deadlock, since each side holds a 50% equity in the respondent company. Even statutory compliances cannot be made. The respondents who are in charge and responsible for the affairs of the company have been granted indulgence by this Bench that the RoC shall not strike off the name of the company from its Register for want of statutory compliances because of management disputes. More specifically, this has resulted in the DIN of the respondent directors not being suspended. This indulgence has been granted to the respondents despite the fact that financial statements/accounts have not been audited for a decade and a half. With this relief granted to the respondents by this Bench, they feel that they are no hurry proceed with the actual disposal of the case and are resorting to every trick under the sun to evade disposal.
Be that as it may, without granting the respondent/applicants a full opportunity of being heard by the present Bench, it would be difficult to opine whether the petitioners are likely to succeed in their various prayers made in the petition filed for Oppression & Mismanagement. It is not denied by the respondents that the petitioner's arguments had concluded on 18.02.2020. There is no cogent ground why the various counsels appearing for the respondent could not address their arguments even on the dates fixed as this Bench had granted sufficient time to hear them on merits. It therefore appears that the present application is a ruse to procrastinate any decision by raising the plea that there exists a bias in the mind of the respondents that this Bench is in an undue haste is dispose off the matter. It appears that the respondents have deliberately resorted to these tactics knowing very well that the undersigned Member (J) is going to superannuate on 29th February, 2020. Therefore, if there was a will for the respondents to conclude their arguments, it could very well had been done over the 3 days i.e. 27th, 28th & 29th February, 2020. It has always been an endeavour of this Bench to dispose off as many cases as possible. While the ld. Sr. Counsel has sought to place reliance on the cause list where dates have been given depending upon the stage of their pendency, he has deliberately sought to ignore that in his own presence, the matter of Pushpa Bagrodia Vs. Digital Properties & Hotels Pvt. Ltd. & Ors. CP-135/ND/2013 listed for final arguments was heard by this Bench and the matter was reserved for orders. The arguments of both sides were advanced in this case while Mr. Suhail Dutt was sitting in Court along with all his retinue of counsels. It appears that he has deliberately chosen to file this application with the sole object of ensuring that the matter lingers on for more time.
Objecting to such tactics, Ld. Counsel for the Petitioner has relied upon the decision of the Hon'ble Apex Court in the matter of Subrata Roy Sahara vs. Union of India & Ors. (57 of 2014) 8SCC 470, wherein the Hon'ble Apex Court considered whether they should hear the matter or recuse themselves and observed in the terms of the following:
We find no merit in the contention advanced on behalf of the petitioner, that we should recuse ourselves from the hearing of this case. Calculated psychological offensives and mind games adopted to seek recusal of Judges, need to be strongly repulsed. We deprecate such tactics and commend a similar approach to other Courts, when they experience such behaviour.
The Indian Judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious period of nervousness and restlessness, whilst the litigation is pending, without any fault on his part.
As par of the observations of the Hon'ble Apex court, while declining recusal it also observed:
''We have recorded the above narration, lest we are accused of not correctly depicting the submissions, as they were canvassed before us. In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will. This is certainly not the first time, when solicitation for recusal has been sought by learned counsel. Such a recorded peremptory prayer, was made by Mr. R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R.K. Anand, observed as under:
"The path of recusal is very often a convenient and, a soft option. This is especially so since a Judge really has no vested interest in doing a. particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting/Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office"
The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106. The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations:
The above passage, in our view, correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the Court or to get better of an 'inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice. (emphasis is ours)
However, without going into the merits of the case and despite the fact chat the respondent's arguments could have been heard at length and disposed off, in order to avoid any controversy, the Hon'ble Member (T) has sought recusal in this case, which necessitates the matter to be referred to the Principal Bench to' be allocated to a different Bench.
It is unfortunate that a Sr. Counsel has resorted to such tactics rather than having argued out his case on merits. The respondent/applicants have succeeded in the endeavour and attempt to thwart the process of law without rendering assistance to enable the Bench to come to a just and proper conclusion. The attempt of the respondent is seen as a resort to delay adjudication of the present case only on the grounds that in their own mind they have an apprehension that the Court is biased since the matter is being expedited for disposal, being part heard. I am constrained and pained to pen down these observations as no counsel, much less a designated senior, should be allowed to take recourse to such tactics, which denigrates the institution.
However, as the ld. Member (T) is of the opinion that he would like to recuse, the matter is being released from part heard and is directed to be listed before the Hon'ble Principal Bench for appropriate orders.
Be listed before the Principal Bench on 12th March, 2020.