2007 (1) TMI 597 - Board - Companies Law

Summary

Issues Involved:
1. Maintainability of the company petition.
2. Estoppel from filing a fresh petition.
3. Application of Order 23 Rule 1 of the Code of Civil Procedure (CPC).

Summary:

Issue 1: Maintainability of the Company Petition
The petitioner filed a company petition u/s 397 and 398 of the Companies Act, 1956, alleging acts of oppression and mismanagement in the affairs of the Company. The Company challenged the maintainability of this petition, but the Board concluded that the petition is maintainable. The Company appealed, and the High Court of Kerala upheld the Board's decision, remanding the matter to consider whether the petitioner is estopped from filing the petition due to the withdrawal of a previous petition without reserving the right to file afresh.

Issue 2: Estoppel from Filing a Fresh Petition
The Company argued that the petitioner had previously filed a similar petition through his brother, which was withdrawn without liberty to file a fresh petition on the same grounds. Therefore, the current petition should not be entertained. The petitioner contended that the withdrawal of the first petition did not preclude him from filing a new one, citing the Supreme Court's decision in Sarguja Transport Service v. State Transport Appellate Tribunal, which allows for the institution of a fresh petition if the previous one was withdrawn without adjudication on merits.

Issue 3: Application of Order 23 Rule 1 of the CPC
The Board examined whether the principles of Order 23 Rule 1 of the CPC apply to the present case. Order 23 Rule 1 allows withdrawal of a suit with or without liberty to file afresh. The Board noted that the first petition was withdrawn on technical grounds before registration and without adjudication on merits. Therefore, the principles of Order 23 Rule 1 do not preclude the petitioner from filing a fresh petition. The Board also highlighted that the respondent did not raise objections based on Order 23 Rule 1 in the subsequent petition (C.P. No. 18 of 2003), implying a waiver of this defense.

The Board concluded that the petitioner is not estopped from filing the present petition and directed the respondent to file a counter by 12.02.2007, with a rejoinder by 28.02.2007. The matter was scheduled for hearing on 07.03.2007.