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TMI Blog1962 (7) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... pany and very often the facts giving rise to applications under both the sections may be overlapping. Mr. Bobde has also further referred me to the provisions of the- former section 153C of the Companies Act. It is his contention that section 153C has now been split up into two sections for the purposes of convenience. Rule 10 of the aforesaid rules provides that unless otherwise provided by these rules or permitted by the judge, all applications under this Act shall be made by a petition or by a judge's summons as hereinafter provided. Rule 11 enumerates various applications which are to be made by a petition. Item (12) of rule 11 relates to applications under section 397 and item (13) relates to applications under section 398. This indicates that a separate application is required to be filed for obtaining relief under each of the two sections. Rule 88 reads: "Petition under section 397 or 398.-(1) Where a petition is presented under section 397 or 398 on behalf of any member of a company entitled to apply under section 399(1), by any one or more of them, the letter of consent signed by the rest of the members so entitled authorising the petitioner or petitioners to present the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that joint trial of these two causes of action have been considered to be inconvenient and prejudicial to the management of the company in defending itself. Having regard to the provisions of rule 11(12), (13), rule 88 and the fact that the former section 153C has been split up into two sections, sections 397 and 398, in my opinion, the intention of the legislature and the rule-making authorities is that separate applications should be filed in respect of a relief claimed under section 397 and section 398 of the Companies Act. I do not find any qualification in rule 88 which would enable members of the company to file a composite application when the relief is claimed both under sections 397 and 398. It is true that the reliefs claimed by the members under both these sections are claimed against the management, but the facts which the members will have to prove to obtain relief under section 397 are substantially of a different nature than what are required to be established under section 398. As already stated, to obtain relief under section 397 the applicant will have to establish oppression of the minority by the majority, while to succeed under section 398, mismanagement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s time to them for filing a detailed reply to the allegations, if the court held otherwise. Tambe J. took the view that separate applications would be necessary and, therefore, gave an opportunity to the applicant to file his petition for reliefs under either of the two sections and adjourned the matter for amendment of the petition within a fortnight from the date of his judgment. The applicant files the Letters Patent appeal. Mr. Phadke has raised a preliminary objection that the appeal from an order like the present is incompetent under clause 15 of the Letters Patent. According to him, it is merely a processual order and not one which, in any manner, deals with the merits of the case between the parties and, therefore, does not amount to a judgment within the meaning of clause 15. This court has invariably accepted and applied the definition of "judgment" formulated in Justices of the Peace for Calcutta v. Oriental Gas Company [1972] 8 Beng. LR 433, where Couch C. J. said (page 452): "... We think that judgment in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual and does not end the matter so far as the applicant is concerned in respect of any of the prayers made by him, then certainly it cannot be regarded as a judgment subject to appeal under clause 15. It appears to us that the order made by the learned judge must clearly result in denying to the applicant reliefs either under section 397 or 398 of the Companies Act. If he did not amend the application as directed by the learned judge, either one or both the prayers may be rejected. In either event it clearly appears to us, therefore, that the judgment under appeal satisfies the condition of its being a final judgment. The next question is whether a composite application is permissible. It is undoubtedly true, as has boon observed by the learned judge that originally as section 153C stood in the Indian Companies Act 1913, as amended in 1936, it contained subject-matters of both sections 397 and 398, while in the present Act they have been separated into two separate sections. That, with respect, in our view, does not necessarily mean that the rights under the two are completely distinct and so conflicting that they cannot be combined in a single petition. Section 399 requires the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the two. It lays down the requirements of making a proper petition and it then provides that a petition under section 397 shall be in Form No. 43 and a petition under section 398 shall be in Form No. 44. The learned counsel also relies on Forms Nos. 43 and 44. Substantially the forms are identical except in so far as paragraph No. 7 in each case requires the petitioner to set out all necessary facts which entitle him to relief under section 397 or 398. In this connection we must notice rule 6 which distinctly states that: "Save as provided by the Act or by these Rules, the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these Rules....." The mere fact that the two matters are separated in the companies Act in the manner it is done and that rule 11 enumerates as to in what matters petitions are necessary does not in our view, amount to "save as provided by the Act or by these Rules". We must, therefore, turn to the provision of the Civil Procedure Code to see if a combination of such causes of action is permitted under the Code. Order II, rule 3, of the Civil Procedure Code, permits a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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