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TMI Blog2006 (5) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... als Ltd. (Haldia for brevity). The CLB thereafter proceeded to direct Haldia to defer allotment of any further shares, which obviously included shares of the value of Rs. 134 crores to the Industrial Development Bank of India (IDBI). It directed the maintenance of status quo of shareholding as of that date. 2. On 5-8-2005, the petitioner/IDBI was neither a party to the proceedings under sections 397 and 398 of the Companies Act, being CP No. 58/2005, nor was it afforded any opportunity of being heard. It was in these circumstances that IDBI filed CA No. 236/2005 seeking permission to intervene in the said CP No. 58/2005 and also praying for varying/modifying the orders dated 5-8-2005. 3. In the hearings held on 23-1-2006, the CLB noted the submissions of senior counsel for IDBI to the effect that the IDBI was not a party to the proceedings and that no relief had been sought against it, that these restraint orders had adversely affected the contractual rights of IDBI and other consortium lenders, and therefore, the Board ought not to have passed the impugned orders dated 5-8-2005. The application filed by IDBI had been strenuously supported by senior counsel for Haldia, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two hundred and eighty crores only) already availed by it, and further would have to forego the lower rates of interest agreed to be paid on the outstandings and pay several hundreds of crores of rupees to IDBI, thereby spelling financial doom on Haldia. 7. Mr. Shankardass, Mr. Arun Jaitley and Mr. Sarkar, learned senior counsel appearing for respondent Nos. 2-5 have raised preliminary objections relating to the maintainability of the writ petition in view of the failure to avail of the appellate remedy provided in section 10F of the Companies Act. They have also reiterated that the foundation of the agreement for conversion at par of debts of Rs. 135 crores (rupees one hundred and thirty five crores only) into equity of Haldia was that the majority should not be converted into a minority and that Haldia should remain a private company. 8. This concise and brief encapsulation of the arguments of the parties is being deliberately made since I have come to the conclusion that it would not be expedient or proper for me to exercise in the present case the extraordinary powers under Article 226 of the Constitution of India. I should, therefore, take care not to express opinions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the Registrar of Companies or the regional director and includes any person who has a right under the Act to make suggestions or objections. It is not disputed that the petitioner/appellant, as a creditor, or even on the basis of his claim as a mortgagee, had a right to make suggestions or objections even if no notice was issued to him, and even if he was not made an eo-nomine party. So, by virtue of the regulation, a person who was not made eonomine party, can make suggestions or objections, and such a party would be deemed to be a party for the purpose of proceedings before the first respondent. Such a person can file an appeal under section 10F of the Companies Act. The expression used is not party but person aggrieved . The appellant is not an eo-nomine party. At the most, it may have to seek leave of this court. In case the court finds that the appellant s rights have been affected on a prima facie reading of the order, leave will be granted, vide Smt. K. Ponnalagu Ammal v. State of Madras AIR 1953 Mad 485, since section 10E of the Companies Act provides for effective remedy, the writ jurisdiction of this court should not have been invoked. The very same question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving failed to do so, it should not be permitted to invoke Article 226 of the Constitution of India. 14. My attention has also been drawn to Stridewell Leathers (P.) Ltd. v. Bhankerpur Simbhaoli Beverages (P.) Ltd. [1994] 1 SCC 34, which incidentally was also one of the parties in the Malleswara Finance decision. It had been held that the High Court which can properly exercise jurisdiction under Article 226 would be the one holding territorial sway in respect of the Registered Office of the concerned company. In the present case, the Registered Office of Haldia is in Calcutta. Mr. Jaitley has stated that filing of the present petition after the expiry of the period of limitation pres-cribed under section 10F partakes of forum shopping. Even if that were to be too strident an approach, it would be good as sufficient reason to persuade this court not to exercise jurisdiction over the present dispute. 15. The powers of the CLB under section 402 of the Companies Act are indeed of very wide amplitude. It is thus logistically inconceivable that each and every person, who is likely to be affected by any of the orders passed under that section should be a party to the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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