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TMI Blog2011 (5) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... NO. 4 OF 2010 - - - Dated:- 5-5-2011 - AJAY RASTOGI, J. S.S. Hora for the Petitioner. U.N. Bhandari and Sanjeev Singhal for the Respondent. JUDGMENT 1. Instant Company Appeal under section 10F of the Companies Act, 1956 ('Co.Act') is directed against order dt. 5-3-2010 passed by Company Law Board ('CLB') in Co.Appl.-232/2008 313/2009 filed by M/s Valentino Laboratories Ltd., (appellant herein) in Co.Petition-11/2008. 2. However, despite notices being served upon the appellant, reply to Company Petition was not filed for almost two years before the CLB, but Company application was filed raising preliminary objections that the composite company petition is not maintainable and what has been alleged by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents hold 10 per cent of original share certificates of subscribed capital of the Company and what has been contended by present appellant raising preliminary objection before CLB could be examined only after the reply to the Company petition being filed and the matter is examined; and taking note whereof, application raising preliminary objections regarding maintainability of Company Petition of respondent herein under section 111 read with sections 397 and 398 of the Companies Act was rejected and the liberty was granted to the present appellant to file reply to the Company petition, vide order dated 5-2-2010. However, as informed in course of arguments that after rejection of their preliminary objection, reply to the Company petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition being filed and examined by CLB; objection regarding disputed questions of fact, as alleged, could not be recorded and will be open to be considered in the summary proceedings provided under section 111 of the Companies Act. 6. Counsel further submits that it is not the stage for learned CLB to examine as to whether there are disputed questions of fact which could relegate the parties to approach civil court or could be examined in summary proceedings provided the reply is filed and the adjudication on the company petition filed under section 111 read with sections 397 and 398 of the Companies Act is taken place. Counsel further submits that composite Company petition under sections 111 read with sections 397 and 398 is main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es cannot be adjudicated as preliminary issue, but only while disposing the company petition on merits. If petitioner succeeded in its charges levelled against the respondents in the matter of owning of the impugned shares it will qualify to agitate its grievances before petitioner shall not have any right to maintain the company petition. The whole issue revolving around ownership of the impugned shares in view of the rival claims is shrouded with innumerable controversies, involving seriously disputed facts which cannot be resolved in isolation without going into the larger issues invoked in the company petition which have bearing on the maintainability of the company petition and, therefore, the question of maintainability ought not to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gments in Ammonia Supplies Corpn. (P.) Ltd.'s case ( supra ), in the opinion of this Court does not hold good in the facts of the instant case. 9. This Court finds substance in the submissions made by Senior Counsel for respondent that the present order pursuant to which preliminary objection has been rejected is neither a decision nor any order by which any person including present appellant could be said to be aggrieved and obviously for the reason that no finding either way has been recorded and what has been observed by learned CLB in its order impugned is that the matter could be examined only after the reply to Company petition being filed by present appellant and merely because the objection has been raised by appellant, that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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