9911796707
TMI Blog2011 (5) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner in his Company petition are disputed questions of fact, which cannot be examined by CLB while holding summary proceedings under section 111 of the Companies Act, and appropriate recourse available for Company petitioner is to question it by filing civil suit and being not a Member as per the Register of Members of the Company and title of shareholding being disputed, Company petitioner has no locus standi to maintain company petition. However, objection was further raised that he has to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 has been filed by present appellant and pleadings of Company petition are complete and the matter has ripen for final hearing, which has been fixed before CLB on 11-5-2011. 4. Counsel for appellant basically reiterated what has been contended before the CLB and has tried to convince that composite petition under sections 111 and 397 and 398 of the Companies Act is not maintainable since serious disputed questions of fact have been raised which could not be examined by CLB in summary proceedings and place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany 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 maintainable before the CLB and further submits that appeal under section 10F of the Companies Act is maintainable only if one is aggrieved by any decision or order of CLB arising any question of law out of such decision/order requiring consideration; while in instant case, there is neither any decision nor order being passed by which the appellant could be said to be a person aggrieved and what has been observed by the CLB in its order impugned do not involve any question of law which may require consideration by this Court in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 be adjudicated at this stage. It is a composite petition attracting the provisions of section 111/111A seems to have been wrongly mentioned) of the Act as well. In the facts and circumstances of this case, the petitioner cannot be non-suited on the ground that section 111 is a separate provision. It is settled position that in these equitable proceedings only delay an latches apply and not the limitation as per the limitation Act and that too has to be examined in the facts and circumstances of the case. It is not justifiable to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 in no manner will non-suit the company petitioner from the mechanism to examine the dispute raised as provided under the law. In the opinion of this court, in the absence of there being any decision or order deciding the right of the parties either way and by which one could be said to be aggrieved and at the same time, arising any question of law, which may at all require determination, this Court has to refrain from entertaining the appeal. 10. That apart, as informed in course of arguments, reply to the company petition has been filed by prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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