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TMI Blog2015 (3) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants to institute a fresh suit. However, this court recorded that nothing in the said order would prevent the appellants from filing a suit, but the maintainability of such suit on account of the pendency and partial abandonment of the Company Law Board proceedings may be gone into by the forum which receives the action. I am inclined to accept the contention of the Ld. Counsel for the applicants. The plaintiffs having claimed and having subsequently abandoned certain reliefs against the applicants in the Company Law Board proceedings without being granted unconditional leave to file fresh proceedings for the self-same reliefs, in my opinion the plaintiffs’ suit is barred against the applicants under Order 23 of the CPC. Further, exposing the applicants in the present suit substantially to the same claims which were withdrawn/abandoned against them in the Company Law Board proceedings, would, in my opinion, amount to abuse of process of law. The withdrawal and/or abandonment of the concerned reliefs against the applicants by the plaintiffs in the Company Law Board proceedings was voluntary and it would not be fair to expose the applicants to the same claims again in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents from acting upon or giving any effect or further effect to the purported agreement dated 11th December, 2007 allegedly entered into by and between the respondent no. 8 and the respondent no. 12 referred to in paragraph 6.23 hereinabove; (3) In the said company proceeding the interim reliefs prayed for included the following relief:- (k) Injunction restraining the respondents from acting upon or giving any effect or further effect to the purported agreement dated 11th December, 2007 allegedly entered into by and between the respondent no. 8 and the respondent no. 16 referred to in paragraph 6.23 hereinabove. (4) The petitioners in the said company proceeding being the plaintiffs in the present suit filed an application before the Company Law Board praying for withdrawal/abandonment of the main prayers (n) to (r) and interim prayer (k), which have been set out hereinabove. The petitioners further prayed for leave to institute a fresh suit in respect of the matters covered by the reliefs which were sought to be abandoned. The Company Law Board rejected the petitioner s prayer for abandoning the aforesaid reliefs with leave to institute fresh pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining leave to file a fresh proceeding in respect of the matters covered by such reliefs. It may be noted that the final reliefs (n) to (r) and the interim relief (k) that had been prayed for before the Company Law Board were against Citystar being the present defendant no. 12 which were subsequently abandoned. Contention of the applicants (defendant nos. 12 to 14) (7) Appearing on behalf of the applicants Mr. Ranjan Deb, Ld Senior Counsel, urged mainly three points. (8) Mr. Deb s first contention was that while this Court by its order dated 28th August, 2012 allowed deletion of reliefs (n) to (r) from the bunch of main reliefs prayed for in the petition before the Company Law Board and also allowed deletion of prayer (k) from the interim reliefs sought in the petition before the Company Law Board, this Court did not grant leave to the plaintiffs to institute a fresh suit in respect of the subject matter covered by the said reliefs. He submitted that although this Court recorded that nothing in that order would prevent the appellants (plaintiffs in this suit) from filing a suit, yet, the maintainability of such suit on the ground of pendency and partial abandonment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim, the present suit which is essentially in respect of such claim is barred by law. As regards the applicability of the provisions of the Code of Civil Procedure to proceedings under the Companies Act, Mr. Deb referred to Rule 6 of the Companies (Court) Rules, 1959 which is set out hereunder:- Rule 6. 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 Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the Court. (11) Mr. Deb argued that by virtue of Rule 6, the provisions of the Code of Civil Procedure including Order 23 thereof would apply to company proceedings. In this connection, Mr. Deb relied on a decision of the Madras High Court in the Case of Jacob Cherain-vs.-K.N. Cherain reported in 43 Company Cases 235. Mr. Deb relied on in particular on paragraph 12 of the judgment which is set out hereunder:- 12. Rule 6, inter alia, says that the provisions of the Code, so far as applicable, except as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the same allegations, without the express orders of the court granting leave to file a fresh petition, whatever be the reason for the withdrawal. The motive for the withdrawal is irrelevant in considering the maintainability of the subsequent petition. If a petition filed under Sections 397 and 398 is unconditionally withdrawn, the petitioner, in my view, is, by virtue of Order 23, Rule 1 precluded from instituting a fresh petition on the allegations upon which the earlier petition was founded. In this view, I uphold the preliminary objection in respect of the allegations upon which C.P. No. G8 of 1969 was founded. The petitioner is precluded from asking the court to investigate into the truth of those allegations. But he is, however, entitled to have an enquiry upon the other acts of mismanagement and oppression, which, according to him, occurred after the dismissal of C.P. No. 68 of 1969. (12) Mr. Deb also relied on a decision of the Hon ble Supreme Court in the case of Sarguja Transport Service-vs.-State Transport Appellate Tribunal, Gwalior reported in AIR 1987 SC 88, wherein at paragraph 9 of the judgment it was held that while the withdrawal of a writ petition filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first one is in the case of Beniram-vs.-Gaind reported in 1981 4 SCC 209 wherein Hon ble Supreme Court considered it just and proper in the interest of justice to permit the appellant-plaintiff to withdraw the suit with liberty to file a fresh suit. I have not been able to appreciate as to how this decision helps the plaintiffs. (18) The second decision is in the case of Vallabh Das-vs.-Dr. Madan Lal reported in 1970 1 SCC 761 wherein while discussing Order 23 Rule 1 of the Code of Civil Procedure the Hon ble Supreme Court held that the expression subject-matter is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the reliefs claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is the same as that in the previous suit. Mere identity of some of the issues in the two suits do not bring about an identity of the subject matter in the two suits. The expression subject matter in Order 23 Rule 1 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that nothing in the said order would prevent the appellants from filing a suit, but the maintainability of such suit on account of the pendency and partial abandonment of the Company Law Board proceedings may be gone into by the forum which receives the action. (23) The contention of the Ld. Senior Counsel appearing for the plaintiffs is that this Court having granted leave to file a suit, there is no merit in the present demurer application and the same must fail. On the contrary, Ld. Counsel for the applicants contends that no unconditional leave to file a fresh suit was granted by the order dated 28th August, 2012. By the said order this Court permitted the plaintiffs to file a suit but subject to the question of maintainability as aforestated. He contends that no unconditional leave having been granted, the suit must be rejected against the applicants in view of the bar prescribed in Order 23 Rule 1 of the Code of Civil Procedure. (24) I am inclined to accept the contention of the Ld. Counsel for the applicants. The plaintiffs having claimed and having subsequently abandoned certain reliefs against the applicants in the Company Law Board proceedings without being granted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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