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TMI Blog2016 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Companies Act, 1956/2013 and the facts contained in the Company Petition, reply to the Company Petition and rejoinder thereto. - C.A. No.l355/2015 C.P. in No.15V2015 - - - Dated:- 8-10-2015 - Mr. Dhan Raj, J. For The Petitioner : Mr. Shaunak Mitra, Advocate, Mr. Nikunj Berlia, Advocate For The Respondent : Mr. Pramit Kr. Ray, Sr. Advocate, Mr. Aditya Kanodia, Advocate, Mrs. Anshumala Bansal, Advocate ORDER In this case, the Petitioners filed a Company Petition being C.P. No. 151/2015 under Sections 397, 398, 399, 402, 403 406 of the Companies Act, 1956 and Sections 58 59 of the Companies Act, 2013, alleging the acts of oppression and mis-management in the affairs of the Respondent Company, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n being C.P. No. 151/2015 and also, stay of further proceedings in the main Company Petition till the disposal of C.A. No.1231/2015. 1.1 Further, it has been submitted that it is settled law that when an issue as to the maintainability of a Petition is raised, the same should be decided first without going into the merits of the matter. Also, the question regarding the jurisdiction of a Court has to be decided first and not at the time of hearing of the matter on merits. It has also been contended that as the Respondents/Applicants has filed a Company Application being CA. No. 1231/2015 praying for dismissal of the main Company Petition, inter alia, challenging the jurisdiction of this Hon'ble Board to entertain the Petitioners who d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein) to contend that they need not file reply to the main Company Petition. In addition, the issue as to whether the reply to the Company Petition has to be filed or not, has become irrelevant since the last chance to file such reply has also come to an end, even before filing of the instant Company Application. Therefore, the Respondents (Applicants herein) do not have any right to file reply and nothing surfaced in this Application which has become infructuous. In fact, the intention of the Respondents (Applicants herein) is to delay the hearing of the main matter. 4. The Respondents/Applicants Advocate, while reiterating the averments made in the instant Company Application, has averred that a judicial forum does not have the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary plaintiff. Besides, the Petitioners in C.P. No. 151/2015 could not show any principle of law to the contrary. 4.1 The Respondents/Applicants Advocate, in support of his submissions, has relied on the following decisions of the Hon'ble Courts:- (a) T.K. Lathika -vs- Seth Karsandas Jamnadas [1999 (6) SCC 632], to state that the Court is to first decide the point of maintainability of the Petition and only if the point is found in the affirmative, the merits need to be gone into. (b) Universal Paper Mills Ltd. -vs-. Dharam Godha Ors. [(2011)] 3 Cal. LT 190 (HC)], to state that the view of the Hon'ble High Court at Calcutta is binding upon the Company Law Board, Kolkata Bench to decide on the issue raised in the demurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition and also, by the Petitioners Advocate in the rejoinder. In this context, I am in full agreement with the ratio of the judgment in the case of T.K. Lathika -vs- Seth Karsandas Jamnadas [1999 (6) SCC 632], which states that the Court is to decide the point of maintainability of the Petition and only if the point is found in the affirmative, the merits need to be gone into. However, this does not imply that the Order passed by the Court for completion of the pleadings in the form of reply and rejoinder well before filing the Demurrer Application, will not be complied with especially when there is involvement of question of law and facts. 5.1 Under the aforesaid facts and circumstances, it is clear beyond doubt that there was no Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of the main Company Petition was also mentioned. After hearing the submissions on the said C.A., the Petitioners/Non-Applicants Advocate was allowed one week time to file the reply and rejoinder was to be filed within one week from the date of receipt of the reply. In addition, both main Company Petition and C.A. No. 1231/2015 were listed for hearing on 08.09.2015. But, in the meantime, the present C.A. No. 1366/2015 was mentioned on 03.09.2015 and on the same day, submissions/arguments were completed by the Respondents/Applicants Advocate as well as the Petitioners/Non-Applicants Advocate. 5.2 In the present case, as stated above, the issue of maintainability involves the mixed question of law and facts. Therefore, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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