9911796707
TMI Blog2007 (1) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... the first company petition was withdrawn without reserving the right to file a fresh petition on the same cause of action in the light of the principles of Order 23 Rule 1 of the Code of Civil Procedure. 2. According to Shri B.C. Thiruvengadam, learned Counsel, the acts of oppression and mismanagement alleged in the present company petition have already been urged before the Company Law Board by Mr. Tommy Mathew, brother of the petitioner in C.P. No. 68 of 2000. The petitioner herein attempted to get himself impleaded in C.P. No. 68 of 2000, but failed in his attempt. Thereafter, the petitioner had filed a similar petition through Tommy Mathew invoking the provisions of Section 397/398, in the affairs of the Company on the very same grounds set out in the present company petition. The petitioner had subsequently withdrawn the earlier company petition, without obtaining any liberty to file a fresh petition on the same cause of action and, therefore, the present company petition on the identical grounds and for the same reliefs cannot be entertained. The Madras High Court in Jacob Cherian v. K.N. Cherian (1973) Vol 43 CC 235 held that if a petition filed under Sections 397 398, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 23 rule 1 of the CPC are not applicable to the facts of the present case. The petitioner is not abusing the process of the Court and, therefore, entitled to prosecute the present proceedings. Notwithstanding the principles underlying Order 23 Rule 1 of the CPC, the CLB in exercise of the inherent power as envisaged in regulation 44 of the Company Law Board Regulations, 1991 is empowered to permit the petitioner to file a fresh petition, with a view to bringing to an end the acts complained of by the petitioner and to do real and substantial justice between the parties, in support of which reliance has been placed on Jet Ply Wood Private Limited and Anr. v. Madhukar Nowlakha and Ors. 2006 AIR SCW 1187. After withdrawal of the unnumbered company petition filed through the power agent, the petitioner came out with C.P. No. 18 of 2003, which was vehemently opposed on technical grounds, resulting in rejection of the said company petition by an order dated 09.09.2003 of this Bench. Therefore, the petitioner has come out with the present petition in order to redress his grievances in the conduct of the affairs of the Company, which cannot be resisted on mere technicalities. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in Sarguja Transport Service v. State Transport Appellate Tribunal (supra) he cannot be precluded from instituting a fresh petition, as contended by the respondent. In this context, the principles governing Order 23 Rule 1 of the CPC assume relevance. Though the Civil Procedure Code does not apply to the proceedings before the CLB, but its underlying principles would nevertheless apply. Order 23 Rule 1 runs as under. - 1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon apart of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this the decision in Jacob Cherian v. K.N. Cherian (supra) will not go in aid of the respondent. At this juncture it has to be borne in mind that when the petitioner herein, subsequently filed a C.P. No. 18 of 2003 under Sections 397 and 398 on account of a series of oppression and mismanagement in the affairs of the Company, the respondent herein made an application (C.A. No. 56 of 2003) to reject the company petition (C.P. No. 18 of 2003) and reiterated as under: The company petition is not supported by a proper affidavit as required under Regulation 14(5) and (6) of the Company Law Board Regulations, 1991 ( the Regulations, 1991 ) read with Section 558 of the Act. The affidavit on record supporting the company petition reveals that the petitioner is a resident of Guatemala, Central America. However, the place of execution is shown as Bangalore and the affidavit does not mention the date of execution. Moreover, the said affidavit does not contain the full name, age, occupation and complete residential address of the deponent as required under Regulation 14(5) of the regulations 1991 and is not in conformity with Regulation 14(7). The affidavit containing only the seal of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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