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TMI Blog2004 (2) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... ds made by Mr. Tommy Mathew in C.P.No.68 of 2000. Most of the grounds urged by Mr. Tommy Mathew are the basis for the present Company Petition. The Company Petition No. 68 of 2000 was disposed of by the CLB on merits culminating in a final order dated 12.09.2000, with consent of the parties concerned. As the proceeding under section 397 and 398 in the Company Petition No. 68 of 2000 is a proceeding in rem , the petitioner is barred from claiming any relief in the present Company Petition by the principles of res judicata , in support of which learned Counsel relied on the decision of the apex court in Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke - AIR 1954 SC 352 to state that consent decree is binding upon the parties thereto as a decree by invitum and is binding force of res judicata. The petitioner had earlier filed a similar Company Petition through Mr. Tommy Mathew under Sections 397 and 398 alleging acts of oppression and mismanagement in the affairs of the Company on the grounds urged in the present Company Petition. The said Company Petition was withdrawn without leave to file a fresh petition on the same cause of action, in which case, the present Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of good faith on the part of the petitioner. The statement of objections filed on behalf of the petitioner is not supported by an affidavit sworn by the petitioner, as required under Regulation 23 read with Regulation 22 and 14(5) of the Company Law Board Regulations, 1991. Any statement filed before the CLB is required to be supported by an affidavit, especially when the proceedings before the CLB are summary in nature. In the absence of any affidavit, the parties concerned can neither be cross examined nor prosecuted for perjury, if any. The statement of objections filed by the petitioner without any supporting affidavit must be rejected. Shri Thiruvengadam, learned Counsel, therefore, sought for dismissal of the Company Petition. 2. According to Shri P.M. Vasudevan, learned Counsel, the petitioner relied on the Company Petition No. 68 of 2000 in order to demonstrate the consistently oppressive and dishonest attitude of the respondent, which are still persisting. The petitioner in addition set out specific acts of oppression and mismanagement in the affairs of the Company. In this connection, learned Counsel pointed out that respondents 2 3 have incorporated a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings initiated by the petitioner in CP No. 15 of 2003 for rectification of the register of members of the Company in respect of the shares of the Company inherited from his mother is a matter of record. In the event of the CLB is granting the remedy of rectification of the register of members of the Company in the present proceedings, the petitioner will not agitate the same in the Company Petition No. 15, of 2003. Mere non-furnishing of these various proceedings cannot disentitle the petitioner from instituting and pursuing the present petition. The statement of objections, according to Shri Vasudev, need not be accompanied by an affidavit especially when either Regulation 17 or 14(5) or 22(2) of the Company Law Board Regulations, 1991 does not contemplate any such requirement in the case of reply to any interim application. Moreover, it is only a technicality, which may be condoned by the CLB. For these-reasons, learned Counsel urged that the present Company Petition is maintainable. 3. I have considered the arguments advanced by learned Counsel. It is on record that Shri Tommy Mathew, brother of the petitioner had filed the Company Petition No. 68/2000 as early as on 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him as constituted attorney of his younger brother Sri. Johnny Mathew Guatemala against Respondents No. 1 o 3 under Sections 397 398 of the Companies Act, 1956. The Bench by an order dated 18.09.2002 recorded that Counsel for Mr. Johnny Mathew has filed a memo withdrawing the company petition filed under Section 397/398 of the Companies Act, 1956 against the Company . Thus, the first Company Petition was neither taken on record nor decided on merits. Thereafter, when the petitioner himself filed the Company Petition 18/2003 alleging acts of oppression and mismanagement in the affairs of the Company, the same came to be rejected for non-fulfilment of the relevant provisions of the Company Law Board Regulations, 1991, which means that the matter directly and substantially in issue in the Company Petition No. 18 of 2003 was neither finally decided by the CLB. Now, it shall be seen whether in the light of these proceedings, the present Company Petition is barred by the principles of res judicata. In this connection, Section 11 of the Code of Civil Procedure Code, 1908 assumes relevance, which reads as under: No Court shall try any suit or issue in which the matter directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, other than an application under Sub-section (9) of section 58A of the Act or under Sub-section (2) of Section 45QA of the Reserve Bank of India Act, 1934, shall be accompanied by an affidavit in the prescribed manner. Regulation 23 stipulates that every counter-reply shall be accompanied by an affidavit verifying the same. Going by spirit of these regulations, the statement of objections filed with intension to contest the present application must necessarily be accompanied by an affidavit. Nonetheless, the various proceedings referred to by the respondent are matters of record, supported by the documents available before me, which speak for themselves. I, therefore, need not place any reliance on the statement of objections filed by the petitioner in the Company Petition to decide the issue of maintainability of the present Company Petition. The issue as to whether the petitioner is entitled for any equitable remedy for having suppressed the various Company Petitions and pendency of CP No. 15 and 16/2003 would be considered, while the Company Petition is decided on merits and not at this stage. In these circumstances, the respondent is directed to file counter by 31.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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