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TMI Blog2020 (10) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... ept any suits of which, the cognizance is either expressly or impliedly barred. It is now well settled that the exclusion of the jurisdiction of the civil court cannot be lightly inferred in view of the plenary jurisdiction conferred on the civil court under S. 9 of the CPC and any plea, seeking exclusion of such jurisdiction, has to be jealously guarded. However, at the same time a legal provision creating a bar of jurisdiction of the civil court, are required to be strictly interpreted and given effect to. In other words, although the exclusion of jurisdiction, cannot be lightly inferred, wherever there is a provision excluding such jurisdiction, either expressly or by necessary implication, the same has to be given effect to in its letter and spirit. The writ petition is without any merits and is dismissed. - WRIT PETITION NO. 8032 OF 2019 - - - Dated:- 26-10-2020 - C.V. BHADANG, J. Mr. Ram Upadhay a/w Mr. Dharmesh Singh i/b Law Competere Consultus, for the petitioner. Mr. Akshay Patkar a/w Mr. Aniket Malu for the Respondent Nos. 1 to 3. Mr. Abhijit Desai for Respondent No.4. (Through Video Conference) JUDGMENT 1. Heard. Rule made returnable forthw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act. (iv) The Petitioner opposed the said application claiming that the Civil Court has jurisdiction, inasmuch as the entire relief claimed before the Civil Court cannot be claimed or granted by the NCLT. (v) The learned Trial Court by the impugned order has allowed application (Exhibit 22) and has upheld the objection to the jurisdiction, which brings the Petitioner to this Court. 4. I have heard Mr. Ram Upadhyay, the learned Counsel for the Petitioner and Mr. Akshay Patkar for the Respondent Nos. 1 to 3 and Mr. Abhijit Desai for Respondent No. 4. Perused record. 5. The learned Counsel for the Petitioner has made the following submissions:- (a) That Respondent Nos. 2 and 3 were not holding the Board Meetings or the AGM and were not maintaining proper accounts nor were filing returns. It is submitted that in the year 2016, the Petitioner learnt that these Respondents have executed a sale-deed in respect of the property belonging to the company, in favour of Respondent No.4. It is submitted that this was without authority or any board resolution. In the submission of the learned Counsel such a transfer/alienation of the property can only be on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal and proper and calls for no interference. 7. I have carefully considered the rival circumstances and the submissions made. 8. It is the case made out in the plaint that on account of absence of the mandatory notice under S. 286 of the Companies Act, 1956, being served on the petitioner / plaintiff, the meeting convened by the Board of Directors and the so called board resolution dated 2nd February, 2014 is void. It is also contended that there is non-compliance with the provisions of S. 291 of the Companies Act, 1956 since the Board of Directors has exercised the powers which are to be exercised by the General Body, as stipulated in the memorandum of Articles of Association. It is alleged that Board of Directors without calling for a General Body meeting have sold the property belonging to the Company, which is in violation of S. 293 of the Companies Act, 1956. It is contended that even otherwise there is no justifiable reason for the sale of the company property. It is claimed that the amount of the sale consideration has been misappropriated by the respondent Nos. 1 and 2. It is in these circumstances that the civil suit is filed for the following reliefs. (a) Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is subject matter of the sale-deed dated 30th June, 2014 has also been refused for the reason that according to the NCLT, the transaction already stands concluded in the year 2014. The NCLT has found, that as per the settled position of law , injunction can be granted in respect of a future event, which may cause irreparable loss to the party seeking injunction. In the opinion of the NCLT, an event which has already happened cannot be undone. The NCLT has also observed that if the transaction in question is ultimately held to be ultra vires at the final disposal of the petition, then consequential legal remedy is always available to the petitioner . 11. It can thus be seen that although the respondents herein had raised a ground of limitation in respect of the challenge to the sale-deed of the year 2014 on the basis of S. 242 (2) (g) of the Companies Act, 2013, at this stage it does not appear that the said ground has been accepted by the NCLT. Quite to the contrary, the company petition is admitted, and as noticed earlier the NCLT has also held that if ultimately the transaction is held to be ultra vires, consequential reliefs can be granted. 12. Coming to the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was just and equitable that the company should be wound up, the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit. (2) Without prejudice to the generality of the powers under sub-section (1), an order under that subsection may provide for -- (a) ... (b) (c) ... (d) (e) (f) ... (g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference. 15. It is submitted that NCLT can set aside any transfer made by or on behalf of the company only within three months, and not beyond. It is contended that thus the challenge to the sale-deed of the year 2014 cannot be entertained by the NCLT in the company petition, which is filed in the year 2017 and therefore the civil court will have jurisdiction to entertain the said challenge. 16. The contention in my considered view cannot be accepted at this st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory injunction directing the defendant No. 1 to hand over the vehicle bearing No. GA-01-C-8001 belonging to the said company forthwith. (e) For a permanent injunction restraining the defendants No. 1, 2 and 3 from acting and / or posing themselves as Directors of the Company and / or causing any interference to plaintiff No. 2 and 3 in the management of the affairs of the said company as its directors. (f) For a mandatory injunction directing the defendant No. 1 to hand over the documents listed at Annexure Z-18 to the plaintiffs. 19. The defendants had filed an application for rejection of plaint under Order VII, Rule 11(d) of CPC, which was allowed by the trial court. That was the order, which was subject matter of challenge before this Court. Precisely, the issue was whether the trial court could have held that the plaint was not maintainable, in view of provisions of Section 10GB of the Companies Act, 1956 (old Act). 20. In my considered view, the case of Candolim Developers (supra) turned on its own facts and is distinguishable at least on two counts, viz. (i) with reference to the nature of reliefs sought before the civil court, which is an important factor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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