9911796707
TMI Blog2022 (9) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2016, Filing of objections by Respondent, Form and Consequences, unerringly points out that the Respondent, if so directed, shall file Objections or Counter within the time allowed by the Tribunal. In effect, the Tribunal has an inherent power while exercising its discretion not to direct the Respondent to file a Counter / Reply / Response in regard to the First Waiver Application, as opined by this Tribunal. In the case on hand, under Section 241 of the Companies Act, 2013, there are no pending Proceedings before the Tribunal. Therefore, this Tribunal, safely, securely and in a cocksure fashion holds that the Appellant(s) cannot seek the aid / invocation of Rule 82 of the NCLT Rules, 2016. There is no negation of the principles of natural justice, in as much as the impugned order was to allow a filing of Fresh Petition, as per the ingredients of Section 244 of the Companies Act, 2013, pertaining to the affairs of the Appellant (in Comp. App (AT) (CH) No. 54 of 2021) / ₹ 1st Respondent(Ambadi Investments Limited). It cannot be brushed aside that at the time of passing the impugned order, the First Waiver Application Viz. CP/29/CHE/2021 was pending and the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Limited, Cholamandalam Investment Finance Company Limited (CIFCL) Mr. Alagappan Arunchalam Murugappan, Mr. Vellayan Arunachalam , Mr. Murugappan Murugappan Muthiah , Mr. Murugappan Muthiah Venkatachalam , Mr. M A M Arunachalam , Mr. Vellayan Subbiah , Mr. Padmanabhan Nagarajan , Mr. Poondi Ramarathnam Ravi Versus Ms. Valli Arunachalam, Ms. Vellachi Murugappan, M/s. M.V. Murugappan Hindu HUF , Ambadi Investments Limited , Mr. M.V. Subbiah, Tube Investments of India Limited , Carborundum Universal Limited , Coromandel International Limited , Cholamandalam Investment Finance Company Limited (CIFCL) Mr. M.V. Subbiah Versus Ms. Valli Arunachalam, Ms. Vellachi Murugappan, M/s. M.V. Murugappan HUF, Ambadi Investments Limited , Mr. Alagappan Arunachalam Murugappan , Mr. Vellayan Arunachalam Director, Mr. Murugappan Murugappan Muthiah Director , Mr. Murugappan Muthiah Venkatachalam Director, Mr. M A M Arunachalam Director , Mr. Vellayan Subbiah Director , Mr. Padmanabhan Nagarajan Director , Mr. Poondi Ramarathnam Ravi Director, Tube Investments of India Limited , Carborundum Universal Limited , Coromandel International Limited , Cholamandalam Investment Finance Company Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice. 13. Rule 44(2) of NCLT Rules, 2016 states that at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the Justice. 14. A careful reading of Rule 44(2) of NCLT Rules, 2016, would posit the fact that withdrawal of the Application under this provision can be done only at a stage prior to hearing. Admittedly the waiver Application is not taken up for hearing and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier waiver Application (CP/29/2021) was pending and hence the relief in so far as the liberty is concerned, the same has become infructuous. However, by considering the factual matrix of the present case, the CP/95/2021 is taken on the file of this Tribunal and the objections if any, in relation to the same, shall be taken up at an appropriate stage when the matter is listed for hearing on 13.10.2021. and disposed of the said `Miscellaneous Application . Appellant s Submissions (in Comp. App (AT)(CH) No. 54 of 2021): 3. The Learned Senior Counsel for the Appellant submits that the Respondent Nos. 1 and 2 / Petitioners had filed an `Application (unnumbered one under Section 241 242 of the Companies Act, 2013), before the `National Company Law Tribunal , Chennai, and further that they did not possess the `requisite shareholding to maintain the said `Petition and therefore, preferred a `Waiver Application / `CP/29/CHE/2021 , before the `Tribunal , praying for waiver of the shareholding requirements mentioned in Section 244 (1) (a) of the Companies Act, 2013. 4. According to the Appellant, on perusal of the `Waiver Application / Petition CP/29/CHE/2021 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: 3. I state that the documents filed along with the Application M.A. No. of 2021 in C.P. No. of 2021 which forms part of the application are true copies which were available at the time of filing the application. 4. I further state that documents are not forged or altered in any manner known to law and are true copies of the original. and these lapses indicate that the acts of the Respondent Nos. 1 and 2 are against the `Form and `Procedure specified under the NCLT Rules, 2016, and they have `Perjured themselves. 5. It is represented on behalf of the Appellant that the Appellant had filed (a) MA/24/CHE/2021 in CP/29/CHE/2021, seeking to reject the Waiver Application filed by the Respondent Nos. 1 and 2; (b) MA/27/CHE/2021 in CP/29/CHE/2021, praying for passing of an `Order in directing the `Stamp Vendor to furnish the `Register of Stamps maintained under the Rules for Supply and Distribution of Stamps and to direct the Notary Public to furnish the `Notarial Register maintained and (c) Company Application/37/CHE/2021, seeking for an `enlargement of time , in filing Counter to the `Waiver Application CP/29/CHE/2021 . 6. It is the version of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the Appellant comes out with a plea that the `act of filing of a new `Waiver Application and a `Company Petition (CP/95/2021) , on the file of the `Tribunal , although no `Leave was granted by the `Tribunal to prefer the `Second Waiver Application and more so, considering the fact that the ₹ 1st Respondent s Waiver Application (CP/29/CHE/2021) , continued to be pending on the file of the `Tribunal along with the aforesaid `Application . 12. The Learned Counsel for the Appellant contends that the `Tribunal on 11.08.2021 in CP/95(CHE)/2021, CP/29(CHE)/2021 and all pending Applications in CP/29(CHE)/2021 was pleased to direct the Respondents to file Application, if any, to withdraw the `First Waiver Application (CP/29(CHE)/2021) . 13. In this regard, the Learned Counsel for the Appellant points out that pursuant to the order dated 11.08.2021, the Respondents filed MA/79/CHE/2021 dated 31.08.2021 (without mentioning the relevant NCLT Rules, 2016, and sought leave for withdrawal of `Waiver Application (CP/29/CHE/2021) and the liberty to file and proceed with the `New Company Petition and `New Waiver Application . 14. The Learned Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted below for ready reference: 37. Notice to Opposite Party.--(1) The Tribunal shall issue Notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such Notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting documents. (2) If the respondent does not appear on the date specified in the Notice in Form No. NCLT. 5, the Tribunal, after according reasonable opportunity to the respondent, shall forthwith proceed ex-parte to dispose of the application. (3) If the respondent contests to the Notice received under sub-rule (1), it may, either in person or through an authorised representative, file a reply accompanied with an affidavit and along with copies of such documents on which it relies, with an advance service to the Petitioner or applicant, to the Registry before the date of hearing and such reply and copies of documents shall form part of the record. 23. Therefore, it is clear that the Learned NCLT has committed an error in not granting reasonable and sufficient time for filing a reply, which is a complete violation of Rule 37 of NCLT Rules and Princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and held as under: 63. When one section of a statute grants general powers as opposed to another section of the same statute which grants specific powers, the general provisions cannot be utilised where a specific provision has been enacted with a specific purpose in mind. Thus, in J.K. Cotton Spg. Wvg. Mills Co. Ltd. v. State of U.P. (AIR 1961 SC 1170), this Court held: (SCR pp. 194-95 : AIR p. 1174, para 9) 9. There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside exparte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX Rule 1, requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the preceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX. Rule. 7 and Order IX. Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where, the hearing is completed the parties have no further rights or privileges in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and there are no grounds for permitting the appellant to raise it in this appeal. Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits. Excluding the names of the 13 persons who are stated to be not members and the two who are stated to have signed twice, the number of members who had given consent to the institution of the application was 65. The number of members of the Company is stated to be 603. If, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in Section 153-C, sub-clause (3)(a)(i). But it is argued that as 13 of the members who had consented to the filing of the application had, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable. We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `Reply to MA/79/CHE/2021 in CP/29/CHE/2021, the matter was heard, reserved for orders and only 5 days time was granted to file `Written Submissions and not `Counter in the `Withdrawal Application and that the said `Objection was raised in the `Written Submissions . However, the other `Applications in CP/29/CHE/2021 were adjourned for `Hearing and `Disposal on 13.10.2021. 33. The Learned Counsel for the Appellants/Appellant point(s) out that the `Tribunal had permitted the `Respondent No.1 and 2 to `Withdraw CP/29/CHE/2021 and closed all the connected IAs/MAs in CP/29/CHE/2021 without even providing an `Opportunity of being `Heard , either to the `Appellants or to the other `Respondents , when the said `Interlocutory Applications were due to be `Heard on 13.10.2021. As a matter of fact, the `Tribunal by the same order took CP/95/CHE/2021 on record and post the matter on 13.10.2021. 34. The Learned Counsel for the Appellants/Appellant refer(s) to the Judgment of this `Tribunal dated 14.07.2022 in the matter of Ashok Tiwari v. DBS Bank India Limited Anr., (which follows the Judgment of Zee Entertainment Enterprises Ltd. v. Invesco Developing Market Funds Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for proper effective adjudication and to prevent the abuse of process of this Bench in Company matters . 39. The Learned Counsel for the Appellants/Appellant cite(s) the ratio laid down by the Hon ble Supreme Court in Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao (1956) 26 Comp. Cases Page 91, wherein it is observed that the `validity of the Petition , must be judged on the facts as they were at the time of its presentation. 40. In this connection, the Learned Counsel for the Appellants/Appellant contend(s) that in the present case, when CP/29/CHE/2021 was presented, the same was `invalid , and hence the `Petition has to be dismissed at the threshold and not liberty ought to be granted to prosecute CP/95/CHE/2021, which also suffers from `perjury . 41. It is represented on behalf of the Appellants/Appellant that the Appellant had filed (a) MA/46/CHE/2021 in CP/29/CHE/2021, seeking to reject the Waiver Application filed by the Respondent Nos. 1 and 2 numbered as `Waiver Application (CP/29/CHE/2021); (b) MA/67/CHE/2021 in CP/29/CHE/2021, praying for passing of an `Order in directing the `Stamp Vendor to furnish the `Register of Stamps maintained u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or `Notary , who would then affix his official seal. 46. The Learned Counsel for the Appellants/Appellant take(s) a plea that in the present case, the Respondent Nos. 1 and 2 (in both `Appeals ) have failed to follow any of the requirements specified in the NCLT Rules, 2016 mentioned aforesaid and had filed a perjured `Affidavit in utter violation of the Rules, as the `Verifying Affidavit to the `Application was dated 27.01.2021, but the `Stamp Paper on which it was filed dated 08.02.2021 and the Notarisation was on 27.01.2021. In effect, the `Notarisation was effected on a `Stamp Paper on 27.01.2021, when the said document was not in existence. 47. The Learned Counsel for the Appellants/Appellant urge(s) that the stand taken by the Respondents is that, `Notarising an Affidavit is not a mandatory requirement and that an affidavit need not be engrossed on a `Stamp Paper and in fact the `Affidavit verifying CP/29/CHE/2021 was signed on 27.01.2021 and notarised on 27.01.2021, etc. 48. The Learned Counsel for the Appellants/Appellant bring(s) to the notice of this `Tribunal that the `Notary Public who had notarized the `Verifying Affidavit to the copy of the `Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants/Appellant submit(s) that by virtue of the impugned order dated 29.09.2021, the `Tribunal had `allowed the `Respondent Nos. 1 and 2 to `withdraw CP/29/CHE/2021 and `closed all IAs / MAs in CP/29/CHE/2021 , without even not providing an opportunity either to the Appellant(s)/Appellant or to the other Respondents, when the said Interlocutory Applications are due to be heard on 13.10.2021. Moreover, the CP/95/CHE/2021 was taken on record as per the Order dated 29.09.2021 and the matter was posted to 13.10.2021, against which, the Appellant has preferred the instant Comp. App (AT) (CH) Nos. 4 6 of 2022. 55. The Learned Counsel for the Appellants/Appellant refer(s) to the Judgment of the Principal Bench, New Delhi of this `Tribunal dated 14.07.2022 in the matter of Mr. Ashok Tiwari v. DBS Bank India Limited (`DBIL ) and Another (vide Company Appeal (AT) (INS.) No. 464 of 2022), wherein it is held that a Respondent in a proceeding should be given a reasonable opportunity to file a `Reply and in fact only an `Opportunity to file `Notes of Submission was given, inspite of request made an `Opportunity to file `Counter . Hence, the `impugned order was passed by the `Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes place before a Tribunal clothed with judicial function at any stage of the proceedings subsequent to its inception . 58. The Learned Counsel for the Appellants/Appellant contend(s) that on the same `cause of action , the Respondent Nos. 1 and 2 had filed `two Waiver Applications and `two Company Petitions , as per the NCLT Rules 2016 r/w. Order 2 Rule 2 r/w. Order 23 Rule 1 (3) of the CPC, 1908, and in fact, the plea of the Appellants/Appellant is that the `two Waiver Applications and `two Company Petitions , on the same `cause of action cannot be maintained at the same time. 59. According to the Learned Counsel for the Appellants/Appellant, the `Leave ought to be obtained earlier to the filing of the `Waiver of the `Company Petition and the very fact that `Leave was obtained by the Respondent Nos. 1 and 2 s Learned Counsel by mentioning before the `Tribunal on 09.08.2021, which was informed to the Appellants/Appellant through an Advocate s email dated 09.08.2021 does not hold water, as no orders to that effect ever granting `Leave was in existence. Furthermore, all concerned Petitions/Applications were listed on 09.08.2021 and reposted to 11.08.2021. 60. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit of 1st February 2021 to respond on the `Settlement . Hence, the pleadings that were signed, were kept on hold and not filed. 66. According to the Learned Counsels for the Respondent Nos.1 and 2 that the `First Waiver Application (CP/29/CHE/2021) was filed on 08.02.2021, when nothing was heard from the `Appellant and therefore, the `Stamp Paper was purchased on 08.02.2021. Hence, it is clear that the `Verifying Affidavit and the `First Waiver Application (CP/29/CHE/2021) were signed on 27.01.2021 and the Stamp Paper alone was purchased subsequently and `No Perjury was committed on the part of the Respondent Nos. 1 and 2. 67. It is represented on behalf of the Respondent Nos. 1 and 2 that, to address all the purported technical defects and to bring on record the new and material facts showing further eroding of the value of the Appellant and continued acts of oppression, which had then recently came to the knowledge of Respondent Nos. 1 and 2, coupled with the facts already existing, and for an expeditious and effective adjudication of all facts, circumstances and issues involved in the matter in a `single proceeding and to prevent unnecessary and further plu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon ble Supreme Court in U. Subhadramma Ors. v. State of A.P. Anr., reported in AIR 2016 SC Page 3095, wherein at paragraph 7, it is observed as under: 7. As far as the circumstances of this case are concerned, we find that there has been a gross mis-carriage of justice at several steps. In the first place, the finding of the trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `First Waiver Application (CP/29/CHE/2021) was filed under Section 244 of the Companies Act, 2013, and in fact, no number was given to the Petition filed under Section 241 of the Companies Act, 2013, moreover, the `Petition under Section 241 of the Companies Act, 2013, was incapable of being numbered, till such time, the `Tribunal allowed the `First Waiver Application (CP/29/CHE/2021) under Section 244 of the Companies Act, 2013. Only upon the said `Application being `Allowed , the `Company Petition will be assigned a `Number , after which only, the same is admitted on the file of the `Tribunal . Therefore, it is the contention of the `Respondent Nos. 1 and 2 that on the date of passing of the `impugned order , the only proceeding that was on the file of the `Tribunal was the `First Waiver Application (CP/29/CHE/2021) as per Section 244 of the Companies Act, 2013. 78. To fortify this plea, the Learned Counsels for the Respondent Nos. 1 and 2 project a point that till such time, as the `First Waiver Application was not permitted, the `Petition under Section 241 of the Companies Act, 2013, is not instituted in `Law , and falls back upon the Judgment of this `Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim. A question arises as to what is to happen before a committee of creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach the NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case. 82. The Learned Counsels for the Respondent Nos. 1 and 2 refers to Rule 44 (2) of the NCLT Rules, 2016, which prescribes `Withdrawal prior to the stage of `Hearing of the `Petition / `Application . 83. The Learned Counsels for the Respondent Nos. 1 and 2 cites the decision of the Hon ble Supreme Court of India in Siraj Ahmad S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. P.R. Ramakrishnan Ors., reported in (1985) SCC Online Madras 260, which noted that hearing the `Petitioner for the purpose of `Admitting the Petition and `issuing Notice is part of `Hearing , points out that in `Winding up Petition , the `Court has limited option _ to (i) issue notice to show cause why the petition ought not be admitted; (ii) admit the petition and fix a date for hearing; and issue a notice to the Company before giving directions about advertisement of the petition; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order. , as per decision of the Hon ble Supreme Court of India in National conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279. 86. The Learned Counsels for the Respondent Nos. 1 and 2 submits that there was no `Hearing on the `First Waiver Application (CP/29/CHE/2021) and even the `Pleadings were yet to be completed, as the `Appellant had not filed any `Counter , at the time of passing the `Impugned Order and this was considered by the `Tribunal , at Paragraph 14 of the `Impugned Order . Therefore, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Company Law Tribunal, Chennai, is not bound to `Hear , `Dispose of an `Application on the ground of `Maintainability under Order XXIII Rule 1 (3) of the Civil Procedure Code. 93. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision in the matter of Pahuja Takii Seed Ltd. and Ors. v. The Registrar of Companies, NCT of Delhi Haryana (2019) 2 Comp LJ 108), wherein at Paragraph 14, it is observed as under: 14. Section 424 of the Companies Act, 2013 deals with `procedure before Tribunal and Appellate Tribunal . As per the said provision, the Tribunal and the Appellate Tribunal, while disposing of any proceeding or appeal will not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act or of the Insolvency and Bankruptcy Code, 2016 and of any rules made thereunder, the Tribunal and the Appellate Tribunal have the power to regulate their own procedure. Therefore, it is clear i.e., for the Tribunal and the Appellate Tribunal to decide the procedure to be followed while dealing with the application under Section 441 of the Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appellant has not challenged the dictum laid down in the aforesaid decision but has argued that on the facts of this case that decision is not applicable because here the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal v. Upendra Dutt, AIR 1928 Lah 710 and Mangi Lal v. Radha Mohan, AIR 1930 Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or over-ruled. The aforesaid two Lahore decisions clearly say that if second suit if filed before the first suit is withdrawn then Order 23, C.P.C. is not attracted and the second suit cannot be dismissed under Order 23, Rule 1(4) of the Civil Procedure Code. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under Order 23, C.P.C. 99. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 09.08.2021 (vide Page 2840 of the Appeal Paper Book) sent by the Learned Counsel of the Respondent Nos. 1 and 2 to the Appellant and to other Respondents. 102. The Learned Counsels for the Respondent Nos. 1 and 2 advances a plea that the `Second Waiver Application (CP/95/CHE/2021) was filed on 09.08.2021, which came up for `Hearing on 11.08.2021, on which date, the objection was raised by the `Appellant that earlier `Waiver Application (CP/29/CHE/2021) was not formerly withdrawn. In fact, the `Tribunal , after hearing the `Parties, had permitted Respondent Nos. 1 and to rectify this position and take necessary steps to withdraw the First Waiver Application (CP/29/CHE/2021). 103. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon ble Supreme Court of India in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others, reported in AIR (1981) at Page 606, Paragraph 6, it is observed as under: 6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists proper ground, for `granting permission in regard to the `Withdrawal of the `Suit . 107. To be noted that, only with the `leave of the `Court /`Tribunal , which will be granted naturally will depend upon the due satisfaction and for `Sufficient / `Good Reasons . If the `Court /`Tribunal grants `Leave to file fresh `Suit / `Proceeding , the `Withdrawal of an `Application has no existence in `Law . 108. It is pointed out that a permission to `Withdraw with `Liberty to file fresh `Proceeding / `Suit is not the Petitioner s indefeasible right. An unconditional `Withdrawal of the `Suit /`Application , will be complete, as soon as the `Plaintiff / `Petitioner communicate his intention / desire to the `Court /`Tribunal . Indeed, the `Principle of Resjudicata may not `Apply , once the `Suit is filed and `Withdrawn unconditionally. 109. Moreover, the `leave under Order II Rule 3 of the Civil Procedure Code, ought not to be an express one, may be inferred from the circumstances of the case. Apart from that, the `leave under Order II Rule 3 of the Civil Procedure Code to omit the `relief need not be sought simultaneously with the filing of a `Suit and ` ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the `Statement is necessary , where Statement to that effect, before the `Court is sufficient, as per decision (2009) 2 Gau LR 649, at Page 652 (Gau). 117. Also that, a `Plaintiff / Petitioner / Applicant has an absolute and indefeasible right to withdraw a `Suit / `Given Proceeding unconditionally. However, for an `Individual to file a `Fresh Suit for the same `relief , there must exist `Lawful reason, like `Formal Defect in `Suit , etc. 118. As a matter of fact that the term `Formal Defect means, `defect of form and not the `Merits . The words `Sufficient Ground should be given a wide meaning in respect of `Formal Defect , as per the decision 1957 Mad. 207. Moreover, the term `Sufficient Ground should be construed `ejusdem generis with `Formal Defects , as per decision 1951 Mad. 715. Civil Suit: 119. When a `Suitor files a `Civil Suit , before a `Court of Law , then, the ingredients of `Civil Procedure Code applies, in relation to the `conduct of proceedings , as opined by this `Tribunal . Company Petition: 120. In regard to the `Legal Proceedings , filed under the Companies Act, 2013, before the `Tribunal and `Appellate Tribunal , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 244 (1) (a) of the Act, and allow the instant `Application , thereby permitting the `Applicants to `Apply under Section 241 of the Act for the reliefs as claimed in the captioned `Petition . 125. The `Second Waiver Application (CP/95/CHE/2021) was filed by the `Applicants /`Petitioners / `Respondents 1 and 2 (as per Section 244 of the Companies Act, 2013) in Comp. App (AT) (CH) No. 54 of 2021, Comp. App (AT) (CH) No. 4 of 2022 and Comp. App (AT) (CH) No. 6 of 2022, before the `National Company Law Tribunal , Division Bench-I, Chennai, among other things mentioning that the combined Shareholding of the `Applicants /`Respondent Nos. 1 and 2 , in the ₹ 1st Respondent /`Company (`Ambadi Investments Limited the `Appellant in Comp. App. (AT) (CH) No. 54 of 2021) is less than 10% of the `Total Paidup Capital of the Company and they do not fulfill the requirements of Section 244 of the Companies Act, 2013, and prayed for allowing the `Application by waiving the requirements of Section 244 of the Companies Act and permit them to apply, as per Section 241 of the Companies Act, 2013, for the `reliefs claimed in the captioned `Petition . 126. According to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 11.30 A.M. for further hearing. If the Petitioner wishes to file any Application, citation in the Registry, the Petitioner shall serve a copy of the same by way of an e-mail as well as by serving hard copies of the same to the Learned Counsel for the Respondents on or before the next date of hearing. and directed the listing of the matter on 15.09.2021 at 11.30 A.M. for hearing and disposal. 128. It is brought to the fore that on 09.08.2021, on behalf of the `Respondent Nos. 1 and 2 , a `Leave was sought before the `Tribunal , to file a `Fresh Company Petition and `Fresh Waiver Application and based on which, the same were filed through `Electronic Form and when the matter was came up for hearing on 11.08.2021, despite objection taken on behalf of the `Appellant that previous Waiver Application (CP/29/CHE/2021) was not `Withdrawn , the `Tribunal only after hearing the `Parties , had permitted the `Respondent Nos. 1 and 2 to rectify this position and necessary steps were to be taken, to `Withdraw the `First Waiver Application . 129. In this connection, this `Tribunal pertinently points out that the mere perusal of the `Order dated 11.08.2021 in CP/95/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice. is of the considered opinion that it is not either `compulsory or `mandatory for the `Tribunal to hear the opposite `Party / Parties in the `Petition or the `Application , at the time of permitting the `Withdrawal of `Application , leave alone, the aspect of projecting the `Counter . 133. Admittedly, before passing of the `impugned order , an `opportunity of `Hearing was given to the `Appellants . In this connection, a cursory perusal of the ingredients of Rule 111 (1) of the NCLT Rules, 2016, `Filing of objections by Respondent, Form and Consequences , unerringly points out that the `Respondent , if so directed, shall file `Objections or `Counter within the time allowed by the `Tribunal . In effect, the `Tribunal has an `inherent power while exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2016, because of the Rule 29 of the NCLT Rules, 2016, which categorically enjoins that `on admission of `Appeal or `Petition or `Caveat Application , the same shall be numbered and registered in the appropriate Register maintained in this behalf and its number shall be entered therein . 138. Coming to the stand of the Appellants that there were two `Waiver Applications and two `Company Petitions filed by the Respondent Nos. 1 and 2, before the `Tribunal , on the same `Cause of Action in terms of NCLT Rules, 2016, read with Order II Rule 2 read with Order XXIII (1) (3) of the Civil Procedure Code, 1908, two `Waiver Applications and two `Company Petitions are not maintainable, at the same time, this `Tribunal points out that the ingredients of Section 424 of the Companies Act, 2013, clinchingly exhibit that the `Tribunal and the `Appellate Tribunal are not bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the `Principles of Natural Justice , and subject to the other provisions of this Act (or of the Insolvency and Bankruptcy Code, 2016 (31 of 2016) and of any rules made thereunder, the `Tribunal and the `Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a `Tribunal , is not to be pressed in to service, when there are `express /`explicit provisions, provided under the `Companies Act, 2013 . However, in terms of Rule 11, `inherent powers of the `National Company Law Tribunal Rules, 2016 , the `NCLT Tribunal has an `inbuilt , `incidental or `ancillary power to perform its `duties effectively and in an efficacious manner, ofcourse, well within its `jurisdiction . 144. It transpires that in MA/79/CHE/2021 in CP/29/CHE/2021, on the file of `National Company Law Tribunal , Division Bench, Chennai, the `Applicants /`Petitioners therein, at Paragraphs 7, had inter alia averred that `to address all the technical defects without prejudice, to bring on record the new and material facts which have recently come to the Petitioners knowledge along with the facts already existing, and for expeditious and effective adjudication of all facts, circumstances and issues involved in the matter in a single proceeding and to prevent unnecessary and further multiplicity of proceedings, on 9 August 2021, the captioned matter was mentioned by the Petitioners before this Hon ble Tribunal for filing the fresh waiver application and fresh com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the `National Company Law Tribunal , Division Bench-I, Chennai, the `Tribunal had closed the connected IAs / MAs. In this connection, although before this `Tribunal , on behalf of the `Appellant(s) , a plea is taken, in regard to the `lapses and irregularities , committed by the `Respondent Nos.1 and 2 /`Applicants against the `Form and `Procedure prescribed under the NCLT Rules, 2016, thus, had `perjured themselves , and therefore, Miscellaneous Applications were filed in CP/29/CHE/2021, this `Tribunal pertinently points out that as against the closure of the said IAs/MAs (vide `impugned order dated 29.09.2021), the `Appellant(s) in these three `Appeals admittedly, they have not proceeded any further and as such, the said `Closure Order dated 29.09.2021 has become a `conclusive , `final and `binding between the `inter se Parties . 149. It is not in dispute that the 1st Respondent (Mrs. M.V. Valli Murugappan, died on 21.01.2022) and as per Section 394 (2) of the Criminal Procedure Code, the `offence of perjury abates on her death. Further, it must be borne in mind that Section 340 of the Criminal Procedure Code, 1973, lays down the `Procedure therein, for deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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