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TMI Blog2024 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case, it is clear that an objection was raised by the Corporate Debtor and an IA was filed, making allegations against the Appellant, that the Appellant placed on record false evidence pertaining to Demand Notice - the Adjudicating Authority permitted the Appellant to file pursish for withdrawal. Thus, no error has been committed by the Adjudicating Authority in permitting withdrawal of the Application, while denying liberty to file fresh Application, once again - the imposition of cost of Rs.50,000/- was not necessary - appeal dismissed. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Atul Sharma , Mr. Shivanshu Kumar , Ms. Aditi Sharma , Advocates JUDGMENT ASHOK BHUSHAN , J. These two Appeal(s) have been filed against the order dated 05.07.2024, passed by National Company Law Tribunal, Ahmedabad, Court-2 in two Section 9 Applications filed by the Appellant being CP(IB)/65(AHM)2023 and CP(IB)/66(AHM)2023. 2. Company Appeal (AT) (Insolvency) No.1487 of 2024 has been filed challenging order dated 05.07.2024 passed in CP(IB)/66(AHM)2023, by which order the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursish to withdraw the petition with liberty to file fresh. 2. Learned Counsel for the respondent objected for conditional withdrawal at belated stage. He has submitted that pleadings are over and even written submissions are filed by them. They have stated that person who has signed fresh vakalatnama is not a partner of the firm. Withdrawal pursish is also ambiguous. No reason or sufficient cause stated for fling such pursish. As the respondent preferred an IA 409 of 2024 for forgery against the applicant, he sought withdrawal. He has also paid cost to the Prime Minister s National Relief Fund. 3. Heard Learned Counsel for the applicant respondent. 4. It appears that vakalatnama of new counsel is filed with no objection of the earlier counsel. Learned Counsel also have authority to withdraw the petition. In the withdrawal pursish, applicant has not mentioned any reason for withdrawal as well for liberty to file fresh petition. They have repeatedly made averment of only withdrawal of petition with liberty to file again. Company Appeal (AT) (Insolvency) Nos.1487 1488 of 2024 5 As no reason is given and withdrawal is sought at belated stage, no liberty to file application again can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 9 Petition has preferred an application bearing I.A. No. 409 of 2024 levelling unfounded allegations against the Appellant qua placing on record false evidences pertaining to the demand notice. At this juncture, the Appellant most humbly states and submits that at the time of curing the defects with the registry, nothing new was brought on record by the Appellant, however, due to some inadvertence at the part of the clerk or the previously engaged professional such allegation were levelled against the Appellant who is a bona fide litigant who had approached the Ld. Adjudicating Authority with substantial and material evidences qua existence of outstanding debt due and payable by the Respondent. 8. After the order dated 24.06.2024 passed by the Adjudicating Authority, the learned Counsel for the Appellant filed pursish for withdrawal on behalf of the Applicant. In the pursish, which was filed by the Appellant, prayer for permission to withdraw the petition was made, reserving the right to file a fresh petition. The Adjudicating Authority after considering the pursish submitted by the Appellant and prayer made by the Appellant, passed the impugned order. The Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit 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 minor or such other persons. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng leave to institute a fresh suit. In paragraphs 2 and 3 of the judgment, the High Court has noticed the facts and pleadings, which are as follows: 2. The suit was instituted by the plaintiffs in the Court by the District Munsif at Kotagiri, seeking permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. The suit property is shown to be situate at Jagathala Village of Kotagiri Taluk. Upon service of notice in the suit, the defendants filed a memo stating that the village namely Jagathala is situate within the jurisdiction of the District Munsif's Court, Coonoor and not the District Munsif's Court, Kotagiri. Upon receipt of the Memo, the plaintiffs came up with an Application in IA No. 386 of 2017 seeking leave to withdraw the suit with liberty to file a fresh suit on the same cause of action in the proper Court. 3. This application was resisted by the defendants contending that if the District Munsif, Kotagiri had no territorial jurisdiction to entertain the suit. It will also not have jurisdiction to grant permission to file a fresh suit. The learned District Munsif allowed the application in part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties that the Court has no jurisdiction, the learned District Munsif, ought to have exercised his power under Order 7 Rule 10 of the Code of Civil Procedure, to return the plaint to the plaintiff for being presented in the proper Court that would have resolved the issues and this Civil Revision Petition need not have been kept pending for two years now. 15. The above judgment is clearly distinguishable, the High Court held that when the Court has no territorial jurisdiction, it ought not to have denied the leave to file a fresh suit. The Court, rather has held that under Order 7 Rule 10, the plaint was required to return to the plaintiff for being presented in the proper Court having jurisdiction. The above judgment, thus, does not help the Appellant. 16. The learned Counsel for the Appellant has relied on the judgment of Hon ble Supreme Court in Vimlesh Kumari Kulshrestha vs. Sambhajirao and Anr. (2008) 5 SCC 58. The above was a case where a suit was filed for specific performance of contract on 09.09.1986, which was marked as OS No.228-A of 1986. Having regard to an objection taken by defendant in the written statement, the plaintiff filed another suit on 23.03.1987, which was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in Chandrakant Pandurang Shingade and Anr. vs. Walchand Gulabchand Bora and Anr. (2019) SCC OnLine Bom 1669, where an application was filed, challenging the order of Civil Judge dated 09.10.2007, where Suit No.30 of 2007 was withdrawn by order dated 09.10.2007. The order allowing withdrawal of the suit has been quoted in paragraph 3 of the judgment, which is as follows: 3. It is applicant's case that the Respondent-Plaintiff had instituted Summary Suit No. 30 of 2007 (hereinafter called previous suit ) in the Court of Civil Judge, Senior Division, Baramati, but he withdrew it in pursuant to order dated 09.10.2007. It reads as under : Heard the learned counsel for the plaintiff. Perused the application. The plaintiff wants to withdraw the suit converting its nature in Special Civil Suit. I find substance in his submission. The permission is accorded to withdraw the suit. The documents and stamp be returned to the plaintiff as prayed for. 19. After withdrawal, the plaintiff instituted a Special Civil Suit No.128 of 2007 on same cause of action. An objection was raised by defendant that previous suit was withdrawn by the plaintiff with liberty to institute a fresh suit. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It has to be allowed as whole or rejected as whole. It is well settled that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, though it is open for the Court to reject such application, as held in the case of Mario Shaw v. Martin Fernandez reported in AIR 1996 BOMBAY 116. 21. The observation of the High Court in paragraph 6 that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, are observations, which are made not in accord with the legislative scheme delineated under Order 23 Rule 1, sub-rule (3). As noted above, allowing the plaintiff to institute a fresh suit can be granted by the Court, where the Court is satisfied that there are sufficient ground for allowing the plaintiff to institute a fresh suit. The provisions of Order 23 Rule 1 cannot be read to mean that whenever, an Application is filed for withdrawal of the suit, Court has necessarily and mandatorily to grant permission to the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause A or B i.e. existence of some formal defect or sufficient grounds. 23. We need to notice the two judgments of the Hon ble Supreme Court, which interprets provisions of Order 23 Rule 1 CPC. The first judgment to be noticed is in the matter of K.S. Bhoopathy and Ors. vs. Kokila Ors. (2003) 3 SCR 1168, where Hon ble Supreme Court had occasion to consider the provisions of Order 23 Rule 1, sub-rule (3) CPC. The Hon ble Supreme Court in the above judgment laid down following : The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts; (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court, in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. 24. Another judgment, which need to be noticed of the Hon ble Supreme Court is in the matter of V. Rajendran and Anr. vs. Annasamy Pandian (Dead) through legal representatives Karthyayani Natchiar (2017) 5 SCC 63, where again the Hon ble Supreme Court has laid down that power to allow withdrawal of the suit is discretionary. It is submitted that principle under Order 23 Rule 1, sub-rule (3) is founded on public policy to prevent institution of suit again and again on the same cause of action. The Hon ble Supreme Court in paragraph 9 laid down following : 9. Order 23 Rule 1(3) CPC lays down the following grounds on which a Court may allow withdrawal of suit. It reads as under: 1. Withdrawal of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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