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TMI Blog2024 (12) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that civil suit is being simultaneously pursued. It is a settled preposition of law constitutionally mandated, that a right to judicial remedies is a right which is safeguarded by Article 21 of the Constitution of India, and under this right, nobody could be deprived of availing the judicial remedies before the competent Court of Law for redressal of his grievances, which in the instant case falls to be within an ambit of Section 59 of the Companies Act. But the same was denied by the Ld. Adjudicating Authority on account of the pendency of the civil suit, but we cannot ignore the fact which has been brought on record, that when this company appeal was being considered, it is a fact which is not denied, that on the withdrawal memo was filed in the civil suit except that the Lok Adalat dismissed the suit as withdrawn only on 13.08.2022 after the Company Petition got dismissed. Owing to the implications of the order passed on 13.08.2022, since in the light of the undertaking given by the Appellant before the Ld. Adjudicating Authority to withdraw the suit, the same has been withdrawn though marginally at a later stage, in that eventuality, minor procedural technicalities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been lost bearing Share Certificate No. 168061 and 168062. Thereafter, in response to the communication made on 16.10.2018, the MRF is said to have written a reply on 15.11.2018, reiterating the earlier reply given by them way back on 03.06.1996, and had also enclosed the letter dated 03.06.1996. In the letter of 03.06.1996, it was mentioned by MRF Company that the original share certificates that were claimed to be lost by the Appellant, are available and they are with M/s. Fair Growth Investments Limited Mumbai, requiring for rectification of the deficiencies along with the transfer deed. The MRF also stated therein that they had denied to issue the Duplicate Share Certificates to the Appellant against the Original Share Certificates Bearing No. 168061 168062 claimed to have been lost since the original share certificates are still available. On receipt of the letter dt. 15.11.2018 from MRF, the Appellant filed a First Information Report bearing FIR No. LR02053122018 on 06.12.2018, with the Crime Branch of Pune, Maharashtra for loss/theft of the said 100 shares and besides the registration of the FIR, he has also written to the MRF for intimation, enclosing therewith the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 59 of the Companies Act, the Appellant has sought multi-fold reliefs, the cognizance of which has been taken by the Ld. Adjudicating Authority in the Impugned Order. But we at this stage are refraining ourselves to venture into the propriety of the reliefs sought for, because the reliefs thus claimed by the Appellant are yet to be adjudicated on merits and any finding if recorded by us, on merits of the issue may have an adverse bearing on the proceedings of the company petition itself. When the petition dated 28.07.2021 was filed before Ld. NCLT, Chennai, the petitioner made a statement before the Ld. Tribunal with regard to the pendency of the suits, and the relevant extract of Para 42 and 43 of the said petition has been extracted by the Ld. Tribunal, while passing the Impugned Order, observing thereof that, owing to the bar created under Section 430 of the Companies Act, 2013, the civil suit ought not to have been instituted or if instituted already, should not have at all been carried parallel to the proceedings of the company petition. During the pendency of the company petition, the Appellant undertook, that he would withdraw the suit, which was filed by him before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on 13.08.2022, after passing of the Impugned Order and thus the embargo which was created by Section 430 of the Companies Act, now stood eradicated because of subsequent dismissal of suit, and therefore the proceedings initiated by him by way of company petition under Section 59 of the companies Act, ought to have been decided on its merits. The dismissal of the Company Petition on 10.08.2022, cannot be legally faulted, because admittedly on that date the Appellant was pursuing two simultaneous remedies, one by way of the Company Petition and the other, by way of a civil suit, which was pending despite of the undertaking given by the Appellant to withdraw the same. Though the withdrawal memo was filed, but no orders were passed till the Company Petition was taken up by the Ld. Tribunal on 10.08.2022 and orders were passed dismissing the company petition, on the ground that civil suit is being simultaneously pursued. But we cannot be oblivious of the fact, and ignore it, that when the civil suit was placed before the Lok Adalat, for hearing on 13.08.2022, on the withdrawal memo preferred by the Appellant, the Civil suit being RCS/123/2020 was permitted to be dismissed as withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding suit as such. If that be the situation the Appellant ought to be permitted to resort to the process of redressal of his grievances permissible by way of a process known to law and that would be by way of the preferring of the company petition under Section 59 of the Companies Act. Hence, we are of the view that owing to the implications of the order passed on 13.08.2022, since in the light of the undertaking given by the Appellant before the Ld. Adjudicating Authority to withdraw the suit, the same has been withdrawn though marginally at a later stage, in that eventuality, minor procedural technicalities should not create any hurdle as such against the Appellant for, depriving him for all times to come, from resorting to his judicial remedies. Therefore, as the suit has been withdrawn on 13.08.2022, the Company Petition No. 106(CHE)/2021, as preferred by the Appellant under Section 59 of the Companies Act, ought to have been considered on its merit. Be that as it may, the dismissal of the Company Petition cannot be faulted, but then we have to balance the equities, and while doing so, we feel it apt that the Impugned Order of dismissing the company petition on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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