Rajasthan High Court
Saurabh Agrotech Pvt. Ltd vs Vijay Solvex Limited on 18 October, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:40467]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Company Appeal No. 1/2015
1. Saurabh Agrotech Pvt. Ltd., Registered Office:- Plot No. 20, 21
& 22, Old Industrial Area, Alwar-301001, Rajasthan, through its
Authorized Signatory
2. Babu Lal Data (HUF), Plot No. 20, 21 & 22, Old Industrial
Area, Alwar-301001, Rajasthan, Through its Karta.
3. Ajay Data, D-47, Hanuman Nagar, Vaishali Nagar, Jaipur-
302021.
4. Deepak Data, D-47, Hanuman Nagar, Vaishali Nagar, Jaipur-
302021.
5. Babu Lal Data, Plot No. 20, 21 & 22, Old Industrial Area,
Alwar-301001, Rajasthan.
----Appellants
Versus
1. Vijay Solvex Limited, Registered office- Bhagwati Sadan,
Swami Dayanand Marg, Alwar-301001 (Raj.), Through its
Authorized Signatory.
2. Deepak Vegpro Pvt. Ltd., Registered Office- Old Industrial
Area, Itarana Road, Alwar-301001. Through its
Authorized Signatory.
3. Indo Caps Pvt. Ltd., Registered Office- Old Industrial
Area, Itarana Road, Alwar-301001. Through its
Authorized Signatory.
4. Pyarelal Gangadeen (HUF), Bhagwati Sadan, Swami
Dayanand Marg, Alwar-301001. Through its Karta.
5. Niranjan Lal Data (HUF), Bhagwati Sadan, Swami
Dayanand Marg, Alwar-301001. Through its Karta.
6. Niranjan Lal Data, Bhagwati Sadan, Swami Dayanand
Marg, Alwar-301001.
6/1- Daya Kishan Data S/o Late Shri Niranjan Lal Data,
Bhagwati Sadan, Swami Dayanand Marg, Alwar-302001
(Raj.)
6/2- Smt. Nirmala Data W/o Late Shri Niranjan Lal Data,
Bhagwati Sadan, Swami Dayanand Marg, Alwar-301001
(Raj.)
6/3- Smt. Pushpa D/o Late Shri Niranjan Lal Data W/o Late
Shri Jayprakash, Mahavar Emporium, 27, Naya Bazar,
Kamla Nagar, Delhi.
6/4- Smt. Shashi Gupta D/o Late Shri Niranjan Lal Data W/o
Shri Ramesh Gupta, A-99, Industrial Area, Bhiwadi, Alwar.
6/5- Smt. Uma Gupta D/o Late Shri Niranjan Lal Data W/o Shri
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Vinod Gupta, Krishna Rolling Mills, Jhotwara, Jaipur.
6/6- Smt. Sushma D/o Late Shri Niranjan Lal Data W/o Shri
Tejaram, Rajasthan Traders, Y-175, Loha Mandi,
Narayana, New Delhi.
7. Ramesh Chand Gupta, Bhagwati Sadan, Swami Dayanand
Marg, Alwar-301001.
8. Saurabh Data, Bhagwati Sadan, Swami Dayanand Marg,
Alwar-301001.
9. State Bank of Bikaner & Jaipur, Near Old Bus Stand,
Alwar-301001 (Raj.)
----Respondents
For Appellant(s) : Mr. Harshit Tholia Senior Adv.
Mr. Anuroop Singhi
Mr. Rahul Khandelwal
Mr. Aditya Vijayvergia
For Respondent(s) : Mr. Narendra Mohan Sharma Senior
Adv.
Mr. Amol Vyas
Mr. Utkarsh Sharma
Mr. Saumil Sharma
HON’BLE MR. JUSTICE SAMEER JAIN
Judgment
REPORTABLE
Reserved on : 21/09/2024
Prounounced on : 18/10/2024
1. The instant appeal is preferred with the following prayers:
“It is, therefore, most humbly and respectfully
prayed that this Hon’ble Court may graciously be
pleased to:
a. Admit the present appeal and call for the
record of CP No. 23/111/2010 with CA No. 167/13
from the Company Law Board, New Delhi Bench,
New Delhi,
b. Set aside the order dated 22/10/2014
passed by the Company Law Board, New Delhi
Bench, New Delhi in CA No. 167/2013 in CP No.
23/111/2010,(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (3 of 18) [COA-1/2015]c. Allow CA No. 167/2013 filed by the
appellants before the learned Company Law
Board, New Delhi Bench, New Delhi.
d. Pending hearing and disposal of the present
appeal, stay further proceedings in the subject
Company Petition being CP No. 23/111/2010
pending before the Company Law Board, New
Delhi Bench, New Delhi.
e. Pass ad interim ex-parte order in terms of
prayer (d) above;
f. Pass such other or further order(s) as this
Hon’ble Court may deem fit and proper in the
facts and circumstances of the case.”
2. For the sake of convenience the provisions relied by the
parties are tabulated herein below:
Provisions of Head note Statute
law
Section 2(29) Definition - 'Court' Companies Act,
2013
Section 435 to (Chapter XXVIII) Companies Act,
Special Courts
446 2013
Section 408 Constitution of National Companies Act,
Company Law Tribunal 2013
Section 43, 56, (Chapter IV) Companies Act,
Share Capital and
58, 59, 430 2013
Debentures
Section 10 FB Constitution of National Companies Act,
Company Law Tribunal 1956
Section 10E Constitution of Board of Companies Act,
Company Law 1956
Administration
Section 10F Appeal against the orders Companies Act,
of Company Law Board 1956
Section 10GB Civil Court not to have Companies Act,
jurisdiction 1956
Section 108 Transfer not to be Companies Act,
registered except on 1956
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production of instrument
of transferred
Section 111 Power to refuse Companies Act,
registration and appeal 1956
against refusal
Section 111(A) Rectification of register on Companies Act,
transfer 1956
Section 26 When instrument may be Specific Relief Act,
rectified. 1963
Section 31 When cancellation may be Specific Relief Act,
ordered. 1963
Order VII Rule 11 Rejection of Plaint Code of Civil
Procedure, 1908
Rule 44 Saving of inherent power Company Law
of the Bench Board Regulations,
1991
3. The present appeal is preferred under Section 10F of the
Companies Act, 1956, assailing the judgment dated 22.10.2014
passed by the Company Law Board, New Delhi in CA No.
167/2013 in CP No. 23/111/2010, vide which the application filed
by the appellant under Rule 44 of Company Law Board
Regulations, 1991, praying dismissal of the company petition at
the threshold, is dismissed.
SUBMISSIONS BY THE APPELLANTS
4. Learned counsel appearing for the appellants averred that
the germane facts for consideration of the instant matter have
been that the respondents preferred a Company Petition (bearing
no. 23/111/2010) under Section 111(4) of the Companies Act,
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1956 (hereinafter referred to as the Act of 1956) vis-à-vis
rectification of share register of appellant no. 1-Company, seeking
removal of the names of appellant nos. 2-5, and for restoration of
their names in the place of the appellants.
5. It was further averred that the said removal of names, has
been sought primarily qua the private dispute ongoing inter-se
between the parties. The respondent no. 1- Company has been
registered under the provisions of the Act of 1956, qua which the
appellants and non-appellants have been the share-
holders/members. Resultant to which the appellant filed share
transfer deed under section 108 of the Act of 1956.
6. Further, it was contended that the nature of the allegations
made therein, were to be adjudicated after considering the
evidences and witnesses, and the Company Law Board
(hereinafter referred to as CLB) is incompetent to consider the
matter before it and the same ought to be considered by a Civil
Court as per the provisions of Section 9 of C.P.C. Likewise, there
have been umpteen other disputed question of facts, which per se
pertain to civil nature. Therefore, the said Company Petition which
ostensibly requires a thorough judicial examination, based on
various evidences, hence, is ultra vires to the summary
jurisdiction of the company court i.e. CLB/ NCLT.
7. At this juncture, learned counsel had drawn the attention of
the Court towards the contents of the impugned judgment dated
22.10.2014, and had submitted that the CLB whilst adjudicating
the said dispute had itself opined and had categorically stated that
“a thorough judicial examination is required based on the
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evidences” is mandated, which cannot be adjudicated in a
summary trial, nonetheless, ignoring the aforementioned facts and
circumstances of the matter in hand and neglecting the
observation made by itself, CLB vide its judgment dated
22.10.2014, dismissed the application of the appellants.
8. In support of the contentions made insofar learned counsel
had placed reliance upon the ratio encapsulated in (2023) 4 SCC
209 titled as IFB Agro Industries Ltd. vs. SICGIL India Ltd.
and Ors. and Company Appeal (AT) (CH) No. 95/2023 titled
as Gireesh Kumar Sanghi vs. Sanghi Industries Ltd. & 19
Ors.
9. Whilst placing reliance upon the afore-cited judgments it was
averred that as per the statutes the CLB can conduct trial in a
summary matter, howsoever, qua the instant dispute, questions of
facts, for instance, allegations of fraud, misrepresentation etc.
were to be adjudicated. It is a settled position of law that the said
issues can be dealt only after following the due procedure of
evidence, hence, the same cannot be adjudicated by the CLB.
Withal, the aforesaid issues of fact and law, the points for
adjudication also pertains to the in toto rights, shares and interest
therefrom the Company. Therefore, the instant matter is ought to
be adjudicated by a Civil Court.
10. Lastly, learned counsel representing the appellants had
contended that the Court would have exercised the powers under
Order VII Rule 11 of C.P.C. and should have not taken the matter
themselves for adjudication. Thus, the impugned order has a
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palpable error and the said petition had not been tenable to be
adjudicated before the learned CLB/NCLT.
SUBMISSIONS BY THE RESPONDENTS
11. Per contra, learned counsel representing the respondents/
non-appellants had contended that the blank transfer deeds, duly
signed by the respondents have been misused by the appellant
nos. 2-5, for the impugned transfer of shares. It was further
contended that the appellants way back in the year 2007, sans the
knowledge of the respondents have taken away certain papers
including original share certificates and blank signed transfer
deeds.
12. Moreover, the appellant nos. 2-5 have committed fraud and
fabricated the documents/records to justify the transfer of the
impugned shares. It was further contended that the Company
Petition had been filed in the year 2010 before the CLB, qua which
the reply (on merits) was filed by the appellants in January, 2011.
Likewise, records were called by the CLB on 22.07.2013 and
thereafter, at a belted stage the appellants herein, have raised an
objection qua maintainability of the said Company Petition and a
prayer to dismiss the said petition on 26.08.2013, by way of
application no. 167/2013.
13. Learned counsel had further averred that the controversy
qua the matter in hand, arose when the learned CLB called for the
original records, passed the impugned order and the company
application (167/2013) of the appellants was disposed of, and
consecutively, the issue of jurisdiction and maintainability before
the CLB was turned down.
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14. It was further submitted that the contention raised by the
appellants qua forgery, fabrication and manipulation of documents
have been made at a subsequent juncture and not in the
objection/application raised/made before the learned CLB. Learned
counsel representing the non-appellants had further averred that
in the year 2013, repealing the old Companies Act, 1956, the new
Companies Act 2013 (hereinafter referred to as Act of 2013), has
been enforced. Henceforth, the applicability of the Act of 2013
prevails. At this juncture, learned counsel had placed reliance
upon the provisions enshrined under Section 424, 429, 430, and
434 of the Act of 2013, and had averred that the said provisions
make it unambiguously clear that the Tribunal and the Appellate
Tribunal i.e. NCLT after implementation of the Act of 2013, ought
to/ shall have the same powers as vested in the Civil Courts, while
adjudicating the lis before them. Hence, all the proceedings
subjudice before the Tribunal shall be considered as the judicial
proceedings.
15. Subsequently, learned counsel had drawn the attention of
this Court towards the contents of Section 434(1)(c) of the Act of
2013 and had submitted that the as per the objective of the Act
and the provisions interpreted therein, it can be unequivocally
concluded that all the proceedings under the Act of 1956,
including proceedings relating to arbitration, compromise,
arrangements and reconstruction and winding up of companies,
pending immediately before such date, before any District Court
or High Court, shall stand transferred to the Tribunal and the
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Tribunal may proceed to deal with such proceedings from the
stage before their transfer.
16. Lastly, to substantiate the contentions made insofar learned
counsel had placed reliance upon the dictum enunciated in Shashi
Prakash Khemka and anr. Vs. NEPC Micon and ors. reported
in (2019) 18 SCC 569, and had averred that as per the
provisions of Section 430 of the Act of 2013, no civil court shall
have the jurisdiction to address/entertain any suit or proceedings
for which the Tribunal is entitled to exercise its jurisdiction. The
relevant extract from the afore-stated provision has been
reproduced herein below:
“430. Civil court not to have jurisdiction.
……….(c) No civil court shall have jurisdiction to
entertain any suit or proceeding in respect of
any matter which the Tribunal or the Appellate
Tribunal is empowered to determine by or under
this Act or any other law for the time being in
force and no injunction shall be granted by any
court or other authority in respect of any action
taken or to be taken in pursuance of any power
conferred by or under this Act or any other law
for the time being in force, by the Tribunal or
the Appellate Tribunal.”
OBSERVATION
17. Upon an assiduous scanning of the record, considering the
aforementioned facts and circumstances of the case, considering
the judgments cited at the Bar and taking note of the arguments
averred by the learned counsel for both the parties, this Court at
this juncture, deems it appropriate to jot down indubitable facts:-
17.1 That the present appeal has been preferred assailing
the judgment dated 22.10.2014 passed by the Company Law
(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (10 of 18) [COA-1/2015]Board, New Delhi in CA No. 167/2013 in CP No. 23/111/2010 vide
which the application filed by the appellant under Rule 44 of
Company Law Board Regulations, 1991, praying dismissal of the
company petition at the threshold (considering the objection of
maintainability and jurisdiction), has been dismissed.
17.2 That the issue for adjudication herein, has been that
the respondents filed a company petition before the CLB in the
year 2010 under section 111(4) of the Act of 1956 (pari materia
provision – Section 59 of the Act of, 2013), qua rectification of
share register of appellant no. 1-Company. Accordingly, the said
petition is maintainable or otherwise.
18. Considering the aforementioned discussions and findings;
juxtaposing the averments raised by the learned counsel for both
the sides and taking note of the provisions enumerated under the
Companies Act, 2013, this Court deems it apposite to dismiss the
instant petition for the reasons noted herein below:
18.1 The Company Petition was filed in the year 2010 before
the learned CLB, qua which without any objection being raised, a
reply (on merits) was filed by the appellants in January 2011, and
the learned CLB had called for the original record vide order dated
22.07.2013. Successively, at a belated stage on 26.08.2013 after
seeking certain adjournments, an application was filed by the
appellants qua the objection on the grounds of maintainability of
the instant petition and that the said matter is ultra vires to the
jurisdiction of the learned CLB. The said application also holds
allegations of forgery and fabrication by the non-appellants.
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18.2 In due course, the learned CLB had directed to procure
the original records/documents on 22.07.2013, to which the
appellants have not objected within the stipulated time.
18.3 It is pertinent to note that the impugned judgment
dated 22.10.2014, is self-explanatory, and reasonable. Moreover,
is passed after considering the vital aspects of the instant matter
on merits, and the provisions of the Act of 1956 and Act of 2013.
It is also germane to note that the said judgment is passed after
a punctilious adjudication for four years. The relevant extract
from the impugned judgment dated 22.10.2014 has been
reiterated herein below:
“5.1. On the other side, the
respondents/appellants Advocate has pointed
out that the present impugned transfer is
ultimately of 2008 whereas the petitioner for
the first time raised a complaint regarding the
sale only in April 2010 and filed the present
petition only in September, 2010. Despite the
disputed contention of the petitioner Advocate that
the impugned transfers were approved in the
meeting of Board of Directors of Respondent No. 1
Company shown to have been chaired by the
Respondent No. 6 whereas the said Respondent was
not even a Director in Respondent in Respondent No.
1 Company on the said date, the Respondents
Advocate has taken the plea that the said allegation
does not give rise to a valid/relevant cause of action
under Section 111(4) of the Companies Act, 1956.
Apart from this, it has also been argued that
the nature of controversy on merits which is to
be decided in the present
proceedings/Company Petition requires
adjudication of highly/seriously disputed
question of facts and therefore, this matter may
be sent to Civil Court for adjudication. However,
the petitioners/non-applicants Advocate
pointed out that the transfer of shares has been
challenged on multifarious grounds and even(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (12 of 18) [COA-1/2015]assuming that the petitioners failed in one of
the grounds mentioned in the petition then it
does not mean that it will fail on the other
grounds before this Hon’ble Court. Moreover, it
has been highlighted that the contents of paragraphs
3(b) & (d) of the Company Petition are of two
separate incidents. In addition, a bare perusal of the
alleged family settlement indicates that the
attempted process of change of management
continued till February, 2008 and it is only in the
year 2008 that the blank signed transfer deeds and
share certificates were taken away by the
respondents.
5.2. The petitioner/non-applicants Advocate
has pointed out that the challenge in the
present application as to the maintainability is
a pure question of law and the contention of
the respondents Advocate that there is an
acquiescence on the part of the petitioners is
far fetched ground for the reason that
acquiescence comes only when there is a
consent on the part of the petitioner which has
to be categorical and without any doubt. With
regard to the exercise of powers under Order 7
Rule 11 CPC, the Hon’ble Apex Court while
dealing with the case of “Church of Christ
Charitable Trust vs. M/s. Ponniamman
Education Trust” has clearly held that for the
purpose of deciding an application under Order
7 Rule 11 CPC, the averments in the plaint are
germane, the pleas taken by the defendants in
the written statement would be wholly
irrelevant at the stage and therefore, in order
to consider Order 7 Rule 11 CPC, the Court has
to look into the averments in the plaint and the
averments in the written statement are
immaterial and it is the duty of the Court to
scrutinize the averments in the plaint.
5.3. Under the aforesaid facts and
circumstances, it is observed that the
respondent/applicants Advocate challenged the
Company Petition on the ground of delay and
latches, suppression of facts and acquiescence.
On the other hand, the petitioners/non-applicants
Advocate pleaded that there is no suppression of(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (13 of 18) [COA-1/2015]facts and acquiescence on the part of the petitioners.
Moreover, it has been submitted that the impugned
transfer of shares has been challenged on various
grounds and in case the petitioners fail on some
ground, it does not mean that the petition fails on
other grounds as well. From all this, it is noticed
that there is involvement of question of law and
facts. As there are controversies as to the facts
of the case, thorough judicious examination is
required based on various evidences available
as part of the pleadings. In view of this, it will
be highly unfair, if the company petition is
dismissed at the threshold without looking into
the merits based on the documents/evidences
available on record. As such, in the interest of
justice, the prayer made in the present Company
Application to dismiss the Company Petition at the
threshold is hereby disallowed.”
18.4. Therefore, this Court deems it apposite to note that the
impugned order is sans any irregularity as the same is passed
after considering the relevant provisions and the material facts
and circumstances of the instant matter. Hence, reliance is placed
upon the relevant provisions from the Act of 2013, i.e. Section
424, 430, and 434(c). Upon a bare perusal of the said provisions it
can be deduced that the Tribunal and the Appellate Tribunal for
the purpose of discharging their functions, shall exercise the
powers as that of a Civil Court as per the provisions of the Code of
Civil Procedure. Moreover, Section 430 of the Act of 2013
categorically states that no Civil Court shall have jurisdiction to
entertain any suit or proceedings in respect of any matter which
the Tribunal or the Appellate Tribunal is empowered to determine
by or under this Act or any other law for the time being in force.
The said provisions are reproduced herein below:
“424. Procedure before Tribunal and Appellate
Tribunal-(1) The Tribunal and the Appellate(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (14 of 18) [COA-1/2015]Tribunal shall not, while disposing of any
proceeding before it or, as the case may be, an
appeal before it, be bound by the procedure laid
down in the Code of Civil Procedure, 1908 (5 of
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 there under the
Tribunal and the Appellate Tribunal shall have
power to regulate their own procedure.
2. The Tribunal and the Appellate Tribunal
shall have, for the purposes of discharging
their functions under this Act [or under the
Insolvency] and Bankruptcy Code, 2016] the
same powers as are vested in a civil court
under the Code of Civil Procedure, 1908 (5 of
1908) while trying a suit in respect of the
following maters, namely;
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and
124 of the Indian Evidence Act, 1872 (1 of 1872),
requisitioning any public record or document or a
copy of such record or document from any office;
(e) issuing commissions for the examination of
witnesses or documents;
(f) dismissing a representation for default or
deciding it ex parte;
(g) setting aside any order of dismissal of any
representation for default or any order passed by it
ex parte; and
(h) any other matter which may be prescribed.
(3) Any order made by the Tribunal or the Appellate
Tribunal may be enforced by that Tribunal in the
same manner as if it were a decree made by a court
in a suit pending therein, and it shall be lawful for
the Tribunal or the Appellate Tribunal to send for
execution of its orders to the court within the local
limits of whose jurisdiction-
(a) In the case of an order against a company, the
registered office of the company is situate; or
(b) In the case of an order against any other
person, the person concerned voluntarily resides or
carries on business or personally works for gain.
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[2024:RJ-JP:40467] (15 of 18) [COA-1/2015]
(4) All proceedings before the Tribunal or the
Appellate Tribunal shall be deemed to be
judicial proceedings within the meaning of
Sections 193 and 228 and for the purposes of
section 196 of the Indian Penal Code (45 of
1860), and the Tribunal and the Appellate
Tribunal shall be deemed to be civil court for
the purposes of section 195 and Chapter XXVI
of the Code of Criminal Procedure, 1973 (2 of
1974).
430. Civil Court not to have jurisdiction- No
civil court shall have jurisdiction to entertain
any suit or proceedings in respect of any
matter which the Tribunal or the Appellate
Tribunal is empowered to determine by or
under this Act or any other law for the time being
in force and no injunction shall be granted by any
court or other authority in respect of any action
taken or to be taken in pursuance of any power
conferred by or under this Act or any other law for
the time being in force, by the Tribunal or the
Appellate Tribunal.
434(c). ………. all proceedings under the
Companies Act, 1956 (1 of 1956), including
proceedings relating to arbitration
compromise, arrangements and reconstruction
and winding up of companies, pending
immediately before such date before any
District Court or High Court, shall stand
transferred to the Tribunal and the Tribunal
may proceed to deal with such proceedings
from the stage before their transfer.”
18.5 Further, reliance can be placed upon the ratio encapsulated
in Shashi Prakash Khemka (Supra). the relevant extract from
the afore-cited ratio has been reproduced herein below:
“6. It is not in dispute that were a dispute to arise
today, the civil suit remedy would be completely
barred and the power would be vested with the
National Company Law Tribunal under Section 59
of the said Act. We are conscious of the fact
that in the present case, the cause of action
has arisen at a stage prior to this enactment.
However, we are of the view that relegating
the parties to civil suit now would not be the
appropriate remedy especially considering(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (16 of 18) [COA-1/2015]the manner in which Section 430 of the Act is
widely worded.”
18.6. Moreover, reliance can also be placed upon the dictum
enunciated in Chalasani Udaya Shankar and Ors. Vs. Lexus
Technologies Pvt. Ltd. and Ors. registered as Civil Appeal
Nos. 5735-5736 of 2023. The relevant extract from the afore-
cited ratio has been reiterated herein below:
“28. In Shashi Prakash Khemka (Dead) through legal
representatives asnd Anr. v. NEPC MICON (Now NEPC
India Limited) and Ors (2019) 18 SCC 569, this Court
again had occasion to deal with exercise of power
Under Section 111-A of the Companies Act, 1956. The
Company Law Board’s view had been reversed by the
Madras High Court in appeal, whereby the Appellants
were relegated to the remedy of a civil suit in relation
to the issue raised qua the transfer of shares. This
Court took note of the earlier judgment in
Ammonia Supplies Corporation (P) Ltd. (supra)
but noted that Section 430 of the Act of 2013
barred the jurisdiction of the civil court and
opined that the effect thereof is that, in matters
in respect of which power has been conferred
on the National Company Law Tribunal, the
jurisdiction of the civil court is completely
barred. This Court observed that it is not in
dispute that, were a dispute to arise today,
remedy of a civil suit would be completely
barred and the power would vest with the
National Company Law Tribunal under Section
59 of the Companies Act, 2013. Noting that the
cause of action in that case had arisen at a
stage prior to enactment of the Act of 2013, this
Court was of the view that relegating the parties
to a civil suit would not be the appropriate
remedy, considering the manner in which
Section 430 of the Act of 2013 was widely
worded.
29. Shashi Prakash Kemka (supra) was followed by
the National Company Law Appellate Tribunal, New
Delhi, in Smiti Golyan and Ors. v. Nulon India Ltd. and
Ors. whereby, the decision of the National(Downloaded on 24/10/2024 at 09:54:33 PM)
[2024:RJ-JP:40467] (17 of 18) [COA-1/2015]Company Law Tribunal, Principal Bench, in
relation to rectification proceedings was upheld
without relegating the parties to the civil court.
Civil Appeal No. 4639 of 2019 filed before this Court
against Smiti Golyan (supra) was dismissed on
03.07.2019 and this Court observed that the findings
recorded by the National Company Law Appellate
Tribunal were absolutely proper and no ground was
made out to interfere with the same.”
18.7. Thus, after enforcement of the Act of 2013 and the dictum
spelled out in the afore-cited ratios, this Court is of an opinion that
the averments made by the learned counsel appearing for the
appellants, qua the fact of jurisdiction and maintainability of the
petition before the learned CLB is outstayed. Moreover, the said
issue is already settled by the Hon’ble Apex Court in Shashi
Prakash Khemka (supra), hence, is no longer res-integra.
18.8. Withal, the judgments cited by the learned counsel
appearing for the appellants, i.e. IFB Agro Industries Ltd.
(Supra) and Gireesh Kumar Sanghi (Supra) are not applicable
to the matter in hand in entirety, as it is unambiguous fact that
after enforcement of the Companies Act, 2013 the applicability of
the erstwhile law shall be barred. Moreover, the afore-cited
judgments are of distinguishable factual narrative and issue of
law.
19. In summation of the aforementioned facts and
circumstances of the instant matter, and considering the overall
observations made insofar; specifically taking note of the
provisions enshrined under the Act of 2013 i.e. Sections 424, 430,
and 434(c) and the ratio encapsulated in Shashi Prakash
Khemka (supra), this Court is of the opinion that the
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[2024:RJ-JP:40467] (18 of 18) [COA-1/2015]
observations made in the impugned judgment are sans any
palpable error and arbitrariness; moreover, once the powers are
granted to the Tribunal or the Appellate Tribunal by the primary
statute, the same cannot be relegated to the Civil Court.
20. In light of the above, the instant appeal being devoid of any
merit stands dismissed with a cost of Rs. 2,00,000/- (Rupees Two
Lacs Only). Cost to be deposited in the bank account(s) of the
non-appellants, within a period of thirty days, from the date of
passing of this order. The said cost is imposed considering the
unwarranted delay tactics adapted by the appellants; the fact that
the said matter was earlier referred for mediation proceedings,
turning a blind eye towards the provisions of the Act of 2013 and
bypassing the settled position of law in toto. Howbeit, no
beneficial conclusion was attained from the said mediation
proceedings moreover, a superfluous delay was caused.
21. Accordingly, the instant petition is dismissed with the
aforementioned cost. Pending applications, if any, shall stand
disposed of.
(SAMEER JAIN),J
Anil Sharma/1
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