TaxTMI 
TaxTMI 
2009 (7) TMI 757
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....y advert to the operative order passed by the CLB which is subject-matter of challenge in this Appeal. The same reads thus: "Considering the facts and circumstances of this case, this composite petition is admitted in part under section 111A of the Act, a prima facie case having been made out this composite petition is held to be maintainable under section 111A(4)(b) of the Act, the parties are at liberty to amend the pleadings/file additional affidavits to prove/disprove their case under section 111A(4) at this stage, further, the preliminary issues of maintainability of the petition as well as on merits considering the allegations attracting the provisions of section 397/398 of the Act are left open to be decided at a later stage depending upon the outcome of the hearing under section 111A(4)(b) of the Act. Parties would be at liberty to move at a later stage for consideration whether it is necessary to examine the question of admission or otherwise of the petition for reliefs sought under section 397/398 of the Act. The petitioner is at liberty to apply under section 235(2) of the Act. However, this is not the stage to consider applicability of section 250(3) of the Act. Inte....
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....our of the Appellants would go to the root of the matter so as to non-suit the Respondent No. 1 (Petitioner) at the threshold. Insofar as point (d) is concerned, some discussion is found in Paragraph 52 of the impugned judgment, which reads thus : "Merely because it may be open to an aggrieved person to avail of more than one remedies in a civil court, it does not mean that such a person should be driven to first exhaust his remedy in a civil court or any other forum and thereafter initiate another independent proceeding under the Act to complaint about oppression and/or mismanagement, particularly in this matter where the petitioner company lacked "the requisite knowledge". The right of recourse available to the party is ambiguous, the Applicant's contention of forum shopping in view of the winding up petition cannot be held as tenable." 5. In this background, the Appellants are questioning the decision of the CLB in admitting the Petition in part. The questions of law have been articulated in the Memo of Appeal. Amongst others, whether the provisions of the section 111/111A on the one hand and provisions of winding up under section 433/434 on the other hand, are mutually ex....
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.... person estopped. This decision also refers to the origin of expression 'estoppel' and quotes the opinion of Lord Coke that "an estoppel is where a man is concluded by his own act or acceptance to say the truth." The grievance of the appellants is that, inspite of having noted the objection about the maintainability of the Petition taken by the Appellants that the Respondent No. 1/Petitioner had filed Petition for winding up of the appellant company in this Court relying on the self same transaction in the capacity of a creditor, the Respondent cannot be permitted to now maintain another substantive proceedings by now wearing the cap of a member/shareholder; the CLB has not dealt with that submission at all in the entire judgment which runs into almost 45 pages. That point, if answered in favour of the Appellants would go to the root of the matter and the inevitable order that will have to be passed by the CLB is to non-suit the Respondent No. 1/Petitioner at the threshold. 7. Indeed, the Respondent No. 1 has supported the decision of the CLB and would submit that it is open to the Respondent No. 1/Petitioner to resort to two separate proceedings for winding up of the Appellant ....
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.... forum shopping by the Respondent No. 1. That discussion can be discerned from Paragraph 52 which has been reproduced in the earlier part of this order. Indeed, the CLB may be generally right in observing that the person can avail of more than one remedies in a given situation and would not be, therefore, deprived of resorting to another substantive remedy at a later point of time. However, the argument of the Appellants is that the same party cannot be allowed to institute two substantive proceedings taking a diametrically opposite and destructive stand in relation to his capacity in which the same are initiated. In that, in one Petition he would claim to be a creditor of the company on the basis of a particular transaction. Whereas, in the other he would claim to be a member/shareholder of the company on the basis of the self same transaction. The two capacities are entirely different and mutually exclusive. For, once he claims to be a creditor in relation to a particular transaction then intrinsic in that stand is that he consciously abandons his claim of being a member/shareholder of the company in the context of that transaction. A member/shareholder cannot be a creditor of....
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....hdraw the said Petition which in turn is espousing the cause of the body of creditors. In my opinion, it is unnecessary to delve upon these aspects at the present having regard to the fact that I am relegating the parties before the CLB for reconsideration of the Petition for admission by setting aside the order of admitting the Petition in part under section 111A of the Act. All questions raised by the parties will have to be addressed on its own merits at the appropriate stage as and when occasion arises. 10. That takes me to the challenge in this Appeal to the order continuing the interim-reliefs passed by the CLB on the earlier occasion. According to the Appellants, the scope of authority of CLB to grant interim-relief is restricted by sub-section (4) of section 111A of the Act. The ad-interim reliefs granted on 13-3-2008, 15-4-2008 or 1-5-2008 are clearly in excess of jurisdiction of the CLB to grant such interim relief. As I am inclined to relegate the parties before the CLB, even this question can be considered by the CLB on its own merits. For the time being, I would observe that since the ad-interim orders have continued from March, April and May 2008 respectively, the ....