TaxTMI 
TaxTMI 
2015 (3) TMI 548
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....ght in the said company petition included the following:- "(n) The purported agreement dated 11th December, 2007, allegedly made between PSIDL the respondent no. 8 herein and Citystar the respondent no. 16 herein for issuance of Non Convertible Debentures in a forged and fabricated document and the said purported agreement be adjudged illegal, null and void and directed to be delivered up and cancelled; (o) Declaration that the purported arbitration proceeding initiated by Citystar the respondent no. 16 herein against PSIDL the respondent no. 8 is a collusive proceeding and all records of the said proceeding including the purported awards made therein be adjudged illegal null and void and directed to be delivered up and cancelled. (p) Declaration that the respondent no. 8 continues to be lawful owner of the said 2,22,49,999 equity shares of Rs. 10/- each all fully paid up in BAPL the respondent no. 12 company; (q) Declar....
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....f the Companies Act, 1956 since the respondents are agreeable to have reliefs (n) to (r) in the bunch of main reliefs and relief (k) in the interim prayers to be deleted from the petition relating to C.P. No. 859 of 2010 filed before the Company Law Board. Accordingly, APO No. 342 of 2012 and ACO No. 179 of 2012 stand disposed of by recording the deletion of reliefs (n) to (r) from the main reliefs made in the petition before the Company Law Board and deletion of prayer (k) from the interim reliefs sought in the main petition. The further prayer of the appellants cannot be acceded to since it does not appear that the Company Law Board had the jurisdiction to grant leave to the appellants to institute a fresh suit. It is made clear that nothing in this order will prevent the appellants from filing a suit, but the maintainability of such suit on the ground of the pendency and partial abandonment of the Company Law Board proceedings may be gone into by the forum which receives the action." (6) In September, 2013, the petitioners before the Company Law Board filed the present suit being CS No. 319 of 2013 wherein Citystar Infrastructures Ltd. (which is the respondent no. 16 in the C....
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....by an affidavit 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 person. (iii) 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 subject-matter of such suit or such part of the claim. (iv) 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 precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (v) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs t....
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....en to the defect arising out of the withdrawal without leave as required under Order 23. The leave contemplated in Sub- R. (2) of Rule 88 is only a leave to withdraw the petition. The framers of the Rules have presumably thought that inasmuch as the interest of the public is also involved, the leave of the court is necessary before withdrawal is made. But that provision cannot in any way affect the applicability of Order 23 of the Code of Civil Procedure. If a petitioner seeking the leave of the court for withdrawal for any reason whatsoever, had felt that an occasion arise for him to approach the court again with a similar petition on the same allegation, it is incumbent upon him to ask the court to grant him liberty to file a fresh petition on the same cause of action. Such a procedure is in no way inconsistent with the Companies Act or the rules framed thereunder. The expression 'as far as applicable' occurring in Rule 6 is indeed very wide in its scope and it means 'as far as reasonably applicable'. It cannot be said that requiring a petitioner to obtain the leave of the court to file a fresh petition on the same cause of action would be unreasonable. To hold that the requireme....
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....the Company Law Board with similar averments is pending. Certain other reliefs claimed by the petitioners are pending for adjudication by the Company Law Board. The present applicants have not been deleted from the array of respondents in the company petition pending before the Company Law Board. Under those circumstances it would be an abuse of process of law if the present suit is allowed to continue as against the applicants herein. Mr. Deb submitted that the plaint of the present suit be rejected or alternatively the names of the present applicants be expunged from the plaint. Contention of the plaintiffs:- (15) Appearing on behalf of the plaintiffs Mr. Jishnu Saha, Ld. Senior Counsel submitted that this court by an order dated 28th August, 2012 granted leave to the plaintiffs to abandon some of the reliefs claimed before the Company Law Board and also granted liberty to file a suit. He submitted that the said order of this Court should not be interpreted in a manner that will leave the plaintiffs without a remedy against the applicants. He contended that the bar under Order 23 Rule 1 (4) of the CPC does not apply since this Court expressly granted leave to the plaintiffs to....
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....pecial facts of the case the Hon'ble Supreme Court permitted the appellant/plaintiff to withdraw the suit filed by him and file a fresh suit relating to same subject-matter. This case is also of no help to the plaintiffs. (20) In reply Mr. Deb submitted that no unconditional leave was granted by this Court to the plaintiffs to file a suit. The question of maintainability of such suit was left wide upon. Order 23 of the Code of Civil Procedure enshrines public policy to prevent harassment to people. Moreover, the question of fraud can be well gone into by the Company Law Board and there is no bar in law in that regard. Court's View:- (21) I have considered the rival contentions of the parties. On a meaningful reading of the plaint filed in the instant suit of the plaint it would appear that the reliefs claimed in the plaint against the applicants are substantially similar to the reliefs that the plaintiffs had claimed against the applicant in the Company Law Board proceeding. For whatever reason, the plaintiffs herein who are the petitioners in the Company Law Board proceedings, applied to the Company Law Board for withdrawing such reliefs with leave to file fresh proceedings agai....