TaxTMI 
TaxTMI 
2018 (8) TMI 1704
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....7 to 341 and other provisions of the Companies Act, 2013 by seeking several reliefs. In the said petition, on appearance, the Respondent- 'Gleneagles Development Pte. Limited' who is the 2nd Respondent, filed an application under Section 45 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Arbitration Act, 1996"), by seeking a direction to refer the parties i.e. the 1st to 3rd Respondents/Petitioners and the Petitioners/2nd Respondent to arbitration in accordance with the Arbitration Agreement as set out in Shareholders Agreement etc. 2. Against the impugned order dated 20th April, 2017, the Appellants ('Petitioners') preferred this appeal under Section 421 of the Companies Act, 2013. 3. On notice, the parties appeared and filed their respective affidavits, made submissions on merit and on question of law. 4. Learned Senior Counsel for 2nd Respondent challenged the maintainability of the appeal before this Appellate Tribunal under Section 421 of the Companies Act, 2013. Therefore, before going into the question of merit, it is desirable to decide the question as to whether the appeal preferred by the Appellants under Section 421 of the Companies Act, 201....
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....hereas the Petitioners and other Respondents hold 49% of the total shareholding in the Company. 11. The case of the Petitioners before the Tribunal was that a sum of Rs. 145 Crores out of Rs. 170 Crores would be used to clear various liabilities and to strengthen the operation of the hospital. It was also understood to set up an Escrow Account to which a sum of Rs. 30 Crores would be deposited out of the sale consideration of Rs. 170 Crores. 12. The Petitioners alleged that 2nd Respondent, after acquiring major shareholding in the 1st Respondent Company, started acting against the interest of the 1st Respondent Company using the 1st Respondent Company as a vehicle to enrich its associates Companies viz. 'Parkway Health Care India Private Limited' and 'Parkway Holdings Limited'. It was also submitted that the 2nd Respondent adopts a strategy to pay more commission to their own group of Companies and used to show losses in the 1st Respondent Company so as to put pressure on Petitioners to dilute their present shareholding by way of bringing more capital into 1st Respondent Company. 13. The allegation of the Petitioners was that the Respondents tried to held meeting of the Board of....
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....ves at the conclusion that the order was passed by the CLB in exercise of its jurisdiction to settle a dispute flowing out of the provisions of the Companies Act, 1956, then and only then, the instant plea advanced on behalf of the appellants would merit acceptance. In such an eventuality, it would have to be concluded that the search for the appellate forum would have to be restricted to the Companies Act, 1956. However, if this court arrives at the conclusion that the impugned order dated December 8, 2000, had been passed by the CLB in its capacity of 'judicial authority' in exercise of obligations flowing out of the Arbitration Act, 1996, in furtherance of the provisions of the Arbitration Act, 1996, then certainly, the remedy must be searched for, from within the provisions of the Arbitration Act, 1996. In such an eventuality, the contention advanced on behalf of the appellants would not merit acceptance. Undoubtedly, when the petition was filed by the respondents (herein) before the CLB, the CLB was exercising jurisdiction under the provisions of Sections 397 and 398 of the Companies Act, 1956. However, when the appellants (herein) moved an application under Section 8 ....
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....tion 10(1)(a) of the Companies Act provides for such forum to hear the appeal from the orders of CLB as the High Court within the jurisdiction of which the registered office of the company in issue is situated... In view of our conclusion, we are satisfied that the appellant has wrongly based its arguments on matters such as ouster of jurisdiction, overriding effect of special statute over general statute, overriding effect of subsequent statute, etc. Since they have no application whatsoever to the matter in issue, there is no need to refer various decisions in those aspects. Ouster of jurisdiction arises only in regard to original jurisdiction and it cannot have any application to appellate jurisdiction as the one provided in Section 50 of the Arbitration Act. The appeal is a statutory remedy and it can lie only to the specified forum. The appellate forum cannot be decided on the basis of cause of action as applicable to original proceedings such as suit which could be filed in any court where part of cause of action arises. In such circumstances, we are unable to accept the lengthy arguments advanced on the abovementioned subject by learned Senior Counsel for the appellant. L....
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.... patent" but if on a reading of the provision it is clear that all further appeals are barred then even a letters patent appeal would be barred." 21. Given the judgment of this Court in Fuerst Day Lawson (supra), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. xxx ....
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....mportant to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie." 21. Learned counsel for the Appellants has relied on the decision of the Hon'ble Supreme Court in "State of Goa Vs. Praveen Enterprises− (2012) 12 SCC 581". In the said case, the Hon'ble Supreme Court, while explained "reference to arbitration" and the parties who can refer the same, observed that the "reference to arbitration" can be in respect of reference of disputes between the parties to arbitration, or may simply mean referring the parties to arbitration. 22. In view of the aforesaid findings, learned counsel for the Appellants submitted that the dispute relates to 'oppression and mismanagement' by the Respondents against the members, including the Appellants. It cannot be a subject matter of dispute for arbitration; the Arbitral Tribunal has no jurisdiction to decide the same. However, such question of jurisdiction of the Tribunal to refer the dispute or not and the facts and ....
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...., 2013 w.e.f. 1st June, 2016. 27. Section 420 of the Companies Act, 2013 deals with 'Orders of Tribunal' as under: "420. Orders of Tribunal.─(1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act. (3) The Tribunal shall send a copy of every order passed under this section to all the parties concerned." 28. Any person aggrieved by an order, passed by the Tribunal under the aforesaid provisions of the Section 420, is entitled to file an appeal from the order of the Tribunal under Section 421 of the Companies Act, 2013, which reads as follows: "421. Appeal from orders of Tribunal. ─ (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Trib....