TaxTMI 
TaxTMI 
2021 (10) TMI 995
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....ociates for Respondent No.4 in both the above Appeals. ORAL JUDGMENT (PER: S.J. KATHAWALLA & MILIND N. JADHAV, JJ.): Appeal (L) No. 12210 of 2021 1. The present Appeal arises from an Order dated 3rd May 2021, as modified on 7th May 2021, passed by the Learned Single Judge in Company Application No.1 of 2021 and Company Application (L) No.4 of 2019. 2. Company Application No. 1 of 2021 was filed by Respondent No.1 seeking recall of the Orders dated 11th January 2018 and 7th February 2018 passed by the Company Court and in the alternative, for extension of time to clear office objections with respect to Company Application (L) No. 3 of 2017. Company Application (L) No.4 of 2019 was an intervention application filed by the Appellant in Company Application No.1 of 2021. 3. Respondent Nos.1 and 2 are the Original Appellants in Company Appeal No. 102 of 2015 filed under Section 10(F) of the Companies Act, 1956 ("the Act"). The controversy in the present Appeal is limited. 4. Briefly stated, there were disputes inter-se between one Shri Girdharlal Dalal ("the deceased") and Shri Bharat Dalal, Respondent No. 2 herein, in respect of management of Respondent No. 1 Company. ....
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....e Learned Single Judge on 26th June 2018. However, by consent of the parties i.e. the Appellant and Respondent Nos. 1 and 2, the order dated 26th June 2018 was recalled by the Learned Single Judge vide his order dated 13th July 2018. On 14th December 2018, by an order passed by the Company Court, Company Application (L) No. 5 of 2018 was permitted to be withdrawn with liberty to take out appropriate proceedings. With this liberty, Respondent No. 1 filed Company Application No. 1 of 2021, in which the Impugned Order has been passed. 8. In the meantime, the Appellant filed an Intervention Application in Company Application No. 1 of 2021. By the Impugned Order, the Learned Single Judge has allowed the Company Application No. 1 of 2021 thereby extending the time to restore the Company Application No. 5 of 2021 (erstwhile (L) No. 3 of 2017) till 10th June 2021 and consequently the Company Appeal No.102 of 2015 filed under Section 10(F) was restored. 9. Being aggrieved by the Impugned Order, the Appellant has filed the present Appeal before us. We may note at the outset that a companion Appeal (L) No. 12273 of 2021 has also been filed by the Appellant pertaining to another company ....
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....Single Judge has restored the Section 10(F) Appeal, which abated on 19th April 2017. 11. On the other hand, Shri Setalvad, Learned Senior Advocate for Respondent Nos. 1 and 2, contended that: (a) the Impugned Order merely granted Respondent Nos. 1 and 2 time to remove office objections and restore Company Application (L) No. 3 of 2017 and that no prejudice whatsoever has been caused to the Appellant since in paragraph 6 of the Impugned Order, the right of the Appellant has been expressly kept open to urge his Intervention Application before the Company Court; (b) the Appeals falsely proceeds on the basis that the Impugned Order in effect sets aside the abatement of Company Appeal No. 102 of 2015 against Shri Girdharlal Dalal. In fact, the decision on abatement has been deferred to an appropriate stage as set out in paragraph 6 of the Impugned Order; (c) the Appellant's right as the executor of the estate of the deceased is challenged by Respondent No. 2 and admittedly, the Appellant is not the legal heir of the deceased. He therefore submits that the right of the executor i.e. the Appellant herein cannot be said to be established unless a probate/l....
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.... of 2021 contained all lies and seek dismissal of the appeal and the court will consider that application on its own merits including Mr. Setalvad's contentions whether any third party can intervene in an appeal filed under Section 10F of Companies Act, 1956." 16. In our view, paragraph 6 of the Impugned Order causes no prejudice to the Appellant since it specifically reserves the right of the Appellant to raise all contentions before the Company Court and seek dismissal of the Appeals filed under Section 10(F) of the Act by Respondent Nos. 1 and 2. The import of paragraph 6 of the Impugned Order is that the Learned Single Judge has not set aside the abatement of Company Appeal No. 102 of 2015, since it expressly reserves the right of the Appellant to raise any and all contentions raised in the Intervention Application filed by the Appellant, before the Company Court. We agree with Shri Setalvad's submission that the decision on abatement has been deferred to an appropriate stage as noted by the Learned Single Judge in paragraph 6 of the Impugned Order. 17. Moreover, if at this stage, we accept the submissions made by the Appellant, pertaining to him being a "proper and worth....