TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1218
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....Mr. Murugappan Muthiah Venkatachalam Director, Mr. M A M Arunachalam Director, Mr. Vellayan Subbiah Director, Mr. Padmanabhan Nagarajan Director, Mr. Poondi Ramarathnam Ravi Director, Tube Investments of India Limited, Carborundum Universal Limited, Coromandel International Limited, Cholamandalam Investment & Finance Company Limited (CIFCL) Mr. Alagappan Arunchalam Murugappan, Mr. Vellayan Arunachalam , Mr. Murugappan Murugappan Muthiah , Mr. Murugappan Muthiah Venkatachalam , Mr. M A M Arunachalam , Mr. Vellayan Subbiah , Mr. Padmanabhan Nagarajan , Mr. Poondi Ramarathnam Ravi Versus Ms. Valli Arunachalam, Ms. Vellachi Murugappan, M/s. M.V. Murugappan Hindu HUF , Ambadi Investments Limited , Mr. M.V. Subbiah, Tube Investments of India Limited , Carborundum Universal Limited , Coromandel International Limited , Cholamandalam Investment & Finance Company Limited (CIFCL) Mr. M.V. Subbiah Versus Ms. Valli Arunachalam, Ms. Vellachi Murugappan, M/s. M.V. Murugappan HUF, Ambadi Investments Limited , Mr. Alagappan Arunachalam Murugappan , Mr. Vellayan Arunachalam Director, Mr. Murugappan Murugappan Muthiah Director , Mr. Murugappan Muthiah Venkatachalam Director, Mr. M A M Arunachalam D....
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....ace of hearing of the petition or application in such manner as the President or a Member may, by general or special order, direct. (2) Where at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice. 13. Rule 44(2) of NCLT Rules, 2016 states that at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the Justice. 14. A careful reading of Rule 44(2) of NCLT Rules, ....
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....ew Company Petition and New Waiver Application. However, it is a fact borne on record that the second waiver Application (CP/95/2021) was filed before the Tribunal when the earlier waiver Application (CP/29/2021) was pending and hence the relief in so far as the liberty is concerned, the same has become infructuous. However, by considering the factual matrix of the present case, the CP/95/2021 is taken on the file of this Tribunal and the objections if any, in relation to the same, shall be taken up at an appropriate stage when the matter is listed for hearing on 13.10.2021.'' and disposed of the said `Miscellaneous Application'. Appellant's Submissions (in Comp. App (AT)(CH) No. 54 of 2021): 3. The Learned Senior Counsel for the Appellant submits that the Respondent Nos. 1 and 2 / Petitioners had filed an `Application' (unnumbered one under Section 241 - 242 of the Companies Act, 2013), before the `National Company Law Tribunal', Chennai, and further that they did not possess the `requisite shareholding' to maintain the said `Petition' and therefore, preferred a `Waiver Application'/ `CP/29/CHE/2021', before the `Tribunal', praying for waiver of the shareholding requirements m....
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....ing affidavit filed in support of the waiver application, the Deponent, Late Mrs. M.V. Valli Murugappan in paras 3 and 4 has stated as follows: 3. "I state that the documents filed along with the Application M.A. No. of 2021 in C.P. No. of 2021 which forms part of the application are true copies which were available at the time of filing the application. 4. I further state that documents are not forged or altered in any manner known to law and are true copies of the original.'' and these lapses indicate that the acts of the Respondent Nos. 1 and 2 are against the `Form' and `Procedure' specified under the NCLT Rules, 2016, and they have `Perjured' themselves. 5. It is represented on behalf of the Appellant that the Appellant had filed (a) MA/24/CHE/2021 in CP/29/CHE/2021, seeking to reject the Waiver Application filed by the Respondent Nos. 1 and 2; (b) MA/27/CHE/2021 in CP/29/CHE/2021, praying for passing of an `Order' in directing the `Stamp Vendor to furnish the `Register of Stamps' maintained under the Rules for Supply and Distribution of Stamps and to direct the Notary Public to furnish the `Notarial Register' maintained and (c) Company Application/37/CHE/2021, seekin....
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....d her affidavit on 08.02.2021 and I did not make any entry in my Notary Register maintained by me.'' 11. The Learned Counsel for the Appellant comes out with a plea that the `act of filing of a new `Waiver Application' and a `Company Petition (CP/95/2021)', on the file of the `Tribunal', although no `Leave' was granted by the `Tribunal' to prefer the `Second Waiver Application' and more so, considering the fact that the Rs. 1st Respondent's Waiver Application (CP/29/CHE/2021)', continued to be pending on the file of the `Tribunal' along with the aforesaid `Application'. 12. The Learned Counsel for the Appellant contends that the `Tribunal' on 11.08.2021 in CP/95(CHE)/2021, CP/29(CHE)/2021 and all pending Applications in CP/29(CHE)/2021 was pleased to direct the Respondents to file Application, if any, to withdraw the `First Waiver Application (CP/29(CHE)/2021)'. 13. In this regard, the Learned Counsel for the Appellant points out that pursuant to the order dated 11.08.2021, the Respondents filed MA/79/CHE/2021 dated 31.08.2021 (without mentioning the relevant NCLT Rules, 2016, and sought leave for withdrawal of `Waiver Application (CP/29/CHE/2021)' and the liberty to file and p....
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....t for reasonable and sufficient time to file a reply/counter. Rule 37 of NCLT Rules, 2016 is quoted below for ready reference: "37. Notice to Opposite Party.--(1) The Tribunal shall issue Notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such Notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting documents. (2) If the respondent does not appear on the date specified in the Notice in Form No. NCLT. 5, the Tribunal, after according reasonable opportunity to the respondent, shall forthwith proceed ex-parte to dispose of the application. (3) If the respondent contests to the Notice received under sub-rule (1), it may, either in person or through an authorised representative, file a reply accompanied with an affidavit and along with copies of such documents on which it relies, with an advance service to the Petitioner or applicant, to the Registry before the date of hearing and such reply and copies of documents shall form part of the record. 23. Therefore, it is clear that the Learned NCLT has committed an error in not granting reasonable and sufficient time for....
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....t Spl Pgs: 528 and 529, wherein at paragraph 63, it is observed and held as under: 63."When one section of a statute grants general powers as opposed to another section of the same statute which grants specific powers, the general provisions cannot be utilised where a specific provision has been enacted with a specific purpose in mind. Thus, in J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. (AIR 1961 SC 1170), this Court held: (SCR pp. 194-95 : AIR p. 1174, para 9) " 9. There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either....
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....Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside exparte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX Rule 1, requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the preceedings before the Court. Rule 2 contains a provi....
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....hatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX. Rule. 7 and Order IX. Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where, the hearing is completed the p....
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....t, as it was not pressed in the trial court, and there are no grounds for permitting the appellant to raise it in this appeal. Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits. Excluding the names of the 13 persons who are stated to be not members and the two who are stated to have signed twice, the number of members who had given consent to the institution of the application was 65. The number of members of the Company is stated to be 603. If, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in Section 153-C, sub-clause (3)(a)(i). But it is argued that as 13 of the members who had consented to the filing of the application had, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable. We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to t....
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.... `Reply' to MA/79/CHE/2021 in CP/29/CHE/2021, the matter was heard, reserved for orders and only 5 days' time was granted to file `Written Submissions' and not `Counter' in the `Withdrawal Application' and that the said `Objection' was raised in the `Written Submissions'. However, the other `Applications' in CP/29/CHE/2021 were adjourned for `Hearing' and `Disposal' on 13.10.2021. 33. The Learned Counsel for the Appellants/Appellant point(s) out that the `Tribunal' had permitted the `Respondent No.1 and 2' to `Withdraw' CP/29/CHE/2021 and closed all the connected IAs/MAs in CP/29/CHE/2021 without even providing an `Opportunity' of being `Heard', either to the `Appellants' or to the other `Respondents', when the said `Interlocutory Applications' were due to be `Heard on 13.10.2021. As a matter of fact, the `Tribunal' by the same order took CP/95/CHE/2021 on record and post the matter on 13.10.2021. 34. The Learned Counsel for the Appellants/Appellant refer(s) to the Judgment of this `Tribunal' dated 14.07.2022 in the matter of Ashok Tiwari v. DBS Bank India Limited & Anr., (which follows the Judgment of Zee Entertainment Enterprises Ltd. v. Invesco Developing Market Funds & Ors. d....
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....er effective adjudication and to prevent the abuse of process of this Bench in Company matters'. 39. The Learned Counsel for the Appellants/Appellant cite(s) the ratio laid down by the Hon'ble Supreme Court in Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao (1956) 26 Comp. Cases Page 91, wherein it is observed that the `validity of the Petition', must be judged on the facts as they were at the time of its presentation. 40. In this connection, the Learned Counsel for the Appellants/Appellant contend(s) that in the present case, when CP/29/CHE/2021 was presented, the same was `invalid', and hence the `Petition' has to be dismissed at the threshold and not liberty ought to be granted to prosecute CP/95/CHE/2021, which also suffers from `perjury'. 41. It is represented on behalf of the Appellants/Appellant that the Appellant had filed (a) MA/46/CHE/2021 in CP/29/CHE/2021, seeking to reject the Waiver Application filed by the Respondent Nos. 1 and 2 numbered as `Waiver Application' (CP/29/CHE/2021); (b) MA/67/CHE/2021 in CP/29/CHE/2021, praying for passing of an `Order' in directing the `Stamp Vendor to furnish the `Register of Stamps' maintained under the Rules for....
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....then affix his official seal. 46. The Learned Counsel for the Appellants/Appellant take(s) a plea that in the present case, the Respondent Nos. 1 and 2 (in both `Appeals') have failed to follow any of the requirements specified in the NCLT Rules, 2016 mentioned aforesaid and had filed a perjured `Affidavit' in utter violation of the Rules, as the `Verifying Affidavit' to the `Application' was dated 27.01.2021, but the `Stamp Paper' on which it was filed dated 08.02.2021 and the Notarisation' was on 27.01.2021. In effect, the `Notarisation' was effected on a `Stamp Paper' on 27.01.2021, when the said document was not in existence. 47. The Learned Counsel for the Appellants/Appellant urge(s) that the stand taken by the Respondents is that, `Notarising an Affidavit is not a mandatory requirement and that an affidavit need not be engrossed on a `Stamp Paper' and in fact the `Affidavit' verifying CP/29/CHE/2021 was signed on 27.01.2021 and notarised on 27.01.2021, etc. 48. The Learned Counsel for the Appellants/Appellant bring(s) to the notice of this `Tribunal' that the `Notary Public' who had notarized the `Verifying Affidavit' to the copy of the `Company Petition' filed his `Count....
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....e impugned order dated 29.09.2021, the `Tribunal' had `allowed' the `Respondent Nos. 1 and 2' to `withdraw CP/29/CHE/2021' and `closed all IAs / MAs in CP/29/CHE/2021', without even not providing an opportunity either to the Appellant(s)/Appellant or to the other Respondents, when the said Interlocutory Applications are due to be heard on 13.10.2021. Moreover, the CP/95/CHE/2021 was taken on record as per the Order dated 29.09.2021 and the matter was posted to 13.10.2021, against which, the Appellant has preferred the instant Comp. App (AT) (CH) Nos. 4 & 6 of 2022. 55. The Learned Counsel for the Appellants/Appellant refer(s) to the Judgment of the Principal Bench, New Delhi of this `Tribunal' dated 14.07.2022 in the matter of Mr. Ashok Tiwari v. DBS Bank India Limited (`DBIL') and Another (vide Company Appeal (AT) (INS.) No. 464 of 2022), wherein it is held that a Respondent in a proceeding should be given a reasonable opportunity to file a `Reply' and in fact only an `Opportunity' to file `Notes of Submission' was given, inspite of request made an `Opportunity' to file `Counter'. Hence, the `impugned order' was passed by the `Tribunal', in breach of the `Principles of Nature Jus....
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.... stage of the proceedings subsequent to its inception''. 58. The Learned Counsel for the Appellants/Appellant contend(s) that on the same `cause of action', the Respondent Nos. 1 and 2 had filed `two Waiver Applications' and `two Company Petitions', as per the NCLT Rules 2016 r/w. Order 2 Rule 2 r/w. Order 23 Rule 1 (3) of the CPC, 1908, and in fact, the plea of the Appellants/Appellant is that the `two Waiver Applications' and `two Company Petitions', on the same `cause of action' cannot be maintained at the same time. 59. According to the Learned Counsel for the Appellants/Appellant, the `Leave' ought to be obtained earlier to the filing of the `Waiver' of the `Company Petition' and the very fact that `Leave' was obtained by the Respondent Nos. 1 and 2's Learned Counsel by mentioning before the `Tribunal' on 09.08.2021, which was informed to the Appellants/Appellant through an Advocate's email dated 09.08.2021 does not hold water, as no orders to that effect ever granting `Leave' was in existence. Furthermore, all concerned Petitions/Applications were listed on 09.08.2021 and reposted to 11.08.2021. 60. The Learned Counsel for the Appellant(s)/Appellant advance(s) an argument ....
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.... that were signed, were kept on hold and not filed. 66. According to the Learned Counsels for the Respondent Nos.1 and 2 that the `First Waiver Application' (CP/29/CHE/2021) was filed on 08.02.2021, when nothing was heard from the `Appellant' and therefore, the `Stamp Paper' was purchased on 08.02.2021. Hence, it is clear that the `Verifying Affidavit' and the `First Waiver Application' (CP/29/CHE/2021) were signed on 27.01.2021 and the Stamp Paper alone was purchased subsequently and `No Perjury' was committed on the part of the Respondent Nos. 1 and 2. 67. It is represented on behalf of the Respondent Nos. 1 and 2 that, to address all the purported technical defects and to bring on record the new and material facts showing further eroding of the value of the Appellant and continued acts of oppression, which had then recently came to the knowledge of Respondent Nos. 1 and 2, coupled with the facts already existing, and for an expeditious and effective adjudication of all facts, circumstances and issues involved in the matter in a `single proceeding' and to prevent unnecessary and further plurality of proceedings, the Respondent Nos. 1 and 2 had filed a new Company Petition (CP/9....
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....hadramma & Ors. v. State of A.P. & Anr., reported in AIR 2016 SC Page 3095, wherein at paragraph 7, it is observed as under: 7. "As far as the circumstances of this case are concerned, we find that there has been a gross mis-carriage of justice at several steps. In the first place, the finding of the trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties.'' 73. The Learned Counsels for the Respondent Nos. 1 and 2 brings it to the notice of this `Tribunal....
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....ber was given to the Petition filed under Section 241 of the Companies Act, 2013, moreover, the `Petition' under Section 241 of the Companies Act, 2013, was incapable of being numbered, till such time, the `Tribunal' allowed the `First Waiver Application' (CP/29/CHE/2021) under Section 244 of the Companies Act, 2013. Only upon the said `Application' being `Allowed', the `Company Petition' will be assigned a `Number', after which only, the same is admitted on the file of the `Tribunal'. Therefore, it is the contention of the `Respondent Nos. 1 and 2' that on the date of passing of the `impugned order', the only proceeding that was on the file of the `Tribunal' was the `First Waiver Application' (CP/29/CHE/2021) as per Section 244 of the Companies Act, 2013. 78. To fortify this plea, the Learned Counsels for the Respondent Nos. 1 and 2 project a point that till such time, as the `First Waiver Application' was not permitted, the `Petition' under Section 241 of the Companies Act, 2013, is not instituted in `Law', and falls back upon the Judgment of this `Tribunal' in Cyrus Investment Pvt. Ltd. & Anr. V. Tata Sons Limited & Ors., 2017 SCC Online NCLAT 261 at paragraph 150, wherein it i....
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....orporate debtor is allowed to settle its claim. A question arises as to what is to happen before a committee of creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach the NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.'' 82. The Learned Counsels for the Respondent Nos. 1 and 2 refers to Rule 44 (2) of the NCLT Rules, 2016, which prescribes `Withdrawal' prior to the stage of `Hearing' of the `Petition' / `Application'. 83. The Learned Counsels for the Respondent Nos. 1 and 2 cites the decision of the Hon'ble Supreme Court of India in Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993) 4 SCC, wherein in at Paragraph 13, it is observed as under: 13. " The date of first hearing of a ....
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....he Petition' and `issuing Notice' is part of `Hearing', points out that in `Winding up Petition', the `Court' has limited option _ to (i) issue notice to show cause why the petition ought not be admitted; (ii) admit the petition and fix a date for hearing; and issue a notice to the Company before giving directions about advertisement of the petition; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order.'', as per decision of the Hon'ble Supreme Court of India in National conduits (P) Ltd. v. S.S. Arora, AIR 1968 SC 279. 86. The Learned Counsels for the Respondent Nos. 1 and 2 submits that there was no `Hearing' on the `First Waiver Application' (CP/29/CHE/2021) and even the `Pleadings' were yet to be completed, as the `Appellant' had not filed any `Counter', at the time of passing the `Impugned Order' and this was considered by the `Tribunal', at Paragraph 14 of the `Impugned Order'. Therefore, in the instant case, the `Withdrawal' was made prior to the `Hearing'. 87. The Learned Counsels for the Respondent Nos. 1 and 2 advances an argument tha....
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.... Civil Procedure Code. 93. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision in the matter of Pahuja Takii Seed Ltd. and Ors. v. The Registrar of Companies, NCT of Delhi & Haryana (2019) 2 Comp LJ 108), wherein at Paragraph 14, it is observed as under: 14. "Section 424 of the Companies Act, 2013 deals with `procedure before Tribunal and Appellate Tribunal'. As per the said provision, the Tribunal and the Appellate Tribunal, while disposing of any proceeding or appeal will not be bound by the procedure laid down in the Code of Civil Procedure, 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 thereunder, the Tribunal and the Appellate Tribunal have the power to regulate their own procedure. Therefore, it is clear i.e., for the Tribunal and the Appellate Tribunal to decide the procedure to be followed while dealing with the application under Section 441 of the Companies Act, 2013, or any other petition under the said provision.'' 94. The Learned Counsels for the Respondent Nos. 1 and 2 contends that the `First Waiver Applica....
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....the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal v. Upendra Dutt, AIR 1928 Lah 710 and Mangi Lal v. Radha Mohan, AIR 1930 Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or over-ruled. The aforesaid two Lahore decisions clearly say that if second suit if filed before the first suit is withdrawn then Order 23, C.P.C. is not attracted and the second suit cannot be dismissed under Order 23, Rule 1(4) of the Civil Procedure Code. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under Order 23, C.P.C.'' 99. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon'ble Supreme Court of India in Vimlesh Kumari Kulsrestha v. Sambhaji Rao & Anr. (2008) 5 SCC at Page 58 at Spl. Pgs.: 62 and 63, wherein at Paragraphs 9 and 14, it is observed as under: 9. "A....
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....r the Respondent Nos. 1 and 2 advances a plea that the `Second Waiver Application' (CP/95/CHE/2021) was filed on 09.08.2021, which came up for `Hearing' on 11.08.2021, on which date, the objection was raised by the `Appellant' that earlier `Waiver Application' (CP/29/CHE/2021) was not formerly withdrawn. In fact, the `Tribunal', after hearing the `Parties, had permitted Respondent Nos. 1 and to rectify this position and take necessary steps to withdraw the First Waiver Application (CP/29/CHE/2021). 103. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon'ble Supreme Court of India in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others, reported in AIR (1981) at Page 606, Paragraph 6, it is observed as under: 6. "We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are ....
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....l depend upon the due satisfaction and for `Sufficient' / `Good Reasons'. If the `Court'/`Tribunal' grants `Leave' to file fresh `Suit' / `Proceeding', the `Withdrawal' of an `Application' has no existence in `Law'. 108. It is pointed out that a permission to `Withdraw' with `Liberty' to file fresh `Proceeding' / `Suit' is not the Petitioner's indefeasible right. An unconditional `Withdrawal' of the `Suit'/`Application', will be complete, as soon as the `Plaintiff' / `Petitioner' communicate his intention / desire to the `Court'/`Tribunal'. Indeed, the `Principle of Resjudicata' may not `Apply', once the `Suit' is filed and `Withdrawn' unconditionally. 109. Moreover, the `leave' under Order II Rule 3 of the Civil Procedure Code, ought not to be an express one, may be inferred from the circumstances of the case. Apart from that, the `leave' under Order II Rule 3 of the Civil Procedure Code to omit the `relief' need not be sought simultaneously with the filing of a `Suit' and `leave' may be sought and granted at any stage of `Suit'. 110. It is significantly pointed out that if a second `Suit' is maintainable, as per Order II Rule 4 of the Civil Procedure Code, `No Leave' is requir....
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....e and indefeasible right to withdraw a `Suit' / `Given Proceeding' unconditionally. However, for an `Individual' to file a `Fresh Suit' for the same `relief', there must exist `Lawful' reason, like `Formal Defect' in `Suit', etc. 118. As a matter of fact that the term `Formal Defect' means, `defect of form' and not the `Merits'. The words `Sufficient Ground' should be given a wide meaning in respect of `Formal Defect', as per the decision 1957 Mad. 207. Moreover, the term `Sufficient Ground' should be construed `ejusdem generis' with `Formal Defects', as per decision 1951 Mad. 715. Civil Suit: 119. When a `Suitor' files a `Civil Suit', before a `Court of Law', then, the ingredients of `Civil Procedure Code' applies, in relation to the `conduct of proceedings', as opined by this `Tribunal'. Company Petition: 120. In regard to the `Legal Proceedings', filed under the Companies Act, 2013, before the `Tribunal' and `Appellate Tribunal', the procedure enunciated are to be followed. Court: 121. The term `Court' may mean `a Body of Organization, conferred with `power'/`authority' to decide the `Controversies'/`Disputes' between the `Citizens'/`Subject' of the `States' and its `S....
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....he `Applicants' /`Petitioners'/ `Respondents 1 and 2' (as per Section 244 of the Companies Act, 2013) in Comp. App (AT) (CH) No. 54 of 2021, Comp. App (AT) (CH) No. 4 of 2022 and Comp. App (AT) (CH) No. 6 of 2022, before the `National Company Law Tribunal', Division Bench-I, Chennai, among other things mentioning that the combined Shareholding of the `Applicants'/`Respondent Nos. 1 and 2', in the Rs. 1st Respondent'/`Company' (`Ambadi Investments Limited' - the `Appellant' in Comp. App. (AT) (CH) No. 54 of 2021) is less than 10% of the `Total Paidup Capital' of the Company and they do not fulfill the requirements of Section 244 of the Companies Act, 2013, and prayed for allowing the `Application' by waiving the requirements of Section 244 of the Companies Act and permit them to apply, as per Section 241 of the Companies Act, 2013, for the `reliefs' claimed in the captioned `Petition'. 126. According to the Appellant(s), the `First Waiver Application' (CP/29/CHE/2021) along with the connected `Applications' were listed on 09.08.2021 and was reposted to 11.08.2021. However, the `Second Application' for `Waiver' (filed by the `Respondent Nos. 1 and 2' / `Applicants') was numbered as ....
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....of hearing.'' and directed the listing of the matter on 15.09.2021 at 11.30 A.M. for hearing and disposal. 128. It is brought to the fore that on 09.08.2021, on behalf of the `Respondent Nos. 1 and 2', a `Leave' was sought before the `Tribunal', to file a `Fresh Company Petition' and `Fresh Waiver Application' and based on which, the same were filed through `Electronic Form' and when the matter was came up for hearing on 11.08.2021, despite objection taken on behalf of the `Appellant' that previous Waiver Application (CP/29/CHE/2021) was not `Withdrawn', the `Tribunal' only after hearing the `Parties', had permitted the `Respondent Nos. 1 and 2' to rectify this position and necessary steps were to be taken, to `Withdraw' the `First Waiver Application'. 129. In this connection, this `Tribunal' pertinently points out that the mere perusal of the `Order' dated 11.08.2021 in CP/95/CHE/2021, CP/29/CHE/2021, MA/24(CHE)/2021 and in other Applications (vide Pages 2510 to 2512 - Vol. 10 of the `Appeal Paper Book') patently indicates that a `Just and Fair Process' in an `Adversarial' / `Legal Proceeding' (having civil consequences) was followed by the `Tribunal' and a reasonable `Opportu....
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....on imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice.'' is of the considered opinion that it is not either `compulsory' or `mandatory' for the `Tribunal' to hear the opposite `Party / Parties' in the `Petition' or the `Application', at the time of permitting the `Withdrawal' of `Application', leave alone, the aspect of projecting the `Counter'. 133. Admittedly, before passing of the `impugned order', an `opportunity' of `Hearing' was given to the `Appellants'. In this connection, a cursory perusal of the ingredients of Rule 111 (1) of the NCLT Rules, 2016, `Filing of objections by Respondent, Form and Consequences', unerringly points out that the `Respondent', if so directed, shall file `Objections' or `Counter' within the time allowed by the `Tribunal'. In effect, the `Tribunal' has an `inherent power' while exercising its discretion not to direct the Respondent to file a `Counter / Reply / Response in regard to the `First Waiver Application' (CP/29/CHE/2021), as opined by this `Tribunal'. 134. Dealing with the contention of the Appellants that the `Hearing' in CP/29/CHE/2021 had commenced before the `Tribunal' and that `Rule 82....
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.... Appellants that there were two `Waiver Applications' and two `Company Petitions' filed by the Respondent Nos. 1 and 2, before the `Tribunal', on the same `Cause of Action' in terms of NCLT Rules, 2016, read with Order II Rule 2 read with Order XXIII (1) (3) of the Civil Procedure Code, 1908, two `Waiver Applications' and two `Company Petitions' are not maintainable, at the same time, this `Tribunal' points out that the ingredients of Section 424 of the Companies Act, 2013, clinchingly exhibit that the `Tribunal' and the `Appellate Tribunal' are not bound by the procedure laid down in the Code of Civil Procedure, 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 (31 of 2016) and of any rules made thereunder, the `Tribunal' and the `Appellate Tribunal' shall have the power to regulate their own procedure. Therefore, going by the `tenor' and `spirit' of the Section 424 of the Companies Act, 2013, this `Tribunal' without any hesitation holds that the ingredients of Civil Procedure Code are inapplicable in stricto senso of the term, in relation to the matters under the Companies Ac....
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.... effectively and in an efficacious manner, ofcourse, well within its `jurisdiction'. 144. It transpires that in MA/79/CHE/2021 in CP/29/CHE/2021, on the file of `National Company Law Tribunal', Division Bench, Chennai, the `Applicants'/`Petitioners' therein, at Paragraphs 7, had inter alia averred that `to address all the technical defects without prejudice, to bring on record the new and material facts which have recently come to the Petitioners' knowledge along with the facts already existing, and for expeditious and effective adjudication of all facts, circumstances and issues involved in the matter in a single proceeding and to prevent unnecessary and further multiplicity of proceedings, on 9 August 2021, the captioned matter was mentioned by the Petitioners before this Hon'ble Tribunal for filing the fresh waiver application and fresh company petition. The Petitioners have thereafter filed a fresh company petition ("New Company Petition'') and fresh waiver application bearing no. CP No. 95 of 2021 ("New Waiver Application'').'' and a `Leave' was sought to withdraw the captioned `Petition' and the captioned `Waiver Application' (CP/29/CHE/2021). 145. The `Applicants'/`Petitio....