TaxTMI 
TaxTMI 
2022 (9) TMI 1218
X X X X Extracts X X X X
X X X X Extracts X X X X
....pan Murugappan Muthiah Director, 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 Venkatacha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ications:- (1) The Tribunal shall notify to the parties the date and place 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 Trib....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... stands closed. 19. In so far as prayed (b) is concerned, the Petitioners / Applicants have sought for a liberty to file and proceed with the New 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pany Petition under Sec. 241 and 242 of the Companies Act, 2013, were post dated and had obviously been inserted subsequent to the date of verification and filing of application. (v) In the verifying 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 fur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....No.3112021/3 and that the physical copy was received as No. 3377/06 inter alia, mentioning as under: "2. I said that M. Valli Murugappan applicant and her advocate approached me for attestation and signed before me and I attested 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 pursu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2021 dated 07.10.2021, between Zee Entertainment Enterprises Limited v. Invesco Developing Markets Fund & Ors., wherein at paragraphs 22 and 23, it is observed as under: 22. It is also important to mention that Rule 37 of NCLT Rules provides a grant 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch less an `interim relief' and that the `Petition' is to be rejected. Appellant's Decisions: 23. The Learned Counsel for the Appellant cites the decision of the Hon'ble Supreme Court of India in Dharani Sugars and Chemicals Limited v. Union of India, reported in (2019) 5 SCC 480, at 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the 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 fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....previous day or days he might have the earlier proceedings recalled - "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding recorded thereon. We do not find any substance in this contention. Though the objection was raised in the written statement, the respondents did not press the same at the trial, and the question was never argued before the trial Judge. The learned Judges before whom this contention was raised on appeal declined to entertain it, 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 the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9/CHE/2021 in CP/29/CHE/2021), after taking on file the `Second Waiver Application' (CP/95/CHE/2021). 32. The Learned Counsel for the Appellants/Appellant submit(s) that MA/79/CHE/2021 was numbered, despite the same not having a `Verifying Affidavit' as per Form-6 of the NCLT Rules, 2016. Although, the Appellants had prayed for time, to file a `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 too....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in order to cut across the powers conferred by the Court. 38. The Learned Counsel for the Appellants/Appellant relie(s) on the decision of the Company Law Board in N. Venkateshwar Rao & Ors. v. Sharvani Energy P. Ltd & Ors, reported in MANU/CL/0002/2013, wherein it is held that the `principles analogues to the Civil Procedure Code can be adopted for proper 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....LT 6. 45. Added further, it is pointed out on behalf of the Appellant(s)/Appellant (in both the Appeals), as per Rule 126 of the NCLT Rules, 2016, an `Affidavit' shall conform to the requirements of Order XIX, Rule 3 of Civil Procedure Code, 1908 (5 of 1908) and as per Rule 127, an `Affidavit' had to be `sworn' or `affirmed' before an `Advocate' or `Notary', who would 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 affi....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../79/CHE/2021 in CP/29/CHE/2021, the matter was heard and `Reserved for Orders' and only five days' time was granted to file `Notes of Submissions' and not `Counters' in the said `Withdrawal Application' and that the remaining Applications in CP/29/CHE/2021 were adjourned for hearing and disposal on 13.10.2021. 54. The Learned Counsel for the Appellants/Appellant submit(s) that by virtue of the 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 Anothe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....CHE/2021. 57. The Learned Counsel for the Appellants/Appellant submit(s) that the term `Hearing' is not defined either under the Companies Act, 2013, or under the NCLT Rules, 2016 and a reference is made to the decision in Mukh Ram v. Siri Ram & Ors., reported in ILR 1959 PUNJ 2102, wherein it is held that "the expression "Hearing'' is used to describe whatever takes place before a Tribunal clothed with judicial function at any 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e' or that the `Article' is a fabricated one. 65. The Learned Counsels for the Respondents No.1 and 2 contends that the 1st Respondent, signed the `First Company Petition' (CP/29/CHE/2021 - First Waiver Application) and that the `Respondents Nos. 1 and 2' were promised by a `Settlement Offer' by the `Appellant' and the Respondent Nos. 3 to 8 with an outer time limit of 1st February 2021 to respond on the `Settlement'. Hence, the pleadings 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 2 submits that the 1st Respondent had expired on 21.01.2022 and that the purported perjury allegations in the Miscellaneous Application's filed by the `Respondent Nos. 3 to 8' do not survive, as the allegation of an offence abates on the death of an `Accused', as per Section 394 (2) of the Criminal Procedure Code, 1973. 72. In this connection, the Learned Counsels for the Respondent Nos. 1 and 2 refers to the decision of the Hon'ble Supreme Court in U. Subhadramma & 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... NCLT Rules, 2016, which reads as under: "Registration of proceedings admitted.__ On admission of appeal or petition or caveat or application, the same shall be numbered and registered in the appropriate register maintained in this behalf and its number shall be entered therein.'' 77. The Learned Counsels for the Respondent Nos. 1 and 2 submits that the `First Waiver Application' (CP/29/CHE/2021) was filed under Section 244 of the Companies Act, 2013, and in fact, no number 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ribbons (P) Ltd. v. Union of India, reported in 2019 4 SCC Page 17, at Spl. Pg. 87, wherein at Paragraph 82, it is observed as under: 82. "It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceeding that is before the Adjudicating Authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fied in two different stages; one at the admission stage and the other at the final stage. Date of hearing has normally been defined as the date on which the court applies its mind to the merits of the case.'' 85. The Learned Counsels for the Respondent Nos. 1 and 2, in response to the decision of the Hon'ble High Court of Madras in Ramakrishna Industries (P) Ltd. & Ors. v. P.R. Ramakrishnan & Ors., reported in (1985) SCC Online Madras 260, which noted that hearing the `Petitioner' for the purpose of `Admitting the 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 Lear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of Submissions'. Hence, there is no breach of adherence of the `Principles of Natural Justice'. 92. The Learned Counsels for the Respondent Nos. 1 and 2 adverts to Section 424 of the Companies Act, 2013, and points out that the `Tribunal' and the `Appellate Tribunal' are not bound by the procedure prescribed under the Civil Procedure Code and for that reason, the National Company Law Tribunal, Chennai, is not bound to `Hear', `Dispose' of an `Application' on the ground of `Maintainability' under Order XXIII Rule 1 (3) of the 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me allegations and fertile same relief is barred under O. 23, Rule 1(4) of the C.P.C. or not in view of the fact that the earlier petition was got dismissed as withdrawn. The Court below relied on Teja Singh v. Union Territory of Chandigarh, AIR 1982 Punj & Har 169 (FB) and decided the issue against the contractor and held that the present petition was barred. The learned counsel for the appellant has not challenged the dictum laid down in the aforesaid decision but has argued that on the facts of this case that decision is not applicable because here 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndent Nos. 1 and 2 had sought leave of the `Tribunal', Chennai to file a Fresh Company Petition and a Fresh Waiver Application. Pursuant to the `Deemed Leave', to file `New Waiver Application' granted to it, the Respondent Nos. 1 and 2, on 09.8.2021 had filed a `New Company Petition' (on Electronic Mode) and a New Waiver Application bearing CP/95/2021 and this was recorded in email dated 09.08.2021 (vide Page 2840 of the Appeal Paper Book) sent by the Learned Counsel of the Respondent Nos. 1 and 2 to the Appellant and to other Respondents. 102. The Learned Counsels for 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 Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the matter, and hence prays for `dismissal of the Appeals'. Order II Rule 2 of the CPC: 106. It is relevantly pointed out that a plea of bar under Order II Rule 2 of the Civil Procedure Code is a highly technical plea. It tends to defeat justice and to deprive a `Person' of a legitimate right. As a matter of fact, it is the duty of a `Tribunal' to feel subjectively satisfied that there exists proper ground, for `granting permission' in regard to the `Withdrawal' of the `Suit'. 107. To be noted that, only with the `leave' of the `Court'/`Tribunal', which will be granted naturally will 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 `App....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Hyderabad, reported in AIR 1998 Andhra Pradesh, Page 414. 115. Where the `Suit' is `Withdrawn', the `Suit' has no `existence' in the `eye of Law' and the `Parties' are relegated to the position which they occupied prior to the `Fresh Suit' is brought. 116. It must be borne in mind, that no `Application' seeking `Withdrawal', `Leave of the Court for Withdrawal of a case', is necessary, where the `Statement is necessary', where Statement to that effect, before the `Court' is sufficient, as per decision (2009) 2 Gau LR 649, at Page 652 (Gau). 117. Also that, a `Plaintiff / Petitioner / Applicant has an absolute 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 decisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Nos.1 and 2 under 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, praying for exercise of its `Powers', under the proviso to Section 244 of the Companies Act, 2013 and `Waive' the requirements of Section 244 (1) (a) of the Act, and allow the instant `Application', thereby permitting the `Applicants' to `Apply' under Section 241 of the Act for the reliefs as claimed in the captioned `Petition'. 125. The `Second Waiver Application' (CP/95/CHE/2021) was filed by the `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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e next date of hearing. The 2nd waiver Petition has already been filed and numbered as CP (Companies Act)/95/CHE/2021 is also strongly objected by the Learned Counsel for the Respondents. The Petitioner shall take necessary steps for rectifying the mistake committed, if any. On the request of the Learned Counsel for the Petitioner, list this matter on 15.09.2021 at 11.30 A.M. for further hearing. If the Petitioner wishes to file any Application, citation in the Registry, the Petitioner shall serve a copy of the same by way of an e-mail as well as by serving hard copies of the same to the Learned Counsel for the Respondents on or before the next date 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 Waive....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g' on the `First Waiver Application' (CP/29/CHE/2021) and the pleadings were not yet over and in the instant case on hand, the `Withdrawal' of the `First Waiver Application' (CP/29/CHE/2021). 132. This `Tribunal', on going through the ingredients of Rule 44 (2) of the NCLT Rules, 2016, to the effect that; (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.'' 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 give....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9/CHE/2021 (the `First Waiver Application', under Section 244 of the Companies Act, 2013). 137. It cannot be gainsaid that the `Prospective Company Petition' of the `Respondent Nos. 1 and 2' filed with the `First Waiver Application ' (CP/29/CHE/2021) in the `eye of Law', cannot be construed to be a `Petition' filed under Section 241 of the Companies Act, 2013 / or under the NCLT Rules, 2016, because of the Rule 29 of the NCLT Rules, 2016, which categorically enjoins that `on admission of `Appeal' or `Petition' or `Caveat Application', the same shall be numbered and registered in the appropriate Register maintained in this behalf and its number shall be entered therein'. 138. Coming to the stand of the 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, clinc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Suit', a `New / Second Suit', is filed and the `Former / First Suit', is `Withdrawn'. 142. There is no gain saying of the pivotal fact that `Law' does not coerce / force `any Litigant' to pursue the `Litigation'. In fact, in a `Civil Suit' / `Civil Proceeding', a `Plaintiff'/ `Petitioner' is a `Dominus Litis'. 143. It is an `axiomatic principle in Law', that an `inherent power' of a `Tribunal', is not to be pressed in to service, when there are `express'/`explicit' provisions, provided under the `Companies Act, 2013'. However, in terms of Rule 11, `inherent powers' of the `National Company Law Tribunal Rules, 2016', the `NCLT Tribunal' has an `inbuilt', `incidental' or `ancillary' power to perform its `duties' 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 wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....E/2021, pending on its file and `dismissed' the said CP/29/CHE/2021 as `Withdrawn' through its `Order' dated 29.09.2021 in MA(Comp.Act)/79/CHE/2021. In fact, all the connected IAs and MAs filed in CP/29/CHE/2021 were `Closed'. 148. It is evident that consequent to the disposal of MA(Comp.Act)/79/CHE/2021 in CP/29/CHE/2021, by virtue of the `impugned order' dated 29.09.2021, passed by the `National Company Law Tribunal', Division Bench-I, Chennai, the `Tribunal' had closed the connected IAs / MAs. In this connection, although before this `Tribunal', on behalf of the `Appellant(s)', a plea is taken, in regard to the `lapses and irregularities', committed by the `Respondent Nos.1 and 2'/`Applicants' against the `Form' and `Procedure' prescribed under the NCLT Rules, 2016, thus, had `perjured themselves', and therefore, Miscellaneous Applications were filed in CP/29/CHE/2021, this `Tribunal' pertinently points out that as against the closure of the said IAs/MAs (vide `impugned order' dated 29.09.2021), the `Appellant(s)' in these three `Appeals' admittedly, they have not proceeded any further and as such, the said `Closure Order dated 29.09.2021' has become a `conclusive', `final' a....