TaxTMI 
TaxTMI 
2026 (4) TMI 1093
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. 2. The Appellants had instituted a company petition, being CP No. 40/2011 (TP No. 50/HDB/2016), filed by Mr. S. Radhakrishnan and others against Hyderabad Pollution Control Limited and 7 others, being proceedings instituted under Sections 397, 398, 402, 403, and 237 of the Companies Act of 1956. In the said company petition, the Appellants herein were the Petitioners, and they had modified the relief in CP No. 40/2011 in the following manner: - a) To appoint a reputed Chartered Accountant or any other valuer to inspect the record of the 5th and 6th Respondent Company and to direct the said Companies to transfer the profit made by the said Respondents to the 1st Respondent Company and pays the same to the 1st Respondent Company. b) To injunct the 5th and 6th Respondent Company from dealing with the clients of the 1st Respondent Company c) To order investigation into the affairs of the 1st, 5th and 6th Respondent Companies d) To appoint an administrator to manage the 1st Respondent Company until the investigation is done and the shareholding parity is restored. e) To rectify the Register of Members of the 1st Respondent Company and s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 28. In the result, the Company petition bearing CP. No. 40 of 2011 (TP No. 50/HDB/2016) is disposed of with the following directions: 1) Hereby directed the respondents to restore the shareholding of the petitioners group and the second respondent Group in the ratio of 50 : 50 total shareholding of R-1 Company, in consonance with the Board's resolution dated 27th February, 2007 and Agreement for Transfer of Shares dated 8th April, 2010; 2) Hereby declared that all actions/decisions taken contrary to the interim orders dated 18.05.2011 and 27.09.2012 passed by the CLB are non-est in the eye of law, and these interim orders shall be in force till the next EGM, which is to be conducted by virtue of this order; 3) Hereby directed Respondents 1 & 2 to convene an EGM within a period of two months from the date of receipt of copy of this order, by duly following all the provisions of the Companies Act, 2013 as well as the Articles of Association of R-1 Company and Principles of Natural Justice, in order to sort out their disputes and to conduct normal business of the R-1 Company. The parties are at liberty to raise their respective disputes before EG....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the EGM to be conducted. The conduct of the EGM was supposed to be held as a consequence of the liberty granted in Clause (3) of the judgment dated 26.10.2017. Meaning thereby, the liberty to prefer a fresh company petition, once related to the action taken in pursuance of the EGM scheduled to be held under Relief 3, would be confined to actions taken under Clause (3). The said liberty cannot be expanded as if conferring a right upon the Appellant to re-agitate the entire issue afresh, which otherwise stands settled as a consequence of the judgment dated 26.10.2017, because the partial denial of relief has not been challenged by the Appellants and has attained finality. 10. The reliefs as modulated in the company petition, which were sought by the Appellants as extracted above (Para 3), were not considered to be granted by the Ld. Tribunal in their entirety by the judgment of 26.10.2017, and only limited relief was granted. In that eventuality, it is a settled principle of law that in any judicial proceeding, if a party comes before a Tribunal or a Court claiming a number of reliefs, and upon adjudication on the merits the Ld. Tribunal grants only partial relief, and there is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and void ab initio. (ii) To declare the fake and fabricated back dated resignation letter dated 01-10-2011 of existing Statutory Auditors M/s. P. Murali & Co., Chartered Accountants as illegal, null and void ab initio as the proof of dispatch shown was under certificate of posting on 01-10-2011, when the practice of Under Certificate of Posting (UCP) was discontinued by the postal authorities long back on 31-01-2011; (iii) To declare the unapproved, unauthorized, tampered and manipulated ITR-6 filed with the Income Tax department from 2010-11 to till date along with tax audit report in 3CA and 3CD forms from 2010-11 to till date falsely certified by M/s. P Murli & Co., and M/s. Ratnam Dhaveji & Co., as illegal, null and void ab initio as there was no approval for the same from the Board of Directors and the members in any AGM validly convened and conducted. (iv) To declare the unapproved, unauthorized, tampered and manipulated Directors Reports, balance sheets and profit and loss accounts, Annual Returns and auditor's report, which are fabricated and falsely certified by the alleged new Auditor M/s, Ratnam Dhaveji & Co. and uploaded in the ROC/MCA we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 40 of the Articles of Association and in violation of the provisions of the Companies Act, 1956 / 2013 for the alleged AGMs/adjourned AGMs as illegal, invalid, null and void ab initio; (ix) To declare that no Director who were on rotation is validly existing on the Board of Directors of the 1st Respondent Company from 2011 onwards as no AGMs were held for the past several years and consequently appoint fresh Board of Directors equally representing both the Petitioners and Respondents and appoint one independent Chairman by the Hon'ble NCLT. (x) To restrain the Respondents No. 1,2,3, & 4 from carrying any other business or activity within the premises and precincts thereof where the factory and office premises of the 1st Respondent Company is located either directly or through lease arrangement or job work basis whatsoever in nature and all the lease agreement entered into with third parties i.e. Respondent Nos. 5 and 14 and any other lease agreement made with any others are to be declared as illegal, null and void ab initio and the Respondents No.1 to 4 should be ordered to evict the illegal lease holders from the premises 90/G, Phase I, IDA Jeedimetla, Hyde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shareholding of the petitioners group and the second respondent Group in the ratio of 50:50 total shareholding of R-1 Company, in consonance with the Board's resolution dated 27th February 2007 and Agreement for Transfer of shares dated 8th April, 2010; 2) Hereby declared that all actions/decisions taken contrary to the interim orders dated 18.05.2011 and 27.09.2012 passed by the CLB are non-est in the eye of law, and these interim orders shall be in force till the next EGM, which is to be conducted by virtue of this order; 3) Hereby directed Respondents No.1 & 2 to convene an EGM within a period of two months from the date of receipt of copy of this order, by duly following all the provisions of the Companies Act, 2013 as well as the Articles of Association of R-1 Company and Principles of Natural Justice, in order to sort out their disputes and to conduct normal business of the R-1 Company. The parties are at liberty to raise their respective disputes before EGM to be conducted and resolve their issues therein; 4) The parties are at liberty to approach this Tribunal by way of filing a fresh CP, in case, they are aggrieved by the actions taken during....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the statute independently contemplates and provides a remedy of execution under Section 424(3) read with Rules 56 & 57 of the NCLT Rules, 2016. In fact, what may be culled from the aforesaid backdrop is that by filing the subsequent company petition the Appellants were attempting to override the effect of their inaction in not challenging the earlier judgment dated 26.11.2017 by preferring an appeal against the partial denial of relief in CP No. 40/2011. 16. Besides that, they were trying to re-agitate the same cause which otherwise would stand settled in the light of Explanation V to Section 11 of the CPC, and which may not be permissible to re-agitate in a fresh company petition. Resort to filing a fresh company petition as an alternative mode of execution is not a procedure recognized or contemplated under law. Thus, the reason given by the Ld. Tribunal in the impugned order is, particularly in the light of the pleadings raised by the Appellants in Para 4 of the company petition, that the Appellants cannot be permitted to re-agitate the same cause by filing a fresh company petition as a means of obtaining execution of the earlier decree; hence the Ld. Tribunal rightly rejecte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erty to re-agitate an issue by filing a fresh company petition was not intended to be an unlimited grant in relation to reliefs already finally disposed of by the judgment dated 26.10.2017, particularly when all issues against the Appellant, in the absence of a challenge to the judgment by way of appeal or by execution, stand closed. There cannot be a clever device by the Appellant to rejuvenate proceedings by filing the instant company petition in 2019, which was rightly dismissed by the Ld. Tribunal by the impugned order. 20. Apart from that, if we make a comparative scrutiny of the reliefs sought in the two company petitions, we find the following similarities. In eventualities where there is similarity in reliefs and the chapter related to those reliefs stands closed in the earlier phase of litigation, the same reliefs cannot be permitted to be re-agitated subsequently. The similarities of the reliefs in the two petitions are extracted hereunder: - i. The Appellants earlier filed C.P. No. 40 of 2011 (u/s.397/398=241) with an Amendment CA No. 68 of 2016 in which they sought the reliefs same as what is contained in CP/225/2019 (in Appeal supra) as under: CP/225/201....