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2016 (5) TMI 983 - HC - Companies LawApplication for grant of probate - Application filed by the predecessor-in-interest of the present plaintiffs who, as executor and/or propounder applied for grant of probate of the Will published by one Priyamvada Devi Birla in short P.D.B on 18th April, 1999 along with the codicil dated 15th April, 2003 to the said Will - Held that:- Board of Directors of a company is authorized to exercise its power on behalf of the company by means of resolution passed in a meeting of the Board to take over a company or acquire a controlling or substantial stake in another company even by borrowing money subject to the restriction imposed under Section 180(1)(C) of the Companies Act. There is no allegation in the petition that even the decision for implementation of the said project by borrowing money was taken by the Board of Directors contravening the provision of Section 180(I)(C) of the Companies Act, 2013. As informed that the application filed by the applicants for making “APL” functional is awaiting consideration before the Appeal court. In our view the parties should approach the Appeal Court for making the “APL” functional immediately, so that “APL” can exercise its power of control over the management of the B.C.L by following the provisions prescribed under the Companies Act and in case the “APL” fails to discharge its duty, Probate Court can pass necessary direction upon “APL” for taking steps in accordance with law, whenever such direction needs to be passed for preserving the estate of the deceased. This Court has no hesitation to hold that the Probate Court cannot pass any injunction order against a third party as third party who has no caveatable interest in the probate proceeding cannot be allowed to be added as party in the probate proceeding and also for the reason that no order can be passed effecting the right of the stranger without adjudicating his right and adjudication of his rights in the probate proceeding is impossible as Probate Court cannot decide any foreign issue unconnected with the probate proceeding. Respectfully agree with the submission of Mr. Mitra, learned Senior Counsel appearing for the plaintiffs/ Lodhas that Probate Court cannot pass any injunction order against any person who is not a party to the proceeding. However, without discussing the other contention of Mr. Chidambaram cannot arrive at this ultimate conclusion. If the averment made in the application is read conjointly with the statements made in the supplementary affidavit which were made part of these applications, this Court cannot hold that the application is devoided on any cause of action. That apart find much substance in the contention of Mr. P. Chidambaram, learned Senior Counsel that at the stage of considering the demurrer of this application, the party objecting to the maintainability of such application should demonstrate before the Court that the application is not entertainable by the Court even by accepting all the statements made in the said application as true and correct. Thus, cannot agree with the submission of Mr. Mitra, learned Senior Counsel, that the applications are devoided of any cause of action. To conclude, hold that since the decision of the Board of Directors in taking over four cement manufacturing units of Reliance Infrastructure is not subject to the control of the promoters’ controlling power over the management of the said company and further since the Probate Court cannot pass any direction and/or injunction order against any person who is not a party to the probate proceeding and further since no adjudication of a foreign issue is possible before the Probate Court in the absence of any party who has no caveatable interest in the probate proceeding, this Court holds that the reliefs claimed by the applicants in these applications, cannot be granted. The applications are thus, rejected with the observation that the estate of the deceased cannot be left uncontrolled and since the “APL” has now become defunct, the parties may approach before the appropriate forum for making such “APL” functional so that whenever the Probate Court feels necessary, the probate Court can pass appropriate direction upon the “APL” for safeguarding and/or protecting the estate of the deceased. All the applications filed by the defendants and the demurrer applications filed by the plaintiffs are, thus, disposed of with the above observation.
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