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2018 (11) TMI 774 - AT - Companies LawNCLT permitted to withdrawal of the Company Petition - withdrawal application referred to settlement and amendment of Articles of Association - Held that:- The Appellant is not a member or shareholder. The Company Petition filed u/s 397 and 398 of the old Act cannot be continued at the behest of an Intervener seeking impleadment when he is not a shareholder or member of the Company. It is settled position that such application of oppression and mismanagement can be filed only by a member of the Company. If the Appellant could not file such a Petition, the Appellant cannot insist on independently maintaining the same so as to hear out his grievances against the Petitioner and Respondents claiming that they are in collusion. As argued that under Section 402 of the old Act, NCLT has wide powers to pass any Orders when Petition of oppression and mismanagement is filed. The argument is that in the present matter, there were various earlier Orders of NCLT which showed that things were not being legally conducted in the Company and the NCLT had even passed Orders to appoint Administrator. As argued by the learned counsel for the Appellant that in such situation merely because the withdrawal application was filed, NCLT should not have allowed the withdrawal. It is claimed that withdrawal under Order XXIII Rule 1 of Code of Civil Procedure, 1908 is different as there the Plaintiff has a right to withdraw the suit while the same cannot be said with regard to Rule 82 where the provisions say that an application under Clause ‘A’ or Clause ‘B’ of Sub-Section (1) of Section 241 “shall not be withdrawn without the leave of the Tribunal. No reason as to why the NCLT should have kept the Petition pending only because the Appellant wanted it to do so. The impleadment of the Appellant had been refused and he had been permitted only to intervene when the Company Petition was taken up for hearing so that he could point out wrong, if any. That by itself did not create such a vested right that the Appellant could claim that Company Petition should not be allowed to be withdrawn. No doubt powers of NCLT in a petition complaining oppression and mismanagement are very wide to safeguard the interest of the Company. But it would still be matter of discretion to permit withdrawal of the Petition in the given set of facts. When a claim of settlement between the warring group is stated and simple withdrawal is asked, NCLT cannot be asked to continue with the petition on a roving enquiry at the instance of a non-member. Although the withdrawal application referred to settlement and amendment of Articles of Association, the withdrawal application did not seek any directions or orders on that count. The application did not seek recording of any settlement or terms of settlement. The application merely made statement as to what according to the Respondent No.22 – the Petitioner has happened between him and Respondents 1 to 11 and sought withdrawal of the Company Petition. It is a simple withdrawal. There is apparently no operative order. Thus, the original Petitioner and Respondents remain as much liable to answer for their acts to the Hon’ble High Court and Hon’ble Supreme Court in the litigation pending at the instance of the Appellant, as they were before withdrawal. For all such reasons, we are not interfering with the Impugned Order dated 19.12.2017 passed by the learned NCLT. Consequently, the Company Appeal is dismissed. The result is that the original Company Petition having been withdrawn, Company Appeal does not survive for impleadment. Company Appeal is disposed accordingly.
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