TMI Blog1997 (8) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... for confirmation of alteration of clause ( ii ) of the memorandum of association of the company for shifting the registered office of the company from the National Capital Territory of Delhi to the State of Punjab as approved by the special resolution passed at the, annual general meeting held on September 29, 1995. The appellant is a member of the respondent-company holding 100 equity shares. He filed objections to the aforesaid petition filed by the respondent-company under section 17 of the Companies Act. The Company Law Board heard the counsel appearing for the petitioner as also for the objector and the Assistant Registrar of Companies and thereafter rejected the objections filed by the appellant and confirmed the resolution relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Rs. 50,000 was neither taken up in the objection filed by the appellant before the Company Law Board nor was the same argued before the Company Law Board, and therefore, the same cannot be permitted to be argued for the first time at the appellate stage particularly when the same relates to questions of fact. Learned counsel further submits that the questions sought to be raised as questions of law by the appellant are not questions of law but are merely conclusions of fact from which no question of law arises. In the context of the arguments of learned counsel for the parties let me consider the legal position with regard to the ambit of the power of the court in a case of the present nature. Section 10F of the Companies Act provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order ; (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order; (4) When the question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. In the light of the facts of the present case, read with section 10F and in the light of the aforesaid decision, the question of law sought to be raised by the appellant falls within the fourth category as would be apparent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g power is required as provided for under section 179 of the Act and that the petitioner could not bring about the support of members holding at least one-tenth of the voting power. The Board further held that the minutes of the meeting should be deemed to be a true record of the proceedings which prove and establish that the resolution was passed by a show of hands and that the objector was unable to prove to the contrary. The findings of the Board in that respect to the effect that the appellant had failed to bring about the support of members holding at least one-tenth of the voting power is also -a finding of fact and, in my considered opinion, therefore no question of law arises therefrom. Coming to the issue now sought to be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant before the Board to which reference has already been made and none of them related to the provisions of section 179(1)( a )( ii ). Therefore, in my considered opinion, the aforesaid question now sought to be raised by counsel for the appellant cannot be said to have arisen out of the order of the Board. Even otherwise, the aforesaid issue raised appears to be of questions relating to facts which should have been taken up in the objection petition filed by the appellant/objector before the Company Law Board and that not having been done the same cannot be allowed to be urged at this appellate stage. In the light of the aforesaid discussion, therefore, I find no merit in the present appeal and the same is dismissed, but without any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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