TMI Blog2009 (7) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction of the CLB to grant such interim relief. As I am inclined to relegate the parties before the CLB, even this question can be considered by the CLB on its own merits. Appeal allowed. - COMPANY APPEAL NO. 34 OF 2009 CLB COMPANY APPLICATION NO. 255 OF 2008 CLB COMPANY PETITION NO. 48 OF 2008 - - - Dated:- 3-7-2009 - A.M. KHANWILKAR, J. Janak Dwarkadas, Navroz Seervai, Chetan Kapadia, Sharan Jagtiani, Shaukat Merchant, Nikhil Dharod, Ms. Rana Mittal for the Appellant. Parag Tripathi, Mrs. Anjoo Jain, Hitesh Sachar and Hamed Kadiani for the Respondent. ORDER 1. This appeal under section 10F of the Indian Companies Act, 1956 takes exception to the judgment and order passed by the Member of the Company Law Board (Principal Bench, New Delhi) (CLB) dated 16-4-2009 in Company Application No. 255/2008 in Company Petition No. 48/2008. For the nature of order that I am inclined to pass, it is not necessary to reproduce all the facts in detail. Similarly, it may not be necessary to delve upon all the issues on merits. The contesting Respondent No. 1 waives notice. In view of the short question, appeal is finally disposed of. 2. I would straightway a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objections of the Appellants regarding the maintainability of the Petition in Paragraph 38, as follows : "Applying the said principle, the Applicant s case is that the petition alone brings out that ( a ) the petitioner is admittedly not a member of the company; ( b ) the provisions of section 111/111A are not applicable; ( c ) the petitioner having filed a winding up petition in the Bombay High Court has admitted itself to be a creditor; ( d ) the petition itself confirms the forum shopping by the petitioner; and ( e ) as per the petition itself, last transaction happened in 1993 and the petition, therefore, suffers from delay and latches without any explanation or application for condonation of delay." 4. Indeed, the CLB has expressed its prima facie opinion to negative the objection regarding the maintainability of the Petition; but the discussion in the impugned judgment deals mainly with points ( a ), ( b ) ( e ) above. Even if this Court were to accept the prima facie view taken by the CLB on the said points, there is absolutely no discussion in the impugned decision with regard to point ( c ) in particular. This is notwithstanding the fact that the said conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Gulabrai Kalidas Naik v. Laxmidas Lallubhai Patel [1977] 47 Comp. Cas. 151 which expounds the legal position that the former section 155 can be invoked only by a person who has indisputable and unchallengeable title to the membership of the company. 6. To buttress the objection regarding maintainability of the petition, the Appellants have also pressed into service decision of the Apex Court in the case of Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad [2005] 57 SCL 476 to contend that the judicial admissions made by the parties or their Agents on or before the hearing of the case are admissible under section 58 of the Evidence Act and stand on a higher footing than evidential admission. This legal position has been restated by the Apex Court relying on its earlier decision in the case of Nagindas Ramdas v. Dalpatram Iccharam AIR 1974 SC 471 and subsequent decisions thereto, as can be discerned from Paragraphs 223-236 of the reported decision. Reliance is also placed on another decision of the Apex Court in the case of B.L. Sreedhar v. K.M. Munireddy AIR 2003 SC 578 which expounds that though estoppel is described as a mere rule of evidence, it may have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relied on the observations of the Apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh 1979 (2) SCC 409 to contend that waiver has to be express and intentional abandonment of any right. Learned Counsel for the Respondent was at pains to point out by reading out the Petition for winding up filed by the Respondent No. 1 against the Appellant as well as referring to the correspondence which, according to him, would show that the Respondent had not intentionally abandoned its right to pursue remedy under section 397/398 of the Act in the capacity of a member/shareholder of the Appellant company. 8. Indubitably, these arguments ought to have been addressed by the CLB in the first instance. If the CLB were to accept the stand taken by the Appellants that such person (Respondent No. 1) is not competent to maintain proceedings under section 397/398 or for that matter section 111A of the Act, the Petition so filed by the Respondent No. 1 will have to be thrown out at the threshold. In that case, the question of admitting the Petition even in the past would not arise. As aforesaid, the CLB has touched the argument only in the context of point ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the Respondent No. 1 against the Appellant company in this Court under section 433 of the Act be treated as one filed only under section 433( f ) of the Act or in the alternative the Respondent No. 1 be allowed to withdraw the same. This submission, if accepted, contends Learned Counsel for the Respondent No. 1, the argument regarding maintainability of the Petition pressed into service by the appellants would become unavailable. Insofar as the submission that the Company Petition instituted by the Respondent No. 1 in this Court for winding up of Appellant company be considered as one under section 433( f ) of the Act, that is advanced on the basis of averments in Paragraph 16 of that Petition. However, that is a general statement in the Petition that the company should be wound up also for just and equitable grounds. Besides, Counsel for the Appellants submits that if the Respondent No. 1 is allowed to withdraw the said company Petition, it would result in allowing the Respondent No. 1 to withdraw from the judicial admission which cannot be countenanced. He further submits that the Court also cannot overlook the fact that the said company Petition is already admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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