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TMI Blog2010 (7) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... e referred to as the respondents, the respondents are referred to as the petitioners as arrayed in the main petition. 3. The applicants submitted that they filed C. S. No. 128 of 2009 against the petitioners before the honourable company court seeking removal of the petitioners as directors of the company, to restrain the petitioners from dealing with the properties of respondent No. 1 and not to hold any extraordinary general body meeting by the petitioners and also for appointment of a special officer for looking after the administration of the company. The case of the respondents in that suit is that the petitioners misappropriated funds of the company by taking entire control of the company into their hands causing loss to the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n directly and substantially in issue in C. S. No. 128 of 2009 already pending on the file of the honourable Company Court, Calcutta ? Could the petitioners file this petition under sections 397 and 398 of the Companies Act, 1956, before this forum conferred with power, when C. S. No. 128 of 2009, more or less between the same parties, is already pending before the honourable company court, with different grievances from this petition under sections 397 and 398 of Companies Act, 1956 ? Is the order of the honourable company court in C. S. No. 128 of 2009 in any way governing the reliefs sought by the petitioners ? 6. First point : The hon'ble High Court of Calcutta set aside the order of the Company Law Board as non-speaking but not by sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, the petitioners filed the petition on the allegation that they are reduced to minority, which is not pending before the hon'ble High Court though the suit is filed relating to company matters. Since the issue is not the same, the reliefs sought by the party not being the same, the subject-matter jurisdiction of the Company Law Board will not be ousted. 8. Third point : The respondents sought the relief in C. S. No. 128 of 2009 against the petitioners for removal of the first petitioner as director, not to interfere with the management of the company by the petitioner. The order of the honourable company court has not dealt with the reduction of the petitioners' shareholding, as no relief was sought over the same. It does not mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bombay. In view of the same, the hon'ble High Court held that the Company Law Board is not supposed to deal with an issue, which already merged with the suit pending before the High Court. Here, no such merger has taken place, the issues are different and there being no section 10F appeal order or even section 10F appeal over the present petition as in the above case, as there being no order fettering the proceedings, the issue in this petition is not construed as subjudice before the hon'ble company court. Swagath Marine Products (P.) Ltd. v. K. Muthusamy [2006] 134 Comp Cas 182/ 72 SCL 139 (CLB - Chennai), in this case, the company filed suit against the petitioner before the hon'ble High Court, Madras on the ground that the impugned s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent petition, that is not the position in the present case, hence not applicable. Arun General Industries Ltd. v. Rishabh Manufacturers (P.) Ltd., AIR 1972 Cal 128, in this case, the appellant filed a suit in the Jabalpur District Court, claiming a permanent injunction against respondents Nos. 1 and 7 from working in the plant known as "Arun Board and Paper Mills", thereafter respondents Nos. 1 and 2 filed in the Calcutta court against the appellant and respondents Nos. 3, 4, 5 and 7 seeking refund of money together with all benefits. The dispute and cause of action between these two cases being over an agreement entered into between the rival parties, the honourable High Court held section 10 of the CPC as applicable. Whereas in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Bench held them as not applicable. 14. P. V. Shetty v. B. S. Giridhar, AIR 1982 SC 83, in this case, the appellant filed this appeal for stay on the ground that he filed an application for fixation of fair rent, whereas the respondent, subsequent to it, filed a suit for eviction against the appellant, in that scenario, the apex court stayed the subsequent suit holding application for fixation of fair rent becomes infructuous once subsequent suit results in eviction, in the present case, neither the cause of action, nor the issue, nor the reliefs being identical nor resultant upon each other, this ratio is not applicable to the present case. 15. The petitioner's counsel Basak relied upon Piyush Kanti Guha v. West Bengal Pharmaceutic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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