TMI Blog2010 (5) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 5 from alienating or creating any third party rights with respect to fixed assets of Rampur Texpro Unit till the next date of hearing. 3. The applicant being respondent No. 5 in the main petition, the respondents in this application being the petitioners in the main petition, the parties are referred to as arrayed in the main petitions. 4. The order dated January 12, 2010, passed by the Principal Bench of the Company Law Board at Delhi, which is sought for modification is as below : "Petition mentioned. Heard learned counsel for the petitioner as well as learned counsel appearing on behalf of respondent No. 1 company. None appears for respondent No. 5, the wholly owned subsidiary of respondent No. 1 company. After hearing cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is lack of probity in incorporating respondent No. 4 and respondent No. 5 companies and transferring primary assets of respondent No. 1 company to these respondent No. 4 and respondent No. 5 companies, in case any third party rights are created over the said units, the interest of the petitioners will be affected for they, together, happen to be the holders of 36 per cent of shareholding of respondent No.1 company. 7. Respondent No. 5 argued that he remained ex parte by the time the Principal Bench of the Company Law Board passed an order dated January 12, 2010, restraining him from creating any third party rights over Rampur Texpro Unit transferred to respondent No. 5. Immediately thereafter, respondent No. 5 received two sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal of this modification application. 9. Learned counsel for respondent No. 5 relied upon Pramod Kumar Mittal v. Andhra Steel Corpn. Ltd. [1985] 58 Comp. Cas. 772 (Cal.), to state that Rampur Texpro Unit being an undertaking remained idle for several years and not being a going concern, the provisions of section 293 are not applicable. He further stated that respondent No. 5 is entitled for modification of this order under Order 39, of rule 4 of the CPC for he remained absent at the time of order passed by the Principal Bench and further argued that the factual position of offers coming to take the asset on lease not having been presented before the Bench at the time of passing the order dated January 12, 2010, thereby respondent No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies Act, 1956, as the section happens to be prohibitory in nature but not disqualifying in nature. 12. On hearing the rival contentions, this Bench finds that the order passed by the honourable Principal Bench is not a final order, it was only passed on prima facie satisfaction until further hearing but not as final order on interim reliefs sought by the petitioners, thereby, the petitioner s contention stating that the order dated January 12, 2010, passed by the Principal Bench not to be modified will not stand valid. 13. Since the petitioners set out material facts disclosing interestedness of respondent No. 3 in transferring Rampur Texpro Unit to respondent No. 5, now at this juncture permitting respondent No. 5 to create third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above reasons, this Bench is of the opinion that the restraint order passed by the Principal Bench need not be interfered with as the reasons given in this order are fortifying the order dated January 12, 2010. 15. Hence, the application filed for modification is hereby dismissed directing the petitioners herein to file their rejoinder within 15 days after supply of copies as mentioned in C.A. No. 25 of 2010 connected with C.P. No. 1 (Kol.) of 2010 and C.A. No. 26 of 2010 connected with C.P. No. 2 (Kol.) of 2010 (Blancatex AG v. AI Champdany Industries Ltd. [2011] 164 Comp. Cas. 98 (CLB - Kol.)) and submit their arguments in the main petition within one month thereafter, failing which the order dated January 12, 2010, stands cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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