TMI Blog2011 (4) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... es, yet it has not adjudicated upon the same. In fact, CLB has given no finding/conclusion on the contentions raised by the respondents while opposing the maintainability of the petition except observing that the appellants were at liberty to file a petition under section 111A of the Act and in the event they succeed in the said petition, they would be at liberty to file a petition under section 397/398 of the Act. The impugned order to my mind is a non-reasoned one to this extent. Regarding amendment to the application / suit - held that:- While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed Company Application No. 213/2007 challenging the maintainability of the petition. The appellants in response moved an application bearing CA No. 313/2008 for amendment of the Company Petition No. 61/2007 by incorporating relief under section 111A of the Act. However, the CLB dismissed the appellants petition on the ground that since the names of appellants no longer appear in the register of members, they were lacking in requisite eligibility under section 399 of the Act to maintain such a petition. As stated hereinabove, the appellants were granted liberty to file a petition under section 111A of the Act for rectification of the register of members. 3. Mr. Salil Sagar, learned senior counsel for appellants submits that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 397 of the Act is indisputably of wide amplitude. 6. Mr. Sagar lastly submits that since the appellants came to know the fact of removal of their names from the register of members through CA 213/2007, the cause of action accrued to appellants during the pendency of the petition, and, therefore, amendment in CP 61/2007 incorporating pleas under section 111A of the Act should have been allowed by the CLB. 7. On the other hand, Mr. Neeraj Kishan Kaul, learned senior counsel for respondents submits that the present appeal is liable to be dismissed as it does not disclose any question of law. He further submits that as the appellants had signed the share transfer deeds and also parted with their respective share certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mismanagement is that the faction that is in control of the company has either intentionally reduced the rival faction to less than 1/10th of the total number of members of the company or removed the rival faction from the register of members. In such cases where allegation of oppression and mismanagement is inexplicably intertwined with the issue of maintainability of the petition under section 399 of the Act, a composite petition has to be held as maintainable. To ask a petitioner to file two separate petitions in such circumstances would not only be unfair but would also result in unnecessary delay. 12. Moreover, neither Ved Prakash s case ( supra ) nor Gulabrai Kalidas Naik s case ( supra ) lay down the proposition of law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be at liberty to file a petition under section 397/398 of the Act. The impugned order to my mind is a non-reasoned one to this extent. 14. I am further of the opinion that if the respondents submissions with regard to maintainability of the appellants petition under section 397/398 of the Act are correct, then the CLB should not have even granted liberty to the appellants to file a petition under section 111A of the Act. 15. Moreover, from a perusal of the impugned order, it is apparent that the CLB has not dealt with the amendment application filed by the appellants, except observing that it was infructuous. The Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi AIR 2006 SC 1647 has held that all amendments which are nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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