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TMI Blog2016 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... gement in the affairs of the Respondent Company, which is pending for adjudication. In the meantime, the Respondents Advocate moved an Company Application bearing C.A. No. 1366/2015, praying for stay of the operation of the Order dated 17.08.2015 passed by this Hon'ble Board by recalling the said Order dated 17.08.2015 and also, to hear and dispose of the C.A. No. 1231/2015 independently and without directing the filing of reply affidavit in the main Company Petition being C.P. No.151/2015. Precisely speaking, the Respondents/Applicants Advocate submitted that by an Order dated 17.08.2015, this Hon'ble Board has fixed the C.A. No. 1231/2015 along with the main Company Petition for hearing and also, directions were given for filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Hon'ble Board to entertain the Petitioners who do not qualify under Section 399 of the Companies Act, 1956, the filing of reply by the contesting party is irrelevant and unnecessary. Therefore, no Order should be passed directing filing of reply-affidavit on the main Company Petition before deciding an application for dismissal since such application is to be decided without looking into the averments in the written statement and any direction for filing of written statement is not sustainable in law. As such, this Hon'ble Board has the jurisdiction to hear out the application for dismissal as a preliminary issue before entering into the merits of the matter. 2. As recorded in the Order dated 03.09.2015, the Petitioners/Non-Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that a judicial forum does not have the jurisdiction to direct filing of pleadings in a Company Petition while considering a demurrer Application or an Application for dismissal of the Company Petition. Such being the position, the directions given for filing of the reply in the main Company Petition are wholly without jurisdiction which cannot be cured by the appearance of the parties in the proceedings, even if that is without protest because it is well settled that consent cannot confer jurisdiction Waverly Jute Mills -vs-. Raymon & Co. [AIR (1963) SC 90 (5 Bench)]. Further, as none of the Petitioners/Non-Applicants is the members of the Respondent Company, the question of the Company Law Board exercising any jurisdiction to give direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to decide on the issue raised in the demurrer application without going into the merits of the matter. (c) Saleem Bhai & Ors. -vs- State of Maharashtra & Ors. [2003] 1 SCC 557, wherein the Hon'ble Supreme Court has held "while deciding an Application under Order VII Rule 11 of the Code of Civil Procedure, direction given by the Court to file Written Statement is not in accordance with law. (d) Sushil Kumar Mehta -vs- Cobind Ram Bohra [1990 (1) SCC 193], to state "Parties cannot by agreement give the Court jurisdiction which the legislature has enacted otherwise." As such, the arguments on the part of the Petitioners/Non-Applicants that the Applicants in C.A. No. 1231/2015 are estopped from raising the point raised in the instant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear beyond doubt that there was no Company Application challenging the maintainability of the main Company Petition on 07.07.2015 and hence, after hearing the submissions/arguments of the Petitioners Advocate as well as the Respondents Advocate, the Respondents Advocate was allowed 3 weeks' time to file the reply and rejoinder was to be filed by the Petitioners Advocate within 2 weeks from the date of receipt of the reply. Again, on 17.08.2015, when the matter was heard, C.A. No. 1231/2015 challenging the maintainability was also moved and in the matter of main Company Petition, no issue/objection was raised as to the filing of the reply. Therefore, at the request of the Respondents Advocate, further 10 days' time was allowed to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law and facts. Therefore, in the interest of justice, the prayers made in the instant Company Application are partly allowed to the extent that the demurrer application be heard and decided first and for this purpose, the Respondents Advocate is hereby directed to file the reply to the Company Petition within 3 weeks and rejoinder, if any, be filed by the Petitioners Advocate within 2 weeks from the date of receipt of the reply so as to consider the demurrer application first based on the applicable provisions of the Companies Act, 1956/2013 and the facts contained in the Company Petition, reply to the Company Petition and rejoinder thereto. 6. C.A. No. 1366/2015 is disposed of accordingly. 7. No Order as to costs. 8. List the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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