TMI Blog2017 (3) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... s never implemented and corresponding provisions of Section 634A of the Companies Act, 1956 is Section 465 of the Companies Act 2013, which has been repealed with certain enactments and savings. As per provisions of savings clause of Section 465 of the Companies Act, 2013 Part IXA of the Companies Act, 1956 shall be applicable mutatis mutandis in a manner as if the Companies Act, 1956 has not been repealed. Therefore, the ground which the petitioner has taken, that he is withdrawing the petition because he has filed the petition under Section 634A of the Companies Act, 1956, which has become ineffective on the ground of implementation of 2013 Act, is incorrect. It is also true that a person is entitled to withdraw a petition, but the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Companies (Second Amendment) Act, 2002. To avoid any ambiguity the petitioner prayed that permission be granted to withdraw C.P.No. 285/2013 and sought liberty to re-file the same under appropriate provisions of the Companies Act, 2013. Ld. Counsel for the respondent no. 1 has relied on case law of Hon'ble Calcutta High Court in 2016 (3) CLJ (Cal) 592. In the above mentioned case the Hon'ble Calcutta Court has observed that in K.S. Bhoopathy v. Kokila [2000] 5 SCC 458 Hon'ble Supreme Court has laid down the law that grant of leave envisaged in sub-rule (3) of Rule 1 of Order XXIII is a discretion of the Court but such discretion is to be exercised with caution and circumspection. The Hon'ble Calcutta High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions in 2013 Act is Section 465 which has been repealed with saving clause. It is necessary to have a look into the details of Section 634A of the Companies Act, 1956. [634A. Enforcement of orders of Company Law Board. - Any order made by the Company Law Board may be enforced by that Board in the same manner as if it were a decree made by a Court in a suit pending therein, and it shall be lawful for that Board to send, in the case of its inability to execute such order, to the Court within the local limits of whose jurisdiction, - (a) in the case of an order against a company, the registered office of the company is situated, or (b) in the case of an order against any other person, the person concerned voluntarily res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 2013 without being enforced has been repealed by certain enactments and savings. Section 465 of the Companies Act, 2013 states as follows: 465. (1) The Companies Act, 1956 (1 of 1956) and the Registration of Companies (Sikkim) Act, 1961 (Sikkim Act 8 of 1961) (hereinafter in this section referred to as the repealed enactments) shall stand repealed: Provided that the provisions of Part IXA of the Companies Act, 1956 (1 of 1956) shall be applicable mutatis mutandis to a Producer Company in a manner as if the Companies Act, 1956 has not been repealed until a special Act is enacted for Producer Companies: Provided further that until a date is notified by the Central Government under sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is withdrawing the petition because he has filed the petition under Section 634A of the Companies Act, 1956, which has become ineffective on the ground of implementation of 2013 Act, is incorrect. It is also true that a person is entitled to withdraw a petition, but the ground which the petitioner has taken and on which he has sought liberty to file fresh petition is not justified. Therefore, there is no justification for allowing the petitioner to withdraw this petition with liberty to file fresh petition. The prayer of the petitioner for withdrawal of Company Petition deserves to be allowed. ORDER In the circumstances mentioned above the petitioner is allowed to withdraw the petition, but without any liberty to file fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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