TMI Blog2018 (7) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by him. It is also the case of the appellant as stated in the present appeal that he is not a party to the agreement dated 31.03.2006 or to the ensuing arbitration proceedings. Hence, it is obvious that the appellant is not concerned with the arbitration proceedings/application. There is no merit in this present appeal and the same is dismissed. - CO.A(SB) 26/2008 - - - Dated:- 21-5-2018 - MR JAYANT NATH, J. For The Appellant : Mr.Deepak Khosla in person For The Respondent : Mr.P.Nagesh and Mr. Anand JUDGMENT JAYANT NATH, J. 1. This appeal is filed under Section 10 F of the Companies Act, 1956 seeking to quash/strike down and/or declaring null void and void ab initio all the orders passed by the Company Law Board (herein referred to as CLB ) in Co. Pet. 114/2007 between 20.10.2008 and after 31.08.2007 as being coram non judice. 2. The genesis of the present appeal relates to a land in Kasauli, Dist. Solan, Himachal Pradesh. The land was owned by the appellant/family of the appellant/respondent No.3. Some of the persons being part of the Appellant Group entered into an MOU dated 21.12.2005 with Mr.Vikram Bakshi. The project was a joint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed by the Arbitral Tribunal. Another appeal was filed by Mrs.Sonia Khosla being Co. Appeal (SB) No. 6/2008. This was disposed of on 22.04.2008. This court noted that as the matter is sub-judice before a panel of arbitrators, it would be appropriate that the parties maintain status quo with regard to the composition of the Board and shareholdings as it existed on the date of filing of petition by Mrs.Sonia Khosla before the CLB i.e. 13.08.2007. Mrs.Sonia Khosla filed a review against the order of this court dated 22.04.2008. This court on 06.05.2008 dismissed the said review petition noting that the order was dictated in the presence of the counsel for both the parties. Similarly, Mr. R.P.Khosla filed a review petition which was dismissed as withdrawn on 06.05.2018. The appellant herein moved an application being Co. Appl. 487/2008 in Co. Appeal No.7/2008. This court on the said date i.e. 06.05.2008 noted the contention of the appellant that the order disposing of the appeal dated 11.04.2008 should not bind the appellant. This court took the said submission on record with liberty to the appellant to take appropriate remedy as available to him in law. 7. The third ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction of the CLB to deal with the matter. It is stated that despite issue of notice on the said application under Section 8 of the Arbitration Act on 31.08.2007, no decision was taken by the CLB on the question of its jurisdiction and yet the CLB continued to pass orders after orders. Reliance is placed on the judgment of the Madhya Pradesh High court in State of M.P. vs. Harsh Mood Products Pvt. Gwalior Ltd, AIR (1989) NOC 13 (MP) to contend that CLB had no jurisdiction to pass the orders after 31.08.2007. It has also been pleaded that though the appellant attended the hearings after 31.08.2007 but he has at no stage given a waiver to his plea that unless the application under Section 8 of the Arbitration Act application is decided by the CLB, it has no jurisdiction to pass any order till date. It is further urged that if ever there is any waiver or acquiescence on the part of the appellant, it is settled law that no waiver or consent can confer jurisdiction on a court which inherently lacks it. An order passed without jurisdiction is a nullity and void ab initio. Reliance is also placed on the orders passed by the CLB dated 20.10.2008, 28.07.2008 where it is pleaded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions itself shows that extensive averments have been made on the merits of the appeal itself. 13. Learned Counsel appearing for the respondent has submitted as follows:- (i) That the basic object of this appeal is to challenge the order dated 31.01.2008. (ii) That the present appeal is filed on 11.11.2008 and the same is hence barred by limitation being beyond the period of 60+60 days and hence, is liable to be dismissed at the outset. Learned counsel has relied upon the judgment of the Punjab and Haryana High Court in Pawan Goel vs. KMG Milk Food Ltd. Ors., (2008) 142 Comp. Cas.441(P H). The said High Court had held that the limitation period prescribed under Section 10 F of the Companies Act does not permit any further extension and Section 5 of the Limitation Act would have no application. It has been pointed out that the above judgment was confirmed by the Supreme Court in SLP(C) No. 17522/2008 dated 16.04.2010. (iii) It is further stated that the entire gamut of facts was dealt with by the Supreme Court in its judgment dated 08.05.2014 in SLP (Crl.) 6873/2010 and SLP (C) No.23796-23798/2010. The Court had held that the appeal being Co. Appl.(SB) 23/2009 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy arises necessitating some interim orders, it would be open to the parties to approach the CLB for appropriate directions. 17. I may note that the appellant was a party to the said Special Leave Petition being arrayed as respondent no. 9. When the matter was heard by the Supreme Court, this appeal was pending in this court. However, before the Supreme Court, the appellant does not appear to have put forth any proposition or argument that the order of CLB that was under challenge, namely, the order dated 31.08.2008 and other orders were void ab initio on account of the fact that when the orders were passed, an application under Section 8 of Arbitration Act was pending adjudication before CLB. Keeping in view the fact that the Supreme Court has considered the entire gamut of facts and disputes and passed the directions, in my opinion the appeal of the appellant herein seeking to challenge the various orders passed by the CLB including order dated 31.01.2008 has become redundant. The directions passed by the Supreme Court on 08.05.2014 would apply to the disputes raised herein. The said order would override the orders of the CLB challenged on the stated ground by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sardar v. Karuna Sardar: (2004) 4 SCC 252 and concluded that the maximum period available to the appellant for preferring an appeal to this Court under section 10F of the Companies Act is sixty+sixty days i.e. 120 days, subject to the condition that the appellant has shown sufficient cause for condonation up to sixty days beyond the prescribed period of sixty days. The provisions of Sections 4 to 24 of the Limitation Act were said to have no application. The relevant portion of the said judgment reads as follows:- 30. From the dictum of the aforesaid judgments, it is abundantly clear that where particular statute does not apply to Section 5 of the Limitation Act expressly or even impliedly in a special or local law itself, it shall be presumed that the exclusion is express. Section 29(2) of the Act not only excludes the application of Section 5 of the Limitation Act but also other sections from Sections 4 to 24 (inclusive). Thus, Section 14 also stands excluded from its application for purposes of either condoning the delay or exclusion of the period on the ground envisaged therein notwithstanding existence of sufficient cause. Thus, even if the period spent before the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SB) 23/2009 filed by Shri R.K.Garg in this court has become otiose. Clearly, the order of this court dated 13.4.2010 relied upon by the appellant is of no assistance to the appellant and cannot read to mean that the present appeal has to be heard even if it is barred by limitation. 23. Clearly, the present appeal is barred by limitation. 24. I may also examine the contention of the appellant that the orders in question of CLB are void ab initio. It has been strongly contended that on account of the pendency of the application under Section 8 of the Arbitration Act filed by Mr. Vikram Bakshi, the entire orders between 31.0.2007 and 20.10.2008 are void ab initio. 25. Section 5 and 8 of the Arbitration Act prior to the amendment of 2015 reads as follows:- 5. Extent of judicial intervention.-Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. ..... 8. Power to refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before which an action is brought in a matter which is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is required to be done in a case where some parties to the suit are not parties to the arbitration agreement. As against this, under Section 24 of the Arbitration Act, 1940, some of the parties to a suit could apply that the matters in difference between them be referred to arbitration and the court may refer the same to arbitration provided that the same can be separated from the rest of the subject-matter of the suit. The section also provided that the suit would continue so far as it related to parties who have not joined in such application. 27. Similarly, in Booz Allen and Hamilton Inc. vs. SBI Home Finance Ltd. and Ors., (2011) 5 SCC 532, the Supreme Court held as follows:- 35. The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isplaying an unambiguous intention to acquiesce in the suit and to waive the benefit of the arbitration agreement. Any other view would both be harsh and inequitous and contrary to the underlying intendment of the Act. The first party which approaches the court and seeks an ex parte interim order has obviously come to the court in breach of the arbitration agreement. By obtaining an ex parte order if it forces the other party to the agreement to suffer the order, or by merely contesting be imputed the intention of waiving the benefit of arbitration agreement, it would enjoy an undeserved advantage. Such could not be the underlying purpose of Section 34. Therefore, in our opinion, to effectuate the purpose underlying Section 34 the narrow construction of the expression taking any other steps in the proceedings‟ as hereinabove set out appears to advance the object and purpose underlying Section 34 and the purpose for which the Act was enacted. 36. The expression first statement on the substance of the dispute contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression written statement . It employs submission of the party to the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration agreement. The judicial authority has to hence first come to a conclusion that the requirements of Section 8 have been fulfilled before referring the parties to arbitration. Till pendency of the application under section 8 of the Arbitration Act for supplemental and incidental proceedings including passing of interlocutory orders, there is no jurisdictional bar to pass orders and directions. There is nothing to show that miscellaneous and incidental proceedings cannot go on before the court. 29. Even a reading of section 5 and section 8 of the Arbitration Act does not show that on a mere filing of an application under section 8 of the arbitration act the court loses its jurisdiction to pass any further orders either in the main proceedings or in the supplementary or incidental proceedings in the said suit. No such interpretation can follow from a reading of section 5 and section 8 of the arbitration act. 30. In fact in the present case, it is Mrs.Sonia Khosla who has moved the petition before CLB ignoring the arbitration agreement. Interim orders were prayed for and were granted to Mrs.Sonia Khosla. It was Mr.Vikram Bakshi, one of the respondents who filed the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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