TMI Blog2016 (10) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 Rule 11. In such circumstances, the learned Judge was not justified to pass the impugned Order - Appeal allowed in part. - F.A. No. 62 of 2016 - - - Dated:- 13-10-2016 - F.M. Reis Nutan D. Sardessai, JJ. Advocates: J.E. Coelho Pereira, Senior Advocate with Vinod Vishnu Korgaonkar, Anthony Joe D'Silva JUDGMENT Heard Mr. J. E. Coelho Pereira, learned Senior Counsel appearing for the appellants and Mr. A. D'Silva, learned counsel appearing for the respondent nos. 1(a), 2 and 3. 2. Admit. Heard forthwith with the consent of the learned counsel. 3. The notice indicated that the matter would be disposed of finally at the stage of admission. 4. On the last date of hearing, an opportunity was given to the respondent no.4 who was not represented to appear but however, none appears for the said respondent today as well. 5. The challenge in the above appeal is to the order passed by the learned Civil Judge Senior Judge, Panaji, dated 12.11.2013 whereby the plaint filed by the appellants against the respondents came to be rejected in terms of Order VII Rule 11(d) of the CPC. 6. Mr. Coelho Pereira, learned Senior Counsel appearing for the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilva, learned counsel appearing for the respondent nos. 1(a), 2 and 3 has pointed out that the suit is barred under Section 10GB of the Companies Act as according to him on plain reading of the plaint, the allegations by the Company cannot be adjudicated under Sections 397 and 398 of the Companies Act. The learned counsel further pointed out that the learned Judge has rightly passed the impugned order. In support of his submissions, the learned counsel has relied upon the judgment of the Apex Court reported in (2008) 3 SCC 363 in the case of V. S. Krishnan and others V/s Westfort Hi-tech Hospital Ltd., Ors. 9. On the other hand, Mr. Coelho Pereira, learned Senior Counsel has relied upon the judgment reported in (2003) 6 SCC 220 in the case of Dwarka Prasad Agarwal and Anr. V/s Ramesh Chander Agarwal and others. 10. We have considered the submissions of the learned Counsel and we have also gone through the records. Whilst examining an application under Order 7 Rule 11 of the Civil Procedure Code, the defence of the defendants in the W.S. cannot be looked into but only the plaint. The suit is filed for the aforesaid reliefs by the Company as well as other Directors of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether, remedies normally associated with action in civil courts are prescribed by the said statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is the requisite Notification, the District Court. However, there is no ouster of the jurisdiction of the City Civil Court in all cases where the provisions of the said Act may be attracted. It was further observed that it is only in respect of those proceedings which are expressly contemplated under the said Act under any specific provision that the court which is referred to in that section would be the special court, namely the High Court or the Notified District Court. In all other cases, ordinarily the civil courts would continue to have jurisdiction. In this behalf, the Division Bench placed reliance on the judgment of the single judge of this court in Rao Saheb Manilal Gangaram Sindore v. M/s. Western India Theatres Ltd., LXIV Bom.L.R. 532. 9. The Division Bench also referred to Dhulabhais case (supra) and finally observed as under: From the provisions of the Companies Act, we do not find anything by which we can infer that the jurisdiction of the Civil Court is ousted. The very fact that section 2(11) is part of the definition clause under the Companies Act under which a Court is defined to mean the Court as prescribed under section 10, clearly shows that whenever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering section 155 of the said Act. Section 155 of the said Act vests jurisdiction in the company judge, and impliedly ousts the jurisdiction of the civil court in respect of rectification. After referring to Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752, this court observed that this judgment is an authority for the proposition that if a pre-existing right in common law is recognised by the statute and a new statutory remedy for this enforcement provided, without expressly excluding the civil courts jurisdiction, then both the common law and the statutory remedies might become concurrent remedies. This court then referred to Rao Sahebs case (supra) and held that for the relief contemplated by section 155, a suit was the primary remedy under the general law. The relief contemplated by that section was one which was available at common law. Section 155 merely provided a statutory remedy. Its object was not to whittle down or abrogate the procedure by way of suit for getting the relief contemplated by that section. 14. After taking a resume of several judgments on the point, this court observed that the authorities on the subject do recognise the common law right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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