TMI Blog2021 (8) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... it. The suit is barred by law as contemplated in Order VII Rule 11(d) of the Code of Civil Procedure - impugned order set aside - application allowed. - C.O. No. 1201 of 2021 - - - Dated:- 5-8-2021 - The Hon ble Justice Sabyasachi Bhattacharyya For the Petitioners : Mr. Jishnu Saha, Mr. Aniruddha Mitra, Mr. Sabyasachi Sen For the Opposite party no. 1 : Mr. Utpal Bose, Mr. Shuvasish Sengupta, Mr. Soumyajit Mishra ORDER Sabyasachi Bhattacharyya, J:- 1. The present revisional application arises out of a suit for declaration and injunction filed by the opposite party nos. 1 to 3 against the petitioners and opposite party nos. 4 to 6. In the plaint, the following reliefs were claimed : (a) Decree declaring that the defendant nos. 1 and 2 are holding the shares in the defendant nos. 4 and 5 as particularised in Schedule A at the foot of this plaint as trustees for the benefit of the plaintiffs and the said defendants have no beneficial interest over such shares; (b) Decree declaring that in view of the family settlement made in the Kejriwal family and recorded in the Memorandum dated 29 September 2002, a copy whereof is contained in Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the defendant company nos. 4 and 5 standing in their names of held by them or standing in the names of the Parents viz., Murari Mohan Kejriwal since deceased and Smt. Savitri Devi Kejriwal since deceased in the defendant company nos. 4 and 5 and particularised in Schedules A and B at the foot of this plaint; (h) Interlocutory injunction; (i) Receiver; (j) Attachment; (k) Costs; (l) Further and other reliefs. 2. The suit property, as described in Schedules A and B of the plaint, pertains to various shares, held in the opposite party nos. 5 and 6 (defendant nos. 4 and 5 respectively in the suit)-Companies. 3. In the said suit, the defendants/petitioners filed an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint. The plaintiffs/opposite party nos. 1 to 3, on the other hand, took out an application under Order XXIII Rule 1 of the Code of Civil Procedure, thereby praying for liberty to abandon the relief (e) claimed in the plaint, relating to rectification of the Register of the Members of the defendant nos. 4 and 5 and to approach the National Company Law Tribunal (NCLT) for such relief. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11 of the Code of Civil Procedure is not exhaustive of the general doctrine of res judicata. Learned senior counsel relies on the observations in the said report regarding the scope of cause of action estoppel and issue estoppel , vis- -vis the concept of res judicata, in support of his contentions. 8. Learned senior counsel then relies on Bhanu Kumar Jain Vs. Archana Kumar and another, reported at (2005) 1 SCC 787 in support of the proposition that cause of action estoppel arises where, in two different proceedings, identical issues are raised. 9. The concept of issue estoppel, that is, the doctrine which provides that a person is estopped from raising an issue in a latter proceeding where such issue has been determined previously and attained finality. Both the doctrines are contemplated within the purview of the principle of res judicata, it is submitted. 10. The petitioners then rely on Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, reported at (2004) 3 SCC 137. In the said report, the Supreme Court observed that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such decision is not binding on HF. 16. The company petition was filed by the revisionist-petitioners and not the plaintiffs/opposite party nos. 1 and 2. Thus, the two proceedings are not same. 17. Even if it was to be argued that the CLB award is binding on the HCM, there cannot be any partial rejection of plaint. 18. In support of the last proposition, learned senior counsel places reliance on the judgment reported at (2019) 7 SCC 158 [Madhav Prasad Aggarwal and another Vs. Axis Bank Limited and anthor] and that of (2004) 3 SCC 137 [Sopan Sukhdeo Sable and others Vs. Assistant charity Commissioner and others]. 19. In order to lay stress on the proposition that the question of res judicata involves adjudication of a mixed question of fact and law, learned senior counsel for the opposite party nos. 1 and 2 places reliance on the judgment of Vaish Aggarwal Panchayat Vs. Inder Kumar and others, reported at AIR 2015 SC 3357. 20. Learned senior counsel then cites Vaish Aggarwal Panchayat Vs. Inder Kumar and others, reported at (2020) 12 SCC 809, in support of the contention that the ground under Order VII Rule 11(d) of the Code of Civil Procedure, that is, bar of law, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as preferred by the plaintiffs, which appeal was averred to be pending even on the date of filing of the suit. 25. Since the said order of the CLB has been specifically quoted and referred to in the plaint of Title Suit No.13 of 2013, the said order can invariably be looked into for the purpose of deciding an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure. 26. Sections 397 and 398 of the 1956 Act referred to relief in cases of oppression and mismanagement and were similar in scope to Sections 241 and 242 of the 2013 Act. Since, admittedly, the CLB order was, inter alia, passed under the former provisions, the same operates as an issue estoppel against the plaintiffs from urging similar issues in the subsequent suit. The plaintiffs submitted to the jurisdiction of the CLB by participating in the proceeding before the CLB. 27. The principle of res judicata squarely applies, since the CLB elaborately considered the family settlement/arrangement-in-question in the context of the transfer of the shares of both the companies HCM and HF. 28. As such, in view of the CLB having already adjudicated the issue on merits at length in sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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