TMI Blog2021 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioners, during pendency of the civil appeal, had filed an application against the administrator before the Hon ble NCLAT raising frivolous allegation, however, the Hon'ble NCLAT had refused to entertain such application in view of the fact that the civil appeal is pending before the Hon ble Supreme Court of India - The civil appeal is pending since 2019, notices were issued after admitting the said appeal by the Hon'ble Supreme Court. In the said civil appeal, identical issues are pending adjudication which have been prayed for before this Hon ble Tribunal. In the present case, the issues, which are being agitated in the present company petition, are from 2009 till 2019 and during the entire period, the previous company petition being C.P. No. 992 of 2011 was pending before this Hon ble tribunal till March 8, 2018 and before the Hon'ble NCLAT till May 28, 2019 and the allegations, which are now being raised, would have been raised in the earlier company petition, however, the petitioners have chosen not to agitate the same. In view of such omission, the petitioners are barred from raising such issues by filing the present company petition, that too duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Hon ble Supreme Court if India being Civil Appeal No. 6556 of 2019. A copy of the said petition, filed before the Hon ble Supreme Court of India, is annexed. 2.6 The subject matter of the present Company Petition almost is identical with the subject matter and issues pending before the Hon ble Supreme Court of India. 2.7 After filing the said Appeal before the Hon ble Supreme Court of India, the Petitioners in the original Company Petition being the Non- Applicants herein had also instituted a proceeding, before the court of the Learned Chief Judicial Magistrate, Kamrup at Guwahati, under section 200 of the Cr.P.C, 1973, inter alia, consisting of the identical allegations as raised in the present Company Petition. 2.8 The said Petitioners/Non-Applicants herein have approached this Hon'ble Tribunal under section 425 of the Companies Act, 2013, inter alia, by raising allegations of violation of the order dated March 8, 2018 passed by this Hon'ble Tribunal. The said contempt petition has been registered as Contempt Application No. 1 of 2021. 2.9 The said Contempt Application was moved before this Hon'ble Tribunal on July 29, 2021 and this Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court that the Hon'ble Tribunal ought not to hear any preliminary issue before the hearing of the n-lain matter as a matter of principle and that the Hon'ble Tribunal must hear the entire matter together. With view to bring the issue in perspective both in law and procedural fairness the answering Respondent/ Petitioner craves leave to invoke the concept of equity citing the following judgments in support of their submissions: i. Asgar and Others vs. Mohan Varma and Others in (2020) 16 SCC 230 at paras 29 to 39. ii. Delhi Cloth General Mills Co. Ltd vs. Municipal Corporation of Delhi. iii. Kameswar Pershad vs. Rajkumari Ruttan Koer. iv. Henderson vs. Henderson. v. Greenhalgh vs. Mallard [(1947) All ER 255 at p. 257]. vi. Johnson vs. Gore Wood vii. State of UP vs. Nawab Hussain viii. Marginson vs. Blackburn Borough Council [(1939) 2 KB 426 at p. 437]. ix. Direct Recruit Class II Engg. Officers' Assn. vs. State of Maharashtra. x. Forward Construction Co. vs. Prabhat Mandal (Regd.), Andheri. xi. Syed Askari Hadi Ali Augustine Imam Another vs. State (Delhi Administration) Another in (2009) 5 SCC 528. xii. M/s Karam Chand Gang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, alleging mismanagement and oppression against the identical respondents. The said company petition was registered as C.P. No. 992 of 2011. 4.5 From a bare perusal of the said Company Petition being C.P. No. 992 of 2011, the allegations raised in paragraph VII to XII at pages 111 to 113, XVI-XX at pages 115 and 117, Para XXVI at page 120 and para XXXI at page 123 are the identical allegations raised in the company petition being C. P. No. 10 of 2021 and the same will be evident from a bare perusal of page no. 43 to 48 of the main Company Petition. 4.6 The said company Petition being CP No. 992 of 2011 was disposed of by the NCLT by an order dated March 8, 2018. 4.7 The applicants herein filed an appeal before the Hon'ble NCLAT and the same was disposed of by an order dated May 28, 2019, wherein the order passed by the NCLT was set aside. 4.8 Being aggrieved by the said order dated May 28, 2019 the expedition in the company petition filed a Civil Appeal before the Hon ble Supreme Court of India being Civil Appeal No. 6556 of 2019. 4.9 The civil appeal was admitted and notice was issued upon the respondents being non-applicants. The said appeal is still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Hon ble Tribunal. 4.19 In view of a recent judgment, passed by the Hon'ble Supreme Court of India, Civil Appeal No. 4762 of 1921 in the matter of Union Territory of Chandigarh and Ors Vs. M/s. Shiva Traders. In the said judgement, it has been categorically observed by the Hon ble Supreme Court that entertaining of a petition on identical issue or any issues which are in continuance of the earlier issues should not be entertained by any Court of Law, when the matter is sub-judice before this Hon ble Supreme Court of India. It has been further observed the court below should have discipline in following the principle comity of courts. 4.20 It is the settled law of the land that when a litigant prefers to omit any cause of action, the said litigant is barred from raising the same subsequently in a subsequent proceeding. 4.21 In the present case, the issues, which are being agitated in the present company petition, are from 2009 till 2019 and during the entire period, the previous company petition being C.P. No. 992 of 2011 was pending before this Hon ble tribunal till March 8, 2018 and before the Hon'ble NCLAT till May 28, 2019 and the allegations, which are now be ..... 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