Bombay High Court
Kalpita Builders Pvt Ltd Jalgaon ... vs Pravinkumar Jinabhai Patel And Others on 5 February, 2020
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1139 OF 2020
Kalpita Builders Pvt.Ltd., Jalgaon,
Through its Directors
Shri Darshan Anilkumar Patel,
age: 48 years, Occ: Business,
R/o Kalpita Enclave CHS, E-1 Bldg.,
Flat No.1 & 2, Ground Floor,
Sahar Road, Koldongari, Andheri (E),
Mumbai 400 069. Petitioner
Versus
01 Pravinkumar Jinabhai Patel,
age: 69 years, Occ: Business,
R/o Plot No.41 & 42,
Girna Tank Road, Jalgaon,
Taluka and District Jalgaon.
02 Jayshri Jugalkishor Lathi,
age: 57 years, Occ: Household,
R/o Behind Bombay Lodge,
Navi Peth, Jalgaon, Tq. and
Ditrict Jalgaon.
03 Sandeep Shivnarayan Zavar,
age: 48 years, Occ: Business,
R/o Behind Bombay Lodge,
Navi Peth, Jalgaon, Tq and
District Jalgaon.
04 Indumati Onkardas Kabre,
age: 77 years, Occ: Household,
R/o Dharangaon, Taluka
Dharangaon, District Jalgaon.
05 Sadhana Bhushan Mundada,
age: 49 years, Occ: Household,
R/o Pimprala, Taluka and
District Jalgaon.
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06 Ku.Jivanrani Narendra Raisoni,
minor through Sangita Narendra
Raisoni, R/o Jaikisan Wadi,
Jalgaon, Taluka and District
Jalgaon.
07 Sulochana Prakash Jain,
age: 57 years, Occ: Household,
R/o Jaikisan Wadi, Jalgaon,
Taluka and District Jalgaon.
08 Vimal Shankar Sakhare,
age: 58 years, Occ: Household,
R/o Plot No.2, Vrundavan
Apartment, Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
09 Shankar Jagannath Sakhare,
(deceased) through his legal heirs:
09(1) Vimal Shankar Sakhare,
age: 79 years, Occ: Household,
R/o Plot No.2, Vrundavan Apartment,
Hareshwar Nagar, Jalgaon.
09(2) Anil Shankar Sakhare,
age: 57 years, Occ: Service,
09(3) Sunil Shankar Sakhare,
age: 64 years, Occ: Service,
Nos.9(2) and 9(3) :
R/o Plot No.1 and 2,
Vrundavan Apartment, B-Building,
Hareshwar Nagar, Jalgaon.
10 Chhaya Prakash Potdar,
age: 50 years, Occ: Household,
R/o Block No.6, Vrundavan Apartment,
B-Building, Hareshwar Nagar,
Jalgaon.
11 Girnari Rameshwar Agrawal,
age: 62 years, Occ: Business,
R/o Ground Floor, Vrundavan
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Apartment, Hareshwar Nagar,
Jalgaon, Taluka and District
Jalgaon.
12 Vinod Rameshwar Agrawal,
age: 63 years, Occ: Business,
R/o Block No.3, Vrundavan
Apartment, Hareshwar Nagar,
Jalgaon, Taluka and District
Jalgaon.
13 Kantilal Motilal Chhajed,
(deceased) through his Lrs:
13(A) Rajendra Kantilal Chhajed,
age: major, Occ: Business;
13(B) Vimal Kantilal Chhajed,
age: major, Occ: Business,
13[C] Hemant Kantilal Chhajed,
age: major, Occ: Business;
Nos.13(A) to 13© R/o
Ankita Bungalow, Ganesh
Colony, Jalgaon, Taluka and
District Jalgaon.
13(D) Pravin Kantilal Chhajed,
age: major, Occ: Business,
R/o Sofnco Industries Pvt.Ltd.,
Kaveri Complex, 50,
Nungabakkam, High Court Road,
Chennai.
13(E) Sunita Surendra Tated,
age: major, Occ: Household,
R/o Near Maharashtra Bank,
Badnera, District Amravati.
13E-E Sangita Pramod Khivasara,
age: major, Occ: Household,
R/o Chandan Apartments,
Pratap Nagar, Jalgaon.
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13(F) Sadhana Jabarchand Chopada,
age: major, Occ: Household,
R/o A.P.R. Collony, Katanga,
Jabalpur (M.P.).
14 Hemant Kantilal Chhajed,
age: 47 years, Occ: Business,
R/o Vrundavan Apartment,
"B" Wing, First Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
15 Asha Kishore Medhe,
age: 57 years, Occ: Household,
R/o Vrundavan Apartment,
"B" Wing, First Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
16 Shivaji Gangadhar Temkar,
age: 72 years, Occ: Business,
R/o Vrundavan Apartment,
"B" Wing, Second Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
17 Chandramohan Gangadhar Temkar,
age: 57 years, Occ: Business,
R/o Vrundavan Apartment,
"B" Wing, Second Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
18 Satish Lalji Thakkar,
age: 62 years, Occ: Business,
R/o Vrundavan Apartment,
"B" Wing, Second Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
19 Purushottam Chhotumal Gujarathi,
age: 62 years, Occ: Business,
R/o Vrundavan Apartment,
"B" Wing, Second Floor,
Hareshwar Nagar, Jalgaon,
Taluka and District Jalgaon.
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20 Nayana Deepak Patel,
age: 53 years, Occ: Household,
R/o Plot No.9, Vrundavan Apartment,
"B" Wing, Ring Road, Jalgaon,
Taluka and District Jalgaon.
Mr.Hrishikesh Chavan, advocate holding for Mr.P.P.Shahane, with
Ms.S.S.Pagey,advocate for the petitioner.
Mr.A.S.Bajaj, advocate for Respondent No.1.
CORAM : ROHIT B. DEO, J.
DATE : 05th February, 2020.
ORAL JUDGMENT :
1 Rule. Rule made returnable forthwith and heard fnally by consent of learned Counsel for contesting parties. 2 The petitioner is the plaintif in Special Civil Suit 63 of 1999 brought for declaration, perpetual injunction and possession. Respondents herein are the defendants,. 3 The edifce of the suit is constructed on the premise that the suit properties were owned by Kalpita Builders Private Limited and could have been alienated only with the consent of two Directors or the majority of Directors. The suit is entirely based on the assertion that defendant 1 Pravinkumar Jinabhai ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 ::: {6} wp113920.odt Patel was not competent to execute the sale deeds of various properties in favour of defendants 2 to 19 and agreement to sell in favour of defendant no.20.
4 By judgment and decree dated 15.04.2013, the trial Court dismissed the suit. The trial Court recorded a fnding that Shri Anilkumar was not a Director of Kalpita Buildings Pvt. Ltd.. The trial Court further held that defendant 1 was the Managing Director of Kalpita Builders Pvt. Ltd. and that the alienation done did not sufer from any infrmity. The trial Court further held that there was a misjoinder of causes of action. 5 The plaintif preferred two appeals challenging the judgment and decree of the trial Court. Regular Civil Appeal 153/2015 is preferred by the Company and Regular Civil Appeal 154/2015 is preferred by Shri Anilkumar. In the pending appeals, applications Exhibit-92 and Exhibit-93, respectively, were preferred seeking transfer of the appeals to the National Company Law Tribunal ("NCLT"). These applications are dismissed and the plaintif is, therefore, invoking writ jurisdiction. 6 The learned Counsel for the plaintif submits, that the applications invoked Section 430 of the Companies "Act, 2013 ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 ::: {7} wp113920.odt ("the Act) and Section 9 of the Civil Procedure Code ("CPC"). The submission is, that in view of the coming into force of Section 430 of the Act, the jurisdiction of the Civil Court to deal with and decide the issue, which can be dealt with and decided by the NCLT is specifcally barred. It is submitted that notwithstanding that the plaintif invoked the jurisdiction of the Civil Court, the appeal is a continuation of the suit, and the legislative interventions, during the pendency of the appeal, make it imperative that the appeal be transferred to NCLT. In the same breath, it is submitted that the appellate Court misconstrued the prayer for seeking transfer of appeal to NCLT. The submission is, that the applications, which are rejected, in essence, objected to the jurisdiction of the Civil Court to entertain the suit since the issues, which arose, fall squarely within the domain of the NCLT, thus triggering the bar envisaged by Section 430 of the Act. The learned Counsel for the plaintif relies on the following decisions:
(i) Shashi Prakash Khemka (Dead) through LRs.
and Another Vs. NEPC Micon (Now called NEPC India Ltd.) and others, (Civil Appeal Nos.1965-1966 of 2014, decided by the Hon'ble Apex Court on 08.01.2019);
(ii) Dinesh Kumar Vs. Sinecure Tecfhnocity Ptd. ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 :::
{8} wp113920.odt Ltd. & others [CS(COMM) No.242/2019, decided by the High Court of Delhi, on 22.05.2019;
(iii) Nirbhay Kapoor Vs. M/s Kamero Technosys Ltd. & another, (First Appeal No.427 of 2019), decided by the High Court of Allahabad, on 01.07.2019; and
(iv) Sas Hospitality Pvt. Ltd. & another Vs. Surya Constructions Pvt. Ltd., (CS (COMM) 1496/2016, decided on 16.10.2018, by the High Court of Delhi.
7 In my considered view, the petition deserves to be dismissed for the reasons spelt out hereinafter. 8 Section 430 of the Act, reads thus:
430. Civil Court not to have jurisdiction-
No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 ::: {9} wp113920.odt this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal. 9 Section 430 is brought into force with efect from 01 st June, 2016, vide Notifcation No. SO 1934(E), dated 01.06.2016. The submission of the plaintif, that the jurisdiction of the Civil Court is barred, is on the premise that in view of the coming into force of Section 430, the jurisdiction of the Civil Court is barred, since the NCLT is empowered to deal with and decide the issues framed by the trial Court. The submission is, that in view of the provisions of Section 424 of the Act, which deals with the procedure regulating the proceedings before the NCLT, the powers vested in the Civil Court under the CPC are conferred on NCLT. The submission is, that the power of NCLT is indeed broader and wider than the power which can be exercised by the Civil Court, since the NCLT is a specialised Tribunal constituted to ensure speedy and efective regulation of the afairs of the Companies. It is submitted that the NCLT, having been created by amending the law, and having been vested with all the trappings of the Civil Court, in view of the amendments, the bar under Section 430 of the Act is triggered. 10 In my considered view, the decisions, which are referred and which are pressed in service, and which consider ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 ::: {10} wp113920.odt the scope and ambit of Section 430 of the Act, need not be discussed in detail. It is not even the case of the plaintif that the Civil Court did not have the jurisdiction to decide the suit. Indeed, the plaintif invited the Civil Court to decide the legality and validity of the sale deeds executed by Respondent No.1 in favour of Respondents No.2 to 19 and agreement to sell in favour of defendant no.20. The submission is, that the amended provisions of the Act came into force during the pendency of the appeal and, therefore, the appellate Court ceased to have jurisdiction over the matter. I am not persuaded to accept the said submission.
11 As noted supra, the provisions, on which the plaintif is heavily relying, came into efect from 01.06.2016. Even according to the plaintif, the Civil Court did have the jurisdiction when the suit came to be decided. If this be so, the fact that Section 430 of the Act has come into efect during the pendency of the appeal, would not necessitate return of the appeal for being presented before the NCLT.
12 Petition is dismissed. Rule is discharged. ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 :::
{11} wp113920.odt 13 The appeals be decided, as expeditiously as possible, and preferably, within three months.
ROHIT B. DEO JUDGE adb ::: Uploaded on - 14/02/2020 ::: Downloaded on - 22/03/2020 08:33:58 :::