National Company Law Appellate Tribunal
S Radhakrishna And Another vs Hyderabad Pollution Controls Limited ... on 21 November, 2025
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
Company Appeal (AT) (CH) No. 89/2024
IN THE MATTER OF:
\
MR. S. RADHAKRISHNAN
S/o. late G. Sankaran Nair
R/o. 83/B, Vengalrao Nagar
Hyderabad - 500038, Telangana ...APPELLANT NO. 1
MRS. V. THARA
W/o. Mr. S. Radhakrishnan
R/o. 83/B, Vengalrao Nagar
Hyderabad - 500038, Telangana ...APPELLANT NO. 2
V
HYDERABAD POLLUTION CONTROLS LTD.
Regd. Off: 90/G, Phase I,
I.D.A. Jeedimetla
Hyderabad - 500055, Telangana ...RESPONDENT NO. 1
MR. G. RAVI SANKAR
S/o. late S. Gopalakrishnan Nair
R/o. Flat No.204 & 205,
Morning Glory, Nagarjuna Homes
Nagarjuna Dreamland, Dulapally Cross Road
Kompally, Secunderabad - 500014, Telangana ...RESPONDENT NO. 2
MR. G. PARAMESWARAN
S/o. late S. Gopalakrishnan Nair
R/o. Flat No.204 & 205,
Morning Glory, Nagarjuna Homes
Nagarjuna Dreamland, Dulapally Cross Road
Kompally, Secunderabad - 500014, Telangana ...RESPONDENT NO. 3
Company Appeal (AT) (CH) No. 89/2024 Page 1 of 22
MRS. GEETHA G. NAIR
W/o. Mr. S. Gopalakrishnan Nair
R/o. Flat No.204 & 205,
Morning Glory, Nagarjuna Homes
Nagarjuna Dreamland, Dulapally Cross Road
Kompally, Secunderabad - 500014, Telangana ...RESPONDENT NO. 4
M/S. P. MURALI & CO.,
Chartered Accountants
6-3-655/2/3, Somajiguda
Hyderabad - 500 082 ...RESPONDENT NO. 5
MR. P. MURALI MOHANA RAO
Partner, M/s. P Murali & Co.,
Chartered Accountants
6-3-655/2/3, Somajiguda
Hyderabad - 500 082 ...RESPONDENT NO. 6
MR. M V JOSHI
Partner, M/s. P Murali & Co.,
Chartered Accountants
6-3-655/2/3, Somajiguda
Hyderabad - 500 082 ...RESPONDENT NO. 7
M/S. RATNAM DHAVEJI & CO.
Chartered Accountants
501, Aakash Ganga,
6-3-635 & 637, Khairatabad
Hyderabad - 500 004 ...RESPONDENT NO. 8
MR. C V RATNAM DHAVEJI
Partner, M/s. Ratnam Dhaveji & Co.
Chartered Accountants
501, Aakash Ganga,
6-3-635 & 637, Khairatabad
Company Appeal (AT) (CH) No. 89/2024 Page 2 of 22
Hyderabad - 500 004 ...RESPONDENT NO. 9
MR. AJAY SUMAN SHRIVASTAVA
Practising Company Secretary
303, Durga Appartments
6-3-902/D, Lane Adjacent to Ishwariya Silks
Surya Nagar, Somajiguda
Hyderabad - 500 082 ...RESPONDENT NO. 10
MS. P. GAYATHRI
Practising Company Secretary
H. No. 3-10-26/25
R.T.C Colony, Ramanthapur
Hyderabad - 500 013 ...RESPONDENT NO. 11
MRS. LALITHA VASUDEVAN
No.309, Morning Glory, Nagarjuna Homes
Nagarjuna Dreamland, Dulapally Cross Road
Kompally, Secunderabad - 500014, Telangana ...RESPONDENT NO. 12
M/S. MABJ INDUSTRIES
90/G, Phase - I, I.D.A. Jeedimetla
Hyderabad - 500 055 ...RESPONDENT NO. 13
Present:
For Appellant : Dr. S.V. Rama Krishna, Advocate
For Respondent : Mr. K. Rajendran, Advocate for R1-R4, R8-R10
Mr. Vinay Babu Gade, PCS for R5-R7
JUDGMENT
(Hybrid Mode) [Per: Justice Sharad Kumar Sharma, Member (Judicial)] Before we endeavor to venture upon the propriety of the impugned order, we are essentially required to deal with the basic facts and circumstances under Company Appeal (AT) (CH) No. 89/2024 Page 3 of 22 which the issue has ultimately culminated, leading to the reasoning assigned for passing the impugned order.
2. The Appellants had instituted a company petition, being CP No. 40/2011 (TP No. 50/HDB/2016), filed by Mr. S. Radhakrishnan and others against Hyderabad Pollution Control Limited and 7 others, being proceedings instituted under Sections 397, 398, 402, 403, and 237 of the Companies Act of 1956. In the said company petition, the Appellants herein were the Petitioners, and they had modified the relief in CP No. 40/2011 in the following manner: -
a) To appoint a reputed Chartered Accountant or any other valuer to inspect the record of the 5 th and 6th Respondent Company and to direct the said Companies to transfer the profit made by the said Respondents to the 1st Respondent Company and pays the same to the 1st Respondent Company.
b) To injunct the 5th and 6th Respondent Company from dealing with the clients of the 1 st Respondent Company
c) To order investigation into the affairs of the 1 st, 5th and 6th Respondent Companies
d) To appoint an administrator to manage the 1 st Respondent Company until the investigation is done and the shareholding parity is restored.
e) To rectify the Register of Members of the 1 st Respondent Company and substitute the name of First Petitioner in the place of the Second Respondent in respect of 25,550 shares taken away by the second respondent by deceit and fraud.
f) To rectify the Register of Members of the 1 st Respondent Company and substitute the name of the Company Appeal (AT) (CH) No. 89/2024 Page 4 of 22 Second Petitioner in the place of 7th Respondent in respect of 37058 shares taken away by the Second Respondent and Respondent by deceit
g) Direct the Respondents not to convert the 1 st Respondent Company into a private limited company
h) Direct the Respondents not to allot any shares to the 5th or 6th Respondent Companies or any one claiming through or under them.
3. It is during the pendency of this company petition that the Appellants herein filed an Amendment Application, being CA No. 68/2016, wherein, in the amendment application, they had prayed for the granting of relief by way of amendment to the effect that sub-paras 6.12 to 6.18 be inserted under the heading of facts and Para No. 6 in the company petition for the purpose of inserting additional relief, as mentioned in Para No. 8 of the company petition, and various other reliefs as were sought, as set out in the application for amendment preferred on 06.12.2016.
4. The amendment sought by the Appellants in the aforesaid application, being CA No. 68 of 2016, and the reliefs claimed therein are extracted hereunder: -
"RELIEFS SOUGHT:
For the aforesaid reasons stated, this Hon'ble Tribunal may be pleased to grant leave to Applicants -
(i) To amend the pleadings and reliefs in the main Company Petition No.40 of 2011 by inserting sub-Company Appeal (AT) (CH) No. 89/2024 Page 5 of 22
paragraph nos. 6.12 to 6.18 including its sub-paras as mentioned above under the heading "Facts of the Case" in main para No.6 in the Company Petition and also by inserting additional reliefs mentioned in Para No.8 as additional reliefs after (h) starting from nos.(i) to (u).
(ii) To receive additional document as Anenxures-
A25(a) to (n), A26 to A40 (including sub-nos.) in the main Company Petition No.40 of 2011.
(iii) To pass any other order or orders as may be considered appropriate in the interest of justice."
5. The aforesaid company petition was taken up for consideration by the Ld. Tribunal on its merits, and the company petition was adjudicated by judgment rendered on 26.10.2017, wherein the following reliefs were granted: -
28. In the result, the Company petition bearing CP. No. 40 of 2011 (TP No. 50/HDB/2016) is disposed of with the following directions:
1) Hereby directed the respondents to restore the shareholding of the petitioners group and the second respondent Group in the ratio of 50 : 50 total shareholding of R-1 Company, in consonance with the Board's resolution dated 27th February, 2007 and Agreement for Transfer of Shares dated 8 th April, 2010;
2) Hereby declared that all actions/decisions taken contrary to the interim orders dated 18.05.2011 and 27.09.2012 passed by the CLB are non-est in the eye of law, and these interim orders shall be in force till the next EGM, which is to be conducted by virtue of this order;
3) Hereby directed Respondents 1 & 2 to convene an EGM within a period of two months from the date of Company Appeal (AT) (CH) No. 89/2024 Page 6 of 22 receipt of copy of this order, by duly following all the provisions of the Companies Act, 2013 as well as the Articles of Association of R-1 Company and Principles of Natural Justice, in order to sort out their disputes and to conduct normal business of the R-1 Company. The parties are at liberty to raise their respective disputes before EGM to be conducted and resolve their issues therein;
4) The parties are at liberty to approach this Tribunal by way of filing a fresh CP, in case, they are aggrieved by the actions taken during the said EGM to be conducted;
5) The other reliefs, which are not granted now, are rejected as having no grounds/merits to interfere;
6) Since the main Company petition is disposed of, CA No. 68 of 2016 also stands disposed of.
7) No order as to costs.
6. What is important is that the reliefs thus granted in the aforesaid CP No. 40/2011 and the partial denial of the reliefs prayed for would be treated as having attained finality, as the judgment dated 26.10.2017 rendered in CP No. 40/2011 has attained finality with respect to the Appellants. However, the issue of partial grant of relief in CP No. 40/2011 is under challenge at the behest of the Respondent in an independent company appeal, but that will have no bearing as far as the controversy under consideration in the instant company appeal is concerned.
7. What would be of relevant consideration in the instant company appeal would be the observations made by the Ld. Tribunal in the decision rendered on Company Appeal (AT) (CH) No. 89/2024 Page 7 of 22 26.10.2017, in the context of the order contained in Para Nos. 4, 5, and 6 of the operative part of the judgment dated 26.10.2017 as extracted above.
8. To begin with, the Ld. Counsel for the Appellant has argued that the liberty granted by the Ld. Tribunal in para 4 of the judgment dated 26.10.2017 was intended to enable the Appellant to re-approach the Ld. Tribunal to file a company petition. Whether it would be construed as an unlimited right conferred on the Appellants or whether the liberty reserved in Clause (4) of the relief granted on 26.10.2017 would be confined to and limited in relation to the relief already contained under Clauses (1), (2), and (3) of the judgment, is the issue. The liberty reserved in Clause 4 would be in the context of any action flowing from the reliefs considered under Clauses 1, 2, and 3 of the judgment dated 26.10.2017. The scope of the liberty granted under Clause 4 was not intended to be unfettered.
9. If a logical interpretation is given to the liberty reserved in Para 4, the liberty to file a fresh company petition was reserved only in the eventuality where the Appellant was aggrieved by the action taken during the course of the EGM to be conducted. The conduct of the EGM was supposed to be held as a consequence of the liberty granted in Clause (3) of the judgment dated 26.10.2017. Meaning thereby, the liberty to prefer a fresh company petition, once related to the action taken in pursuance of the EGM scheduled to be held Company Appeal (AT) (CH) No. 89/2024 Page 8 of 22 under Relief 3, would be confined to actions taken under Clause (3). The said liberty cannot be expanded as if conferring a right upon the Appellant to re- agitate the entire issue afresh, which otherwise stands settled as a consequence of the judgment dated 26.10.2017, because the partial denial of relief has not been challenged by the Appellants and has attained finality.
10. The reliefs as modulated in the company petition, which were sought by the Appellants as extracted above (Para 3), were not considered to be granted by the Ld. Tribunal in their entirety by the judgment of 26.10.2017, and only limited relief was granted. In that eventuality, it is a settled principle of law that in any judicial proceeding, if a party comes before a Tribunal or a Court claiming a number of reliefs, and upon adjudication on the merits the Ld. Tribunal grants only partial relief, and there is no reference made in the impugned order to the other reliefs sought in the company petition, those other reliefs which are not dealt with in the final adjudication or not granted shall be deemed to have been refused.
11. For the aforesaid purpose, reference may be had to Explanation V to Section 11 of the CPC, which is extracted hereunder: -
"11. Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in Company Appeal (AT) (CH) No. 89/2024 Page 9 of 22 a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.- ...........
Explanation II.- ...........
Explanation III.- ..........
Explanation IV.-..........
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused."
12. In this eventuality the judgment of 26.11.2017 will always create a bar of res judicata against the Appellants, and they cannot, under the garb of filing a subsequent company petition under the liberty granted by Clause 4 of the judgment dated 26.10.2017, take the liberty to re-agitate the same cause for the relief which was otherwise not granted by the decision in CP No. 40/2011, and which has now been sought to be pressed by filing the fresh company petition being CP No. 225/241/HDB/2019.
13. The Appellants, when they instituted CP No. 225/241/HDB/2019, the subsequent company petition, had modulated the relief in the following manner:
-
"RELIEF/PRAYER In view of the above facts, law and circumstance of the present case, the Hon'ble Tribunal may be pleased to grant the following Reliefs:Company Appeal (AT) (CH) No. 89/2024 Page 10 of 22
(i) To declare the unapproved, unauthorized tampered and manipulated Balance Sheets, profit and loss accounts and audit reports certified and signed by Statutory Auditor, M/s. P Murali & Co for the years 2010-2011 on 01-09- 2011 & for the year 2011-2012 on 31-03-2012 in violation of the CLB order dated 18-
05-2011 and filed by the Respondent No. 2 on sworn affidavit dated 10.9.2012 in the A.P High Court as illegal, null and void ab initio.
(ii) To declare the fake and fabricated back dated resignation letter dated 01-10-2011 of existing Statutory Auditors M/s. P. Murali & Co., Chartered Accountants as illegal, null and void ab initio as the proof of dispatch shown was under certificate of posting on 01-10-2011, when the practice of Under Certificate of Posting (UCP) was discontinued by the postal authorities long back on 31-01-2011;
(iii) To declare the unapproved, unauthorized, tampered and manipulated ITR-6 filed with the Income Tax department from 2010-11 to till date along with tax audit report in 3CA and 3CD forms from 2010-11 to till date falsely certified by M/s. P Murli & Co., and M/s. Ratnam Dhaveji & Co., as illegal, null and void ab initio as there was no approval for the same from the Board of Directors and the members in any AGM validly convened and conducted.
(iv) To declare the unapproved, unauthorized, tampered and manipulated Directors Reports, balance sheets and profit and loss accounts, Annual Returns and auditor's report, which are fabricated and falsely certified by the alleged new Auditor M/s, Ratnam Dhaveji & Co. and uploaded in the ROC/MCA webportal in December, 2013 for the Financial Years 2010-11, 2011-12 and 2012-13 in violation of the CLB order dated 18-05-2011 which are visible from the ROC Web-portal and all other Annual Returns for Company Appeal (AT) (CH) No. 89/2024 Page 11 of 22 subsequent years as available in the ROC/MCA website as null and void and all the decisions taken at purported Board meetings, alleged AGMs and Adjourned AGMs as illegal, null and void ab initio;
(v) To declare the alleged appointment letter dated 28-09- 2012 issued by the 1st Respondent Company to M/s. CV Ratnam Dhaveji & Co., Chartered Accountants as Statutory Auditors of the Respondent No. 1 Company for 3 years at a time i.e. 2010-11, 2011-12 and 2012- 13 at the AGMs and Adjourned AGMs claimed to have been conducted on 27.9.2012. and 25-10- 2012 respectively and all the subsequent appointment/re- appointment if any and the Fake Form 23B filed on 31- 10-2013 and AOT-1 filed thereafter in respect of Auditor appointment in ROC/MCA web-portal as illegal, null and void ab initio; as the appointment is in violation of the CLB order dated 27- 09-2012.
(vi) To declare the alleged Form 32 filed for illegally removing the 1st Petitioner as Whole Time Director of the Respondent No. 1 Company as illegal, null and void ab initio and restore him as Whole Time Director without any break from the original appointment date of 02-05-1996 with back wages /remuneration as he was enjoying at the time of his illegal removal as Director with interest due and should be paid till such date the remuneration is paid.
(vii) To declare fabricated and falsely certified Form 66 filed along with 3 years Compliance Certificates all dated 12.12.2013 for the Financial Years 2010-11, 2011-12 and 2012-13 including Forms 66 and Secretarial Compliance Certificates for the years 2010-11, 2011-12 and 2012-13 issued by Respondent No. 12 and further such secretarial compliance certificates, if any, issued by any company secretary subsequent as illegal, null and void ab initio;
Company Appeal (AT) (CH) No. 89/2024 Page 12 of 22
(viii) To declare all the fabricated notices for alleged Board meetings, AGMs/adjourned AGMs including the fabricated documents like Board meeting and AGM/Adjourned AGM attendance extracts, Board meeting and AGM/adjourned AGM minutes and all the Board meetings and AGMs/adjourned AGMs which are claimed to have been conducted without proper quorums for the alleged Board meetings as per the Article 40 of the Articles of Association and in violation of the provisions of the Companies Act, 1956 / 2013 for the alleged AGMs/adjourned AGMs as illegal, invalid, null and void ab initio;
(ix) To declare that no Director who were on rotation is validly existing on the Board of Directors of the 1st Respondent Company from 2011 onwards as no AGMs were held for the past several years and consequently appoint fresh Board of Directors equally representing both the Petitioners and Respondents and appoint one independent Chairman by the Hon'ble NCLT.
(x) To restrain the Respondents No. 1,2,3, & 4 from carrying any other business or activity within the premises and precincts thereof where the factory and office premises of the 1st Respondent Company is located either directly or through lease arrangement or job work basis whatsoever in nature and all the lease agreement entered into with third parties i.e. Respondent Nos. 5 and 14 and any other lease agreement made with any others are to be declared as illegal, null and void ab initio and the Respondents No.1 to 4 should be ordered to evict the illegal lease holders from the premises 90/G, Phase I, IDA Jeedimetla, Hyderabad -500055, State of Telangana, with immediate effect, since such illegal agreements does not have the approval of Board of Directors or adopted by the members in any AGMs/EGMs to lease out the premises of the Respondent No.1 Company. Company Appeal (AT) (CH) No. 89/2024 Page 13 of 22
(xi) To declare the illegal transfer of 20 equity shares @ Rs. 10/- per share of the 1st Respondent Company by Mr. G Ravi Shankar (Respondent No.3) to Mrs. Lalitha Vasudevan (Respondent No.13) for a consideration of Rs. 200/- on 25-06-2014 with the aim to increase the number of members from 8 to 9 so that the Respondents No.2,3 and 4 would have upper hand in voting and quorum purposes over the Petitioners and in violation and utter contempt of the CLB order dated 18-05-2011 as illegal, null and void ab initio and also restrain her from participating in any AGMs and declare the fake AGMs minutes shown to have been attended by the said Mrs. Lalitha Vasudevan in AGMs shown for 2013-2014, 2014-15, 2015-16, 2016-17 and 2017-18 as null and void ab initio.
(xii) Any other order or orders as the Hon'ble Tribunal may deem fit and proper in the interest of justice."
14. If the pleadings raised in CP No. 225/241/HDB/2019 are taken into consideration, in fact the reason for institution of the instant company petition, which is presently under consideration in the instant company appeal, is that Respondent No. 1 to the company petition had failed to comply with the judgment dated 26.10.2017 rendered in CP No. 40/2011. If the brief facts taken in Para (IV) of the company petition are examined, the solitary basis of institution of the present CP No. 225/241/HDB/2019 is the non-enforcement of the earlier judgment dated 26.10.2017, referred to in Para 4 of the company petition, which is extracted hereunder: -
Company Appeal (AT) (CH) No. 89/2024 Page 14 of 22
FACTS OF THE CASE Justification and eligibility for filing the present comprehensive Company Petition u/s 241 of the Companies Act, 2013 The Hon'ble NCLT, Hyderabad Bench in C.P. No.40/2011 (TP No.50/HDB/ 2016) vide its elaborate reasoned Orders dated 26.10.2017 (copy filed herewith as Annexure - P1) allowed the said petition and inter alia ordered in para 28 as under:
Quote:
"28. In the result, the Company petition bearing CP No.40 of 2011 (TP No.50/HDB/2016) is disposed of with the following directions:
1) Hereby directed the respondents to restore the shareholding of the petitioners group and the second respondent Group in the ratio of 50:50 total shareholding of R-1 Company, in consonance with the Board's resolution dated 27th February 2007 and Agreement for Transfer of shares dated 8th April, 2010;
2) Hereby declared that all actions/decisions taken contrary to the interim orders dated 18.05.2011 and 27.09.2012 passed by the CLB are non-est in the eye of law, and these interim orders shall be in force till the next EGM, which is to be conducted by virtue of this order;
3) Hereby directed Respondents No.1 & 2 to convene an EGM within a period of two months from the date of receipt of copy of this order, by duly following all the provisions of the Companies Act, 2013 as well as the Articles of Association of R-1 Company and Principles of Natural Justice, in order to sort out their disputes and to conduct normal business of the R-1 Company. The parties are at liberty to raise their respective disputes Company Appeal (AT) (CH) No. 89/2024 Page 15 of 22 before EGM to be conducted and resolve their issues therein;
4) The parties are at liberty to approach this Tribunal by way of filing a fresh CP, in case, they are aggrieved by the actions taken during the said EGM to be conducted;
5) The other reliefs, which are not granted now, are rejected as having no grounds/merits to interfere;
6) Since the main Company petition is disposed of, CA No.68 of 2016 also stands disposed of.
7) No order as to costs."
As the 1st Respondent Company failed to respect the above orders of the Hon'ble NCLT dated 26-10-2017, this Comprehensive Company Petition is filed by the Petitioners exercising the right available under the above Orders and also under Sections 241 and other applicable provisions of the Companies Act, 2013 as the grievances complained herein are continuing acts which are serious in nature and continuing to be oppressive to the petitioners and are serious acts of continuing gross mismanagement of the affairs of the 1 st Respondent Company by the other Respondents, as explained in detail herein.
However, the Respondents No.1,2,3,4 and 5 preferred an appeal before Hon'ble NCLAT, New Delhi in Company Appeal (AT) No.20 / 2018 against the above Orders dated 26.10.2017 of NCLT, Hyderabad Bench that too without complying with the above directions to convene EGM within sixty days etc., However, there are 'no stay orders' against the above appeal and thereby the orders of the Hon'ble NCLT, Hyderabad Bench are binding in nature but violated by the Respondents which amounts to "contempt of NCLT Orders".
This Comprehensive Company Petition is filed by the Petitioners without prejudice to their right to initiate 'contempt proceedings' against the Respondents in the above CP Company Appeal (AT) (CH) No. 89/2024 Page 16 of 22 No.40/2011 for their willful failure to implement the said Orders of NCLT supra, as per law in due course."
15. This subsequent company petition, under the guise of the liberty granted by Clause 4 of the judgment dated 26.10.2017, was taken up before the Ld. Tribunal, and the Ld. Tribunal dismissed the same on the ground that, in light of the provisions contained under Section 424(3) of the Companies Act, 2013, read with Rules 56 & 57 of the NCLT Rules, 2016, if there is non-enforcement of the judgment dated 26.10.2017 and that is the reason for filing the subsequent CP No. 225/241/HDB/2019 as recorded in the pleadings, the recourse of filing a subsequent company petition cannot be adopted by the Appellants as a mechanism to execute the order dated 26.10.2017, for which the statute independently contemplates and provides a remedy of execution under Section 424(3) read with Rules 56 & 57 of the NCLT Rules, 2016. In fact, what may be culled from the aforesaid backdrop is that by filing the subsequent company petition the Appellants were attempting to override the effect of their inaction in not challenging the earlier judgment dated 26.11.2017 by preferring an appeal against the partial denial of relief in CP No. 40/2011.
16. Besides that, they were trying to re-agitate the same cause which otherwise would stand settled in the light of Explanation V to Section 11 of the CPC, and which may not be permissible to re-agitate in a fresh company petition. Resort to filing a fresh company petition as an alternative mode of Company Appeal (AT) (CH) No. 89/2024 Page 17 of 22 execution is not a procedure recognized or contemplated under law. Thus, the reason given by the Ld. Tribunal in the impugned order is, particularly in the light of the pleadings raised by the Appellants in Para 4 of the company petition, that the Appellants cannot be permitted to re-agitate the same cause by filing a fresh company petition as a means of obtaining execution of the earlier decree; hence the Ld. Tribunal rightly rejected the company petition while leaving it open for the Appellants to resort to an appropriate efficacious remedy available to them under law for seeking execution of the judgment dated 26.10.2017 rendered in CP No. 40/2011.
17. If we further elaborate on the issue as sought to be agitated by the Appellants in the instant company appeal, we find that if the two claims or reliefs claimed in the two company petitions are comparatively scrutinized along with the amendment application filed in the earlier company petition, the two company petitions have a close nexus with one another with respect to the pleadings and reliefs. Moreover, the reliefs modulated in CP No. 225/241/HDB/2019 have a close nexus to the Amendment Application CA No. 68 of 2016 filed in the earlier company petition. Reference to the amendment application at this juncture becomes necessary because when CP No. 40/2011 was finally decided by the judgment dated 26.10.2017, it specifically observed that CA No. 68 of 2016 would be treated as disposed of in light of the final judgment dated 26.10.2017. Closure of the amendment application by the Company Appeal (AT) (CH) No. 89/2024 Page 18 of 22 judgment of 26.10.2017, and modulation of reliefs similar to those sought in the amendment application by filing CP No. 225/241/HDB/2019, would again attract the implication of Explanation V to Section 11 of the CPC. Thus, the disposal of Amendment Application CA No. 68 of 2016 would again close the door on the Appellants taking the liberty to re-agitate the reliefs sought to be amended in CP No. 40/2011 by filing the instant company petition; hence the instant company petition would not be maintainable.
18. In order to meet the arguments advanced by the Ld. Counsel for the Respondent, the Appellant submitted that if the two relief clauses, for brevity as extracted above, are compared with the relief clause of the earlier petition CP No. 40/2011, they are different and distinct from one another. Hence, the bar of Section 11 of the CPC, in light of Explanation V, will not apply since the subsequent relief is independent and falls within the scope of the liberty granted under Para 4 of the judgment dated 26.10.2017. By way of repetition, we observe that the liberty under Clause (4) relates only to actions taken in pursuance of the directions contained in the judgment and is specifically limited to Clause (3) of the judgment dated 26.10.2017.
19. The liberty to re-agitate an issue by filing a fresh company petition was not intended to be an unlimited grant in relation to reliefs already finally disposed of by the judgment dated 26.10.2017, particularly when all issues Company Appeal (AT) (CH) No. 89/2024 Page 19 of 22 against the Appellant, in the absence of a challenge to the judgment by way of appeal or by execution, stand closed. There cannot be a clever device by the Appellant to rejuvenate proceedings by filing the instant company petition in 2019, which was rightly dismissed by the Ld. Tribunal by the impugned order.
20. Apart from that, if we make a comparative scrutiny of the reliefs sought in the two company petitions, we find the following similarities. In eventualities where there is similarity in reliefs and the chapter related to those reliefs stands closed in the earlier phase of litigation, the same reliefs cannot be permitted to be re-agitated subsequently. The similarities of the reliefs in the two petitions are extracted hereunder: -
i. The Appellants earlier filed C.P. No. 40 of 2011 (u/s.397/398=241) with an Amendment CA No. 68 of 2016 in which they sought the reliefs same as what is contained in CP/225/2019 (in Appeal supra) as under:
CP/225/2019(Appeal pg. 106-109) CP.No.40/2011 (Appeal pg. 1281- 1284) ______________________________________________________________
(i) (i)(j)(k)
(ii) (m)
(iii) ---
(iv) (i)(k)
(v) (I)
(vi) (n)
(vii) (o)
(viii) (q)
(ix) (s)
(x) (t)
(xi) ---
Company Appeal (AT) (CH) No. 89/2024 Page 20 of 22
__________________________________________________ Relief (iii): besides being cognate, ulta-virus the jurisdiction of Hon'ble Tribunal, and hit by Limitation & Order-II Rule 2 of CPC.
Relief (xi): No violation of any specific order. If there is violation, solution is not a petition u/s.241, besides the claim is hit by Limitation & Order-II of CPC.
21. There was yet another aspect of argument advanced by the Ld. Counsel for the Appellant. Even assuming, without accepting, that the relief in the subsequent company petition were independent of the reliefs sought in the earlier petition, if the nature of reliefs modulated in CP No. 225/241/HDB/2019 are considered, the major reliefs were those which could also have been pressed by the Appellants in the earlier company petition CP No. 40/2011. Having not done so, re-agitation of a relief which was otherwise available to the Appellants at the time when the earlier petition was filed in 2011, by filing a fresh company petition belatedly in 2019, almost after nine years, would be barred by principles of Order II Rule 2 of the Code of Civil Procedure (CPC).
22. For the aforesaid reasons, Order II Rule 2 of the Code of Civil Procedure (CPC) is extracted hereunder: -
"2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court."Company Appeal (AT) (CH) No. 89/2024 Page 21 of 22
This attracts the principle of waiver where the Appellant has indulged in choosing the remedies and reliefs to be sought in the two sets of company petitions drawn by them, be that as it may.
23. Primarily, if we consider the subsequent suit and the foundation of the subsequent suit, since being based upon the judgment of 26.10.2017, as would be apparent from the composite reading of the subsequent CP No. 225/241/HDB/2019, the recourse to the subsequent company petition would be nothing but, apart from being an abuse of process, it will amount to an adoption of a forum for execution of the order, which otherwise is not permissible under law in the light of the provision contained under Section 424 (3) of the Companies Act 2013 to be read with, Rule 56 & 57 of the NCLT Rules, 2016. Thus, the 'company appeal' lacks 'merit' and the same is accordingly 'dismissed'. All interlocutory applications would stand closed.
[Justice Sharad Kumar Sharma] Member (Judicial) [Jatindranath Swain] Member (Technical) 21/11/2025 SN/MS/RS Company Appeal (AT) (CH) No. 89/2024 Page 22 of 22