Gujarat High Court
Kusum Devi Tibrewal vs Vikas Poddar on 12 June, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/CRA/94/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 94 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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KUSUM DEVI TIBREWAL
Versus
VIKAS PODDAR
=============================================
Appearance:
MR.NAVIN PAHWA, SENIOR ADVOCATE FOR THAKKAR AND PAHWA
ADVOCATES(1357) for the Applicant(s) No. 1,2,3,4,5,6
for the Opponent(s) No. 9
MR DHAVAL SHAH(2354) for the Opponent(s) No. 1,2,3
MR. S S IYER(6553) for the Opponent(s) No. 1,2,3
RULE SERVED(64) for the Opponent(s) No. 4,5,6,7,8
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 12/06/2020
CAV JUDGMENT
1. Present Civil Revision Application under Section 115 of the Civil Procedure Code is filed by the original defendants challenging the validity of the judgment and order dated 1.1.2019 passed by learned Civil Judge (S.D.), Surat on an application below Exh.17 in Page 1 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT Special Civil Suit No.253 of 2018, whereby learned Civil Judge has refrained himself from exercising the jurisdiction under Order-7 Rule 11 of the Civil Procedure Code.
2. The facts leading to present Revision Application are that the present applicants are the original defendant Nos.4 to 9, whereas the present respondent Nos.1 to 3 are original plaintiffs and the present respondent Nos.4 to 9 are the original defendants in the suit proceedings. The original plaintiff No.3 - Prabhakar Processors Private Ltd., and defendant No.12 Bhaskar Silk Mills Private Ltd. were jointly managed by Poddar Group and Tibrewal Group. These applicants of the present revision application stated that the original plaintiffs have submitted a suit, being Special Civil Suit No.253 of 2018, in the Court below inter alia praying for declaration and permanent injunction with regard to 27190 equity shares and the said shares to be transferred by way of decree of specific performance held by the present applicants. Memorandum of Understanding (in brevity, 'MoU') dated 16.4.2011 was executed, which provided for division of two companies, between the aforesaid Groups and the MoU has stated that ownership and shareholdings of the original plaintiff No.3 company, namely Prabhakar Processors Private Ltd. was taken over by Poddar Group, whereas ownership and shareholdings of the original defendant No.12 company namely Bhaskar Silk Mills Pvt. Ltd. was taken over by Tibrewal Group. It has been the case of the applicants that the original defendant Nos.4 to 11 of the suit had initially filed Company Petition No.49 of 2012 against the original defendant Nos.1 to 3 before the Company Law Board, Mumbai by resorting to Sections 397, 398 and 402 of the Companies Act, 1956 for seeking certain reliefs. The Company Law Board, Mumbai passed an order on 20.6.2014, to implead the signatories of the MoU to the Company Petition No.49 of 2012, which has given rise to submit O.J. Appeal No.23 of 2014 by the Page 2 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT present applicants before the High Court of Gujarat challenging the said order of the Company Law Board, Mumbai. Vide order dated 26.8.2014, the High Court of Gujarat dismissed the said OJ Appeal and thereafter, the original plaintiffs submitted Misc. Application No.60 of 2015 in the said Company Petition before the Company Law Board, Mumbai and prayed for grant of permission for obtaining loan not exceeding Rs.900 lacs from the bankers, directors and shareholders. Upon perusal of the said Misc. Application, the Company Law Board, Mumbai held that the preliminary issue as to whether the present applicants of the Company Petition No.49 of 2012 are members of the respondent company or not is first required to be decided and thereafter, pending application and further proceedings to be allowed to go on. It has been asserted by the present applicants that subsequently, Company Petition No.49 of 2012 was transferred to National Company Law Tribunal, i.e. NCLT, Ahmedabad, and was renumbered as Transfer Petition No.27/397-398/2016 and NCLT, Ahmedabad decided the said preliminary issue with regards to the applicants being members in favour of the present applicants and held that the MoU does not legally bind the applicants who were not parties and signatories to the MoU. After discussion, NCLT, Ahmedabad held further that this MoU dated 16.4.2011 is nothing but a mere agreement between the parties who signed that agreement and it cannot be construed as transfer of shares of the present applicants in the respondent company and prima facie, it was held that the present applicants are shareholders in the first respondent company, i.e. Prabhakar Processors Pvt. Ltd. and are having required paid-up share capital as on the date of filing of the petition, irrespective of the MoU dated 16.4.2011.
3. This order passed by NCLT, Ahmedabad dated 2.1.2017 carried further by the original plaintiffs by way of an appeal before Page 3 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT the Appellate Tribunal, Delhi, wherein the Appellate Tribunal, Delhi by way of an order dated 27.4.2017 declined to interfere with the decision taken by NCLT, Ahmedabad dated 2.1.2017. It has further been asserted by the present applicants that the original plaintiffs issued a legal notice to the present applicants and demanded delivery of share certificates along with executed share transfer deed, to which, a reply was given denying the validity of the MoU and refused to transfer the shares. As a result of this, the original plaintiffs have filed the Special Civil Suit in the Court of learned Civil Judge (S.D.) at Surat for claiming the following reliefs:-
"(A) A declaratory decree in favour of the plaintiffs 1 and 2 confirming and declaring them as real owners of the 27,190 equity shares being held by the defendants no.1 to 12 at present ostensible owners pending issue and enforcement of the decree for specific performance sought in this suit;
(B) A decree for specific performance of transfer of the said 27,190 shares in favour of plaintiffs 1 and 2 and/or their nominees by ordering the defendants no.1 to 12 to execute blank share transfer deeds and handing over the same with original share certificates to the plaintiffs no.1 and 2 as well as ordering the recovery of the said 27190 shares/ share certificates and hand over possession to the plaintiffs no.1 and 2 in terms of section 7 and section 8 of the Specific Relief Act, 1963 and other applicable provisions of law;
(C) An order directing delivery of the 27,190 equity shares/ share certificates held by the defendants no.1 to 12 as ostensible owners in spite of the real and beneficial ownership of the said shares having been already vested in the plaintiffs no.1 to 2 (Poddar group) due to complete fulfilment of the obligations of the plaintiffs no.1 and 2 as per MOU dated 16.04.2011 in terms of section 8 of the Specific Relief Act, 1963;
(D) For grant of a permanent injunction against the defendants injuncting them from selling or transferring or alienating or encumbering the subject 27,190 equity shares/ share certificates to 3rd parties/ others.
(E) A temporary injunction till final disposal of the suit in terms of prayer (D) above;
(F) cost and advocate fees; and Page 4 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT (G) such other relief or reliefs the plaintiffs are entitled to and in the interest of doing complete justice in the facts and circumstances of the case."
4. In the said suit, when summons were issued, the present applicants raised a question of jurisdiction and submitted an application under Order-7 Rule 11 of the Civil Procedure Code registered as Exh.17 and requested that since the suit itself is not maintainable in view of Section 430 of the Companies Act, learned Civil Judge, vide order dated 1.1.2019, was pleased to reject the said application Exh.17, which has given rise to the present Civil Revision Application before this Court.
5. Learned senior advocate Mr. Navin K. Pahwa, appearing for Thakkar & Pahwa Advocates has represented the applicants, whereas learned advocate Mr. S.S. Iyer has been heard for the contesting respondent Nos.1 to 3 who are original plaintiffs and with respect to the other respondents, since they are proforma party and have not been represented though served, a joint request was made by learned counsel, as stated hereinabove, that since the contesting party is already defending the present proceedings, the revision application may be heard for its final disposal and upon such request and consent of learned advocates, the Court has heard the revision application at length.
6. Learned senior advocate Mr. Pahwa has vehemently contended by referring to factual background that the civil suit which has been filed is interlinked with the controversy which otherwise can be gone into and adjudicated by a separately created statutory forum and by virtue of Section 430 of the Companies Act, the Civil Court cannot examine the issue and has no jurisdiction and as such, the plaint ought to have been rejected by learned Civil Judge. While submitting this, Mr. Pahwa has taken the Court to various orders which are attached to the present revision Page 5 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT application and thereby has strenuously contended that the reasons which are assigned by learned Trial Judge are not just, proper and legally tenable. Mr. Pahwa has submitted that though several decisions have been cited before the Court below but by a brief order, the application came to be rejected. In fact, the order in question is laconic and not discussing at length the decisions and submissions which were pressed into service during the course of hearing. Mr. Pahwa then contended that the Statute has created a clear embargo on the jurisdiction of the Civil Court to try the suit of the present controversy and has further relied upon certain observations made by NCLT, Ahmedabad and Company Law Board, Mumbai in their respective orders and after referring to the same, a contention is raised that since the Civil Court has no jurisdiction to examine this controversy, learned Trial Judge ought to have exercised the jurisdiction under Order-7 Rule 11 of the Civil Procedure Code and by submitting this, has requested the Court that since this issue is squarely coming within the periphery of contingencies which are reflecting in the provisions of Section 115 of the Civil Procedure Code, the present revision application be allowed. Mr. Pahwa with emphasize has referred to and relied upon the recent decision of the Apex Court in the case of Shashi Prakash Khemka (supra) and by referring to para 4 and 6 of the said decision delivered on 8.1.2019, has canvassed that the order passed by learned Trial Judge is not sustainable in the eye of law. Mr. Pahwa has reiterated that the reasons which are assigned by learned Trial Judge are not sufficient enough to substitute the ultimate conclusion and the law is abundantly clear that even by consent of the parties, if the Court has otherwise no jurisdiction, the same cannot be conferred. That being the position, the reasons assigned by learned Trial Judge are unsustainable, hence has requested the Court to set aside the impugned order.
Page 6 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT7. Apart from that, Mr. Pahwa submitted that despite the recent pronouncement of the judgment, coupled with this peculiar background of facts, referred to a decision delivered by Madras High Court and the old decision of 2003 and requested that dismissal of application is an erroneous exercise of jurisdiction and the fact that though ample material was placed before the Court and several decisions have been pressed into service, the order does not reflect any such discussion and this is nothing but a clear example of perversity which took place while passing the impugned order. Hence, the order requires to be set aside in the interest of justice.
8. Additionally, Mr. Pahwa has submitted that even NCLT, Ahmedabad has clearly held in the order dated 2.1.2017 that the present applicants are neither party nor signatory to the MoU and this order of NCLT, Ahmedabad has been confirmed and upheld by the Appellate Tribunal in its order dated 27.4.2017. Further more, it has been submitted that in view of the fact that the proceedings of Company Petition No.49 of 2012 are pending for final hearing before NCLT, Ahmedabad, on the related facts and the issues which are yet to be examined, non-entertainment of this application would create a possible contradictory orders; one by NCLT and another by the Civil Court. It has further been submitted that the civil suit which has been filed to obtain a possible contradictory order despite the fact that the original defendants are the members of the respondent No.1 company. This aspect has already been determined in favour of the present applicants and the same has been upheld and therefore, absolutely, there is no cause of action in favour of the original plaintiffs to bring this controversy into the Civil Court and to drag on the issue. This aspect material in nature ought to have been examined by learned Trial Judge and the reasons which are assigned are absolutely silent on such issues. Learned Judge has erroneously held that seeking relief based upon the MoU is a Page 7 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT common law remedy and as such, the rights can be enforced in the ordinary Civil Court. Whereas, this MoU on the basis of which, entire suit is based upon is not binding to the applicants and this is not to be examined any further as the said controversy has already been decided. Learned Trial Judge has unnecessarily stretched his jurisdiction by resorting to the so-called meaningful reading of the plaint to test whether the same is tenable or not. This concept is not available in the background of the present facts situation. The order therefore appears to be laconic in nature and hence, as an alternative submission, learned senior advocate Mr. Pahwa has submitted that since all these issues are not visibly reflecting in the order nor dealt with, the impugned order deserves to be quashed and set aside on this count alone with consequential appropriate direction.
9. It has been contended that when an application itself is projecting several contentions, it was obligatory on the part of the Trial Court to deal with the same as required by the proposition of law laid down by series of decisions. Accordingly, the impugned order is not sustainable in the eye of law.
10. As against this, learned advocate Mr. Iyer appearing on behalf of the contesting respondents- original plaintiffs has submitted that these issues which are raised by learned senior counsel are merely the issues which can be taken by way of defense and the defense cannot be examined to exercise the jurisdiction under Order-7 Rule- 11D of the Civil Procedure Code. A bare reading of the plaint, ex- facie reflects a cause of action, same will have to be just merely examined whether case is made out for trial or not. Further, it has been contended that when specifically, it has been held that the controversy is related to the terms of MoU and the rights of the original plaintiffs are flowing out of the said MoU, for enforcement of Page 8 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT such, always civil remedy is available and as such, these reliefs which have been prayed in the suit can well be examined by the Civil Court only.
11. Mr. Iyer has submitted that looking to the scope of jurisdiction of NCLT, the rights are not to be adjudicated upon which are based on enforcement of the MoU and whether the said MoU is signed or not, whether the said MoU is binding or not, will have to be examined by the Civil Court at appropriate stage of the trial. Mr. Iyer has submitted that the Civil Courts have always a jurisdiction to examine and adjudicate the grievance related to the common law right and therefore, there is no irregularity of any nature committed by learned Civil Judge while rejecting the application. It has further been contended that Section 430 of the Companies Act has no applicability in the peculiar background of these facts looking to the specific averments of the plaint and the reliefs sought in the plaint itself. It is always open for the Court while exercising the jurisdiction Order-7 Rule-11D of the Civil Procedure Code to give a meaningful reading to the plaint and there appears to be no illegality when such exercise is undertaken.
12. Mr. Iyer has further submitted that it is a settled position of law that whenever any element of facts to be examined and when the issue is debatable, entire suit cannot be throttled at the elementary stage itself by resorting to the power under Order-7 Rule-11D of the Civil Procedure Code. The object of Order-7 Rule- 11D of the Civil Procedure Code is just to thrash out the frivolous litigations and to curb the same, whereas, here in the instant case, series of issues will have to be examined by the Civil Court which involve large number of equity shares and the issue is encircled about the specific agreement executed between the companies. So, whether the applicants are signatories or not is not of any Page 9 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT significance. The Civil Court will have to examine the validity of the MoU and binding effect thereof. Mr. Iyer has submitted that there are specific assertions and averments made in the plaint which require a clear adjudication of the issue, which can be gone into at the time of trial of the suit. Hence, this is not an open and shut case where a plaint can be rejected at the stage of Order-7 Rule-11D of the Civil Procedure Code itself. Enough averments are contained in the plaint and enough material are projected before the Court which will have to be examined. That being the position, this stringent power of Order-7 Rule-11D of the Civil Procedure Code has rightly not been exercised by learned Trial Judge at the stage of the proceedings. Mr. Iyer has further submitted that learned Trial Judge has rightly relied upon the decision delivered by Madras High Court and has rightly rejected the application. To substantiate his contentions, he has relied upon the following decisions :-
(1) In the case of Claude-Lila Parulekar (SMT) Vs. Sakal Papers (P) Ltd. And others reported in (2005)11 SCC 73;
(2) Order dated 10.10.2006 in C.M.A.NPD.Nos.1159 and 1160 of 1998 passed by Madras High Court in the case of NEPC Micon Limited Vs. Sashi Prakash Khemka;
13. By citing the aforesaid decisions, in a very brief form, learned advocate Mr. Iyer has submitted that the decision which has been relied by learned senior advocate reported in the case of Shashi Prakash Khemka (supra) has no application since the facts are not discussed at length and such brief proposition of law based upon a peculiar background cannot be utilized as an absolute precedent on the basis of which, entire suit is put to an end. Mr. Iyer has reiterated that entire chronology of events and controversy involved amongst the parties would lead to a situation where learned Trial Judge can be said to have properly exercised the jurisdiction while Page 10 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT rejecting the application under Order-7 Rule-11D of the Civil Procedure Code. Hence, no case is made out by the applicants. The revision being devoid of merit, the same deserves to be dismissed.
14. It has been reiterated further that this is nothing but an ingenious device to while away the time and drag on the issue and to keep away themselves from the responsibility. Such an attempt may not be encouraged.
15. Having heard learned advocates appearing for the parties and having gone through the overall material on record, the substantial ground on which an application under Order-7 Rule 11 of the Civil Procedure Code is filed, is that the Civil Court has no jurisdiction to entertain the suit since the suit is barred by the provisions of the Companies Act, 2013. It has further been projected that the National Company Law Tribunal, Ahmadabad was seized with the similar controversy pursuant to the Company Petition No.49 of 2012, which came to be transferred. While deciding the preliminary issue, it has been observed in the order dated 2.1.2017 that the preliminary issue raised came to be decided in favour of the revision petitioners. The appeal appears to have been submitted against the said decision before the Appellate Tribunal, Delhi and in the said proceedings, an order came to be passed on 27.4.2017, and as such, considering the controversy, which has been erupted between the parties, is substantially governed by the provisions of the Companies Act and the National Company Law Tribunal is seized with the matter. It is this premise upon which an application below Exh.17 came to be filed.
16. From the proceedings, it appears that the specific written objections have been submitted by the original plaintiffs to the proceedings, in which several authorities have been cited before the Page 11 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT Court, which read as under:-
[1] 2012 SCC Online MAD 3335 [2] (2005)11 SCC 73 [3] (2005)11 SCC 314 [4] (1996)1 SCR 683 [5] 1993 SCC Online Delhi 551 So, it seems from the record that this issue has been contested before the Court below by raising several contentions.
17. Upon perusal and examination of the record, it transpires that by a brief order dated 1.1.2019, the application appears to have been rejected, but the observations which are contained in the order are not based upon series of contentions raised before the Court. Even there appears to be no discussion about the decisions which were cited and therefore, in the opinion of this Court, the order is passed without considering the contentions raised before it.
18. At this stage, the Court is reminded of the settled proposition of law that the issues which have been raised before the Court deserves to be dealt with at an appropriate stage. Hence, when an application below Exh.17 was heard by the Court, rival contentions raised ought to have been gone into and dealt with.
19. It further appears from the record that there was a serious controversy with regard to the binding nature of the MoU dated 16.4.2011 and further the observations which have been made by the Company Law Tribunal also ought to have been dealt with by the Court below when it has been stated before this Court that the said material was a part of the record and pressed into service.
20. During the course of submission before this Court also, it was agitated that the contentions which have been raised during the course of submission in application Exh.17, learned Judge has not dealt with the contentions. Apart from that, during the hearing, it Page 12 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT was brought before this Court that the NCLT is still seized with the proceedings and as such, what is the effect of MoU, what is the effect of the recent decision of Hon'ble the Apex Court in the case of Shashi Prakash Khemka (supra), precisely paragraphs 2,4 and 6 and additionally, further decisions which have been pressed into service. It appears that the Court should apply its mind and ought not to have disposed of the application in a routine manner.
21. When a substantive application is submitted before the Court, i.e. Exh.17, to terminate and reject the proceedings at this initial stage in view of certain issues of law, it was incumbent on the part of learned Judge to assail the findings and those issues which are the center of controversy. A bare reading of the impugned order suggests that except discussion about Section 430, there is no detailed discussion on the issues which have been raised by way of contentions. Even for arriving at a conclusion on cause of action, except bare assertion, nothing much is concluded and as such, prima facie opinion of this Court is that the manner in which the application is to be dealt with is not taken care of.
22. Additionally, this reflection is based upon the specific averments made by the applicants- petitioners and some of the specific averments, the Court would like to reproduce hereafter:-
"2. The Defendants would like to bring out succinctly some material facts which will clearly establish that this Hon'ble Court has jurisdiction to try the present suit and that the suit is barred by the provisions of the Companies Act 2013 and the plaint deserves to be rejected under O-7 R.11(d) of the Code of Civil Procedure.
3. Some the facts appearing from the plain reading of the suit are as under
(v). The Plaintiffs of the present case (Respondents of the Company Petition 49 of 2012) had thereafter filed a Miscellaneous Application 60 of 2015 before Company Law Board, Mumbai and prayed for grant of permission for Page 13 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT obtaining loan not exceeding Rs.900 Lakhs from the bankers, directors and shareholders belonging to the Petitioners of the Company Petition Petition 49 of 2012 (Defendants of the present suit). The Company Law Board, Mumbai after hearing submissions of both the parties in the Miscellaneous Application 60 of 2015 held that the preliminary issue as to whether the Petitioners of the Company Petition 49 of 2012 are members of the Respondent Company or not is required to be decided first and thereafter the pending applications and further proceedings may go ahead.
(vi) Thereafter, the new Companies Act 2013 came into force in place of the Companies Act 1956 and National Company Law Tribunal benches were constituted in place of the Company Law Board. Accordingly, the Company Petition 49 of 2012 was transferred to the National Company Law Tribunal Ahmedabad and was renumbered as Transfer Petition No.27/397-398/ 2016. The National Company Law Tribunal while deciding the preliminary issue stated in para 13,14,18, 19 of the order dated 02.01.2017 that-
"13. M/s. Bhaskar Silk Mills Pvt. Ltd. And Prabhakar Processors Pvt. Ltd. Are two different entities. Unless and until in pursuance of the MOU, shareholders in both the companies transfer their share following the procedure laid down under the Act and Articles of Association, it cannot be said that Petitioners or for the matter any other shareholder who is not a signatory to the MOU ceased to be the shareholder of the company. Had the petitioners been signatories to the MOU then the binding nature or other wise of the MOU can be challenged in a Civil Court. When Petitioners continue to be shareholders of the first Respondent Company and they are having required shareholdings in the company it cannot be said that they are not entitled to file this Petition for oppression and mismanagement.
14. It is contended by the Learned Advocate for the Respondents that the close relatives of Petitioners signed the MOU dated 16/04/2011 and definition of "relative" in the Section 2(41) READ WITH Section 6 of Companies Act 1956 can be applied to bind the Petitioners although they have not signed the MOU. This argument of Learned Counsel for Respondents does not merit acceptance for simple reason that definition given in any Enactment can be applied to the provisions in the Act or by analogy to other Acts but not to agreements between parties in violation of provisions of the Indian Contract Act. It is obvious that the definition of "relative" in Section 2(41) of Companies Act 1956 is applicable to Section 299 of Companies Act 1956/ Page 14 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT
18. In view of the above discussion, it can only be prima facie held that Petitioners are shareholders in the first Respondent company as on the date of filing the Petition in spite of MOU dated 14/04/2011 and therefore they are entitled to file this Petition since they are having required paid-up share capital.
19. In the result, the finding on preliminary issue is held in favour of the Petitioners and against the Respondents."
4. Thus based on the above mentioned facts and the order passed by the National Company Law Tribunal in the Transferred Petitioner 27/397-398/2016 it is primarily evident that:-
(i) the present suit is filed for obtaining reliefs which are available only under the provisions of the Companies Act, 2013.
(iv) the present suit is filed to obtain a possible contradictory order despite the fact that the defendants in the present case are members of the Respondent No.1 company has been decided in favour of the petitioners and the same order was upheld by th National Company Law Appellate Tribunal.
(v) the present suit is filed despite the fact that Section 430 of the Companies Act, 2013 has placed complete bar on any trial at any other civil court if the matter falls under NCLT jurisdiction and here the matter is already under consideration of NCLT Ahmedabad.
6. The Defendants crave leave to reproduce Section 430 of th Companies act 2013 for the kind consideration of this Hon'ble Court hereunder:-
"S. 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 other court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force by the Tribunal or the Appellate Tribunal."
7. It is respectfully submitted that based on the plain reading of the plaint and in light of Section 430 of the Companies Act 2013 it is primarily evident that the present suit falls within the jurisdiction of the National Company Law Tribunal."
23. From the aforesaid specific averments made in the application and by way of submission, the said contentions have been tried to be substantiated. It was obligatory on the part of the Court below to Page 15 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT at least deal with the same so as to see that the higher forum may have an assistance to deal with the controversy at length keeping in view the peripheral limits of law.
24. Time and again, the Apex Court has propounded by catena of decisions that while exercising the jurisdiction/ discretion, if contentions raised have not been dealt with, then it would be a ground for remand of the proceedings normally and the object behind it is such that if proper findings are visible from the record in the eventuality of challenge to the decision, the higher forum may have a chance to deal with, which aspect here in the present proceedings is missing. As a result of this, the Court is of the opinion that proper re-look to the contentions by the Court below deserves to be undertaken afresh.
25. This Court normally might have gone through and dealt with the contentions but, in view of the following the decisions and the observations contained, instead of taking up the said exercise, the Court deems it proper to request the Court below to examine first at its own end and then if aggrieved party comes, same may be dealt with in accordance with law in the proper form. The Apex Court in the case of Oryx Fisheries Pvt. Ltd. Vs. Union of India and others reported in (2010)13 SCC 427 has observed in para 40 as under:-
"40. In M/s. Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it Page 16 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Page 17 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
26. The Apex Court in case of Birwati Chaudhary and Others versus State of Haryana and Others reported in (2018) 9 SCC 458, has held and observed in para 7, 8 and 9 as under:-
"7. The reason to remand the case has occasioned due to the fact that firstly, no adequate reason is given in the impugned order for not granting stay; and secondly, the reason given does not in itself justify the rejection having regard to the nature of controversy involved in the writ petition.
8. In short, justifiable reason(s) to support either the grant or rejection need(s) to be stated keeping in view the facts and the law applicable to the controversy involved. It is not so found in the impugned order and hence the order of remand is called for to decide the matter afresh in accordance with law.
9. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the case is remanded to the High Court to decide the issue afresh on merits strictly in accordance with law without being influenced by any of out observations made above, within we have refrained to make having formed an opinion to remand the case to the High Court for the reasons mentioned above."
27. This Court in case of Mayurbhai Kantibhai Gohil versus State of Gujarat & Anr. reported in 2015(1) GLR 894, has held and observed in para 13 as under:-
"13. In the result, this Letters Patent Appeal succeeds and is allowed in part. The order dated 25.04.2014 so far as refusing the interim relief is quashed and set aside in part, except issuance of notice. The matter is remanded back to the learned Single Judge to consider the request for granting the interim relief afresh and may pass appropriate reasoned order, expeditiously in accordance with Page 18 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT law at an early date, subject to His Lordship's convenience."
28. Since looking to the observations made by decisions, the Court is inclined to set aside the impugned order with consequential direction to take decision afresh. The Court has desisted itself from expressing any opinion on merit of the rival contentions, leaving it open to the Court below to independently decide the same in accordance with the observations made by the aforesaid decision.
29. This course is also adopted in view of the fact that the object of Order 7 Rule 11 of the Civil Procedure Code is to discourage frivolous and untenable proceedings to save the public time and at the same time, this power appears to be a stringent enough to terminate the substantial proceedings at the initial stage itself and as such, keeping in view this object in mind, when such a serious exercise is to be undertaken, the Court below deserves to pay attention to this object and decide the issues afresh. As a result of this, the impugned order deserves to be set aside with a consequential direction to decide Exh.17 application afresh. Hence, following direction and observations would sub-serve the ends of justice:-
(1) The impugned order dated 1.1.2019 is hereby quashed and set aside with a consequential direction to decide Exh.17 application filed under Order 7 Rule 11(d) of the Civil Procedure Code afresh independently in accordance with law on the basis of the material and the contentions available on record.
(2) Since this Court has remanded back the matter to learned Civil Judge to take a fresh decision, no opinion is expressed on merit of the rival contentions of both the sides and it is independently left open to the Court Page 19 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021 C/CRA/94/2019 CAV JUDGMENT concerned to take an independent view keeping in view the relevant material on record and the contentions which may be urged at the time of hearing of the application Exh.17 afresh.
(3) It is needless to say that while deciding the application Exh.17 afresh, it is open for the petitioners to point out latest pronouncements of the Apex Court in the case of Shashi Prakash Khemka (supra) and shall take a decision in accordance with law.
(4) Since the controversy is going on between the parties for quite some time, it is expected that learned Trial Judge shall hear the application Exh.17 afresh and take a decision thereon in accordance with law as expeditiously as possible.
30. With the aforesaid observations, the present Civil Revision Application stands disposed of. Rule is made absolutely to the aforesaid extent.
Sd/-
(ASHUTOSH J. SHASTRI, J.) OMKAR Page 20 of 20 Downloaded on : Sun Feb 21 18:05:58 IST 2021