Co.Appeal-04/2011 v. Narmada E-Learning Pvt. Ltd & Ors.

15/09/2011 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr.Amol Vyas, for appellant. Instant Company appeal has been filed u/Sec.10F of the Companies Act, 1956 assailing the order dt. 17/08/2011 passed by the Company Law Board in Company Petition No.92/2011. A bare perusal of the order dt. 17/08/2011 discloses that in Company Petition filed before the Company Law Board u/Sec. 397/398 of the

Companies Act by the respondent herein, notices were issued and the appellant who is respondent No.1 before the Company Law Board was represented by its proxy counsel. Since the other respondents were not served, the petitioner in the company petition was directed to file affidavit regarding service upon the respondents. At the same time, it was also ordered that copy of the petition be served upon the respondents and it appears that since the petitioner before the Company Law Board was impressing upon for passing of the interim order, the matter was adjourned for 14/10/2011 and parties are certainly at liberty to raise their written objections to the Company 2 Co.Appeal-04/2011 Petition pending before the Company Law Board before the next date of hearing when the matter was to be heard for interim relief prayed for by the petitioner in the Company Petition. It is relevant to record that the present appellant, who is respondent no.1 before the Company Law Board, has not filed any written objection to the Company Petition No.92/2011 out of which the present order impugned arises for consideration in the instant company appeal.

Mr. Amol Vyas, counsel for the appellant submits that the Company Petition No.04/2011 could not have been entertained by the Company Law Board since the earlier Company Petition filed by the petitioner before the Company Law Board u/Sec.397 and 398 of the Companies Act bearing No.05/2010 was pending on the day of presentation of the petition before the Company Law Board and while the application was filed to withdraw the Company Petition No.05/2010, per mission of which was granted by the Company Law Board on 17/08/2011 and in view of Sec.10 CPC, the Company Petition was incompetent and could not have been entertained and order passed by Company Law Board is executable in terms of Sec. 364A of the Companies Act and that being so, the order impugned dt. 17/08/2011, in the facts of the instant case, 3 Co.Appeal-04/2011 is not legally sustainable. Counsel further submits that in the alternatively, permission may be granted to the appellant to raise all objections at the stage when the matter is considered for grant of interim relief prayed for by the respondent before the Company Law Board.

Sec. 10F of the Companies Act, 1956 was inserted by an Amendment Act 31 of 1988 which came into force w.e.f. 04/08/1989, appears to be with the object that if legal question emerges out of any order passed by the Company Law Board and a legal interpretation is required, the appeal can be filed before the High Court for consideration and there could be a superintendence over the orders of the Company Law Board being passed, at various stages but while making amendment, the Parliament was very conscious that the appeal could be filed only against such decisions or orders of the Company Law Board wherein the question of law arises out of the such orders for consideration. In the instant case, the Company Law Board has simply adjourned the matter and the parties to the Company petition are certainly at liberty to file their written objections before the next date of hearing and no finding either way has been recorded.