SATYA NARAYAN Vs. JIY AJEERAO COTTON MILLS LTD

JUDGEMENT

(1.) This is a third round of litigation/appeal under Section 483 of the Companies Act, 1956 (for short 'the Act') which has been preferred by the appellant herein/applicant against the impugned order dated 28.02.2013 passed on I.A.No.11342/2010 by the learned Company Judge in Company Petition No.4/1997 (M/s. J.C. Mills v. BIFR) whereby the same has been dismissed.

(2.) No exhaustive statement of facts of the case are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that the appellant, Satya Narayan Somani filed an application, I.A.No.11342/2010 for seeking permission under Section 446 (2) of Companies Act, 1956 to file the civil suit for declaration and injunction against the respondent No.1 being M/s. Jiyajeerao Cotton Mills Limited (in liquidation). The application was firstly considered in the pending Company Petition No.4/1997 by the learned Company Judge and vide order dated 28.01.2011, the same was dismissed. Being aggrieved by the aforesaid order, the appellant preferred an appeal being Company Appeal No.2/2011 which was allowed by a Division Bench of this Court vide order dated 18.08.2011 by passing a common order alongwith Company Appeal No.1/2011 and remanded the matter back, thereafter, the learned Company Judge again dismissed I.A.No.11342/2010 vide order dated 14.10.2011. Being aggrieved thereof again by the order dated 14.10.2011, the appellant preferred an appeal being Company Appeal No.11/2011, which was allowed by a Division Bench of this Court vide order dated 31.08.2012 and the matter was again remanded back for deciding it afresh. Thereafter, the matter was heard by the learned Company Judge and vide the impugned order dated 28.02.2013 again dismissed I.A.No.11342/2010, hence, this appeal.

(3.) Shri V.K. Bhardwaj learned senior counsel appearing on behalf of the appellant/applicant contended that the impugned order is illegal, incorrect and deserves to be set-aside. According to him, the learned Company Judge while passing the impugned order relied upon the order dated 02.02.2008 passed by the District Judge, Ujjain in Civil Suit No.28A/2007 (State of M.P. Vs. Official Liquidator, J.C. Mills Factory Agra Road, Ujjain) wherein the order dated 5.11.2004 passed in Company Case No.4/1997 was relied upon. The order dated 5.11.2004 passed in Company Case No.4/1997 is the subject-matter of Misc. Appeal No.1052/2004 in which a Division Bench of this Court ordered to maintained status-quo vide order dated 27.08.2007 and again on 30.04.2008. It is further submitted that the Civil Suit No.28A/2007 which was dismissed by the Trial Court vide order dated 02.02.2008 for non-obtaining the leave to file the civil suit and the same was affirmed by a Division Bench of this Court at Indore in in First Appeal No.366/2008 vide judgment dated 02.02.2010.