KISHORILAL AGARWAL Vs. ALLIANCE ENGINEERS (P.) LTD

JUDGEMENT

(1.) In this 10F appeal the orders under challenge are dated 12 August 2013 [Kishori Lal Agarwal v. Alliance Engineers (P.) Ltd, 2014 3 CompLJ 300 and 27 January, 2014 [Kishori Lal Agarwal v. Alliance Engineers (P.) Ltd, 2014 3 CompLJ 296]. Before the Company Law Board, Company Petition No. 450 of 2011 was filed under several sections of the Companies Act, 1956 but the relevant sections with which this court is concerned at present is section 111 and sections 397 and 398 Companies Act, 1956. By order dated 12 August, 2013, the said company petition was dismissed for the reasons set out therein. One of the reasons being that the original petitioners had not filed an application under section 111 of the Companies Act, 1956, the application under sections 397 and 398 could not be maintained. Therefore, the company petition was dismissed. It is true that an appeal could have been filed from the said order by the original petitioners in Company Petition No. 450 of 2011 but instead of pursuing remedies in appeal, Company Application No. 586 of 2013 was filed whereby application for rectification was sought of the order dated 12 August, 2013 on the ground that the Company Law Board had accidentally slipped or omitted to note that the original petition filed before it was also under section 111 of the 1956 Act. This Company Application No. 586 of 2013 was considered by the Company Law Board and was dismissed on 27 January, 2014 on the ground that Company Law Board had no power to rectify its own order as such power was not conferred on it by statute. It is from this order that this appeal has been filed and while challenging the said order, the order dated 12 August, 2013 has also been challenged. The appellants questioned the correctness of the order dated 12 August, 2013 may be in a wrong proceeding but such proceeding was ultimately dismissed and such challenge was within the period of thirty days. In fact, Company Law Board has also adjudicated on the said application and after hearing the parties has passed its order on 27 January, 2014. The said application was not dismissed on the date of presentation; therefore, the appellants will be entitled to the benefit of the proceedings initiated by it though incorrectly according to Company Law Board's order.

(2.) Appeal under section 10F is to be filed within sixty days and admittedly such sixty days has expired but within sixty days, an application was filed before the Company Law Board on which a decision has been taken. Therefore, this appeal filed cannot be thrown out at the threshold stage and, accordingly, is admitted.

(3.) No purpose will be served in keeping the said appeal pending. As the only issue involved is with regard to the maintainability of this appeal which has been discussed above, the order dated 27 January, 2014, is set aside so also the order of 12 August, 2013 whereby Company Petition No. 450 of 2011 was dismissed by overlooking the factum that a composite petition could be maintained under section 111 and sections 397 and 398 of the Companies Act, 1956. This finds mention in the decision on which reliance has been placed by the Company Law Board reported in Turner Morrison Ltd. v. Jenson and Nicholson (I) Ltd,1998 3 CompLJ 97