YOGESH MEHRA Vs. ENERCON GMBH

JUDGEMENT

(1.) IN this order I am considering Company Application No. 112 of 2012 filed in C. P. No. 74 of 2008 (now C.P. No. 83 of 2011) by the Mehra group seeking amendment to the company petition to incorporate pleadings in support of reliefs already sought in the company petition. It was pointed out that the company application is necessitated on account of subsequent events which include several letters to company's clients written by the respondents to cause maximum loss and damage to respondent No. 2 company. The applicants have pointed out towards the malicious conduct of the respondents who as a counterblast to refusal to their proposal of transferring 12 per cent. shareholding of the applicants' to the respondents have also brought in a spate of litigation, the endeavour being to somehow block smooth functioning of respondent No. 2 company and depress its share value to enable the respondents to buy the applicants' shareholding at a throw away price, it is a sustained campaign which has been pointed out by the applicants in their earlier affidavit also. My attention was drawn to the applicants' additional affidavit dated July 18, 2011, which had already substantially incorporated the subsequent events mentioned in the present company application. It was pointed out that till date the respondents have not filed any reply to the additional affidavit dated July 18, 2011. The present application also gives a peep into the present good condition of the company which is admittedly being managed by the applicants, the company is doing well. Counsel for the applicants relying on the case law in Khimji M. Shah v. Katilal Damodardas Modi : (1988) 38 Man. LJ : (1990) 67 Comp Cas 185 (Bom), contended that there is no bar in incorporating subsequent events in a petition by way of amendment and that there is no provision under the Companies Act which prohibits a court from looking at the subsequent events in a petition under sections 397 and 398 of the Companies Act, 1956. Further, it was argued that the amendments are to be allowed liberally; merits of the amendments cannot be gone into at the stage of amendment; the application is made bona fide; the amendment sought is in support of prayer "c" in the company petition; there is no change in the cause of action.

(2.) THE respondent's case in reply to Company Application No. 112 of 2012 is that the petitioners deserve no reliefs and the present application ought to be rejected in limine because : (a) By virtue of the order of January 29, 2009, passed in both company petitions, the present company petition does not survive much less for any hearing on merits. The order of January 29, 2009, has attained finality and there is now no question of the present application being filed to amend the company petition, (b) In any event, in view of the express provision of the order of January 29, 2009, the above company petition cannot, and ought not to be heard on merits. The only thing possible is a parting of ways as directed by the order of January 29, 2009; and the petitioners cannot overreach the binding order of January 29, 2009. It was pointed out that the Company Law Board by its order of January 29, 2009, clearly directed that a valuation of respondent No. 2 and its associate/subsidiary companies be carried out. In these circumstances the present application in itself is not maintainable as there is no question of hearing of the present petition on merits as the petition has already been disposed of and the only option available to the petitioner is to co -operate in the valuation process. In effect, therefore, there is no question of permitting the above application for amendment, (c) The application seeks to bring on record facts which form the subject -matter of previous similar applications filed before the Company Law Board and other courts and in which no orders have been obtained, (d) It is trite law that a case for grant of reliefs under sections 397 and 398 of the Act must be made out in the petition itself and the petitioner ought not to be allowed to cure the defects contained therein no fill in the lacunae therein by way of amendment to the petition, (e) The said application is mala fide and has been filed with the sole view of causing harm and prejudice to these respondents, (f) The application is otherwise not maintainable and liable to be rejected, (g) The application is thoroughly motivated and filed with a view to snatch orders from the Company Law Board, (h) The application suppresses material facts from the Company Law Board, (i) The application is an abuse of the process of the Company Law Board and an abuse of the process of law, and (j) The application 'is frivolous and repetitious apart from being vexatious.

(3.) THE respondent's case is that even assuming whilst denying that the petition may be heard on merits the facts which the petitioner seeks to bring on record are all the subject -matter of various applications which have been filed by the petitioners. It was argued that the present application in any event holds no merit and is a mere abuse of the process of the Company Law Board. The petitioners have sought to bring on record what has been within their knowledge and the petitioners ought not to be allowed to place these additional facts on record at such a belated stage.