JANG BAHADUR SINGH Vs. FRICK INDIA LTD.

JUDGEMENT

(1.) THIS order governs C.A. No. 62 of 1 2013, which is an application filed by Dr. Jang Bahadur Singh, petitioner No. 1 under Order 6, rule 17 of the Code of Civil Procedure, 1908, read with regulation 44 of the Company Law Board Regulations, 1991, for amendment of Company Petition No. 34(ND) of 2012. The amendment sought by petitioner No. 1 concerns the following:

(2.) IT is also an admitted fact that C.P. No. 34(ND) of 2012 was first mentioned before this Board on March 13, 2012 and was first listed on August 7, 2012, for final hearing on December 15, 2012. Application C.A. No. 427 of 2012 seeking directions for setting aside the illegal appointment of five additional directors in a mala fide called and convened board meeting dated August 20, 2012, was dismissed as withdrawn by the petitioners on August 23, 2012, with liberty to file a fresh company application with at least 48 hours prior notice to the respondents. On November 15, 2012, C.P. No. 34(ND) of 2012 was listed on January 11, 2013, for final hearing. On January 11, 2013, final arguments of Shri U.K. Chaudhary, senior counsel appearing for the petitioner commenced and continued on February 19, 2013, April 4, 2013, April 10, 2013 and concluded on October 8, 2013. In this manner C.P. No. 34(ND) of 2012 being at final hearing stage was part heard. At this juncture on October 8, 2013, the present C.A. No. 62 of 2013 was mentioned by the petitioners and was heard thereafter. The relief clause sought to be amended by C.A. No. 62 of 2013 for setting aside the appointment of five new directors of respondent No. 1 company is identical to C.A. No. 427 of 2012, which was dismissed as withdrawn on August 23, 2012. Similarly, on February 19, 2013, the petitioners mentioned C.A. No. 95 of 2013 seeking stay of the adjudication of C.P. No. 34(ND) of 2012 till final disposal of Civil Suit No. 3506 of 2012 filed by the respondents before the High Court of Delhi. The said application C.A. No. 95 of 2013 was also dismissed on February 21, 2013, as withdrawn by the petitioners.

(3.) SHRI U.K. Chaudhary, senior counsel appearing for the petitioners argued that while adjudicating C.A. No. 62 of 2013 the merits of the amendment sought are not to be considered. It was further contended that the due diligence clause incorporated in Order 6, rule 17 is not attracted to proceedings under sections 397 and 398 of the Companies Act, 1956, as this Board has, under section 402 of the Companies Act, 1956, unlimited jurisdiction to grant relief even if not specifically prayed under section 402 of the Companies Act, 1956 and is guided by the principles of natural justice and also empowered to regulate its own procedure. The petition under sections 397 and 398 thus stands on a different footing than a suit for injunction. In a company petition filed under sections 397 and 398 of the Companies Act, 1956, trial commences on the filing of the petition itself and, therefore, the discretion whether or not to direct the petitioner to file a separate petition for the relief sought in C.A. No. 62 of 2013 should be exercised in a judicious manner and taking a liberal view the application should be considered and granted. It was also argued that withdrawal of C.A. No. 427 of 2012 by the petitioners does not in any manner restrict the right of the petitioners to file C.A. No. 62 of 2013 since at the time of permitting withdrawal of C.A. No. 427 of 2012 the petitioners were granted liberty to file a fresh company application with at least 48 hours prior notice to the respondents.