G. Rajendran vs Cri Pumps Pvt Ltd

(Arising out of the Impugned order dated 14.06.2023 in TCP/129/2016, passed by the 'Adjudicating Authority', National Company Law Tribunal, Chennai Bench)

IN THE MATTER OF: Mr. G. Rajendran S/o Late Mr. K. Gopal 15, A.T.T. Colony Coimbatore - 641 018 Email : grajendran.cri@gmail.com ...Appellant

Versus

1. Naargo Industries Private Limited CIN : U29120TZ2005PTC012020 Having its registered office at No. 2, GEM Garden, Athipalayam Junction, Opp. Bharath Petrol Bunk, Sathy Road, Ganapathy, Coimbatore - 641006. Email: corp@tormac.in ...Respondent No.1

2. Nirmala Gopal W/o D. Soundararaj, 4/52 Balasundaram Road, Street No 1, Balasundaram Nagar, KR Puram Avarampalayam Ganapathy Post Coimbatorte 641 006 E-mail: nirmalasoundaraj@yahoo.com ...Respondent No.2

3. V. Sakunthala W/o R. Vijaykumar, 80 E Kamadhenu Nagar,

Comp App (AT)(CH) Nos. 62 to 65/2023 1 of 39 Balasundaram Street, KR Puram. Avarampalayam, Ganapathy Post. Coimbatore 641 006. E-mail: sakun11@gmail.com ...Respondent No.3

4. C. Velumani S/o Mr. Chinnasamy 'Sarorang' No:15 B-1, Shringar Nagar, Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: velumani@cripumps.com ...Respondent No.4

5. G. Soundararajan S/o Late Mr. K. Gopal 'Aiswarya' No:1, Shringar Nagar Extn. Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: soundararaj@cripumps.com ...Respondent No.5

6. G. Selvaraj S/o Late Mr. K. Gopal Purna No: 3/3 & 3/4, Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 Email: selvaraj@cripumps.com ...Respondent No.6

7. G. Sarojini (DECEASED) - AMENDED AS PER ORDER DATED 13/10/2014 W/o Late Mr. K. Gopal No:3/3 & 3/4, Chandraghandhi Nagar Extn., Sowripalayam Coimbatore - 641 028 ...Respondent No.7

8. C.R.I Amalgamations Private Limited CIN: U70101TZ2005PTC011989 Having its registered office at: 7/46- 1, Keeranatham Road, Saravanampatty, Coimbatore - 641035

Comp App (AT)(CH) Nos. 62 to 65/2023 2 of 39 Email: corporateoffice@cripumps.com ...Respondent No.8

Present: For Appellant : Mr. P.H. Arvindh Pandian, Sr. Advocate For Mr. Cibi Vishnu and Jerin Asher Sojan Advocates

For Respondent : Mr. Karthik Seshadri, Advocate for R1 to R5, R7, R8 Mr. R. Vidhya Shankar - R6

WITH

Comp App(AT)(CH) No.63/2023 (Under Section 421 of the Companies Act, 2013)

(Arising out of the Impugned order dated 14.06.2023 in TCP/130/2016, passed by the 'Adjudicating Authority', National Company Law Tribunal, Chennai Bench)

IN THE MATTER OF: Mr. G. Rajendran S/o Late Mr. K. Gopal 15, A.T.T. Colony Coimbatore - 641 018 Email : grajendran.cri@gmail.com ...Appellant

Versus

1. M/s C.R.I. Infrastructures (India) Private Limited Company Identification No. U45201TZ2006PTC013261 Having its registered office at 7/46- 1, Keeranatham Road, Saravanampatty, Coimbatore - 641035 Email: corp@cripumps.com ...Respondent No.1

Comp App (AT)(CH) Nos. 62 to 65/2023 3 of 39 2. C. Velumani S/o Mr. Chinnasamy No:15B-1, Shringar Nagar, Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: velumani@cripumps.com ...Respondent No.2

3. G. Soundararajan S/o Late Mr. K. Gopal Aiswarya No:1, Shringar Nagar Extn. Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: soundararaj@cripumps.com ...Respondent No.3

4. G. Selvaraj S/o Late Mr. K. Gopal Purna No:3/3 & 3/4 Chandraghandhi Nagar Extn., Sowripalayam Coimbatore - 641 028 Email: selvaraj@cripumps.com ...Respondent No.4

5. Mrs. G. Sarojini (DECEASED) W/o Late Mr. K. Gopal Purna No: 3/3 & 3/ 4, Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 AMENDED AS PER ORDER DATED 16/09/2014 ...Respondent No.5

6. C.R.I Amalgamations Private Limited CIN: U70101TZ2005PTC011989 7/46-1, Keeranatham Road, Saravanampatty, Coimbatore -35 Email: corporateoffice@cripumps.com ...Respondent No.6

Present: For Appellant : Mr. P.H. Arvindh Pandian, Sr. Advocate

Comp App (AT)(CH) Nos. 62 to 65/2023 4 of 39 For Mr. Cibi Vishnu and Jerin Asher Sojan Advocate

For Respondent : Mr. R Vidhya Shankar, Mr. Pranav V Shankar Advocates for R4 Mr. Karthik Seshadri, Advocate for R1 to 3 and 5 &6

WITH

Comp App(AT)(CH) No.64/2023 (Under Section 421 of the Companies Act, 2013)

(Arising out of the Impugned order dated 14.06.2023 in TCP/131/2016, passed by the 'Adjudicating Authority', National Company Law Tribunal, Chennai Bench)

IN THE MATTER OF: Mr. G. Rajendran S/o Late Mr. K. Gopal 15, A.T.T. Colony Coimbatore - 641 018 Email : grajendran.cri@gmail.com ...Appellant

Versus

1. G4 Investments (India) Private Limited Company Identification No. U67120TZ2006PTC013176 Having its registered office at 7/46- 1, Keeranatham Road, Saravanampatty, Coimbatore - 641035 Email: corporateoffice@cripumps.com ...Respondent No.1

2. Velumani Chinnasamy S/o Mr. Chinnasamy No:15B-1,Shringar Nagar Bharathi Colony,

Comp App (AT)(CH) Nos. 62 to 65/2023 5 of 39 Peelamedu, Coimbatore-641 004 Email: velumani@cripumps.com ...Respondent No.2

3. Soundararajan Gopal S/o Late Mr. K. Gopal Aiswarya'No:1, Shringar Nagar Extn. Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: soundararaj@cripumps.com ...Respondent No.3

4. G. Selvaraj S/o Late Mr. K. Gopal 'Purna'No:3/3 & 3/4 Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 Email: selvaraj@cripumps.com ...Respondent No.4

5. Mrs. G. Sarojini (DECEASED) AMENED AS PER ORDER DATED 16/09/2014 W/o Late Mr. K. Gopal 'Purna'No:3/3 & 3/4, Chandraghandhi Nagar Extn., Sowripalayam Coimbatore - 641 028 ...Respondent No.5

6. C.R.I Amalgamations Private Limited CIN: U70101TZ2005PTC011989 7/46-1, Keeranatham Road, Saravanampatty,Coimbatore -35 Email: corporateoffice@cripumps.com ...Respondent No.6

Present: For Appellant : Mr. P.H. Arvindh Pandian, Sr. Advocate For Mr. Cibi Vishnu and Jerin Asher Sojan Advocate

For Respondent : Mr. R Vidhya Shankar, Mr. Pranav V Shankar Advocates for R4 Mr. Karthik Seshadri, Advocate for R1 to 3 and 5 &6

Comp App (AT)(CH) Nos. 62 to 65/2023 6 of 39 WITH

Comp App(AT)(CH) No.65/2023 (Under Section 421 of the Companies Act, 2013)

(Arising out of the Impugned order dated 14.06.2023 in TCP/128/2016, passed by the 'Adjudicating Authority', National Company Law Tribunal, Chennai Bench)

IN THE MATTER OF: Mr. G. Rajendran S/o Late Mr. K. Gopal 15, A.T.T. Colony Coimbatore - 641 018 Email : grajendran.cri@gmail.com ...Appellant

Versus

1. CRI Pumps Private Limited CIN: U29120TZ1996PTC006902 Address: 7/46- 1, Keeranatham Road, Saravanampatty, Coimbatore - 641035 Email: corporateoffice@cripumps.com ...Respondent No.1

2. Mr. C. Velumani Address: S/o Mr. Chinnasamy No:15B-1, Shringar Nagar, Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: velumani@cripumps.com ...Respondent No.2

3. Mr. G. Soundarajan Address: S/o of Late Mr. K. Gopal Aiswarya No:1, Shringar Nagar Extn. Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: soundararaj@cripumps.com ...Respondent No.3

4. G. Selvaraj

Comp App (AT)(CH) Nos. 62 to 65/2023 7 of 39 Address: S/o of Late Mr. K. Gopal Purna, No:3/3 & 3/4 Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 Email: selvaraj@cripumps.com ...Respondent No.4

5. Mrs. G. Sarojini (DECEASED) Address: W/o of Late Mr. K. Gopal Purna No:3/3 & 3/ 4, Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 ...Respondent No.5

6. Mrs. S. Asha Geethanjali Address: W/o Mr. G. Soundararajan Aiswarya No:1, Shringar Nagar Extn. Bharathi Colony, Peelamedu, Coimbatore-641 004 Email: ashasoundar14@yahoo.com ...Respondent No.6

7. Mrs. S. Chitra Address: W/o Mr. G. Selvaraj Purna No:3/3 & 3/4, Chandraghandhi Nagar Extn., Sowripalayam, Coimbatore - 641 028 Email: chitra.purna@gmail.com ...Respondent No.7

8. Mrs R. Lalithamani Address: W/o Mr. G. Rajendran 15 ATT Colony, Coimbatore - 641 018 Email: lalitha.raj1961@gmail.com ...Respondent No.8

9. C.R.I Amalgamations Private Limited CIN : U70101TZ2005PTC011989 Address: 7/46-1, Keeranatham Road, Saravanampatty, Coimbatore -35 Email: corporateoffice@cripumps.com ...Respondent No.9

Comp App (AT)(CH) Nos. 62 to 65/2023 8 of 39 Present: For Appellant : Mr. P.H. Arvindh Pandian, Sr. Advocate For Mr. Cibi Vishnu and Jerin Asher Sojan Advocate

For Respondents : Mr. R Vidhya Shankar, Mr. Pranav V Shankar Advocates for R4 Mr. Karthik Seshadri, Advocate for R1 to 3 and 5 &9

(Virtual Mode)

Justice M. Venugopal, Member (Judicial):

Introduction

The Appellants in Comp. App.(AT)(CH) No. 62, 63, 64 and 65/2023 (in

Four Appeals) being 'aggrieved' against the impugned order dated 14.06.2023

in TCP/129/2016, TCP/130/2016, TCP/131/2016 and in TCP/128/2016 on the

file of the 'National Company Law Tribunal' have preferred these 'Appeals',

before this 'Tribunal', as 'Aggrieved persons'.

2. Appellants submissions (in Comp. App.(AT)(CH)62, 63, 64 and

65/2023 (in Four Appeals).

The Learned Counsel for the Appellants (in all these Appeals) brings it to

the notice of this 'Tribunal', that the National Company Law Tribunal, Division

Bench-II, Chennai, had erroneously, passed the 'impugned orders' dated

Comp App (AT)(CH) Nos. 62 to 65/2023 9 of 39 14.06.2023 in TCP/129/2016, TCP/130/2016, TCP/131/2016 and in

TCP/128/2016 by acceding to the request of the Appellant's, without granting

Liberty to file 'afresh' New Company Petitions.

3. According to the Learned Counsel for the Appellants, that the

Respondents had not argued as to what / how, they will be prejudiced, if 'Liberty'

is granted to the 'Appellants, and that the Respondents, 'objections', in present

Appeals, which prove the fact, that they do not want, the 'allegations of

'Oppression' and 'Mismanagement, being made against them to be decided.

4. The Learned Counsel for the Appellants, (in all Appeals) contends that the

CP No. 75 to 78 of 2013 were firstly, 'Heard' before the then, 'Company Law

Board', on 31.10.2013. As a matter of fact, the Appellants, points out that even

at the time of the 'Petition' was moved on 31.10.2013, a Settlement was mooted

and the parties were advised, to be present before the 'Company Law Board' but,

the 'Settlement' had not 'fructified' and the 'pleadings' were completed.

5. The Learned Counsel for the Appellants, bring to the notice of this

'Tribunal', that a 'Mediator', was appointed, by means of an order dated

13.12.2018, passed by the 'Tribunal' and Mr. S. Balasubramanian was appointed

as the 'Mediator' (Former Chairman of the Company Law Board). That apart,

Comp App (AT)(CH) Nos. 62 to 65/2023 10 of 39 the 'Mediation' failed, despite the best efforts of the 'Mediator' and a 'Final

Report' was submitted by the Mediator on 25.12.2022.

6. It is pointed out on behalf of the Appellants, the were advised, that it was

best, to withdraw the TCP/128/2016, TCP/129/2016, TCP/130/2016 and in

TCP/131/2016 and to file 'Fresh Petitions', containing the acts of 'Oppression

and Mismanagement', already complained of, and also the fresh 'acts of

Oppression and Mismanagement', that took place, in the past ten years viz. from

the date of filing of CP No 75 to 78 of 2013 and 'Plurality of Interlocutory

Applications' i.e. IA No. 1/2019 TCP.128/2016, IA No. 1111/2020 in

TCP.128/2016, CA no. 125/2018 in TCP 130 of 2016, were filed, wherein,

'interim reliefs', were prayed for, but they were not formed part of the 'main

reliefs', because these were 'Interim Applications'.

7. The Learned Counsel for the Appellants, points out that, an 'Affidavit'

dated 03.01.2023, was filed, wherein, the 'Appellant' had pleaded that he wanted

to 'withdraw the petition' with 'Liberty', due to the development, subsequent to

the filing of the 'petition' and this is an admitted fact, as stated by the

'Respondents' at paragraph 5 of their written submissions dated 28.08.2023.

8. It is the stand of the Appellants that the Respondents projected a counter

dated 27.01.2023 to the aforesaid 'withdrawal affidavit', of the Appellant, and

Comp App (AT)(CH) Nos. 62 to 65/2023 11 of 39 later the 'Tribunal' heard the parties, on 14.06.2023 and passed the 'impugned

order' on the same day i.e. 14.06.2023, wherein the Appellants TCP No. 128,

129, 130, 121 of 2016 were 'dismissed, as withdrawn', without 'Liberty',

without furnishing 'any reasons', as to 'why' 'Liberty', was not granted',

although, 'No Objection' was given by the Respondents, to the 'withdrawal of

the Company Petitions', was recorded.

9. The Learned Counsel for the Appellants, project an argument that the

'Tribunal', had recorded, that the 'Appellants' could file fresh petitions, in

respect of 'New Cause of Action', which right, is inherently available to the

Appellants.

10. The Learned Counsel for the Appellant points out that the 'NCLT' Rules,

2016, specially Rule 82, is silent as to whether the 'petitions for 'Oppression and

Mismanagement' can be 'withdrawn with or without 'Liberty', by way of

prayer'. In this connection, the Learned Counsel for the Appellants, adverts to

the ingredients of Order 23 Rule 3 of 'Civil Procedure Code, 1908', being

'specific', about the 'withdrawal', with 'Liberty' and indeed, Section 424 of the

Companies Act, 2013, enjoins that the Principles of Natural Justice would apply.

11. The version of the Appellants is that when the Companies Act, 2013 and

NCLT Rules, 216 are silent, in regard to the powers of the 'Tribunal', to accord

Comp App (AT)(CH) Nos. 62 to 65/2023 12 of 39 or refuse to grant 'Liberty' when a 'Litigant' seeks to 'withdraw a Litigation', as

per Section 241/242 of the Companies Act, 2013, then, the 'Principles of Natural

Justice', would require that the Petitioners / Appellants cannot be placed in a

worse position than what they were, when they sought to 'withdraw with

Liberty'.

12. The Learned Counsel for the Appellants points out that the Respondents,

in their counter in paragraph 12, had specifically, sought that the 'Tribunal'

should only permit 'withdrawal without Liberty'.

13. The Learned Counsel for the Appellants contends that the provisions of

'Civil Procedure Code, 1908' are made 'inapplicable' 'to the proceedings, before

the 'Tribunal', completely, and further that the 'Tribunal' should have taken note

of the fact that the provisions of 'Civil Procedure Code', were made specifically

applicable to a number of 'procedure' followed.

Appellants' Citations

14. The Learned Counsel for the Appellants relied on the decision in

Rajasundari Vs Gowri 2006 (1) CTC 700, wherein it was observed and held that

'Application to withdraw suit with Liberty', to file 'fresh suit', must either be

allowed, or refused and that, it is not open to the Court, to grant prayer, for

'withdrawal' and refuse prayer for Leave, to file 'Fresh Suit' and that the 'Court'

Comp App (AT)(CH) Nos. 62 to 65/2023 13 of 39 is not empowered to act 'without jurisdiction' and 'divide petition', into two

parts, as specified under Order 23 Rule 1(3) of CPC is 'indivisible and whole'.

15. The Learned Counsel for the Appellants cites the decision of the Hon'ble

Madras High Court, in T.W. Ranganathan Vs. T.K. Subramaniam and Ors.

AIR 1971 Mad 477, wherein it is observed and held that "when the petitioner

seeks to withdraw the suit with liberty to file a fresh suit on the same cause of

action, the lower court cannot direct the withdrawal giving liberty to file a fresh

suit on the same cause of action. If the court thought that the petitioner is not

entitled to the liberty sought for by him, it should have dismissed the application

without dismissing the suit on the basis that it has been withdrawn. As pointed

out by Wanchoo, C. J. (as the then was) in Naru v. Mt. Najo

MANU/RH/0018/1959, when an application for permission to withdraw a suit

with permission to institute a fresh suit is made under sub-rule (2) of Order 23,

Rule 1 of Civil P. C., it is not open to the court to treat it as if it is an application

under sub-rule (1) without any condition and to grant the prayer for withdrawal

and refuse the prayer for permission to bring a fresh suit for the prayer under

sub-rule (2) must be treated as one whole and the court may either reject the

entire prayer and allow the suit to proceed or allow the entire prayer, that is,

permit the withdrawal of the suit with liberty to bring a fresh suit. The reason is

obvious. If the court grants the petitioner the permission to withdraw but refuses

Comp App (AT)(CH) Nos. 62 to 65/2023 14 of 39 the permission to institute a fresh suit, the result would be that the plaintiff would

be deprived of carrying on with the suit as best as he can and would also not be

permitted to file a fresh suit on the same cause of action, and it was not intention

of the Legislature that the plaintiff should be put to this loss by breaking up the

prayer for withdrawal with permission to file a fresh suit about the same subject

matter into two parts."

16. The Learned Counsel for the Appellants, refers to the 'order dated

22.04.2023' of the Company Law Board, Chennai Bench, in the matter of N.

Venkateshwar Rao and Ors. Vs. Sharvani Energy P. Ltd. reported in

MANU/CL/0002/2013, wherein it is held, that the "principles analogous to the

'Civil Procedure Code' can be adopted for proper and effective adjudication and

to prevent the 'abuse of process' of this Bench, in Company Matters".

17. The Learned Counsel for the Appellants, cites the decision in Mr. Mario

Shaw vs. Mr. Martin Fernandez & Anr. (Civil Revision Application No.

630/1995) reported in MANU/MH/0024/1996, wherein it is observed that "it is

well settled that if an application is made for 'withdrawal of the suit' with Liberty

to file a suit, it is not open to the Court, to 'grant permission' 'only for

withdrawal' 'without Liberty', to institute the 'proceedings', though it is open,

for the Court, to reject such Application".

Comp App (AT)(CH) Nos. 62 to 65/2023 15 of 39

18. The Learned Counsel for the Appellant falls back upon the decision of the

Hon'ble Supreme Court in Kandapazha Nadar and Ors. Vs. Chitraganiammal

& Ors., reported in (2007) 7 SCC 65, wherein it is held that "where in the case

of an application to withdraw a suit in terms of Order 23 Rule 1(2) CPC, the court

allows the suit to be withdrawn but refuses permission to bring a fresh suit, the

court's order is erroneous." Also it is held that if the 'Trial Court', saw no reason

for allowing the 'withdrawal', in terms of Order 23 Rule 1 (2) of the CPC, the

Trial Court should have refused the application seeking liberty to file a new suit

and it should have proceeded with the suit on merits'.

Common Submissions of R1 to R5 and 8 in Comp. App.(AT)(CH) 62/2023,

R1 to 3 and 6 in Comp. App. (AT)(CH) 63/2023, R1 to R3 and R6 in Comp.

App.(AT)(CH) 64/2023 and R1 to R3, R6, R7 and R9 in Comp. App.

(AT)(CH) 65/2023

19. The Learned Counsel for the Respondents Mr. Vidya Shankar contends

that the 'Respondents', were insisting upon the 'final disposal, of Company

Petitions', on 'various occasions; as 'borne out of records', but the Appellant /

Petitioner (in all the four appeals) was only interested in keeping the 'Petitions'

'alive', for its ulterior purpose.

Comp App (AT)(CH) Nos. 62 to 65/2023 16 of 39

20. The Learned Counsel for the Respondents, points out that despite, the best

efforts of the 'Mediator', Mr. S. Balasubramanian (Erstwhile Chairman of the

Company Law Board), which spanned over a period of three years, the 'matter'

could not be settled, in 'Mediation' and a Failure Report, was filed by the

Mediator, on 25.12.2022.

21. The Learned Counsel for the Respondents, takes a plea, that the Appellants

/ Petitioners sought to 'withdraw the petitions with Liberty', on account of

'subsequent developments', and this was the 'only reason' mentioned in the

Affidavit(s), and in fact, the Respondents, had objected to the same by filing a

'counter' on 27.01.2023 and that the 'Applications for Withdrawal', were heard

on 14.06.2023 by the Tribunal and the 'impugned orders' came to be passed.

22. The Learned Counsel for the Respondents projects an argument that the

ingredients of Section 397 and 398 of the Companies Act, 1956 which got

amended and found place in Companies Act, 2013, as Sections 241 to 244 (are

special provisions) under the 'special enactment'. In this regard, the contention

of the Respondents is that, a 'person' can, with the 'aid of Section 9 of the Civil

Procedure Code, 1908', approach a 'Civil Court', and start a 'Litigation',

asserting his 'civil right' that was 'in any way affected'.

Comp App (AT)(CH) Nos. 62 to 65/2023 17 of 39

23. The Learned Counsel for the Respondents, refers to Rule 82(1) of the

'NCLT' Rules, 2016, that prohibits the 'withdrawal of such an Application',

without the 'Leave', of the Tribunal'. However, in ordinary civil proceedings,

for a 'person', to 'withdraw a proceeding', that was 'commenced', by him, the

'Law', does not 'envisage', any such Application, being made, to 'seek Leave',

to 'withdraw'.

24. The Learned Counsel for the Respondents, comes out with a 'plea' that

the Appellants /Petitioners had not specified as to the 'nature of events' that

required to be 'agitated', by seeking 'Liberty, to file a Fresh Petition'. Also that,

the 'Tribunal', had permitted the 'withdrawal', but had not granted 'any Liberty',

except if the Appellant finds any future actions that would affect his rights and

further that the exercise of 'discretion' by the Tribunal, as per Rule 82 of 'NCLT'

Rules, 2016 is a 'flawless' one.

25. According to the Respondents, the 'Companies' in the four petitions were

kept embroiled in a litigation for more than a decade, thereby affecting many

stakeholders, including 'creditors', 'suppliers', employees, workmen and

distributors. In fact, the continuance of the proceedings for over ten years, was

an act of 'oppression', by the 'Appellant' and is against 'public interest'.

Comp App (AT)(CH) Nos. 62 to 65/2023 18 of 39 Moreover, the Respondents had objected to the 'application for withdrawal' and

only after noticing these aspects, the 'Tribunal' had refused to 'grant liberty'.

26. The Learned Counsel for the Respondents points out that the

'proceedings' under Section 242 of the Companies Act, 2013 are in 'rem' and

that the 'jurisdiction' is wholly an 'equitable' one and also that the Tribunal can

grant in a Company Petition even be in favour of the Respondent and can be a

relief not 'prayed for'. Indeed, the 'Tribunal' can mould any 'relief' to remedy

the situation.

27. The Learned Counsel for the Respondents points out that even in cases

under Order 23 Rule 1, of CPC, the 'discretion' to 'Grant Liberty', to file a 'fresh

suit' can only be in two cases (i) the petition must suffer from a formal defect or

(ii) the Court must be satisfied that there are sufficient grounds, for allowing the

plaintiff, to file a fresh suit.

28. The Learned Counsel for the Respondents refers to the decision of

Hon'ble Supreme Court in K.S. Bhoopathy Vs. Kokila and Ors. 2000 5 SCC

458, wherein at paragraph 13, 17 it is observed as under:-

"13...No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear

Comp App (AT)(CH) Nos. 62 to 65/2023 19 of 39 from the provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh sit for the subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.

17. From the facts and circumstance of the case as emanating from the judgements of the trial court and the first appellate court it is clear that the plaintiffs realised the weakness in the claim of exclusive right of user over the property and in order to get over the findings against them by the first appellate court they took recourse to Order XXIII Rule 1(3) CPC and filed the application for withdrawal of the suit with leave to file a fresh suit..................It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants."

Comp App (AT)(CH) Nos. 62 to 65/2023 20 of 39

29. The Learned Counsel for the Respondents cites the decision of the Hon'ble

High Court of Madras in 'Duraikannu and Ors. V. Malaiyammal, 2003 3 Mad

LD 551' to the proposition that failure of the petitioner to prove his own case, is

never sufficient grounds to withdraw the suit with liberty. Also that the Appellant

/ Petitioner seeking to withdraw a petition, with liberty, on account of 'other

sufficient grounds' has to be construed ejusdem 'generis', with formal defect.

30. The Learned Counsel for the Respondents, refers to the decision of the

Hon'ble Supreme Court in 'Upadhyay and Company V. State of UP and Ors.,

(1999) 1 SCC 81 has held that the 'bar on filing a fresh suit', is resting upon the

'principle of public policy' and added further, this would discourage a litigant from

resorting to 'Bench Hunting Tactics'.

31. The Learned Counsel for the Respondents, points out that the Appellants

had brought about the 'order' by his 'own conduct' and that the 'Respondents'

cannot be vexed with the 'fresh start litigation', at this 'distance point of time'. In

short, according to the Respondents, the 'impugned order' of the 'Tribunal' is

entirely a 'fair' and justified one.

Pleas of R6 in CA No. 62/2023/ 4th Respondent in CA No. 63-65

32. According to the Ld. Counsel for R6 and R4(vide CA 62 and CA 63-65)

the Appellant is a Minority Shareholder and R2 to R4 in CRI Pumps Appeal are

Comp App (AT)(CH) Nos. 62 to 65/2023 21 of 39 brothers. As a matter of fact, the family members are parties to a memorandum of

'family arrangement' entered into the year 2010, pursuant to which the 9 th

Respondent was constituted as the parent Company, holding 55% stake in all the

1st Respondent Companies.

33. It is represented by Learned Counsel for the R6 and R4 that the Appellant

though in active Management and all branches were protected through the family

arrangements sought to exit the family business in the year 2010 and took steps

including initiating Arbitration Proceedings, among other family members. He

filed Company Petitions in the year 2013, which were re-numbered in 2016 as TCP

Nos. 128, 129, 130 and 131 of 2016 before the NCLT Bench and other branches of

the family, are shown by the Appellant as Respondents and his, is the sole branch

fighting the entire family for 13 years.

34. The Learned Counsel for R6 and R4 contends that the Appellant, among

other things sought for the reliefs prayers (C) and (D) in para VIII of the Company

Petition, seeking directions against the Respondents, for the Respondents to sell the

entire 'minority shareholding', in the Company, to the Minority Petitioner (or

alternatively) for a scheme, to be framed for the management and control of the

affairs of the Company and operations thereof.

Comp App (AT)(CH) Nos. 62 to 65/2023 22 of 39

35. According to the Respondents, in their 'counter', to the Company Petitions,

it was mentioned that the Appellant, being a minority, who was guilty of oppressing

'majority' and in fact, when the 'Mediation' failed and when the matter was right

for 'Final Arguments', and when the Respondents were 'pressing' and 'pushing'

for 'Final Hearing' of arguments of the 'main 'Company Petitions', the Appellant

filed a one paragraph affidavit dated 03.01.2023 to 'withdraw the Company

Petition with Liberty'.

36. It is projected on the side of the Respondents, (R6 and R4) that the

'Affidavit filed by the Appellant' mentioned that the alleged 'subsequent

developments', as the 'sole ground' for 'withdrawal' and for seeking Liberty. As

a matter of fact, the Affidavit, had not explained as to the 'Nature of Liberty' sought

for, and what were the subsequent events. Further, why after ten years of

prosecuting and at 'Final Hearing stage' the Appellant was shying away, from

inviting 'Final Orders' from the Tribunal, since his conduct was absolutely blame

worthy.

37. After hearing, the Respondent, had stated that he has no objection if the

withdrawal was permitted without liberty so that, the Respondent would least be

not being 'vexed' with another litigation at this distance point of time.

Comp App (AT)(CH) Nos. 62 to 65/2023 23 of 39

38. The Learned Counsel for the R6 and R4 refers to Rule 82 of the 'NCLT'

Rules, 2016 which reads as under:-

"82. Withdrawal of Application filed under section 241 (1) An application under clause (a)or clause (b) of sub-section (1) of section 241 of the Act, shall not be withdrawn without the leave of the Tribunal. (2) An Application for withdrawal under sub- rule (1) shall be filed in the Form NCLT-9."

39. According to the Learned Counsel for the R6 and 4, Rule 44 of the 'NCLT'

Rules, 2016 reads as under:

"(1) ...... (2) Where at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice."

40. The Learned Counsel for R6 and 4, by adverting to the ingredients of Order

XXXIII of Civil Procedure Code, points out that 'no permission of court is

required to 'withdraw a suit'. However, permission is required only if 'liberty' to

'institute' a fresh suit prayed for. But, as per Rule 44 of the 'NCLT' Rules, 2016,

even to 'withdraw' permission of the 'Court', is required.

Comp App (AT)(CH) Nos. 62 to 65/2023 24 of 39

41. It is the clear cut stand of the Learned Counsel for the R6 and 4 that, there

is 'no provision' in the 'NCLT' Rules, 2016, providing for liberty being prayed

for by a person / party. As such, whether to 'grant liberty' or otherwise etc., under

the 'Rules', or in the 'exclusive' ambit of the 'NCLT' Rules, 2016. To put it, pin

pointedly, the 'NCLT' Rules, 2016, or very different from the Civil Procedure

Code provisions. The Learned Counsel for the R6 & R4 refers to the decision of

this 'Tribunal' in VLS Finance Limited Vs. Southend Infrastructure Pvt. Ltd. &

Ors. (2018) SCC Online NCLAT 485, wherein at paragraph 20.1 & 22 it is

observed as under:

"20.1 It is claimed that withdrawal under Order XXIII Rule 1 of Code of Civil Procedure, 1908 is different as there the Plaintiff has a right to withdraw the suit while the same cannot be said with regard to Rule 82 where the provisions say that an application under Clause 'A' or Clause 'B' of Sub-Section (1) of Section 241 of the Act "shall not be withdrawn without the leave of the Tribunal."

22. It is true that compared with the Code of Civil Procedure, the power of NCLT is broader when Rule 82 of the Rules is perused. NCLT would have absolute discretion regarding the withdrawal and the Petition cannot be withdrawn unless the NCLT grants leave. The discretion to grant permission or refuse cannot be exercised arbitrarily. In the present matter, it was stated before the NCLT that the contesting parties had settled

Comp App (AT)(CH) Nos. 62 to 65/2023 25 of 39 their disputes between them and the Petitioner was seeking withdrawal. In such circumstances, only because the Appellant - Intervener had objections and wanted NCLT to keep the Petition pending, if the NCLT thought it fit to let the withdrawal take place, we do not think that the discretion exercised was arbitrary."

42. The Learned Counsel for R6 & 4, seeks in aid of the order dated 18.06.2022

of the Hon'ble Karnataka High Court (vide Civil Revn. Petn. No. 2256/2000) in

Siddagangappa Vs. Thimmanna (2002 SCC OnLine Kar 334), wherein at

paragraph 3 & 4, it is observed as under:

"3. Thereafter I. A. XII was filed. The trial Court found that the technical defect sought to be made-out by the plaintiff in not showing the new house of the defendant having door towards East in the sketch, is not at all necessary to decide the actual dispute relating to the space in front of the houses of both the parties. It was also found that at this stage it was not proper to permit the plaintiff to withdraw the suit and to permit to file fresh suit on the same cause of action. Since the suit has reached the final stage, the trial Court has rightly rejected the application. The same cannot be interfered with by this court.

4. It is to be observed that the Courts are flooded with lakhs of cases and each case consumes considerable time to reach finality. Litigants are eagerly waiting for disposal of their cases. Such being the position of the Courts, allowing a party to

Comp App (AT)(CH) Nos. 62 to 65/2023 26 of 39 prosecute the suit filed by him till it reaches its fag end and thereafter grant of permission to withdraw the suit with liberty to file fresh suit on the same cause of action leads to multiplicity of proceedings and the Courts are not in a position to afford trying such multiple proceedings in respect of same cause of action unless special circumstances warrant. Having regard to the precious time spent for the trial of the suit, the rejection of application is justified. The reliance placed upon the judgment of the Apex Court reported in AIR 1968 SC 111 is misplaced as the ratio laid down in that case is wholly inapplicable to the facts of the present case."

and the 'Revision Petition' was dismissed.

Assessment

43. At the outset, this 'Tribunal', pertinently that the National Company Law

Tribunal, Division Bench-II, Chennai in TCP/129/2016 (pertaining to Comp.

App. (AT)(CH) No. 62 of 2023) (vide Company Petition No. 76/2013) was

renumbered as TCP/129/2016 on 14.06.2023 had observed the following:

"Ld. Counsel for the Petitioner submits that various subsequent developments have taken place which necessitated the Applicant to withdraw the instant petition. He submits that by withdrawal, no prejudice would be caused to any of the respondents. He submits that the Petitioner may be allowed to withdraw. In this case, the counter / reply has been filed by the Respondent raising various objections. However, in counter / reply no relief has been

Comp App (AT)(CH) Nos. 62 to 65/2023 27 of 39 sought. It has been simply prayed that the petition needs to be dismissed. Ld. Counsel for the Respondents submits that he has no objection as to withdrawal of petition by the Petitioner. In the affidavit, the petitioner has clearly stated that because of the subsequent developments which have been taken place after filing of the petition, he may be permitted to withdraw the petition.

Having gone through the affidavit, submissions made and no- objection given by Ld. Sr. Counsel for the Respondent, we permit the petitioner to withdraw the petition no. TCP/129/2016, with no liberty.

The petitioner may however file petition if any cause of action arises in future."

and with the 'aforesaid observations', dismissed the TCP/129/2016 as

'withdrawn' and also dismissed the 'subsequent Applications', arising out of

TCP/129/2016.

44. Before the 'Tribunal', in TCP/129/2016, the 'Appellant' / 'Petitioner' had

filed an affidavit dated 03.01.2023, (solemnly affirmed at Coimbatore), wherein

at para 2 & 3, it is averred as under:

"2. I further state that various subsequent developments have taken place which necessitate me to withdraw the instant Petition

Comp App (AT)(CH) Nos. 62 to 65/2023 28 of 39 with Liberty. I further state that no prejudice would be cause to any of the Respondents.

3. Hence, I most Humbly Pray that I may be permitted to withdraw TCP/129/2016 and pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of this case and thus render justice"

45. Likewise, the Appellant / Petitioner filed an affidavit in CP No. 77/2013

(renumbered as TCP/130/2016), wherein the impugned order was passed on

14.06.2023 in TCP/130/2016 (relating to Comp. App. (AT)(CH) No. 63 of 2023).

46. Similarly, in TCP/131/2016 (vide Company Petition No. 78/2013 was

renumbered as TCP/131/2016 wherein an Affidavit, was filed by the 'Appellant'

and the impugned order was passed on 14.06.2023 (pertaining to Comp. App.

(AT)(CH) No. 64 of 2023).

47. Moreover, in TCP/128/2016 (vide Company Petition No. 75/2013 was

renumbered as TCP/128/2016 wherein an Affidavit, was filed by the 'Appellant',

and the 'impugned order', was passed on 14.06.2023 (pertaining to Comp. App.

(AT)(CH) No. 65 of 2023).

48. Like the impugned order, dated 14.06.2023 in TCP/129/2016 on the file of

the NCLT, Chennai Bench (relating to Comp. App. (AT)(CH) No. 62 of 2023),

in Comp. App. (AT)(CH) No. 63 of 2023, in TCP/130/2016 (vide Company

Comp App (AT)(CH) Nos. 62 to 65/2023 29 of 39 Petition No. 77/2013), in Comp. App. (AT)(CH) No. 64 of 2023 (vide Company

Petition No. 78/2013), in TCP/131/2016 and in Comp. App. (AT)(CH) No. 65 of

2023 (vide Company Petition No. 75/2013), in TCP/128/2016, the 'impugned

orders' were passed on 14.06.2023, by the 'National Company Law Tribunal,

Division Bench-II, Chennai'.

49. The plea of the Appellants, in Comp. App. (AT)(CH) Nos. 62, 63, 64 and

65/2023 (in Four Appeals) is that the 'impugned order' records, the 'reasons' for

the Appellants to withdraw the 'Company Petitions' and also record the 'No

Objection' given by the 'Respondents' the 'Tribunal', went 'wrong' in dismissing

the petitions as 'withdrawn', 'without Liberty', the same cannot be countenanced

in the 'eye of law'.

50. Also, the other stand of the 'Appellants' in Comp. App. (AT)(CH) Nos. 62,

63, 64 and 65/2023 (in Four Appeals) is that Rule 82 of 'NCLT' Rules, 2016, was

only a restriction, cast upon the 'Appellant'/ 'Petitioner', while conducting the

proceedings but not a provision which vest the 'Tribunal', with 'jurisdiction' or

'power to modify' or 'alter the relief', claimed for. Furthermore, the 'Tribunal'

ought to have taken in to account of the fact, that the provisions of 'Civil

Procedure Code' have been made applicable, specifically, to a 'number of

procedure' followed.

Comp App (AT)(CH) Nos. 62 to 65/2023 30 of 39

51. However, the plea of the Respondents No.1 to 5 & 8, (in Comp. App.

(AT)(CH) 62 of 2023), Respondents No.1 to 3 & 6 (in Comp. App. (AT)(CH) 63

of 2023), Respondents No.1 to 3 & 6 (in Comp. App. (AT)(CH) 64 of 2023) and

Respondents No.1 to 3, 6, 7 & 9 (in Comp. App. (AT)(CH) 65 of 2023), is that

the very continuance of the 'Company Petitions' 'proceedings' for over 10 years

was an 'act of oppression' by the Appellant(s) and is against the 'public interest'

and the Appellants had not specified 'what' or all the nature of events, that

required to be agitated, by seeking 'Liberty', to file a Fresh Petition. Moreover, it

is also contended by the Respondents, that Rule 82(1) of 'NCLT' Rules, 2016,

prohibits the 'withdrawal of such an Application, 'without the Leave' of the

Tribunal and also that the law does not prescribed 'any such applications' being

made to seek 'Leave to withdraw'.

52. The Learned Counsel for the 6th Respondent and 4th Respondent, (vide

Comp. App. (AT)(CH) Nos. 62, 63, 64 and 65/2023 (in Four Appeals), is that the

'NCLT' Rules, 2016, are very different from the 'Civil Procedure Code' and

'Rule 44' of the 'NCLT' Rules, 2016, enjoins, even to withdraw, 'permission of

Court' is required and in fact, as to whether to 'allow withdrawal' or to 'grant

liberty' or otherwise, is under the 'exclusive domain' of the 'Tribunal'.

Comp App (AT)(CH) Nos. 62 to 65/2023 31 of 39

53. According to the Learned Counsel for the 6th and 4th Respondent (in Four

Appeals) is that the 'bar of filing a fresh suit', is based on the 'principle' of a

'public policy' and the 'withdrawal of proceedings' at the fag end of 'Litigation'

is not a palatable / desirable one and the failure of the Appellant/ petitioner, to

establish his case, is 'not a sufficient ground' to 'withdrawal of a suit with

Liberty'.

54. To be noted, that when a 'civil suit', is filed, all the provisions of the 'Civil

Procedure Code', 1908 will apply, pertaining to the 'conduct of the proceedings

before Court'. However, in respect of proceedings filed under the 'Companies

Act, 2013', the procedure, to be followed, shall be as 'specified in the Rules'.

55. As a matter of fact, any order, passed by the Tribunal / Appellate Tribunal,

shall be enforced as a 'Decree', passed by the 'Court'. The fetters of 'Civil

Procedure Code', are not binding on the 'Tribunal', and the 'Appellate Tribunal',

but they are guided by the 'Principles of Natural Justice'.

56. Rule 20 of 'NCLT' Rules, 2016, specified the 'procedure', to be followed,

for 'institution of proceedings', 'petition', Appeals etc. Rule 23 of 'NCLT' Rules,

2016, deals with the 'presentation of petition or Appeal'.

Comp App (AT)(CH) Nos. 62 to 65/2023 32 of 39

57. It must be borne in mind, that 'Orders' and 'Rules' of 'Civil Procedure

Code', shall not be made, in matters under the Companies Act, 2013. No wonder,

that 'Tribunal', and the 'Appellate Tribunal', being 'creatures of statutes', are

required, to adhere to the 'Principle of Natural Justice', 'in proceedings', before

it.

58. At this juncture, this 'Tribunal', aptly points out that where 'permission to

withdraw a suit' with 'Liberty to file fresh suit', is granted, at the 'Appellate' or

at the second Appellate stage, 'prejudice' to the 'Defendant' / 'Respondent' is

'writ large', as, he loses the benefit of the decision, in his favour, in Lower Court,

as per decision of the Hon'ble Supreme Court reported in (2000) 5 SCC 458, 468,

467.

59. The 'power to grant 'permission to withdraw' a 'suit' with 'Liberty to file

a fresh suit', is to be used very cautiously, as per decision 1941 Mad 46. Also that

'withdrawal of a suit', as 'plaintiff', wants to file fresh 'suit' 'on a new cause of

action', 'Leave' of the court, is not required as per decision of the Hon'ble High

Court of Bombay in Mahadkar Agency and Anr. vs Padmakar Achanna Shetty,

reported in AIR 2003 Bom 136 & 141.

60. It is the duty of court, to get satisfied, that 'there, exists proper grounds /

reasons', for granting permission, 'to withdraw a suit', with Liberty to file a fresh

Comp App (AT)(CH) Nos. 62 to 65/2023 33 of 39 suit, as per judgment of the Hon'ble Supreme Court (vide Appeal (Civil) No.3287

of 2000) in K.S. Bhoopathy and Ors vs Kokila AIR 2000 SC 2132.

61. If a prejudice or 'deprivation of any right', which has become vested with

the Respondent', by a finding recorded by a Trial Court, the 'permission should

be refused', as per decision in Shri Guru Maharaj Anandpur Ashram vs

Chander Parkash and Ors. AIR 1986 P H 399.

62. In reality, 'permission', cannot be claimed by a 'plaintiff', as a matter of

right, and a 'permission' for 'withdrawal of suit', to file 'fresh suit' should not be

granted, merely because the 'grant of permission', will not 'prejudice' the

'defendant'.

63. A 'Court of Law', cannot exercise its 'discretionary jurisdiction' de-hors,

the 'Statutory Law' and in fact, 'its discretion' must be exercised in terms of the

'existing statute'.

64. Where a 'Suit', is withdrawn, the 'suit' has no existence in the 'Eye of Law'

and the 'parties', are relegated, to the position, which they occupied before a 'fresh

suit' is brought on record. It cannot be gain said that 'a fresh suit', on a 'different

cause of action', is not barred, as per decision of the Hon'ble High Court of Kerala

in The Holy Cross vs Lonnappan Thattil reported in AIR 1990 Ker 215.

Comp App (AT)(CH) Nos. 62 to 65/2023 34 of 39

65. The term 'subject matter', includes the 'cause of action', and the 'relief

claimed' means, the 'Bundles of Facts', which have to be proved, in order to

entitle the plaintiff, to the relief' claimed by him, as per decision in Vallabh Das

vs Dr. Madan Lal & Ors (1970) 1 SCC 761.

66. It cannot be brushed aside, that the 'grant of such a relief', in the light of

express provisions of the 'statute', to the contrary, 'is not permissible'. After all,

'Equity' must yield to 'Law', as opined by this 'Tribunal'. More importantly, this

Tribunal, points out that a 'Civil Court', does not 'Grant Leave', to file 'another

suit'. If the 'Law', permits, the 'plaintiff', may file 'another suit', 'but not on the

basis of 'observations' made by a superior court', as per judgment of the Hon'ble

Supreme Court of India dated 18.09.2007 in Shiv Kumar Sharma Vs. Santosh

Kumari Appeal (Civil) No. 4341/2007 (arising out of SLP (Civil) No. 8275/2007).

67. It is to be remembered, that there is 'no justification', in 'respect of

proceedings' under Section 397 of the Companies Act, 1956 (now under Section

241 of the Companies Act, 2013) to insist on 'fresh petition' being filed, only

resting upon, 'Fresh Cause of Action'. Besides this, the 'aspect', of 'Fresh Cause

of Action', is 'inapplicable' to a petition under Section 397 of the Companies Act,

1956 (now under Section 241 of the Companies Act, 2013).

Comp App (AT)(CH) Nos. 62 to 65/2023 35 of 39

68. At this juncture, this 'Tribunal', aptly points out that Order 2 Rule 2 of

Civil Procedure Code, 1908 does not contemplate 'unity of distinct' and 'separate

cause of action'. No wonder, Order 2 Rule 2 of CPC, is based on the 'Rule of

Law' that 'No Person shall be vexed twice' for 'one and the same cause of action'.

Added further, the ingredients of 'Order 2 Rule 2 of CPC, calculates to combat,

plurality' of proceedings, in the considered opinion of this 'Tribunal'.

69. As far as the present 'Cases on hand' before this 'Tribunal', are concerned

the 'Companies', in the ('Four Company Petitions') (before the 'National

Company Law Tribunal', Chennai) were 'entangled', in 'Legal proceedings' for

more than a 'Decade' and only 'noticing the objections', filed by the Respondents

in respect of application(s) for withdrawal, the 'Tribunal' had not granted

'Liberty'.

70. Even the 'Mediator's earnest 'endeavour' in Looking out, for a 'Settlement'

being arrived at, between the parties, had failed and a 'Failure Report', was

submitted by the Learned 'Mediator', on 25.12.2022. Also, it cannot be ignored,

that the 'Company Petitions' filed earlier, before the 'Erstwhile Company Law

Board', got transferred to the 'National Company Law Tribunal' Chennai, after

the 'Notification', of the 'National Company Law Tribunal', in terms of the

Companies Act, 2013.

Comp App (AT)(CH) Nos. 62 to 65/2023 36 of 39

71. It is not out of place for this Tribunal, to relevantly point out that in the

judgment of the Hon'ble Calcutta High Court in Jalpaiguri Cinema Co. Ltd. and

... v. Promotha Nath Mukherjee and Ors. (Decided on 13 May, 1974) reported

in India Kanoon (vide 1978, 48 CompCas, 131 Cal) wherein at para 47, it is

observed as under:

"47. Rule 88(2) of the Rules ensures that no petitioner of an application filed under Section 397 of the Act may withdraw the application without the leave of the court. We do not think that a petitioner of such an application may by-pass the provisions of this rule by not wanting to withdraw the application but insisting on the dismissal of the application on the ground that he does not desire to press the same. He cannot, in our opinion, do indirectly what he cannot do directly by virtue of Rule 88(2) of the said Rules."

72. At this juncture, this 'Tribunal', significantly, points out that a 'Petitioner',

has no right to withdraw his 'Application' / 'Petition' filed before the 'Tribunal',

unless, he is granted 'Leave', to withdraw the Application/ 'Petition'. Once he is

granted the 'Leave', the 'Withdrawal Application'/ 'Petition' under sub-Rule (1)

of Rule 82 of the NCLT Rules, 2016 shall be filed in Form NCLT 9.

73. Be that as it may, in the light of qualitative and quantitative foregoing

detailed discussions, keeping in mind of the fact that the 'Companies' in Four

Comp App (AT)(CH) Nos. 62 to 65/2023 37 of 39 Company Petitions before the 'Tribunal', were involved in the 'legal proceedings'

for 'more than 10 years', this 'Tribunal', bearing in mind that 'Orders', 'Rules' of

'Civil Procedure Code, 1908' are 'in applicable', pertaining to the 'Matters' under

the Companies Act, 2013, even the 'Fetters of CPC are 'Civil Procedure Code,

1908' are inapplicable', are 'not binding', and in fact that 'Tribunal' / 'Appellate

Tribunal', can 'regulate its own procedure and apply its Principles', considering

the facts and circumstances of the 'instant Appeals' (Four Appeals - arising out

of Four Company Petitions), without any haziness, comes to a 'cocksure'

conclusion, that the impugned orders dated 14.06.2023 in TCP/129/2016 (original

CP No. 76/2013), TCP/130/2016 (original CP No. 77/2013), TCP/131/2016

(original CP No. 78/2013) and TCP/128/2016 (original CP No. 75/2013) passed

by the National Company Law Tribunal, Division Bench-II, Chennai, exercising

its 'subjective discretion', (of course, based on the facts and circumstances of the

cases, which float on the surface) in permitting the 'Petitioners' (Appellants) to

withdraw the aforesaid TCP/129/2016, TCP/130/2016, TCP/131/2016 and

TCP/128/2016 with no 'Liberty' and dismissing the said TCPs mentioned supra

are, free from 'any Legal Flaws'. Viewed in that perspective, the instant 'Appeals'

are devoid of merits and they fail.

Disposition

Comp App (AT)(CH) Nos. 62 to 65/2023 38 of 39

74. In fine, the Company Appeals (AT)(CH) No. 62/2023, 63/2023, 64/2023

and 65/2023, are dismissed, of course, for the reasons ascribed by this 'Tribunal'.

No costs. Before parting, this 'Tribunal', makes it abundantly clear, that if the

'Appellant'/ 'Petitioner', is permitted 'in Law', to file 'Fresh Company Petitions',

before the 'National Company Law Tribunal', based on 'numerous', later /

subsequent developments, (which made him to withdraw the 'Company

Petitions'), he may file the 'Fresh Company Petitions', if he so desires / advised.

[Justice M. Venugopal] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) 20th September, 2023

ss/pks

Comp App (AT)(CH) Nos. 62 to 65/2023 39 of 39