Mrs. Aruna Oswal vs Mr. Pankaj Oswal And Others
- CitationCompany Appeal (AT) No. 172 of 2018
Ratio decidendi
The rule this decision rests on
The order does not decide the maintainability question; it directs the Tribunal to decide it. The reasoning it does contain is a procedural holding: a prima facie observation made in an interlocutory order does not operate as a final determination of a question that remains open, and so the Tribunal must hear the parties afresh and decide the eligibility of the petitioner under Section 244 of the Companies Act, 2013 (and whether the petition is maintainable) without being influenced by the earlier observations.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Mrs. Aruna Oswal ...Appellant
Vs.
Mr. Pankaj Oswal and Others ...Respondents
Present: For Appellant: - Mr. Anand Chibbar, Senior Advocate with Mr. Abhishek Kumar and Ms. Sharmistha Ghosh, Advocates.
For Respondents:- Mr. Mayank Mishra and Mr. Raghav Sabharwal, Advocates for 1st Respondent. Mr. Alok Dhir, Advocate for 3rd Respondent.
ORDER
29.05.2018- The Appellant has challenged the order dated 21st May, 2018 passed by the National Company Law Tribunal (hereinafter referred to as "Tribunal"), Chandigarh Bench, Chandigarh, whereby and whereunder the Tribunal directed the Appellant to file reply to the main petition.
2. Learned counsel appearing on behalf of the Appellant submits that the Appellant who were the 1st and 16th Respondents have already raised objection with regard to the maintainability of the petition and requested to decide the preliminary issue.
3. Mr. Mayank Mishra, Advocate appearing on behalf of the 1st Respondent (petitioner) submits that the preliminary issue has been decided by the Tribunal on 16th March, 2018.
Contd/-....................
-2- 4. From bare reading of the order dated 16th March, 2018, we find that the question of maintainability has not been decided by the Tribunal and only prima facie view has been expressed.
5. Mr. Alok Dhir, learned counsel appearing on behalf of the 3rd Respondent submits that the 1st Respondent has 0.03% equity, therefore, his petition is not maintainable.
6. Having heard learned counsel for the parties, while we are not inclined to interfere with the substantive part of the impugned order dated 21st May, 2018 and allow the Appellant to file reply to the main petition subject to their rights and contentions and objection relating to maintainability of the petition. The Tribunal before deciding the main issue raised in the petition will decide the question whether the 1st Respondent (Petitioner) is eligible in terms of Section 244 of the Companies Act, 2013 or not and whether the petition at the instance of 1st Respondent (Petitioner) is maintainable after hearing the parties uninfluenced by the observations made on 16th March, 2018. The appeal stands disposed of with aforesaid observations. No cost.
(Justice S.J. Mukhopadhaya) Chairperson
(Justice Bansi Lal Bhat) Member(Judicial) Ar/g
Company Appeal (AT) No. 172 of 2018
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