SAURASHTRA CEMENT AND CHEMICALS INDUSTRIES LIMITED Vs. ESMA INDUSTRIES PVT LIMITED
HIGH COURT OF GUJARAT
Saurashtra Cement And Chemicals Industries Limited
Esma Industries Pvt Limited
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(1.)In this Company Application the applicants have sought dismissal of the main Company Petition No. 62 of 1986 in view of certain preliminary objections about maintainability of the petition as they seek to raise by way of this application.
(2.)In order to appreciate the nature of the controversy posed for my consideration in this application it is necessary to note a few introductory facts. Respondent Esma Industries Private Limited has filed main Company Petition No. 62 of 1986 in this Court. The said petition is filed under Secs. 391 and 398 of the Companies Act 1956 (the Act for short). It seeks to challenge certain alleged acts of omission/commissions said to have been committed by original respondents Nos. 2 and 3 of the company petition who are in charge of the management of the Company. It is alleged that they are conducting the affairs of the Company in a manner oppressive to its shareholders and also in the manner prejudicial to the interest of the Company. At admission stage this petition was opposed vehemently by the present applicants. Ultimately after healing both the parties this Court (G. T. Nanavati J.) was pleased to admit the company petition to final hearing on 14/11/1986 So far as interim relief is concerned Company Application No. 57 of 1986 was moved by the respondents (ori. petitioners). The learned Judge did not grant interim relief as prayed for therein.
(3.)Against admission of the company petition the original applicants preferred 0. J. Appeal No. 13 of 1987 in this Court. They also challenged the order passed by G T. Nanavati J in Company Application No. 57 of 1986 on 14 1986 refusing to grant interim relief. They first moved the Supreme Court by way of petition for Special Leave to Appeal (Civil) No. 15518 of 1986. That petition was allowed to be withdrawn with liberty to the respondents to prefer an appeal before a Division Bench of this Court. Accordingly O. J. Appeal No. 20 of 1986 was moved before the Division Bench of this Court against the order of the learned single Judge refusing to grant interim relief to the respondents. So far as O. J. Appeal No. 13 of 1987 was concerned by an order dated 15-7-1987 the Division Bench of this Court consisting of P. R. Gokulakrishnan C. J. and R. C. Mankad J. was pleased to permit the learned Advocate for the appellant in that appeal i. e. the present applicants to withdraw the appeal as the learned Advocate for the present applicants before the Division Bench stated that he will have the right to raise the preliminary question of maintainability of the petition before the learned single Judge and if the learned Judge decides that such a question can be raised he can record evidence if necessary and page appropriate orders. The Division Bench also recorded statement of the learned Advocate for the respondent Mr. Jethmalani that he will not raise an objection to the effect that the Court cannot go into the question by reason of the fact that the petition has been admitted. It was made clear that the respective parties will have full opportunity to make their submissions as to whether the issue of maintainability should be heard as a preliminary issue. In view of the concensus arrived at between the parties O. J. Appeal No. 13 of 1987 was withdrawn. So far as O. J. Appeal No.20 of 1986 was concerned it was admitted by the Division Bench and limited ad interim relief was granted pending further orders on 22-12-1986 by the Division Bench consisting of R. C. Mankad and B. S. Kapadia JJ.
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