Decided on November 15,2016



Ina Malhotra, Member - (1.)Ca 52/2016
Vide the present application, the petitioner has prayed for an ex parte order for dismissing the respondent's application CA 362/2007.

(2.)Ca 362/2007 is one which is filed by the respondents u/s. 8 of the Arbitration & Conciliation Act. The petitioner has argued that the respondents have acquiesced to the jurisdiction of this forum as they have filed as many as seven CAs seeking relief, varying from issuance of Status Quo on the lands of Respondent No. 10, praying for vacation of the stay dated 22.08.2007 to praying for calling of the EGM/appointment of an Auditor etc. The petitioner has prayed that the respondent's application be dismissed without adjudication. The two grounds taken on which the petitioner has founded this prayer are:
"a) Multiple applications have been filed by the respondents pending disposal of their Section 8 application, tantamounts to the respondents having acquiesced to the jurisdiction of this Tribunal and therefore it has to be construed that they have given up their objections u/s. 8 of the Arbitration & Conciliation Act, 1996. Pressing the same would amount to the respondents approbating and reprobating in the same proceedings.

b) The second ground taken for dismissal of CA 362/2007 is the observation of the Apex Court in SLP 6873/2010 wherein it has been noted in the Para No. 21.

21. "In fact, though the learned Senior Counsel for the parties had argued the matters before us at length on the previous occasions, at the stage of conclusions of the arguments, the learned Senior Counsel Mr. Cama appearing for Khosla Group suggested for an early decision of the Company Petition before the CLB as a better alternative so that at least main dispute between the parties is adjudicated upon at an early date. He was candid in his submission that the issues which are subject matter of these two Special Leave Petitions and arise out of the proceedings in the High Court, have their origin in the orders dated 31.01.2008, which is an interim order passed by the CLB. He thus, pointed out that once the Company Petition itself is decided, the issues involved therein namely whether Board meeting dated 14.12.2007 was illegal or whether Board meeting dated 30.09.2006 was barred in law would also get decided. In the process the CLB would also be in a position to decide as to whether minutes of AGM of the company allegedly held on 30.09.2006 are forged or not on that basis application under section 340 Cr. PC which is filed before the Company Law Board would also be taken care of by the CLB itself. Learned Senior Counsels appearing for the Bakshi Group immediately agreed with the aforesaid course of action suggested by Mr. Cama. We are happy that at least there is an agreement between both the parties on the procedural course of action, to give quietus to the matters before us as well. In view of the aforesaid consensus, about the course of action to be adopted in deciding the disputes between the parties, we direct the Company Law Board to decide Company Petition No. 114 of 2007 filed before it by Ms Sonia Khosla within a period of six months from the date of receiving a copy of this order. Since, it is the CLB which will be deciding the application under section 340 Cr.PC filed by Ms. Sonia Khosla in the CLB, High Court need not proceed further with the Criminal Misc. (Co.). No. 3 of 2008. Likewise the question whether Mr. R.K. Garg was validly inducted as Director or not would be gone into by the CLB, the proceedings in Co. Appeal No. (SB) 23 of 2009 filed by Mr. RK Gargin the High Court, also become otiose."

(3.)Given the observations of the Apex Court in the aforesaid paragraph, the petitioner submits that it is clear that what has been specifically directed is the disposal of the main CP without crossing the hurdle of Section 8. The petitioner therefore states that the respondents are now precluded from pressing disposal of their Section 8 application before proceeding further in the matter.

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