V.S.R. Avadhani, Member - (1.) The non-applicant is the Petitioner in the Company Petition which is filed under Sections 397 and 398 of the Companies Act, 1956 (since repealed). The subject Company Application is filed by the Respondent No. 1 in the Company Petition (hereafter be known as 'applicant') with a prayer to dismiss the company petition on more than a few grounds namely: "i) There are serious testamentary disputes with respect to quantum of shares claimed by the petitioner in the Company Petition which can only be adjudicated by the Civil Court by way of obtaining a succession certificate and that the testamentary jurisdiction is not vested in the Company Law Tribunal; ii) Unless the right of the Petitioner to the shares is declared by competent civil court, she would not have locus standi to file the Company Petition complaining of oppression and mismanagement, as postulated by sections 397 and 398 of the Companies Act 1956; iii) The Registrar of Companies inquired into the complaint made by the father of the petitioner and observed that the shares were held jointly in the name of Mr. R.P. Bagla and Mr. H.S. Bagla and dropped the investigation; iv) The Petitioner in the CP has filed a suit in Civil Court, Kanpur (O.S. No. 313 of 2014) substantially with the same prayers made in the CP and this would amount to forum-shopping;"
(2.) The non-applicant in this Application who is the petitioner in the CP filed a detailed counter contending inter alia that, the CP is a composite petition for Rectification of Register of Members as well as oppression and mismanagement is maintainable in the Tribunal only because those reliefs cannot be granted by a civil court; that, the Respondents 1 to 5 have deliberately refused to transfer 40497 shares of Late Rameshwar Prasad Bagla, the grandfather of the petitioner and therefore, the legal representatives of deceased share holder are entitled to maintain a petition in the Tribunal if their names are not recorded in the Register of Members; that, there are no testamentary disputes to be decided by the Civil Court and that the respondents are raising those issues with regard to succession of the petitioner for the first time in the present application; that, it is not a case of 'forum shopping' as alleged because, the scope of proceedings pending before the civil court and before this Tribunal are unalike, viz., the issue in the civil court is relating to sale of immovable property of the Company in Municipal No. 117/SN/l, Sarvodaya Nagar, Kanpur transacted by the Respondent No. 2 on the basis of certain forged and fabricated documents, on 11.10.2013 and the reliefs claimed in the CP are relating to oppression, mismanagement and for rectification of Register of Members. Another plea of an applicant is that non-applicant has no locus standi to file Company Petition.
(3.) A rejoinder was filed by the applicant, reiterating the same pleas. An additional affidavit was filed by the non-applicant during course of arguments in the application along with two documents namely, (i) copy of the receipt dated 1.3.2014 by means of which the application of the petitioner seeking transmission of shares in her name was sent to the Respondents; and (ii) a copy of the affidavit filed in Original Suit No. 585 of 2002 by the Respondents along with the orders of the Income Tax authorities. Since both these documents are pertaining to the period earlier to filing of the Company Petition and they are already in the knowledge of the Company Petitioner-the non-applicant, without proper explanation as to why those documents were not filed along with or subsequent to filing of CP, we are not inclined to receive those documents and additional affidavit of the Company Petitioner when arguments were partly heard in the application. We are giving reasons as to why we are not considering the additional affidavit with documents, filed by the non-applicant during course of arguments. The said affidavit is in the nature of additional pleading. As seen from para 16 of the said affidavit, the non-applicant prayed the tribunal 'to allow the instant company petition and reject the preliminary objections taken by the respondents' in the light of the facts and circumstances set out in the affidavit. Rule 41 of the NCLT Rules 2016 deals with filing of reply and other documents by the Respondents; and Rule 42 envisages filing of rejoinder by the petitioner. The Rules did not contemplate any 'additional pleadings' after Rule 42, except where the Bench calls for further information or evidence under Rule 43. Rule 55 of the Rules is important and it reads thus: "Rule 55: Pleadings before the Tribunal: No pleadings, subsequent to the reply, shall be presented except by the leave of the Tribunal upon such terms as the Tribunal may think fit." Further, Rule 39 postulates production of Evidence by Affidavit and this Rule comes into play when the Tribunal directs the parties to give evidence, if any. The non-applicant did not seek leave of the Tribunal to receive the affidavit which is perceptibly in the nature of pleadings. Certain documents are referred to in that affidavit, but there is no prayer therein that documents may be received as evidence as envisaged by Rule 39, On the other hand, the title of the application with which the affidavit is filed is shown to have been filed under Regulation 44 of the Company Law Board Regulations, 1991 'for urgent directions'. But no 'urgent directions' are prayed for in the affidavit. Apart from all these shortfalls, there is no reason given as to why such affidavit is filed belatedly.;