M.K. Shrawat, Member - (1.) A preliminary legal objection has been raised by the Respondents to the main Petition questioning its maintainability. The impugned Petition (C.P. No. 32/2016) has been filed on 21st October, 2015. On receiving a copy of the Petition, the Respondents have filed a Preliminary Objection on 18th of August, 2016 and the relevant paragraphs which are argued are as under:- "4. At the further outset, I have a Preliminary Objection that the Petition is not entitled for any reliefs and the present Petition is not maintainable. The Petitioner has earlier filed the petition being Company Petition No. 43/2014 against the same Respondents for the same reliefs in the Company Law Board at Mumbai. The said Petition was withdrawn by the Petitioner by making an Application dated 20.11.2014 to the Hon'ble CLB. The said petition was withdrawn by the Petitioner without taking liberty from the Hon'ble CLB to file the fresh Petition. By order dated 19.12.2014, the Hon'ble CLB has disposed off the Petition as withdrawn. In view of the above, the Petition filed against the Respondents is misconceived and not tenable in law. The Petition is, therefore, liable to be dismissed with costs against the Respondents. Hereto annexed and marked as Annexure "R-1" is a copy of the Company Petition No. 43/2014 filed by the Petitioner without annexures. Annexure "R-2" is a copy of the Application dated 20.11.2014 for withdrawal of Company Petition No. 43/2014 filed by the Petitioner and Annexure "R-3" is a copy of the order dated 19.12.2014 dated passed by the Hon'ble CLB in Company Petition No. 43/2014."
(2.) From the side of the Respondents, Ld. Counsel has drawn the attention of the previous Order of the erstwhile CLB, Mumbai Bench dated 19th December, 2014 passed in C.P. No. 43/2014 u/s. 397-398 of the Companies Act, 1956 wherein it was pronounced as under:- JUDGEMENT_20_LAWS(NCLT)3_2017_1.html 2.1 Ld. Counsel for the Respondents has also pleaded that the reliefs claimed in this Petition are identical in nature. He has tried to compare the reliefs as per the present Petition with the reliefs claimed in the previous C.P. No. 43/2014. According to him, the Petitioner should not be allowed for repetitive litigation. Another argument has also been raised that at the time when the previous Petition was withdrawn, the Petitioner has not sought permission or liberty to file a fresh Petition. This litigant should not be allowed for multiple litigation. The principle of estoppel is squarely applied in this case. The Petition is in the nature of forum shopping by choosing one forum at one time and later on another forum to agitate the same matter. It was nothing but abuse of process of law. The Respondents should not be put to double jeopardy. He has further elaborated that if a Petitioner seeking the leave of the Court for withdrawal, for any reason whatsoever, had an option to seek permission that if an occasion arises in future can approach the Court again on the same cause of action. Therefore, it is necessary to ask the Court to grant liberty to file a fresh Petition on the same cause of action. The previous Suit was withdrawn willingly; hence the Petitioner has no legal right to file a repetitive Suit. On these legal points, reliance was placed on the following precedents:- i) Ambaji Narsing Mali (Since deceased) through LHs. Smt. Leelabai Laxman Mali and others Versus State of Maharashtra and others., 2015 2 AllMR 774 Before : Oka A.S. : Chandurkar A.S. : JJ ii) Pradip Kumar Sengupta and Others Versus Titan Engineering Co. Pvt. Ltd. and Others, 1998 94 CompCas 825 (CLB) C.P. No. 35 of 1993, decided on July 27, 1998. iii) Raj Sekhar Agarwal & Anr. Versus Pragati 47 Development Ltd. & Ors., GA 3592 of 2013, MANU /WB/0959/2014, (Before Arijit Banerjee, J.) iv) Jacob Cherian v. Cherian and others (Palaniswamy, J.) In the matter of Companies Act and in the matter of Thompson and Ptd. Ltd. Company petition No. 10 of 1971. v) Sarguja Transport Service Versus State transport Appellate Tribunal, Madhya Pradesh, Gwalior,1986 DGLS(SC) 805 (SUPREME COURT) Before :- E.S. Venkataramiah : M.M. Dutt: JJ."
(3.) From the side of the Petitioner, Ld. Counsel has drawn attention on the Rejoinder to the Reply wherein it was mainly stated as under:- "2. Paras 4 to 6 (Page 2) i) The Petitioner had submitted a letter dated 20.11.2014 to the Hon'ble Board for withdrawal of the earlier CP No. 43/2014 and not any application as falsely stated by Respondents No. 2 & 3. Respondent No. 2 also conveyed his no objection for withdrawal of the said CP and accordingly, the Hon'ble Tribunal permitted the petitioner to withdraw it on 19.12.2014. The petitioner had mentioned in his letter dated 20.11.2014 that he was withdrawing the CP based on the family understanding. A copy of the said family understanding/settlement deed dated 10.11.2014 is enclosed at Page No. 168 as part of Annexure 30 to the present CP No. 32/2016. It may be observed from the above that the Company/Respondent No. 2 was required to pay Rs. 75 lakhs to the Petitioner as compensation in lieu of his resigning as a Director and vacating the office property. Further, it was agreed that out of Rs. 75 lakhs, Rs. 5 lakhs would be paid in 3 days and the balance in 6 months, i.e. on or before 10.5.2015. Respondent No. 2 has not denied the settlement deed." 3.1 It is vehemently pleaded that the previous withdrawal was a conditional withdrawal because a settlement was executed on 10th November, 2014 according to which it was mutually decided and an assurance was given by one Mr. Devendra Gupta to make a full and final payment of Rs. 75 lakhs within the stipulated time limit. In the said Petition vide Clause 3 it was decided that subject to the fulfillment of the above condition the Petitioner viz. Rohtas Gupta agreed to forego his claim as a Director and also agreed to withdraw the Petition filed before the CLB. Immediately thereafter, on 20th November, 2014 a letter was written by Mr. Rohtas Gupta to the Bench Officer, CLB, Mumbai wherein it was stated as under:- "Honourable Bench. I have agreed and decided to withdraw the above said case based on our family understanding without any pressure on me. Therefore in view of the aforesaid, I have resultantly decided and agreed to withdraw the respected prayers and relief as sought by me till date in the present case. The next hearing of the case before the Honourable Bench is on 19th December 2014. You are requested to take this letter on record and pass necessary order for closing the case." 3.2 From the side of the Petitioner, it is further informed that the other side has not fulfilled the promises and only a sum of Rs. 5 lakhs was paid. Till date no further payment is made. In the letter dated 20th November, 2014 addressed to CLB, Mumbai Bench the Respondent viz. Mr. Devendra Gupta has written "I have no objection". According to the arguments of the Ld. Counsel, it is not a case of willful withdrawal, but a conditional withdrawal. The Petitioner was not only persuaded but later on cheated; hence had no option but to file this Petition. The earlier Petition was not decided on merits; therefore, the Petitioner had good reason to file a fresh Petition. In good faith he has withdrawn the Petition; therefore, at that point of time there was no prima facie reason to seek liberty of the Court to file another Petition. The principle of estoppel, inter alia, does not apply in this case. Nonperformance of obligation on the part of the other side is a good reason to revive the claim which was not decided on merits earlier. The Petitioner, in a way, was not only persuaded to withdraw but also forced to withdraw the earlier Petition. On these legal points, reliance was placed on the following decisions:- "i) Jet Plywood (P) Ltd. and Another Versus Madhukar Nowlakha and Others with Civil Appeal No. 1368 of 2006 Biswarup Banerjee and Others Versus Madhukar Nowlakha, 2006 3 SCC 699 Civil Appeals No. 1367 of 2006 with No. 1368 of 2006 decided on February 28, 2006. (Before H.K. Sema and Altamas Kabir, JJ), Civil Appeal No. 1367 of 2006. ii) Indira Bai Versus Nand Kishore, 1990 4 SCC 668 Civil Appeal No. 105 of 1990, decided on September 5, 1990(BEFORE K. JAGANNATHA SHETTY AND R.M. SAHAI, JJ). iii) S. Shanmugam Pilla & Others Versus K. Shanmugam Pillai & others., 1972 AIR(SC) 2069 (V 59 C 383) (From madras: MANU /TN/0218/1968 : AIR 1968 Mad 207) K.S. HEGDE AND A.N. GROVER, JJ. iv) Mohandeo S/o. Sukhdeo Udan & Others versus The State of Maharashtra 7 Others. The High Court of Judicature at Bombay, Bench at Aurangabad. Criminal Application No. 1487 of 2007. Order passed on 22nd November, 2016. V.K. JADHAV, J. v) Indira Bai Versus Nand Kishore., 1990 4 SCC 668 (BEFORE K. JAGANNATHA SHETTY AND R.M. SAHA, JJ). vi) Sarguja Transport Service Versus State Transport Appellate Tribunal, Gwalior and others., 1987 AIR(SC) 88 (From : Madhya Pradesh) E.S. VENKATARAMIAH AND M.M. DUTTA, JJ. vii) Duroflex Limited Versus Shri Johnny Mathew on 9 January, 2007 Company Law Board, ORDER K.K. Balu, Vice-Chairman viii) N.R. Harikumar Versus WW Apparels (India) Private Ltd. & Ors. In the High Court of Judicature at Madras Company Appeal No. 3 of 2011 Reserved on: 09.10.2014 Delivered on: 16.04.2015 Hon'ble Mr. Justice V. Ramasubramanian";