Blue Coast Hotels and Resorts Limited vs Morgan Ventures Limited and Others

N.A. Britto, J.—Heard learned Senior Counsel Mr. Vastav on behalf of the applicant and Shri M. S. Sonak, learned Counsel on behalf of the respondent no.1. The respondent no.1 having filed an application u/s 397/398 of the Companies Act before the Company Law of Board bearing no. 73/08, and, an objection having been taken by the applicant herein as regards its maintainability, the same was decided against the applicant herein, by Order dated 02.09.2009, against which the applicant herein has preferred an Appeal, being Company Appeal no. 13/2009, which came up for hearing on 06.11.2009 and now stands posted to 27.11.2009.

The present application was not filed along with the said Appeal but was filed yesterday and an urgent circulation was taken for today. In the said application bearing no. 73/2008, the respondent no.1 had filed two Interim Applications bearing no. 205/2009 and 226/2009 in which, no interim relief was granted and against that the respondent no.1 had preferred an Appeal before this Court, being Company Appeal no. 12/2009 which was disposed off by this Court by Order dated 05.10.2009. Para 11 of the said Order dated 05.10.2009 reads as follows :

The Appeal, therefore, does not warrant any indulgence and deserves to be rejected. It would, however, be appropriate and parties agreed for it namely that the application no. 226/2009, which is pending before the Company of Boards, Mumbai Bench, be heard and decided expeditiously.

Shri Vastav, learned Senior Counsel appearing on behalf of the applicant submits that although the application bearing no. 73/2008 filed by the respondent u/s 397 and 398 of the Companies Act was held to be maintainable by the Company Law Board by Order dated 02.09.2009, the applicant herein had not filed the appeal on 05.10.2009 and the said Appeal came to be filed only on or about 03.11.2009, which was taken up by this Court on 06.11.2009. Learned Counsel further submits that since the said Appeal is pending against the very maintainability of the application filed by the respondent no.1 u/s 397 and 398 of the Companies Act 1956, any interim Orders passed therein would lead only to multiplicity of proceedings and, therefore, in the interest of justice, the Company Law Board ought not to pronounce any Order in the interim application bearing no. 226/2009 filed in the said main application no. 73/2008.

Opposing the said application, Shri Sonak, the learned Counsel on behalf of respondent no.1, submits that the applicant has indulged in falsehood. Firstly, Shri Sonak submits that the applicant had made a false statement that an Appeal filed against Order dated 14.10.2008 is still under office objections when the same has been admitted by this Court on 20.03.2009 being Company Appeal no. 03/2009. Secondly, Shri Sonak submits that the applicant have stalled the proceedings before the Company Law Board inspite of the Order of this Court dated 05.12.2008 in Company Appeal no. 3/2008 by citing a decision of the Apex Court and that proprietary demanded, that in case there was such a decision of the Apex Court, it was brought to the notice of this Court and modification of Order dated 05.12.2008 was sought. Thirdly, learned Counsel Shri Sonak submits if at all the Company Law Board is proceeding with Interim Application no.226/2009, it is pursuant to the Order passed by this Court on 05.10.2009, which as can be seen from the said Order, was also passed by Agreement of the parties. Learned Counsel submits that staying the proceedings of Interim Application no. 226/2009 will indirectly amount to reviewing the Order dated 05.12.2008.

As already stated, the present application was not filed along with Company Appeal no. 13/2009 when it was taken up by this Court on 06.11.2009. It is not that the applicant did not know on 06.11.2009 that the Interim Application bearing no. 226/2009 was fixed by the Company Law Board to be heard on 09.11.2009. It has now been submitted that the said application has already been heard and is awaiting Orders of the Company Law Board.

I am entirely in agreement with the submissions made by Shri Sonak. Shri Sonak has also submitted that considering the conduct of the applicant, the application ought to be dismissed with costs. In my view, considering that the said application is being decided pursuant to the Order of this Court dated 05.10.2009, which also was made pursuant to an Agreement between the parties, it would not be proper to grant a stay in the said Application no. 226/2009 filed in main Application no. 73/2008 and restrain the Company Law Board from passing Orders thereon and that would be an indirect way of reviewing the said Order. The applicant is always at liberty to challenge the said Order before this Court. Nothing prevented the applicant to file the Appeal against the Order dated 02.09.2009 earlier and obtain appropriate reliefs as regards the Interim Application bearing no. 226/2009. There is no reason why the applicant ought to have waited until the application was heard.

Considering the above, the application is dismissed. Needless to say, the result of any Orders to be passed by the Company Law Board in the said Interim Application no. 226/2009 would be subject to the outcome of Company Appeal no. 13/2009. With the above observations, the application is dismissed.