Morgan Securities and Credits Pvt Ltd v. BPL Limited & Ors.

14. It is further submitted on behalf of defendant Nos. 1, 4 and 6 that the present suit is not maintainable, since the appropriate remedy with respect to allotment of shares is to initiate proceedings under Section 59 of the Companies Act before the National Company Law Tribunal (NCLT). As per Section 430 of the Companies Act, Civil Courts do not have any jurisdiction qua allotment of shares. Thus, it is contended that the only remedy available with the plaintiff is to approach the NCLT. The present plaint is liable to be rejected under Order VII Rule 11 (d) of CPC, being barred by law.

15. It is further contended that the present suit is barred by limitation. The cause of action first arose in the year 2014, since the first allotment of share, that is sought to be challenged, is of the year

2014.

16. It is also the case on behalf of defendant Nos. 1, 4 and 6 that the shareholding of defendant No.1 was never transferred to anyone else and that the total number of shares of defendant No.1 remain the same. Defendant No.2 has transferred shares to other parties. Hence, percentage of shareholding has come down, while number of shares of defendant No.1 have remained the same. Thus, it is submitted that defendant No.1 has 2, 23, 65, 625 shares, which have not depleted. Thus, it is contended that the defendant No.1 has not violated any orders and has not transferred the shares of defendant No.1.

17. It is further contended that the court does not have the territorial jurisdiction to entertain the present suit. As per the memo of parties, only the plaintiff is in Delhi, while other defendants are in other cities. All allotment of shares have been done in Bengaluru.

18. It is also contended that the total face value of the shares as per the table given in the plaint is Rs.9,89,15,716/-. Thus, the court fees payable by the plaintiff would be approximately Rs. 98 Lakhs. It is submitted that the court fees ought to have been paid by the plaintiff on the aforesaid amount of Rs. 98 crores, whereas the plaintiff has done the valuation at Rs. 2 crores.

19. In support of its contentions, the following judgments have been relied upon on behalf of defendant Nos. 1, 4 & 6:

I. Haryana Urban Development Authority and Others Vs.

II. M/s Commercial Aviation & Others Vs. Vimla Pannalal,

(1988) 3SCC 423

III. Khatri Hotels Private Limited and Another Vs. Union of

IV. Indira Gandhi National Open University Vs. M/s Sharat

V. S.P. Chengalvaraya Naidu (dead) by LRS Vs. Jagannath

VI. Satish Khosla Vs. Eli Lilly Ranbaxy Ltd., 1997 SCC

VII. Benara Bearings & Pistons Ltd. Vs. Mahle Engine

VIII. Benara Bearings & Pistons Ltd. Vs. Mahle Engine

IX. Ambalal Sarabhai Enterprises Limited Vs. KS

X. Subhash Chander Ahuja (Shri) & Ors. Vs. Ashok Kumar

XI. Media Transasia India Ltd. and Another Vs. India

XII. Ramesh Chand Vs. Tek Chand & Others, 2005 (80) DRJ

XIII. M/s Karan Industries & Others Vs. D.C.M Limited &

XIV. Shashi Prakash Khemka (dead) through legal representatives and Another Vs. NEPC Micon (now NEPC India Limited) and Others, (2019) 18 SCC 569

XV. Vikram Jairath and Another Vs. Middleton Hotels

XVI. SAS Hospitality Pvt Ltd. & Anr. Vs. Surya Constructions

XVII. Shiraj Investment & Finance limited And Others Vs.

XVIII. Delhi & District Cricket Association Vs. Sudhir Kumar

XIX. Azar Hussain Vs. Rajeev Gandhi, 1986 Sup SCC 315

XX. Sopan Sukhdeo Sable and Others Vs. Asst. Charity

XXI. T. Arvindandam Vs. T.V. Satyapal and Another, 1977 4

20. Mr. Dayan Krishnan, Sr. Advocate appearing on behalf of defendant No.2 has also raised objection to the maintainability of the present suit. He submits that the present suit deserves to be dismissed in limine without issuance of summons. It is submitted that the present suit has been filed challenging the allotment of shares held in defendant No.2 during the period of July 2014 to December 2017 and in December 2020, which led to the dilution of percentage of shareholding of defendant No.1 company in defendant No.2, to 14.74%. It is submitted that the plaintiff has wrongly approached this Court as the shareholding of defendant No.1 has remained the same.

21. It is submitted on behalf of defendant No.2 that this Court vide interim order in ARB. A 14/2015 had directed the defendant No.1 to maintain 51% shareholding, i.e., 2,10,50,000 equity shares in defendant No.1. It is submitted that even as on date, the number of shares held by BPL in defendant No.2 continue to be maintained at 2,10,50,000, which is the same number as on the date of passing of the interim order. Thus, it is contended that there cannot be violation of the interim order.

22. It is further submitted on behalf of defendant No.2 that defendant No.2 cannot be alleged to be in breach of the interim order dated 18.12.2018 passed by this Court. The present suit cannot fundamentally lie against defendant No.2. It is contended that defendant No.2 is not a party to the disputes between the plaintiff and the defendant No.1. Defendant No.2 was not a party to the proceedings wherein an interim order was passed. Defendant No.2 was also not a party to the contempt petitions wherein order dated 18.12.2018 came to be passed by this Court. It is further submitted that the interim order has not been passed qua the defendant No.2, but only against defendant No.1. Since defendant No.2 was not a party to the proceedings wherein the interim order came to be passed, there cannot be any breach of the interim order by defendant No.2. The present suit cannot lie against defendant No.2 for alleged violation of order dated 18.12.2018 passed in the contempt petitions.

23. It is the case of defendant No.2 that it is not a party to the Bill Discounting Agreement dated 27.12.2002. Thus, no rights under the said agreement or its violation can be asserted in the suit by the plaintiff against defendant No.2.

24. It is further submitted that the interim order does not survive as on date and suit seeking its enforcement is not maintainable. The arbitral proceedings stood terminated upon passing of the final award. Accordingly, the interim order had merged with the final award on 14.12.2016 and could not be said to have been continued thereafter.

25. Ld. Senior Counsel appearing for defendant No.2 submits that Article 58 of the Limitation Act, 1963 provides for limitation period of 3 years from the date on which the right to sue first accrues. As per plaintiff‟s own case, it became aware of the share allotments uptil December 2017 in defendant No.1, in January and October 2017 and some time thereafter. Therefore, the challenge to all the transactions ought to have been made latest by December 2020. It is further submitted that the order passed by Hon‟ble Supreme Court in the case of Re: Cognizance for extension of Limitation, also does not come to the rescue of the plaintiff, as the effective date of filing of the present suit appears to be in July 2022.

26. Defendant No.2 has also raised the objections with respect to plaintiff having paid deficient court fees and the present suit being not maintainable in view thereof. It is also the case on behalf of defendant No.2 that issue being agitated in the present suit is already subjudice before this Court in pending contempt appeals being Contempt Appeal No. 2 of 2019 and Contempt Appeal No. 3 of 2019, in which order dated 18.12.2018 has been challenged. Thus, the present suit cannot raise the said issue pending in another collateral proceedings, thereby giving rise to multiplicity of proceedings.

27. It is further submitted that the plaintiff is pursuing execution proceedings against defendant No.1 for realisation of the sum awarded in its favour vide final award dated 14.12.2015 before the Additional City Civil and Sessions Judge, Bengaluru, Karnataka. In the said proceedings, the shares of defendant No.1 held in defendant No.2, being 2,10,50,000 in number, stand attached vide order dated 20.02.2020 passed by the Execution Court. Further, the aforesaid attached shares have been directed to be sold in a public auction by the said court vide order dated 09.09.2022. It is submitted that the plaintiff has materially suppressed the facts of pendency of the execution proceedings and the passing of the orders dated 09.09.2022 and 20.02.2020 in the plaint. It is submitted that passing of the aforesaid orders has a direct bearing to the reliefs being sought by the plaintiff before this Court in the present suit.

28. It is further contended that this Court lacks territorial jurisdiction qua the defendants, since neither the cause of action has arisen within the territorial jurisdiction of this Court, nor any of the defendants are based out of Delhi. All the impugned share allotments as indicated in the plaint, have taken place outside Delhi. It is also contended that the suit is barred in law on account of provisions of the Companies Act, 2013.

29. Mr. Neeraj Kishan Kaul, Ld. Senior Advocate has appeared on behalf of defendant No. 7. He has also raised objections to the maintainability of the present suit and the jurisdiction of this court to entertain the present plaint. It is submitted that the reliefs in the suit are barred by law as the present dispute falls completely within the exclusive jurisdiction of the National Company Law Tribunal under the Companies Act, 2013. It is submitted that the reliefs are hopelessly barred by limitation. The cause of action in the suit arose outside the territorial jurisdiction of the Court. Further, the plaintiff has grossly undervalued the suit at Rs. 2.05 crores, whereas the reliefs in question have a value running into hundreds of crores.

30. It is submitted that Section 66 of the Companies Act, 2013 together with the NCLT (Procedure for Reduction of Share Capital of Company) Rules, 2016 provide that the NCLT must supervise the cancellation of the shares. Under Section 59 of Companies Act, 2013, any person aggrieved and wanting to cause a rectification in the Register of members of a company must approach the NCLT. It is submitted that rectification of the Register is a natural consequence of every allotment and cancellation of shares. In fact under Section 430 of the Companies Act, exclusive jurisdiction is conferred on the NCLT in relation to company matters and the jurisdiction of Civil Courts is specifically ousted.

31. It is further contended by Mr. Neeraj Kishan Kaul, Sr. Advocate that the suit is barred by limitation. It is submitted that the plaintiff has inter-alia prayed for cancellation of allotted shares of defendant No.2. In this regard, Article 58 of the Schedule to the Limitation Act, 1963 provides that a suit for declaration must be filed within 3 years when the right to sue first accrues. It is submitted that it is plaintiff‟s own case that first dilution of shareholding of defendant No.2 happened on 11.07.2014. Therefore, the limitation period in this case ought to begin from the date of first dilution which admittedly occurred on 11.07.2014. Thus, the limitation period for the reliefs as sought in the present suit, has long expired. Further, the delay in filing the suit cannot and ought not be condoned, since the plaintiff has not filed any application for condonation of any delay along with the suit or otherwise, as necessitated under Section 5 of the Limitation Act, 1963. Further, the plaintiff has only filed an application for condonation of delay in re-filing, but has not provided any detailed or cogent reasons for the delay in re-filing.

32. It is further submitted on behalf of defendant No.7 that the said defendant does not fall within the territorial jurisdiction of this Court. None of the defendants have their registered or other relevant offices in Delhi. Further, BPL Medical only has a corporate office in Delhi, which was not involved in the issuance of any of the relevant shares. Ld. Senior Counsel submits that it is settled position of law that mere presence of a defendant‟s office would not create territorial jurisdiction in favour of a court unless such office was involved in the events giving rise to the cause of action. It is further submitted that there is no cause of action against defendant No. 7. The present case revolves around issuance and allotment of shares of BPL Medical to various parties, including defendant No. 7 from 2014 to 2020. From the documents filed along with the plaint, it is evident that all of the aforementioned acts have been performed in Bengaluru where BPL Medical has its registered office.

33. It is also submitted that the suit is grossly undervalued, since the plaint seeks certain declarations, directions and restraining orders in respect of the shares held by the various defendants in BPL Medical, whose value is exponentially higher than Rs.2.05 crores, as valued by the plaintiff.

34. It is further submitted that defendant Nos. 7 & 8 or even defendant No.2 have never owed any obligation under any contract or order of any court to maintain any specific percentage of shareholding in BPL‟s favour. Thus, defendant Nos. 7 & 8 do not have any privity of contract with or legal obligation towards the plaintiff, which would give plaintiff a right or entitlement to seek any claims, assets or performance of any obligation against the said defendants. The plaintiff has at best rights in its shares in BPL Medical, but that does not extend to preventing or binding BPL Medical from raising funds or operating in any manner, so long as the shares held by BPL remained unaffected.

35. Mr. Gopal Jain, Ld. Senior Counsel appearing on behalf of defendant No.8 has argued vehemently that the appropriate forum for seeking the reliefs in question is NCLT, which has the widest powers in terms of the Companies Act. The dispute in question falls within the exclusive jurisdiction of NCLT and that the jurisdiction of Civil Courts in such matters is barred by Section 430 of the Companies Act.

36. It is further submitted on behalf of defendant No.8 that objections for rejection of a plaint may not be in the nature of an application under Order VII Rule 11 CPC. Once issues in that regard have been raised on behalf of the defendants, the court has to decide such issues. It is submitted that the suit of the plaintiff is barred by limitation.

37. Defendant Nos. 7 & 8 have relied upon common judgments as follows:

1) Commercial Aviation and Travel Company and Others v Vimla Pannalal [(1988) 3 SCC 423]

2) Shashi Prakash Khemka and Another v NEPC Micon and others [(2019) 18 SCC 569]

3) SAS Hospitality Pvt Ltd & Anr v Surya Constructions Pvt Ltd & Ors [2018 SCC OnLine Del 11909]

4) Jaiveer Singh Virk v Sir Sobha Singh & Sons Pvt Ltd [2020 SCC OnLine Del 498]

5) Delhi & District Cricket Association v Sudhir Kumar Aggarwal and others [2020 SCC OnLine Del 1223]

6) Dena Bank v Pravin Vitthalrao Dorkhande [2018 SCC OnLine Bom 2800]

7) R Viswanathan and Others v Rukn-ul-Mulk Syed Abdul Wajid since deceased and Others [(1963) 3 SCR 22]

8) Vodafone International Holdings BV v Union of India and Another [(2012) 6 SCC 613]

9) Khatri Hotels Private Limited and Another v Union of India and Another [(2011) 9 SCC 126]

10) Dilboo(Smt)(Dead) by LRs and Others v Dhanraji (Smt) (Dead) and Others [(2000) 7 SCC 702]

38. Ld. Counsel on behalf of defendant No.9 has also opposed the present plaint. It is submitted that the interim order was only against defendant No.1 and defendant No.2 was not a party to the said proceedings. It is contended that defendant No.2 has made further allotment of shares, as a result of which shareholding of respondent No.1 has been reduced.

39. It is further submitted that statement of truth as accompanying the present plaint, is not in compliance of the Commercial Courts Act, 2015, as per which a positive statement has to be made as regards filing of the documents. However, the statement of truth as filed in the present case is against the mandate of the Commercial Courts Act. It is submitted that provisions as contained in Section 15A of the Commercial Courts Act are mandatory provisions. Since the suit does not meet the mandate of the Commercial Courts Act, the same is liable to be dismissed.

40. It is further submitted that the plaintiff is guilty of non-filing of requisite documents as the plaintiff has not filed all the requisite documents in its possession. The mandate of the Commercial Courts Act is that all documents are to be filed which are in possession of the party. Thus, non-disclosure of documents and improper affidavit filed in support of the plaint, are in violation of the Commercial Courts Act. It is submitted that in para 45 of the plaint, it has been mentioned that the plaintiff has filed an application under Section 59 of the Companies Act before the NCLT, Bench at Bengaluru seeking rectification of Register of defendant No.2 company. It is submitted that the plaintiff has not filed the same along with the present plaint. Similarly, the plaintiff has not disclosed that it has filed execution before the Civil and Sessions Judge, Bengaluru. The said fact is not even mentioned in the plaint. It is submitted that liberty was taken on behalf of the plaintiff on the first date of hearing itself before this court to file additional documents. Despite the same, the aforesaid documents have not been filed on behalf of the plaintiff.

41. It is further contended that the present plaint filed with deficient court fees is a non-est filing. It is submitted that the total shares allotted to the plaintiff, as disclosed in the plaint is to the tune of 9,89,15,716 shares. The face value of the said shares is Rs.10/- each, thus, the value of the shares in favour of the plaintiff is approximately Rs. 98 crores. Hence, the court fees of Rs.[2] Lakh filed by the plaintiff is deficient and the suit valued at only Rs.2.05 crores only, will not be maintainable.

42. The objections as raised on behalf of the defendants for rejection of the present plaint have been opposed on behalf of the plaintiff. It is submitted that the plaint has been filed within limitation and that the statement of truth has been filed properly. It is submitted that Court fees has been filed correctly and that this Court has jurisdiction to adjudicate the present matter. In support of its submissions, the following judgments have been relied upon on behalf of the plaintiff:

1) Vidyawati Gupta and Others v. Bhakti Hari Nayak and Others

2) Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another,

3) Judgment dated 31.07.2019 passed in CS(COMM) 127/2017 titiled as Cargo Planners Limited v. Alpasso International Engineering Company & Ors. by Delhi High Court.

4) Mahesh Chaudhri and Another Vs. IMV India Pvt. Ltd., 2019 SCC OnLine Del 9813.

5) Valo Automotive Pvt. Ltd. v. Sprint Car Pvt. Ltd. And others, 2021 SCC Online Del 4080.

6) Sudhakar Singh and Another v. Webkul Software Pvt. Ltd., 2020 SCC Online Del 436.

7) Exphar Sa and Another v. Eupharma Laboratories Ltd. and Another, (2004) 2 SCC 688 8) Srihari Hanumandas Totala v. Hemant Vithal Kamat and Others,

9) Pawan Kumar v. Babulal since deceased through Legal Representative and Others, (2019) 4 SCC 367.

10) Anjan Kumar Singhi & Anr. v. Ranjan Kumar Singhi & Ors., 2011 SCC Online Del 9811

11) Sejal Glass Ltd. v. Navilan Merchants Private Limited, (2018) 11 SCC 780,

12) Judgment dated 16.09.2019 passed in CRP 207/2017 titled Sudesh Arora v. Jagdish Raj Sagar.

13) Ram Prakash Gupta v. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59

14) Chhotanben and Another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others, 2018 6 SCC 422

15) Order dated 10.01.2022 passed by the Hon‟ble Supreme Court in SUO MOTO PETITION 3/2020

16) National Highways Authority of India v. Bhubaneswar Expressway Private Limited, 2021 SCC Online Del 2421 17) M/s Ranchhoddas Shyamji Khirani and Another vs. Balwant Kaur Malik, 1971 SCC Online Del 113.

18) Ram Kanwar and Others v. Naurang Rai and Others, 1956 SCC Online Punj 16.

19) Sita Chaudhry v. Verinder Singh and Others, 2022 SCC Online Del 2235

20) Vikram Jairath and Others Vs. Middleton Hotels Private Limited and Others, 2019 SCC Online Cal 6663

21) Aruna Oswal v. Pankaj Oswal and Others, (2020) 8 SCC 79

22) Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd. (1998) 7 SCC 105.

43. I have heard the various parties and considered the documents on record.

44. The submissions and objections as raised on behalf of the defendants are essentially in the nature of rejection of the plaint under Order VII Rule 11 CPC.

45. Law is settled in this regard that for the purposes of Order VII Rule 11 CPC, only the averments and materials in the plaint are germane. The contrary pleas taken by the defendants on the merits of the plaint are wholly immaterial for the purposes of Order VII Rule 11 CPC. In this regard, Supreme Court in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and Others, (2021) 9 SCC 99, held as follows:-

46. The facts as pleaded in the plaint are to the effect that the shares of D[2] to D[4], D[6], D[7] and D[8] which have been set out at paras 23 and 24 of the plaint, have been carried out in violation of orders dated 23.08.2013 passed by this Court. The alleged illegal shareholding acquired in violation of order dated 23.08.2013, are the subject matter of challenge in the present suit. By way of the present suit, the plaintiff seeks declaration of the share certificates allotted to D[4], D[6], D[7] and D[8] as null and void ab-initio, and seeks cancellation of these share certificates.

47. It has been submitted on behalf of the plaintiff that transfer/allotments that have been carried out in violation of Court orders, are non-est/void ab-initio and no right, title or interest can be deemed to have been conferred on the transferee/allottee.

48. As regards the limitation, the plaintiff in its suit has categorically pleaded that the first date of knowledge of the transaction was 12.04.2017, since the reply dated 12.04.2017 filed in CCP No. 5/2017, led to a deeper and more detailed examination of the various sub-transactions forming part of the contempt proceedings. It has been pleaded on behalf of plaintiff that it is at this stage that it came to the knowledge of the plaintiff that the shareholding of D[1] in D[2] was deliberately, wilfully and contemptuously diluted, by making various allotments of shares in D[2], in favour of D[4], D[6], D[7] and D[8]. It has been pleaded that the present suit has been filed with respect to different allotment of shares carried out on various dates including on 20.03.2017, 10.05.2017, 06.12.2017 and 28.12.2020.

49. It is the case of plaintiff that the present suit has been duly presented for the purposes of limitation in terms of the Delhi High Court Original Side Rules, 2018 on 03.01.2022. As per the case put forward by the plaintiff, there is no delay since the period from 14.02.2020 to 30.05.2022 stands excluded from the period of limitation and extended vide order dated 10.01.2022 passed by Hon‟ble Supreme Court in Misc. Application no. 665/2021 in suo moto Writ Petition (Civil) No. 3/2020.

50. It may be noted here that Supreme Court in the aforesaid case has held that with respect to limitation specified under any general or special laws in respect of all judicial and quasi-judicial proceedings, in cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022.

51. The pleadings in the plaint are to the effect that the plaintiff came to know of dilution of shareholding to 20.54% in January 2017, however, the details of how such dilution had been effected, modus operandi of dilution by way of further allotments and in whose favour the further allotments were made, came to knowledge of the plaintiff only when defendant No.1 filed reply in the Contempt petition on 12.04.2017. As per Article 58 of the Schedule of the Limitation Act period of limitation for a suit to obtain „any other declaration‟ is three years from „when the right to sue first accrues.‟ Further, as per Article 59 of the Schedule of Limitation Act, period of limitation for a suit to „cancel or set aside an instrument or decree or for the rescission of a contract‟ is three years from „when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.‟

52. At this stage, it would be relevant to refer to judgment of Supreme Court in the case of Chhotanben and Another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others, 2018 6 SCC 422, where in a suit for declaration of sale deed as null and void, it was held that date of execution of sale deed is irrelevant, but the date of knowledge as pleaded in the plaint has to be seen. Pleas taken in defence by defendants disputing the date of knowledge have been held to be triable issues. Thus, it has been held as follows:

53. On the aspect of rejection of plaint on the ground that suit is barred by limitation, Supreme Court has held in the case of Sri Biswanath Banik and Another Vs. Sulanga Bose and Others, (2022) 7 SCC 731, that at this stage what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order VII Rule 11(d) CPC on the ground of Limitation. Thus, it has been held as follows:

7.1. From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order 7 Rule 11CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.

7.2. Applying the law laid down by this Court in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59] to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it……….”

54. In view of the aforesaid, it is held that the defendants have not been able to make out a case for rejection of plaint on the ground of the suit being barred by limitation. These are certainly triable issues in view of the submissions made in the plaint. It cannot be said at this stage that the present suit is barred by limitation on the face of it.

55. As regards the objections raised by the defendants in respect of the bar in view of Section 430 of the Companies Act, it has been submitted on behalf of the plaintiff that the composite reading of the plaint shows that the same has been filed with respect to the allotment of shares of D[2] to D[4], D[6], D[7] and D[8], as set out at paras 23 and 24 of the plaint. It is the case of the plaintiff that allotment of shares have been carried out collusively by the defendant no. 1 along with the remaining defendants, in violation of the order dated 23.08.2013 passed by this Court. The defendant no. 1 had 51% shareholding in D[2] company as on 23.08.2013, which has since been diluted.

56. It is submitted on behalf of the plaintiff that the present suit seeks declaration and cancellation with regard to the instruments itself, and requires adjudication of facts pertaining to the rights under Bill Discounting Agreement, rights under the order passed by this Court for illegal allotment and collusion by the defendants in further allotment of shares in violation of Court orders. Thus, it is the case on behalf of the plaintiffs that the reliefs are not capable of being granted by NCLT in exercise of its powers under Section 59 of the Companies Act, 2013. Furthermore, NCLT is not empowered to decide the issues for cancellation of the impugned certificates and declaration of the impugned allotments as void ab-initio, since no such power has been conferred upon it under the Companies Act.

57. It has been held in a catena of judgments that issues such as rights, title and interest in respect of shares and complex issues of law and fact regarding the same, would necessarily require detailed evidence and cannot be decided by NCLT in respect of its powers qua rectification of shares. Thus, this Court in the case of Sita Chaudhry Vs. Verinder Singh and Others., 2022 SCC OnLine Del 2235 has held as follows:-

58. Similarly, Supreme Court in the case of Aruna Oswal Vs Pankaj Oswal and Others, (2020) 8 SCC 79 has held as follows:-

25. In view of the aforesaid decision in Sangramsinh P. Gaekwad case [Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, (2005) 11 SCC 314], we are of the opinion that the basis of the petition is the claim by way of inheritance of 1/4th shareholding so as to constitute 10% of the holding, which right cannot be decided in proceedings under Sections 241/242 of the Act. Thus, filing of the petition under Sections 241 and 242 seeking waiver is a misconceived exercise, firstly, Respondent 1 has to firmly establish his right of inheritance before a civil court to the extent of the shares he is claiming; more so, in view of the nomination made as per the provisions contained in Section 71 of the Companies Act, 2013. ………

31. We refrain to decide the question finally in these proceedings concerning the effect of nomination, as it being a civil dispute, cannot be decided in these proceedings and the decision may jeopardise parties' rights and interest in the civil suit. With regard to the dispute as to right, title, and interest in the securities, the finding of the civil court is going to be final and conclusive and binding on parties. The decision of such a question has to be eschewed in instant proceedings. It would not be appropriate, in the facts and circumstances of the case, to grant a waiver to the respondent of the requirement under the proviso to Section 244 of the Act, as ordered by NCLAT.”

59. Thus, it is clear that NCLT is not empowered to decide the issues for cancellation of the impugned share certificates and declaration of the impugned allotments as void ab-initio, since no such power has been conferred upon it under the Companies Act. Section 66 of the Companies Act, 2013 only provides for the procedure for reduction of share capital by the company. Therefore, the ouster under Section 430 of the Companies Act, 2013 is not applicable to the present case since the NCLT is not empowered to determine the issues/prayers as sought for in the present suit which pertain to rights, title and interest qua the alleged allotments.

60. The case laws as relied upon by the defendants are not applicable to the facts of the present matter since, in those cases the jurisdiction of the Civil Court was considered to be barred as those suits were filed for disputes inter-se amongst members of the Company regarding oppression and management of the affairs of the company, for adjudication of which the NCLT has extremely wide powers under Section 241-242 of the Companies Act.

61. The judgments as relied upon by the defendants on the aspect that the civil suit remedy would be barred, are clearly distinguishable and will not apply to the facts and circumstances of the present case. In Shashi Prakash Kelka and Anr. (supra)1 the subject matter of the dispute pertained to exercise of powers under Section 111-A of the Companies Act, 1956 for transfer of shares in violation to the (2019) 18 Supreme Court Cases 569 Depositories Related Laws (Amendment) Act, 1997. Supreme Court held that in the facts of that dispute since the NCLT had powers to determine issues pertaining to violation to the aforesaid Act of 1997, the civil suit remedy would be barred by under Section 59 read with Section 430 of the Companies Act.

62. Similarly, in the case of Vikram Jairath and Anr. (supra)2, the plaintiffs were members of the company to whom shares of the company had been transferred by defendant Nos. 2 to 5 therein. The issues involved in the said case related to registration of shares and oppression and mismanagement, qua which the NCLT is empowered to determine the issues, which is not the position in the present case.

63. Then again in the case of SAS Hospitality Pvt. Ltd. and Anr. (supra)3, the issue again pertained to challenge to allotment of shares by existing shareholders/ members of the company, who owned 99.96 percent shareholding which was diluted to 21.44 percent. Hence, in the facts of the said case, this Court arrived at the finding that NCLT is empowered under Section 241-242 of the Companies Act read with Section 59 of the Companies Act to deal with the issues of mismanagement of the company and disputes between members/ shareholders of plaintiff No. 1 company therein.

64. Then again, in the case of Shiraj Investment and Finance Ltd. and Anr. (supra)4, writ petition had been filed in a matter pertaining to investigation into the affairs of the company under Section 212(14) of the Companies Act and with respect to matters falling under the statutory scheme as per Sections 241, 242, 246 and 339 of the

2021 SCC OnLine Del 4361 Companies Act. In these circumstances, this Court held that the statutory mechanism under NCLT could not be by-passed in view of Section 430 of the Companies Act and alternate remedy was available before NCLT.

65. As discussed in the preceding paragraphs, issues such as rights, title and interests in respect of share are complex issues of law and facts which would necessarily require detailed evidence and cannot be decided by NCLT. The present suit would require adjudication of facts and law pertaining to rights under Bill Discounting Facilities and various Court orders, allotments and alleged collusion by the defendants in further allotment of shares in violation of Court orders and other related issues. Thus, the present suit cannot be rejected on this account also.

66. As regards the territorial jurisdiction, it is seen from the record that the initial order of restraint qua the transfer of the healthcare business of defendant no. 1 in favour of defendant no. 2 was passed at Delhi on 04.12.2012. The arbitral proceedings in which the orders dated 23.04.2013, 26.07.2013 and 08.08.2013 were passed, permitting defendant no. 1 to transfer its healthcare business in favour of defendant no. 2, were also held at New Delhi. The order dated 23.08.2013, by which defendant No. 1 was required to maintain its shareholding in defendant No. 2, was also passed at Delhi. The order dated 18.12.2018 convicting defendant nos. 1, 5, 9 and 10 for contempt of the order dated 23.08.2013, was also passed at Delhi. The Bill Discounting Facilities dated 27.12.2002 and 11.06.2003, the terms of which have been violated by defendant no. 1 and which has ultimately led to the disputes as raised in the present suit, was also executed at New Delhi. Thus, it is held that this Court has territorial jurisdiction to entertain and try the present suit as part of the cause of action has arisen within the jurisdiction of this Court.

67. As regards the objections raised on behalf of the defendants that the statement of truth filed along with the plaint is defective, it is submitted on behalf of the plaintiff that the present suit has been duly instituted in terms of Order 1 Rule 1 of CPC, as the same is compliant with Order VI and Order VII of CPC. Thus, it is contended that in terms of Section 27 read with Order V Rule 1 of CPC as amended by the Commercial Courts Act, where a suit has been duly instituted, summons ought to be issued.

68. It is the case of the plaintiff that in terms of Order IV Rule 1 of CPC, the only requirement for suit being “duly instituted” is compliance with Order VI and Order VII of CPC. Hence, the requirement of statement of truth in as much as the same has been incorporated in Order XI Rule 1 of CPC as amended by the Commercial Courts Act, 2015 clearly shows that non-filing of a proper statement of truth along with a suit is not a ground for nonissuance of summons for a “duly instituted” suit and/or for rejection of plaint under Order VII Rule 11.

69. It is further submitted on behalf of plaintiff that for purposes of Order VI Rule 15A of CPC as amended for the purposes of the Commercial Courts Act, all pleadings have been duly verified at para 1-4 of the Statement of Truth.

70. It is the case of the plaintiff that in the present case, Registry has not notified any defect post 30.05.2022 with respect to statement of truth. Hence, all defects qua statement of truth were cured well within the period covered under the order dated 10.01.2022 passed by Hon‟ble Supreme Court in the case of suo moto Writ Petition (Civil) No. 3/2020. The defects notified thereafter on 02.07.2022 or 08.07.2022 do not pertain to any defects qua the statement of truth and rather pertain to pleadings in the plaint, which was also clarified on the same date by the plaintiff through Advocate‟s remarks. Thus, it is submitted that even if contention of the defendants was to be accepted, the suit is very much within limitation in view of orders passed by Hon‟ble Supreme Court of India.

71. It is the case of the plaintiff that the statement of truth filed along with the plaint is complete and proper in terms of Order 11 Rule 1 (4) CPC. The disclosure at para 5 of the statement of truth has been made in terms of Order 11 Rule 1 (4), Order 11 Rule 1 (5) and Order

11 Rule 1 (1)(c) of CPC, as amended in respect of Commercial Courts Act. It is submitted that Order 11 Rule 1(4) stipulates that in case of urgent filing, the plaintiff may seek to rely on additional documents, as a part of the above declaration on oath. It is further submitted that Order 11 Rule 1(5) CPC also allows for exemption from filing additional documents despite the same having been in the power and possession of the plaintiff, with the leave of the court. Further, Order

11 Rule 1(1)(c) also provides the opportunity to the plaintiff to, inter alia produce documents in answer to the case set up by the defendant. Thus, it is contended on behalf of the plaintiff that these exemptions were sought since there are various ongoing proceedings between the parties, many of which are not relevant to the present case set up by the plaintiff, however, they may be relied upon by the defendant as a defence. It is further submitted that the application under Section 59 of the Companies Act, which has been disclosed at para 45 of the plaint, though has been filed before the NCLT, Bengaluru, the defects in the same are still being cured. Hence, this disclosure was made to enable the plaintiff to file/bring on record the final NCLT petition after curing of all the defects.

72. It may be noted herein at this stage that right to file additional documents in commercial suits at a later stage has been recognised by this Court in various cases. Thus, this Court in the case of Mahesh Chaudhri and Another. Vs. IMV India Pvt. Ltd., reported as 2019 SCC OnLine Del 9813 has held in categorical terms that when the suit is still at an initial stage, the undertaking given in the statement of truth in terms of Order XI Rule 1 (3) does not mean that the plaintiff was obliged to file all the documents even remotely connected with the proceedings. The following paragraphs may be referred to:

13. A perusal of the aforesaid declaration would show that the plaintiff is obliged to make a declaration that he has filed all the documents in his power, possession, control or custody pertaining to the facts and circumstances of the proceedings initiated by him. It does not mean that the plaintiff was obliged to file all the documents even remotely connected with the proceeding. Such an interpretation would only burden the court file with documents which have no relevance to the adjudication of the disputes. The aforesaid provisions of the CPC do not assist the case of the defendant.”

73. Similarly, in the case of Valo Automotive Pvt. Ltd. Vs. Sprint Cars Pvt. Ltd. and Others, 2021 SCC OnLine Del 4080, this Court has held that the plaintiff always has the right to file additional documents including invoices in response to the defence set up by the defendant under Order XI Rule 1(1)(c)(II) of CPC. Thus, it has been held as follows:

74. Thus, it has been submitted on behalf of the plaintiff that by availing the liberty granted by this Court on 25.07.2022, additional documents have been placed on record on 17.08.2022 and statement of claim has been filed on 11.09.2022. Hence, the statement of truths have been filed by the plaintiff in the manner contemplated under the Commercial Courts Act, 2015.

75. It is also the case of the plaintiff that non-filing of affidavits verifying pleadings in terms of Order VI Rule 15 CPC, non-filing of Vakalatnamas, etc. are curable defects. Thus, the requirements under Order IV, VI and VII CPC even though they employ the words that „the plaint shall not be deemed to be instituted‟, would still entail that these defects are curable and date back to the time when the suit was first presented. Such defects would not render the filing of the suit non-est.

76. It is further the case of the plaintiff that the defendants have incorrectly relied upon the judgments passed in Indira Gandhi National Open University (supra)5 and Oil and Natural Gas Corporation Vs. Planetcast Technologies, 2020 SCC Online Del 2083, which were passed only in respect of petitions under Section 34 of the Arbitration and Conciliation Act, 2015 and not with respect to Commercial Suits. It is relevant to note here that under Section 34 (3) Indira Gandhi National Open University Vs. M/s Sharat Das & Associates Pvt. Ltd., in O.M.P (COMM) 26/2019 of the Arbitration and Conciliation Act, no distinction is made between presentation of the petition for limitation and/ or institution of petition. Hence, delay in curing defects cannot be condoned beyond 120 days in view of the usage of the words „not thereafter‟ contained in Section 34 of the Arbitration and Conciliation Act.

77. It is further submitted on behalf of plaintiff that the judgments as relied upon by the defendants would not be applicable to the facts of the present case, as the said judgments pertained to defects that no statement of truth had been filed; no vakalatnama had been filed; no affidavit had been attested, etc. However, in the present case the statement of truth, affidavits and vakalatnamas had been duly filed and attested. The Registry has not notified any defect post 30.05.2022 with respect to statement of truth. Thus, as per the case put forward on behalf of the plaintiff, all defects qua statement of truth were cured well within the period covered under order dated 10.01.2022 as passed by Hon‟ble Supreme Court in suo moto W.P.(C) 3/2020.

78. In view of the aforesaid submissions and discussion, the present plaint cannot be rejected at this stage on this ground also.

79. At this stage, the judgment of Division Bench of this Court in the case of National Highways Authority of India Vs. Bhubaneswar Expressway Pvt. Ltd., 2021 SCC Online Del 2421 may be referred to where re-filing of petitions filed on 26.02.2020 were carried out on 22.05.2020. The Division Bench of this Court held that the orders passed by Hon‟ble Supreme Court in suo moto Writ Petition (C) NO. 3/2020 would also be applicable for delay in re-filing. Thus, it has been held as follows: “13. We have considered the aspect of condonation of delay and for the reasons following, are of the view that NHAI in the present case has disclosed sufficient cause for condonation of delay. …… (B) On the anvil of judgments cited by the senior counsel for BEPL, we are unable to agree with the senior counsel for BEPL that what was filed on 22nd May, 2020 cannot be said to be relatable to what was filed on 26th February,

2020. Though undoubtedly there is a vast difference in the number of pages, in the appeal filed on 26th February, 2020 and the appeal re-filed on 18th March, 2020 (and thereafter on 20th March, 2020) and electronic form whereof was filed on 22nd May, 2020, but the test to be applied, is not quantitative i.e. of number of pages, but qualitative i.e. of what was originally filed. In Indian Statistical Institute v. Associated Builders (1978) 1 SCC 483, it was held that the objections raised by the Registry of the Court, of not being properly stamped and of verification being not dated, are not material, since under Section 149 of the CPC Court has jurisdiction to extend the time for payment of court fees and since non-dating of the verification is not serious enough and not fatal and curable. Supreme Court, in Udai Shankar Triyar v. Ram Kalevar Prasad Singh (2006) 1 SCC 75 held that (i) noncompliance with any procedural requirement relating to memorandum of appeal should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates; (ii) procedural defects and irregularities which are curable, should not be allowed to defeat substantive rights or cause injustice; and, (iii) only where the statute describing procedure also prescribes specifically, the consequence of non-compliance or where the procedural defect is not rectified even after pointed out and opportunity given or where violation is deliberate and mischievous or where rectification of defect would affect the case on merits or where in the case of a memorandum of appeal, there is complete absence of authority and the appeal is presented without knowledge, consent and authority of the appellant, should the filing with such defects entail dismissal. A Division Bench of this Court in Delhi Development Authority v. Durga Construction Co. (2013) SCC OnLine Del 4451 held, (a) that delay in re-filing is different from delay in filing, inasmuch as in the case of re-filing, the party has already evinced its intention to take recourse to the remedy and has taken steps in that regard and cannot be assumed to have given up the rights; (b) only where the petition or application filed is so hopelessly inadequate and insufficient or contains defects which are fundamental to the institution of the proceeding, is the party to be not given the benefit of initial filing and the date on which the defects are cured will have to be considered as the date of initial filing; and, (c) however when the defects are perfunctory and not affecting the substance of the application, the delay in re-filing could be condoned. Similarly, in DSA Engineers (Bombay) v. Housing and Urban Development Corporation (2004) SCC OnLine Del 298, defects of nonfiling of Vakalatnama and non-obtaining of caveat report were held to be not substantial, to render the filing non est. ……

(I) Applying the tests aforesaid laid down in Borse

Brothers Engineers and Contractors Private Limited supra also, it will be seen, that (a) the delay in filing the appeal, was of 25 days i.e. from 1st February, 2020 to 26th February, 2020; (b) upon the Registry of this Court on scrutiny of the appeal paper book filed, raising objections, the re-filing was done within the permitted time; (c) it was not the objection of the Registry, that what was filed on 26th February, 2020, was not an appeal or lacked any of the essentials of the appeal; (d) not only the country but the world, since the end of the year 2019 has been facing a pandemic, owing whereto the functions of various instrumentalities of State have been affected in diverse ways; (e) the functioning of this Court was curtailed with effect from 16th March, 2020 and totally stopped with effect from 24th March, 2020, owing to the prevalent Covid-19 pandemic and remained suspended till 4th April, 2020, whereafter also only electronic filing of urgent matters was permitted; (f) it was thus not possible for NHAI to re-file what was originally filed on 26th February, 2020 and what came up before this Court on 26th May, 2020, when the appeal first came up, was what was electronically filed on 22nd May, 2020; (g) Supreme Court, vide order dated 23rd March, 2020 directed that the period of limitation in filing petitions/applications/suits/appeals/ all other proceedings, irrespective of the period of limitation described under the special or general laws, shall stand extended with effect from 15th March, 2020 till further orders; (h) Supreme Court, though vide order dated 8th March, 2021 directed exclusion of the period from 15th March, 2020 till 14th March, 2021 but recently vide order dated 27th April, 2021 has restored the order dated 23rd March, 2020 and directed that the period of limitation as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceeding, whether condonable or not, shall stand extended till further orders; (i) it will thus be seen, that the limitation for what was filed on 26th February, 2020 is still available; however owing to the urgency which arose as aforesaid, the appellant NHAI electronically filed the appeal and got the same listed on 26th May, 2020; (j) in the said scenario, it cannot be said that owing to the delay of 25 days in filing the appeal, any prejudice has been caused to or any rights have accrued to BEPL; (k) it cannot also be lost sight of, that till 3rd June, 2020, the application of BEPL being IA No. 1898/2020, before the Commercial Division, for clarification/modification of the order impugned in this appeal, was pending consideration and immediately after decision whereof the urgency leading to the electronic filing the appeal was felt and immediate steps taken by NHAI; (l) NHAI is thus found to have acted bona fide and not in a negligent manner, for the short delay of 25 days to be condoned; and, (m) NHAI has thus disclosed “sufficient cause” for condonation of delay, of 25 days, beyond 1st February, 2020 till 26th February, 2020.”

80. Thus, the issue regarding condonation of delay in re-filing the suit also requires consideration.

81. The next submission made on behalf of defendants is in respect of suppression of documents by the plaintiff at the time of filing of the plaint. In this regard, it has been stated on behalf of the plaintiff that in the present case, in the first instance itself, before the hearing before this Court, order dated 27.03.2019 passed in Cont. Appeal No. 2/2019 had been filed on 24.07.2022 and a copy was also handed over during the course of hearing on 25.07.2022. It is submitted that the said order dated 27.03.2019 supports the case of the plaintiff in as much as it has been directed by way of the said order that till further orders of this Court the shareholding of defendant No.1 in BPL Medical Technologies Pvt. Ltd., will remain unchanged. It is submitted that the order dated 09.02.2022 filed by the defendant No.1 in CCP (O) NO. 35/2017, refusing modification of the statement have no bearing whatsoever on the facts of the present matter.

82. It has further been submitted on behalf of the plaintiff that there are various proceedings inter-se between the parties, including execution petitions, contempt appeal and the appeal under Section 37 of the Arbitration and Conciliation Act, 1996. However, none of these proceedings are material for the purposes of the pleadings or prayers sought for in the present suit. It is also submitted that there is no concealment of the application under Section 59 of the Companies Act, rather the same has been fairly disclosed at para 45 of the suit. Though the application under Section 59 has been filed before the NCLT, Bengaluru, the defects in the same are still being cured. Thus, it has been sought to be explained on behalf of the plaintiff that relevant disclosure was made at para 45 of the plaint as also in the statement of truth, to enable the plaintiff to file/bring on record the final NCLT petition after curing of all the defects.

83. It is similarly contended that the orders passed in the execution petition have no bearing on the present suit. Rather, it is submitted that none of these orders pertain to attachment of the shares of defendant No.2, which have been allotted to defendant Nos. 6 to 8 in violation of court orders. Thus, these have no bearing on the pleadings, subject matter or the prayers in the present suit.

84. Considering the aforesaid submissions on behalf of the plaintiff, it is held that the matter certainly needs consideration and cannot be rejected without issuance of summons.

85. As regards the submissions made on behalf of the defendants, in respect of court fees, it has been submitted on behalf of the plaintiff that the court fees deposited by the plaintiff is not deficient. It is submitted that the plaintiff has pleaded and given the computation for arriving at the value of court fees at para 44 of the plaint. The subject matter of the present suit is unlisted shared, whose market value is incapable of being calculated as per Section 7 (V) of the Court Fees Act. The suit has been filed seeking declaration that the allotments referred to at para 22 and 23 of the plaint are void ab initio and seeking cancellation of all the share certificates issued in lieu of the impugned allotments. It is submitted that the effect of grant of these prayers would be restoration of the shareholding of BPL Limited in defendant No.2, company to 51%. The plaintiff has not sought any relief qua title of the shares.

86. It is further contended that as per Section 7 (iv) (c) and (d) of the Court Fees Act, with respect to suits pertaining to declaration and consequential relief and to injunctions in respect of movable property having no market value, in all such suits the plaintiff shall state the amount at which the plaintiff values the relief sought. The plaintiff has not sought any relief qua title of the shares. The plaintiff is only seeking declaration that the allotments as referred to at Para 22 and 23 of the plaint are void ab initio, and seeking cancellation of all share certificates issued in lieu of the impugned allotments. Since no relief/ right qua title of the shares has been sought by the plaintiff in the present suit, the plaintiff is not liable to pay court fees based on either the face value of the shares or the different valuation of the shares, as brought forth by the defendants.

87. Even otherwise, in terms of Order 7 Rule 11 CPC, a plaint is not liable to be dismissed merely on the ground of deficient court fees. Rather Order 7 Rule 11 (d) CPC specifies that the plaint can be dismissed where the plaintiff despite being required by Court to correct the valuation, fails to do so.

88. The plaintiff has also relied upon the judgment in the case of M/s Ranchhoddas Shyamji Khirani and Another vs. Balwant Kaur Malik, 1971 SCC Online Del 113 to contend that court fees for declaration and consequential reliefs has to be valued based on underlying value of the movable property, only for such suits which are capable of being valued in terms of Section 7 (v) of Court Fees Act. Thus, it has been submitted on behalf of the plaintiff that suits in which title of shares has not been sought by the plaintiff, do not fall in the scope of the judgments relied upon by the defendants.

89. In view of the aforesaid discussion, the present plaint cannot be rejected on this ground also.

90. The arguments as advanced on behalf of defendant Nos. 7 and 8 for resisting the issuance of summons, on the ground that they were not party to the proceedings, is per se baseless. The plaintiff has drawn attention of this Court to the various letter/ notices issued to the defendants by the plaintiff inter alia on 05.06.2013, 27.06.2013, 12.08.2013 and 29.08.2013, informing them about the stay operating on disinvestment of shares of defendant No.2 and pending court proceedings in this regard. Therefore, defendant Nos.[7] and 8 were well aware about the various court orders. Therefore, issue raised qua defendant Nos. 7 & 8 also require consideration and trial.

91. Further, the contention on behalf of the defendants that pre institution mediation has not been initiated, also holds no water. The plaintiff sent a legal notice to the defendants on 03.11.2021 by e-mail and on 05.11.2021 by speed post, calling upon the defendants to take immediate steps to restore the shareholding of defendant No. 1 in defendant No. 2 company, to the position in which it stood prior to the passing of the order dated 25.08.2013. It is pertinent to mention here that the requirement under Section 12A of the Commercial Courts Act is not attracted to the facts of the present suit, as the same is only applicable qua a suit which does not contemplate any urgent interim relief. The Hon‟ble Supreme Court in the case of Patil Automation (P) Ltd. Vs. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1, has clearly as follows:

92. In view of the aforesaid detailed discussion, it is held that the present plaint cannot be rejected without issuance of summons, as pleaded on behalf of the defendants. I.A. 11403/2022 (Application under Section 151 CPC for exemption from filing legible, dim, hand written, without left side margin and/or original documents, certified copies alongwith supporting affidavit)

93. This is an application under Section 151 CPC for exemption from filing legible, dim, hand written, certified copies of original documents. The plaintiff is directed to cure the defects within a period of six weeks from today. With the aforesaid direction, exemption is allowed and application is disposed of. I.A. 11405/2022 (Application for condonation of dealy in re-filing suit under Section 151 CPC)

94. This is an application for condonation of delay of 105 days in re-filing the suit. Issue notice to the defendants. Let reply be filed within four weeks. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.

95. Let the plaint be registered as a suit.

96. Issue summons to the defendants through all modes.

97. The summons to the defendants shall indicate that a written statement to the plaint be positively filed within 30 days from the date of receipt of summons. Along with the written statement, the defendants shall also file an affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record.

98. Liberty is given to the plaintiff to file a replication within 15 days of receipt of the respective written statements. Along with the replication, if any, filed by the plaintiff, an affidavit of admission/denial of the documents of the defendants, be filed by the plaintiff, without which the replication shall not be taken on record.

99. List before the Joint Registrar for marking of exhibits on 03.03.2023. I.A. 11404/2022 (under Section 151 CPC read with Order XXXIX Rule 1 and 2 CPC)

100. Issue notice. Let reply be filed within a period of four weeks. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.

101. Taking into account the submissions as made before this Court and the facts and circumstances of the present case, it is held that the plaintiff would suffer irretrievable injury and huge irreparable losses, if the defendants further cause transfer, disposal, creation of third party rights or encumbrances on even the current shareholding pattern of defendant No. 2 company. Balance of convenience lies in favour of the plaintiff. The plaintiff has been able to make a prima facie case in its favour. Thus, the defendants are directed to maintain status quo as regards the present shareholding held by the defendants, qua the various allotments of shares in defendant No. 2, in favour of defendant Nos. 3, 4 and 6, which have been carried out from time to time as detailed in Para 2 and 3 of I.A. No. 11404/2022.

102. Compliance affidavit in terms of Order XXXIX Rule 3 CPC be filed within a period of 10 days.

103. List before the „Roster Bench‟ on 10.03.2023.

JUDGE JANUARY 13, 2023 PB/c/au