Back
2009 Supreme(Bom) 1197
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE P.B. MAJMUDAR
Mohan S/o Babulal Jain & Others
Versus
Bhanwarlal H. Chandak & Others
Miscellaneous Civil Application No.51 of 2009
Decided on : 15-09-2009
For the Petitioners:Janak Dwarkadas, Sr.Advocate a/w D.D. Madon, Sr.Advocate a/w Gaurav Joshi and Mayuresh Borkar i/by DSK Legal, Advocates.
For the Respondents:R9 to R11, Dr. Virendra V. Tulzapurkar, Sr.Advocate with Phiroze Palkhiwalla i/by M/s. Crawford Bayley & Co., R21, Arif Bookwalla, Sr.Advocate i/by Sunil Nair, R1 to R5 & R8, Harinder Toor, i/by Rajesh M. Yadav, R6, R7, R12 to R20, Jaideep Raut i/by M/s.Chitnis & Co., Advocates.
Headnote:Civil Procedure Code, 1908 - Section 24 - Transfer of case - Applicant seeking City Civil Court suit be transferred and heard alongwith suit in High Court - Subject of suit as to appointments of Directors being contrary to family settlement - Held - Specific performance of family settlement sought in suit filed in High Court - Considering nature of proceedings, evidence in both suits not common - Nature of proceedings pending before City Civil Court as well as High Court totally different - Both suits not interconnected with each other - No case for transfer - Application rejected. -Apart from the aforesaid aspect, considering the nature of proceedings, in view, it cannot be said that the evidence in both the suits would be common in any manner. The prayer in the suit pending before the Bombay City Civil Court is only in connection with the appointment of Directors. The Bombay City Civil Court is required to consider the question about the legality and validity of the decision in connection with the appointment of Directors on the board of plaintiff No. 2 company. Accordingly, the nature of the proceedings pending before the City Civil Court as well as High Court are totally different as in one, the question is about the appointment of Directors is required to be considered and to find out as to whether such appointment is made in consonance with the provisions of Companies Act, 1956. As against that, the scope of the proceedings pending in the High Court is in connection with the specific performance of the family settlement. In view, by transferring the suit pending in the City Civil Court, it may result into delay and since both the suits are not in any way interconnected with each other, it may even prolong the subsequent suit filed before this Court.
In considered view, both the suits are required to be tried separately as the nature of both the suits cannot be said to be same. Simply because some incidental averments are made in the previously. instituted suit before the City Civil Court regarding the family settlement that cannot be a basis for transferring the suit to this Court. I both the suits, plaintiffs are common. The petitioners themselves have chosen not to include prayer for specific performance regarding family settlement in the previously instituted suit before the City Civil Court and after taking leave of the Court, have filed subsequent suit for specific performance of the family settlement before the Original Side of this Court. The plaintiffs now cannot insist that his suit in the City Civil Court should be transferred to this Court, though he has omitted the prayer for family settlement in the previously instituted suit. In any case, considering the nature of both the proceedings and the fact that even in the subsequent suit, there are additional defendants also, no ground is made out for transferring the suit pending before the City Civil Court to this Court. Courts do not find any justification for the said prayer. The Civil Miscellaneous Application is therefore, rejected.
Oral Judgment:
1. This is a transfer application under Section 24 of Code of Civil Procedure, by which the petitioners have prayed that the suit pending before the City Civil Court, Bombay, being No.949 of 2007 may be transferred to the Original Side of this Court and be heard with the suit No.2189 of 2007, which is pending before the Single Judge of this Court. This transfer application is argued before me at a great length as if this Court is deciding the suit itself.
2. It is the case of the petitioners that they have already filed a suit in the City Civil Court, Bombay, being S.C.Suit No.949 of 2007 praying that the appointment on the Board of Directors of Plaintiff No.2 Company by which the defendants of the said suit have been appointed as directors is illegal, devoid and contrary to the provisions of law and the said appointment is not required to be acted upon. The present petitioners who are the plaintiffs in the suit have prayed for decree for permanent injunction restraining the defendants to project themselves as directors of plaintiff No.2 company pursuant to the alleged Form No.32 dated 12-02-2007 or acting or purporting to act as a director of the plaintiff No.2 company pursuant thereof in any manner.
3. It seems that the dispute is going on between the family members of the plaintiffs and defendants. It is the case of the plaintiffs before the City Civil Court that in order to put an end to the dispute, it was decided to enter into a family settlement between the family members of both the sides and that in February 2004, the parties agreed to settle the dispute in a particular manner. Since this Court is not required to go into the details of the family settlement, it is not necessary to highlight the same in detail.
4. According to the petitioners/original plaintiffs, the defendants subsequently backed out from the said family settlement and has tried to backtrack from the said settlement. It is also the case of the petitioners that in the meanwhile, the petitioners came to know that the respondents in violation of the provisions of the Companies Act, made an attempt to appoint directors on the board of Plaintiff No.2 company without following due process of law as per the Companies Act, 1956. A suit before the City Civil Court is accordingly filed for the appropriate reliefs, as pointed out earlier, regarding appointment of the directors on the board of plaintiff No.2 company. In the plaint before the City Civil Court, a reference is also made regarding family settlement sought to be arrived at by the plaintiffs and defendants. Plaintiffs also obtained a leave under Order II Rule 2 of Code of Civil Procedure for filing substantive suit for specific performance of the family settlement. On the basis of the same, the plaintiffs also instituted subsequent suit being No.2189 of 2007 on the Original Side of this Court. In the suit filed on the Original Side of this Court, it is prayed that the Memorandum of Family Settlement dated 27th August, 2005 is valid, subsisting, binding and effective and the said settlement should be specifically enforced.
5. The plaintiffs thereafter, moved this application under Section 24 of Code of Civil Procedure, with a prayer that since the issue about the family settlement is overlapping in both the proceedings, the suit filed before the City Civil Court, Bombay, should be withdrawn and transferred to this Court and heard along with Suit No.2189 of 2007, which is pending before this Court.
6. During the course of hearing, Mr.Janak Dwarkadas, learned Senior Counsel for the petitioners, vehemently submitted that initially when the matter came before a Company Judge by way of Company Appeal No.22 of 2008, the counsel for the respondents therein, requested the Court that the suit pending before the Bombay City Civil Court being S.C.Suit No.949 of 2007 be withdrawn and transferred to this Court and the same may be heard along with Suit No.2189 of 2007. Mr.Dwarkadas, Senior
