Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1425 OF 2019
(CNR NO.MHCC010036662019)
IN
S. C. SUIT NO.287 OF 2018
The Automobile Association of Upper India )..Plaintiff
V/s.
Federation of Indian Automobile Associations ).. Defendants
Appearances :
Adv. Shailendra Singh for plaintiff.
Adv. Vikramaditya Deshmukh for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 04/08/2022.
ORDER
1. This Notice of Motion is taken out by the plaintiff. The
plaintiff is a company registered u/s.25 of the Companies Act, 1956.
Defendant No.1 is also a company registered u/s.25 of the Companies
Act, 1956 and federation of other companies. Defendant No.2 is a
Chairman of Managing Committee and was the president of defendant
No.1. Defendant No.3 is also a company registered u/s.25 of the
Companies Act, 1956. Defendant No.3 to 5 are engaged in providing
services.
2 It is the contention of plaintiff that the plaintiff company is
one of the promoter of defendant No.1 company. The other members
have not followed due procedure and passed illegal resolution of
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suspension of the plaintiff company. In consequent to, the plaintiff
company has filed instant suit and taken out this notice of motion for
restraining the defendants from implementing the suspension and for
directing them to permit the plaintiff to exercise all the rights of
founder member and participation in the meetings of defendant No.1.
3 Defendant resisted the contention of the plaintiff by filing
the reply. The basic objection is raised to be the jurisdiction of this
Court. The National Company Law Tribunal is having jurisdiction
(NCLT) to try and decide any dispute arising between the plaintiff and
defendant No.1. It is further contended that plaintiff has no cause of
action to file the suit. As well as the action taken against the plaintiff is
according to proof and the claim of plaintiff deserves to be rejected.
4 The plaintiff filed rejoinder by contending that for applying
before the Tribunal (NCLT), it was required to qualify the conditions,
which the plaintiff company was not in a position to satisfy the
requirement as per the provision of Sec.244 of Companies Act.
Therefore, there is no option but to apply before this Court and due to
suspension, the plaintiff company is unable to take a part in the activities
of defendant No.1 and prayed for grant of temporary injunction.
5 Heard the rival parties. It reveals from the record that the
suspension order was passed in the year 2017, specifically
communicated on 14/10/2017. The suspension was for a period of five
years, which is about to expire in the coming month of October, 2022.
Therefore, after 15/10/2022, the suspension period will over and the
plaintiff company would be able to take part as a founder member.
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6 So far as the jurisdiction of this Court is concerned, it is
vehemently argued by the plaintiff that as per the provisions of Sec.244
of Companies Act, the company who wants to approach before the
Tribunal which having no share capital, must have not less than 1/5th
strength of total number. There are several members of defendant No.1
company and the plaintiff company is not having such number to
constitute 1/5th total number of members of defendant No.1 company.
Therefore, no option is left to it to apply the Civil Court. But, on
perusal of the proviso provided under Clause (b) of Sec.244 of
Companies Act, provides that the aggrieved company may apply the
Tribunal to waive all or any of the requirements prescribed under
Clause (a) or (b) of Sec.244 of the Companies Act, so as to enable the
company to apply before Tribunal. There is nothing on record to show
that plaintiff company has applied to the Tribunal for such relaxation or
waiver of conditions in Clause (a) or (b) of Sec.244 of Companies Act.
Consequently, I am of the view that the plaintiff has efficacious remedy
to apply before an appropriate forum.
7 Considering the above discussion, I found no prima facie
case in favour of plaintiff to seek adinterim relief as prayed for.
8 So far as balance of convenience is concerned, suspension
is already about to expire and the relief for an adinterm is already
refused on 22/04/2019, there is nothing on record to show that the
plaintiff has challenged the said order. Therefore, I found no balance of
convenience in favour of plaintiff. Upon expiry of suspension period,
the status of plaintiff company will stand restored. Therefore, there is
no irreparable loss to the plaintiff company if, injunction is refused.
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9 In the result, I found that plaintiff has failed to make out
entitlement for the injunction prayed for. In the result, I proceed to
pass the following order :
ORDER
1. Notice of Motion No.1425/2019 in Suit
No.287/2018, is hereby dismissed.
2. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, C.R. No.03
Dated : 04/08/2022 Greater Bombay
Dictated on : 04/08/2022
Typed on : 04/08/2022
Signed on :
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“Certified to be true and correct copy of the original signed order”.
05/08/2022 (Mrs. Vidya Abhijit Mande)
at about 06.00 p.m. Stenographer (GradeI.)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 04/08/2022
Order signed by Hon'ble Judge on : 04/08/2022
Order uploaded on : 05/08/2022
at about 06.00 p.m.
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