1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 74 OF 2008 APPEAL FROM ORDER NO. 74 OF 2008 APPEAL FROM ORDER NO. 74 OF 2008 WITH CIVIL APPLICATIONNO. 87 OF 2008 IN NOTICE OF MOTION NO. 2952 OF 2007 IN S.C. SUIT NO. 3104 OF 2007 Mrs. Poonam Kumar ... Appellant Vs. M/s. Ace Investment Services (India) Ltd. & Ors. ... Respondents Mr. V.A.Thorat, Senior Counsel a/w Mr. Shailesh Shah, Advocate, i/b. M/s. Khaitan & Jayakar, Advocatres, for the appellant. Mr.Haresh Jagtiani & Associates, Advocates, for respondent No.8. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 29th January, 2008. DATE : 29th January, 2008. DATE : 29th January, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for both the parties at 2 length. 2. Learned Counsel pointed out that both the parties had produced affidavits, documents as well as notes of arguments before the trial Court on the factual aspect pertaining to the two disputed meetings held on 4.6.2007 and 14.9.2007, but the trial Court has not considered all that material. In para 29 of the impugned judgment,the trial Court observed that the plaintiff and defendant had raised several contentions regarding not following proper procedure for holding extraordinary general meeting and for effecting service so also misjoinder of parties, etc. But the learned Judge was of the view that these matters are not required to be considered at that stage because according to him, the trial is necessary to record evidence on issues arising for consideration out of the pleadings of the parties in the suit. Learned Counsel for the respondents nos. 2 to 8 also pointed out that the material before the trial Court was sufficient to show that the plaintiff-appellant is one of the 9 members holding shares in defendant No.1 company and therefore, under Section 399(1)(a), she can also make a grievance before the Company Law Board under Sections 397 and 398 of the Companies Act. This aspect has also 3 not been considered by the trial Court while disposing of the Notice of Motion. It appears that the trial Court never came to the conclusion that the Civil Court had jurisdiction to entertain the suit and to consider the Notice of Motion and practically refused to enter into the factual aspect of the matter and to consider the rival contentions on merits. 3. In view of this, with consent of the learned Counsel for both the parties, the present Appeal stands disposed of with the following directions :- (i) The Notice of Motion is hereby remitted back to the trial Court for hearing both the parties. The learned trial Court shall take into consideration all the material which is placed before it by both rival parties as well as the legal questions raised by the defendants about maintainability of the suit as well as about availability of remedy before the Company Law Board under Sections 397 and 398 of the Companies Act. (ii) As the parties have already submitted 4 the affidavits and the documents which are necessary according to them and the defendants have also submitted the notes of arguments, the trial Court shall expedite the hearing and dispose of the Notice of Motion afresh within three weeks from this date. (iii) The statements made by the defendants before the trial Court on 17.8.2007 and 11.9.2007 shall remain in force for next three weeks. The plaintiff-appellant shall be permitted to operate the bank accounts of the defendant No.1 - company only for meeting the normal requirements of the company and nothing more during the said period. (iv) In case the concerned Court is vacant, the parties shall be at liberty to move the Principal Judge to assign the matter to any other Court. 4. As the Appeal itself is disposed of, the C.A. does not survive and stands disposed of accordingly. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)