JUDGMENT 1. - The instant company appeal under section 10F of the Companies Act, 1956, is directed against the order dated March 5, 2010, passed by the Company Law Board in Company Appeals Nos. 232 of 2008 and 313 of 2009 filed by M/s. Valentino Laboratories Ltd. ("the appellant" herein) in Company Petition No. 11 of 2008. 2. However, despite notices being served upon the appellant, reply to the company petition was not filed for almost two years before the Company Law Board, but a company application was filed raising preliminary objections that the composite company petition is not maintainable and what has been alleged by the petitioner in his company petition are disputed questions of fact, which cannot be examined by the Company Law Board while holding summary proceedings under section 111 of the Companies Act, and appropriate recourse available for company petitioner is to question it by filing a civil suit and being not a member as per the register of members of the company and title of shareholding being disputed, the company petitioner has no locus standi to maintain the company petition. However, objection was further raised that he has to first establish that he is holding 10 per cent. or more shares of subscribed capital to maintain the company petition. The case of the company petitioner was that he is in possession of more than 10 per cent. of original share certificates of subscribed capital which itself is a prima facie evidence of title of such shares and in the absence of the reply being filed, no presumption can be drawn of disputed questions of fact and law, and cannot be adjudicated in summary proceedings under section 111 of the Companies Act and the remedy regarding rectification of the register is exclusively available with the Company Law Board under section 111 and the company petition is maintainable for examining the grievance being raised under sections 397 and 398 of the Companies Act. 3. However, the learned Company Law Board after taking note of the objections raised by the present appellant in paragraph 22 of its order impugned, observed that the application filed before the Company Law Board declares facts seeking recognition of the register and indisputably the respondents hold 10 per cent. 3. However, the learned Company Law Board after taking note of the objections raised by the present appellant in paragraph 22 of its order impugned, observed that the application filed before the Company Law Board declares facts seeking recognition of the register and indisputably the respondents hold 10 per cent. of original share certificates of subscribed capital of the company and what has been contended by the present appellant raising preliminary objection before the Company Law Board could be examined only after the reply to the company petition being filed and the matter is examined ; and taking note whereof, the application raising preliminary objections regarding maintainability of the company petition of the respondent herein under section 111 read with sections 397 and 398 of the Companies Act was rejected and liberty was granted to the present appellant to file reply to the company petition, vide order dated February 5, 2010. However, as informed in the course of arguments that after rejection of their preliminary objection, reply to the company petition has been filed by the present appellant and pleadings of the company petition are complete and the matter has ripened for final hearing, which has been fixed before the Company Law Board on May 11, 2011. 4. Counsel for the appellant basically reiterated what has been contended before the Company Law Board and has tried to convince that composite petition under sections 111 and 397 and 398 of the Companies Act is not maintainable since serious disputed questions of fact have been raised which could not be examined by the Company Law Board in summary proceedings and placed reliance upon the judgment of the apex court in Ammonia Supplies Corporation P. Ltd. v. Modern Plastic Containers P. Ltd. (1998) 94 Comp Cas 310; (1998) 7 SCC 105 and Standard Chartered Bank v. Andhra Bank Financial Services Ltd. [2006] 6 SCC 94 , counsel submits that the claim based on disputed civil rights is beyond the scope of rectification of the register of members, as prayed for ; and what is to be examined in the company petition filed under section 111 of the Companies Act, in the facts of the instant case could be adjudicated only by the civil court where along with inter se dispute of civil rights could be resolved. 5. 5. Per contra, Shri U.N. Bhandari, learned senior counsel for the respondent while supporting the order impugned submits that in the absence of the reply to the company petition being filed by the present appellant, it could not have presupposed that there were serious disputed questions of fact or could only be examined by the civil court but, after the reply to the company petition being filed and examined by the Company Law Board ; objection regarding disputed questions of fact, as alleged, could not be recorded and will be open to be considered in the summary proceedings provided under section 111 of the Companies Act. Counsel further submits that it is not the stage for learned Company Law Board to examine as to whether there are disputed questions of fact which could relegate the parties to approach the civil court or could be examined in summary proceedings provided the reply is filed and the adjudication on the company petition filed under section 111 read with sections 397 and 398 of the Companies Act has taken place. Counsel further submits that composite company petition under section 111 read with sections 397 and 398 is maintainable before the Company Law Board and further submits that appeal under section 10F of the Companies Act is maintainable only if one is aggrieved by any decision or order of the Company Law Board raising any question of law out of such decision/order requiring consideration ; while in the instant case, there is neither any decision nor order being passed by which the appellant could be said to be a person aggrieved and what has been observed by the Company Law Board in its order impugned do not involve any question of law which may require consideration by this court in appeal under section 10F of the Companies Act. 6. This court has considered contentions advanced at the Bar and with their assistance examined the material on record. 6. This court has considered contentions advanced at the Bar and with their assistance examined the material on record. A bare perusal of the order impugned clearly manifests that the Company Law Board has not expressed any opinion on the preliminary objections raised ; contrarily, after objections raised by the present appellant being noticed, the Company Law Board has observed that merely because objections were raised in regard to disputed questions of fact being involved, it would not non-suit the company petitioner ; and what has been contended in the company petition cannot be held to be disputed questions and that could be examined only after the reply being filed to the company petition ; and it has been observed in paragraph 33 of the impugned order ad infra : "33. Register of members produced at the time of hearing is not free from controversies. Any question relating to title in respect of the impugned shares involving substantial factual issues cannot be adjudicated as preliminary issue, but only while disposing the company petition on merits. If the petitioner succeeded in its charges levelled against the respondents in the matter of owning of the impugned shares it will qualify to agitate its grievances before the petitioner shall not have any right to maintain the company petition. The whole issue revolving around ownership of the impugned shares in view of the rival claims is shrouded with innumerable controversies, involving seriously disputed facts which cannot be resolved in isolation without going into the larger issues invoked in the company petition which have bearing on the maintainability of the company petition and, therefore, the question of maintainability ought not to be adjudicated at this stage. It is a composite petition attracting the provisions of section 111 (section 111A seems to have been wrongly mentioned) of the Act as well. In the facts and circumstances of this case, the petitioner cannot be non-suited on the ground that section 111 is a separate provision. It is settled position that in these equitable proceedings only delay and laches apply and not the limitation as per the Limitation Act, 1963 and that too has to be examined in the facts and circumstances of the case. It is not justifiable to dismiss the petitioner's claim at the threshold on the ground of any maintainability of main petition in terms of section 399 of the Act." 7. It is not justifiable to dismiss the petitioner's claim at the threshold on the ground of any maintainability of main petition in terms of section 399 of the Act." 7. From what has been observed (supra), the Company Law Board has refrained from expressing any opinion obviously for the reason that it has not reached that stage, as yet. 8. However, it is not the case of the present appellant that the company petition under section 111 and under sections 397 and 398 of the Companies Act could not have been filed. Indisputably when the company petitioner holds 10 per cent. of original share certificates of subscribed capital of the company, which is prima facie evidence of title of the members of such original shares in terms of section 84 of the Companies Act and what has been contended by the appellant that there are certain disputed questions of fact and the company petition filed under section 111 read with sections 397 and 398 of the Companies Act could not be examined by the Company Law Board in the light of the judgment in Ammonia Supplies Corporation P. Ltd. v. Modern Plastic Containers P. Ltd. (1998) 94 Comp Cas 310 ; (1998) 7 SCC 105 , in the opinion of this court does not hold good in the facts of the instant case. 9. This court finds substance in the submissions made by the senior counsel for the respondent that the present order pursuant to which the preliminary objection has been rejected is neither a decision nor an order by which any person including the present appellant could be said to be aggrieved and obviously for the reason that no finding either way has been recorded and what has been observed by the learned Company Law Board in its order impugned is that the matter could be examined only after the reply to the company petition being filed by the present appellant and merely because the objection has been raised by the appellant, that in no manner will not non-suit the company petitioner from the mechanism to examine the dispute raised as provided under the law. In the opinion of this court, in the absence of there being any decision or order deciding the rights of the parties either way and by which one could be said to be aggrieved and at the same time, raising any question of law, which may not at all require determination, this court has to refrain from entertaining the appeal. 10. That apart, as informed in the course of arguments, reply to the company petition has been filed by the present appellant and the matter has ripened for final hearing before the Company Law Board, it would be otherwise not appropriate for this court to record any finding on the merits since it may either way adversely affect the rights of the parties while the matter is still to be adjudicated before the Company Law Board. 11. Consequently, the appeal being devoid of merit, fails and is hereby dismissed. *******