JUDGMENT D.V. Shylendra Kumar , J.—This is an appeal under Section 10F of the Companies Act, by a person who was before the Company Law Board, Additional Principal Bench, Chennai in Company Petition No. 57/2007, seeking for relief invoking provisions of Sections 111, 235, 397, 398 and 402 of the Companies Act, 1956. The Company Law Board having in terms of its order dated 06.01.2011, dismissed the company petition on a preliminary issue of maintainability of the company petition. Holding that, the petition was not maintainable, inasmuch as it found that the petitioner did not qualify for relief either under Section 111 or for an order under Section 402 on the premises as available under Section 397 or 398 of the Act. For the reason that, the petitioner did not fulfil the requisite qualification of holding a minimum of 10% of the shareholding of the company in terms of Section 399 of the Act, the company petition came to be dismissed. 2. It is aggrieved by this order, the present appeal. 3. The appeal had been admitted to examine the following question of law: Whether the respondent-company is justified in not depicting the name of the appellant in the register of shareholders of the company only because of the appellant filing a civil suit for recovery of the share amount, when in fact the company has not purchased the shares, but on the other hand, positively declined the first offer made by the appellant in favour of the company? 4. The matter is listed today for Orders on the following applications: LA. No. I/2012 for dispensation of filing of paper book. Misc. Civil. No. 5823 /2011 for direction on states quo, Misc. Civil No. 5824/2011 for temporary injunction and Misc. Cvl. 5825/2011 for stay. 5. Shri S. Vijay Kumar, learned counsel appearing for the appellant submits that having regard to the nature of the order passed by the Company Law Board and the petition having been dismissed on a preliminary issue, the matter has to be remanded and there is no need for filing paper book and sought for dispensation of the filing of the paper book. 6. Filing of paper book is dispensed at the risk and cost of the appellant. 7. We notice that the prayer sought in Misc. Civil No. 5823/2011 for direction, is virtually the main prayer as is sought in the appeal. 8. 6. Filing of paper book is dispensed at the risk and cost of the appellant. 7. We notice that the prayer sought in Misc. Civil No. 5823/2011 for direction, is virtually the main prayer as is sought in the appeal. 8. We have heard Shri Vijay Kumar, learned counsel for the appellant, the second respondent Shri Albal appearing party-in-person and Shri Yashraj learned counsel appearing for the sixth respondent. 9. Submission of Shri. Vijay Kumar is that the Company Law Board has committed an error in dismissing the company petition as not tenable by taking into consideration the submission of the learned counsel of the respondent-company before it, to the effect that in view of the stand taken by the petitioner in original suit No. 870/2003, before the City Civil Court, the company petitioner was not entitled for claiming relief under Section 111, as the stand by the company petitioner was that he was not a shareholder on his own. 10. The pleading before the Civil Court was that, the company petition was not tenable on the ground that there is neither the factual provision nor the legal provision. 11. The company petitioner in fact had sought for rectifying the Register to depict his name as shareholder of 35 number of shares, as he has already contributed by investing in the Company, etc., that the suit had been filed for recovery of the funds, though the company petitioner had in fact at one point of time made an offer to the other shareholders of the company to take back his shares and the Company Law Board not appreciating the factual position has dismissed the company petition as not tenable on either ground namely, that the petitioner was neither the shareholder nor the one holding 1096 of the shares of the company and submits that the order of the Company Law Board is not tenable and is to be set aside and the matter be remanded to the Company Law Board for fresh consideration. 12. On the other hand, Mr. 12. On the other hand, Mr. Ananth Venkat Albal, second respondent appearing in person submits that it is only the conduct of the appellant which has come in the way of the company allotting or recognizing him as holder of 35 number of shares and that there was in fact an agreement amongst shareholders for allotting that number of shares in view of the contribution made by the appellant to the company, that when the appellant wanted to get back his amount in lieu of the shares, the question of allotting or showing him as holder of 35 number of shares does not arise. The agreement is not operationalised or given effect, in view of the conduct of the appellant. 13. Mr. Albal also submits, assuming for argument sake and on the concession of the company that, if the appellant should withdraw his suit for recovery of the amount indicated therein, the company is ready to recognize the appellant as shareholder of 35 number of shares and shall show this portion in the Register of the company. But the appellant cannot at the same time blow hot and cold by seeking the entire amount invested in the company in terms of the agreement by getting the shares allotted to him and he cannot have both shares and the money and therefore urges that the order of the Company Law Court (sic-Board) in dismissing the company petition on the preliminary issue is justified, and there is no need for alteration or interference with that order in this appeal. 14. However, Mr. Albal submits that the company is ready and willing to rectify the Register. In fact, the appellant has also acted as a Director of the company earlier, but the prerequisite for allotment of shares is he should withdraw the suit. 15. While his submission is recorded, it is up to the appellant to take advantage of it. Insofar as the present appeal is concerned, we do not find that the appellant does qualify for relief in terms of Section 397 or 398, as even the averment made is to the effect of the appellant being recognised as being entitled for 35 number of shares and therefore if the number of shares in the company which are held by the shareholders is 500 in number. As submitted by Mr. As submitted by Mr. Albal, 35 number of shares does not qualify for maintaining a petition under Section 397 or 398 of Act. 16. As to whether the extent of investment made by the appellant qualifies him for more than 35 number of shares or if 35 number of shares are allotted to him he is still entitled for return of any further amount is not a matter which is neither the subject matter of the company petition nor could be gone into in this appeal and is a disputed aspect. 17. But unfortunately for the appellant, his petition did not make much headway before the Company Law Board for want of company petitioner having commensurate qualification and that being the factual position and not much in dispute, we do not find any occasion to interfere with the order of the Company Law Board dismissing the company petition on preliminary issue. 18. However, it is made clear that dismissing the company petition will not come in the way of the Company to show the name of the appellant as holder of 35 number of shares in lieu of the investment or the appellant continuing his efforts before the City Civil Court for recovery of any amount on whatever premises he is putting forth and if he is so entitled. Subject to the observations, the appeal is dismissed.