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Madhya Pradesh High Court · body

2013 DIGILAW 420 (MP)

R. R. Home Developers Pvt. Ltd. v. Rajendra Jain

2013-03-26

J.K.MAHESHWARI

body2013
JUDGMENT : Challenging the order dated 29-11-2012 passed by the XXI Additional District Judge, Indore in Civil Suit No. 42-A/12, rejecting the application filed by applicants under Order 7, Rule 11 read with section 151 of Civil Procedure Code to dismiss the suit for want of having remedy under the Companies Act, this Revision has been preferred. 2. On perusal of the order impugned it appears that in the application filed by the applicants, it is stated that the suit has been filed to declare the meeting of the Board of Directors as null and void and to declare the Form Nos. 32 and 33 as null and void and to restrain the commencement of the meetings of the Board of Directors. It is further stated that as per section 9 of the Companies Act, 1956 (hereinafter referred to as 'Companies Act'), the District Court can hear and decide the matter as specified in section 10 of the Companies Act. The trial Court on perusal of the Clause 28-B of the suit that a prayer for permanent injunction has also been made which can only be granted by the Civil Court and in the light of the judgment of Hon'ble the Apex Court in the case of Dwarka Prasad Agarwal vs. Ramesh Chander Agarwal, (2003) 6 SCC 220 the jurisdiction of Civil Court is not expressly or impliedly barred, therefore rejecting the application filed by the applicants, suit has been maintained. 3. Learned counsel appearing on behalf of the applicants has strenuously urged that looking to the averments of the Civil Suit and the prayer as made subject-matter of the suit is governed by the provisions of the Companies Act. As per section 10 of the Companies Act, the Court means a Court dealing with any matter relating to Company have jurisdiction under the Act. In the matter of removal of the Directors and to declare such meeting invalid which affects mismanagement of the Company, an application may be filed before the Company Law Board or Tribunal as per section 398 of the Act. However, the jurisdiction of the Civil Court is impliedly barred therefore the trial Court committed an error to reject such an application and not to dismiss the suit filed by the respondent/plaintiff. In such circumstances, the order passed by the learned trial Court be set aside allowing this revision. 4. However, the jurisdiction of the Civil Court is impliedly barred therefore the trial Court committed an error to reject such an application and not to dismiss the suit filed by the respondent/plaintiff. In such circumstances, the order passed by the learned trial Court be set aside allowing this revision. 4. Per contra Shri Baheti, learned counsel appearing on behalf of the respondent has contended that as per the judgment of the Hon'ble Apex Court in Dwarka Prasad Agarwal (supra), it has been held that the jurisdiction of the Civil Court is not expressly barred in company matter, therefore, the trial Court has rightly rejected the application filed by the applicants under Order 7, Rule 11 read with section 151 of Civil Procedure Code. In such circumstances, it is urged that the revision filed by the applicants may be dismissed. 5. In the sequel of facts of this case, on search one judgment of the M. P. High Court deciding the said issue in unequivocal terms was found. In the case of Nava Samaj Ltd. Nagpur vs. Civil Judge, Class-I, Rajnandgaon, reported in 7966 MPLJ 335 = AIR 1966 M.P. 286 , Justice P. B. Dixit, has taken a view that after commencement of Companies Act, jurisdiction of the Civil Court is excluded, while Justice K. L. Pandey dissenting with the said view held that the Civil Court's jurisdiction is not ousted until it is impliedly or expressly barred. Thus, considering the issue as involved is of larger interest regarding the jurisdiction of the Civil Court, after commencement of the Companies Act. However, learned senior counsel Shri A. K. Chitale, present in Court has been appointed as Amicus Curiae to assist this Court. 6. Shri A. K. Chitale learned senior counsel referring the definition of the Court specified in section 2(11) of the Companies Act as well as section 10 and also sections 397, 398, 399 and 402 of the Companies Act and also in reference to section 9 of Civil Procedure Code, contended that even after commencement of the Companies Act, the jurisdiction of the Civil Court is not automatically ousted it is submitted that Civil Court can try the suit of civil nature excepting the suits of which the cognizance is either expressly or impliedly barred. However, looking to the pleadings and relief as prayed for in the suit and the provisions of the Companies Act and also of various pronouncements of the Apex Court as well as of different High Courts, jurisdiction of the Civil Court is not ousted. 7. After hearing the learned counsel appearing on behalf of the parties and Shri A. K. Chitale, senior counsel at length to adjudicate the issue of exclusion of jurisdiction of Civil Court, in view of the provisions of section 10 of the Companies Act requires consideration. As the suit has been filed by the plaintiff and its entertainability on the ground of not having jurisdiction to the Civil Court has been assailed, therefore the provisions of section 9 of the Civil Procedure Code is required to be reproduced here for ready reference :- "9. Courts to try all civil suits unless barred. - The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. [Explanation I]. -- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation II].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]." 8. In the present case, the matter relates to the expulsion of the plaintiff as Director by the meeting of the Board of Directors has been challenged raising an objection that it is a matter covered by sections 284, 398 of the Companies Act, therefore, the Civil Court's jurisdiction is ousted as per section 10 of the Companies Act. In the said context, certain provisions of the Companies Act is also required to be reproduced :- "Section 2. Definitions. - In this Act, unless the context otherwise requires. - (11) "the Court" means, - (a) with respect to any matter relating to a company other than any offence against this Act the Court having jurisdiction under this Act with respect to that matter relating to that company, as provided in section 10;" "10. Jurisdiction of Courts. Definitions. - In this Act, unless the context otherwise requires. - (11) "the Court" means, - (a) with respect to any matter relating to a company other than any offence against this Act the Court having jurisdiction under this Act with respect to that matter relating to that company, as provided in section 10;" "10. Jurisdiction of Courts. - (1) The Court having jurisdiction under this Act shall be - (a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2); and (b) where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district. (2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction conferred by this Act upon the Court, not being the jurisdiction conferred - (a) in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive; (b) in respect of companies with a paid - up share capital of not less than one lakh of rupees, by Part VII (sections 425 to 560) and the other provisions of this Act relating to the winding up of companies. (3) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up." 9. On perusal of the aforesaid provisions, it is clear that the Civil Court has jurisdiction to try all the suit of civil nature until and unless the cognizance of Court is expressly or impliedly barred. From the Explanation (I) it is clear that any right to property or to an office may be contested, in a suit of civil nature. As per the definition of the Court specified in the Companies Act, it is clear that the Court under Companies Act having jurisdiction with respect to any matter relating to a Company as provided under section 10. As per the definition of the Court specified in the Companies Act, it is clear that the Court under Companies Act having jurisdiction with respect to any matter relating to a Company as provided under section 10. As per section 10 of the Companies Act, it is clear that the Court under the Companies Act shall be the High Court having jurisdiction in relation to the places at which the registered office of the Company is situated. If the jurisdiction has not been conferred on any district Court or District Courts subordinate to that High Court in pursuance to sub-section (2), in case of conferment of such power, the said district Court may have jurisdiction in respect of the Companies having their registered office in the district. Thus, it is clear that as per Companies Act the jurisdiction has been conferred to the Court with respect to the subject-matters or the matter relating to the Company. It has not been specified that all the matter shall be brought before the Court defined in section 10 of the Companies Act. Thus, discussion of the legal position on the said issue by various pronouncements is necessary. 10. In the case of Dhulabhai vs. State of M. P., reported in 7969 MPLJ (S.C.) 1 = AIR 1969 SC 78 while dealing with the issue of exclusion of the jurisdiction of the Civil Court five Judges Bench of Hon'ble the Apex Court has laid down 7 principles which are reproduced as thus :- "(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional, or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply." 11. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply." 11. The said issue has again come up for consideration in the case of Raja Ram Kumar vs. Union of India, reported in AIR 1988 SC 752 wherein Supreme Court after considering the various judgments has held as under :- "Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno-flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts' jurisdiction is impliedly barred. If, however, a right pre-existing in common-law is recognised by the statute and a new statutory remedy for its enforcement provided without expressly excluding the Civil Courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open on element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the Civil Courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case." 12. Hon'ble the Apex Court in the case of Dwarka Prasad Agarwal (supra). In reference to the provisions of sections 9 and 10 of the Companies Act held as under :- "18. Sections 9 and 10 of the Companies Act are as under : "9. Act to override memorandum, articles etc. Hon'ble the Apex Court in the case of Dwarka Prasad Agarwal (supra). In reference to the provisions of sections 9 and 10 of the Companies Act held as under :- "18. Sections 9 and 10 of the Companies Act are as under : "9. Act to override memorandum, articles etc. - Save as otherwise expressly provided in the Act - (a) the provisions of this Act shall have effect notwithstanding anything to the contrary contained in the memorandum or articles of a company, or in any agreement executed by it, or in any resolution passed by the company in general meeting or by its Board of directors, whether the same be registered, executed or passed, as the case may be before or after the commencement of this Act; and (b) any provision contained in the memorandum, articles, agreement or resolution aforesaid shall, to the extent to which it is repugnant to the provisions of this Act, become or be void, as the case may be." "10. Jurisdiction of Courts. - (1) The High Court having jurisdiction under this Act shall be - (a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of sub-section (2); and (b) where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district. (2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower and District Court to exercise all or any of the jurisdiction conferred by this Act upon the Court, not being the jurisdiction conferred - (a) in respect of companies generally, by sections 237, 391, 394, 395 and 397 to 407, both inclusive; (b) in respect of companies with a paid-up share capital of not less than one lakh of rupees, by Part VII (sections 425 to 560) and the other provisions of this Act relating to the winding up of companies. (3) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up." 19. A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the Civil Court has not been ousted. The Civil Court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the general law, would also be maintainable in terms of section 6 of the Specific Relief Act, 1963. In such matters the Court would not be concerned even with the question as to title/ownership of the property. 22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all dispute of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a Civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of Civil Court requires strict interpretation. The Court, it is well-settled, would normally lean in favour of construction, which would upheld retention of jurisdiction of the Civil Court. The burden of proof in this behalf shall be on the party who asserts that the Civil Court's jurisdiction is ousted. [See Sahebgouda (dead) by LRs. and ors. vs. Ogeppa and ors., 2003(3) Supreme 13 ]. Even otherwise, the Civil Court's jurisdiction is not completely ousted under the Companies Act, 1956." 13. In view of the foregoing, it is apparent that unless exclusion of the jurisdiction of the Civil Court is not readily inferred from the guidelines satisfied by Hon'ble the Apex Court in the case of Dhulabhai (supra), it is not ousted. It has further been held that pre-existing right of common law cannot be taken away by subsequent statute. If concurrent remedy is available in both laws then an element of election is to the person aggrieved. 14. In the case of Vithalrao Narayanrao Patil vs. Maharashtra State Seeds Corporation Ltd., (1990) 68 Comp. Cases 608. It has further been held that pre-existing right of common law cannot be taken away by subsequent statute. If concurrent remedy is available in both laws then an element of election is to the person aggrieved. 14. In the case of Vithalrao Narayanrao Patil vs. Maharashtra State Seeds Corporation Ltd., (1990) 68 Comp. Cases 608. Bombay High Court held that Civil Judge has no jurisdiction to entertain a suit filed by Director challenging his removal. It has further been held that except where the jurisdiction has been established or conferred on the district Court by the Central Government, the High Court by virtue of this section 10 is provided Court to entertain any dispute in respect of affairs of the Company. The said judgment has been overruled by the Division Bench of the Bombay High Court in the case of Santosh Poddar vs. Kamal Kumar Poddar, (1992) 3 BCR 310. The Division Bench overruling the judgment of Vithalrao Narayanrao (supra) and disagreeing the judgment of the Calcutta High Court said that there is no ouster of jurisdiction of a Civil Court in all cases where the provisions of the Companies Act may be attracted. It is only in respect of those proceedings which are expressly contemplated under the Companies Act under any specific provisions that the Court which is referred to in that section would be Special Court. In all other cases ordinarily Civil Court would continue to have jurisdiction. 15. The Bombay High Court in CDS Financial Services vs. Bhopal Communications Ltd., (2004) 121 Comp. Cases 379 after considering the judgment of Dhulabhai and Raja Ram (supra) and also taking note of the provisions of section 10 of the Companies Act and relying upon various judgments of various Courts held that unless jurisdiction is expressly or impliedly barred under a statute for violation or redress of any such right, Civil Court would have jurisdiction. It is also held that under the Companies Act, nothing has been provided barring the jurisdiction of the Civil Court. The Companies Act merely stated that the jurisdiction of the Court is defined to exercise its power under various sections where it has invested with the exclusive jurisdiction, then the jurisdiction of the Civil Court is impliedly barred otherwise not. 16. The Companies Act merely stated that the jurisdiction of the Court is defined to exercise its power under various sections where it has invested with the exclusive jurisdiction, then the jurisdiction of the Civil Court is impliedly barred otherwise not. 16. Somewhat in the similar facts of the case identical issue came up for consideration before the Andhra Pradesh High Court in the case of Avanthi Explosives Pvt. Ltd vs. Principal Subordinate Judge, (1987) 62 Comp. Case 301 AP. In the said case a civil suit was filed involving the disqualification of the Director of a Company. The Court held that when the case deals with an individual right then civil suit filed by him is maintainable. It is said that some regulatory provisions in the Act may be there but it cannot infer that the general right to file civil suit is taken away. Accordingly, the suit for declaration that the plaintiff be continued to be the Managing Director of the Company and that the Board meeting is null and void and for injunction to restrain the respondents from interfering with the office of the plaintiff as a Managing Director was found maintainable. 17. Before the Kerala High Court in the case of R. R. Rajendra Menon (No. 2) vs. Cochin Stock Exchange Ltd., (1990) 69 Comp. Case 256 the similar issue came for consideration, the Division Bench of Kerala High Court held that unless a particular matter is specified in the Companies Act as one to be dealt with by the Company Court, it cannot exercise the jurisdiction merely because it is also a matter which relates to a Company. There is no provision in the Companies Act expressly or impliedly specifying that an application to compel a Company to comply with the requirements of section 257 of the Companies Act would lie before the Company Court. 18. In another case of the Kerala High Court, in the case of Dr. T. M. Paul vs. City Hospital (Pvt.) Ltd., reported in (1999) 97 Comp. Cases 216 the Court held that transactions which have already been concluded and which while in process could not support a petition under sections 397 and 398 of the Companies Act, can be questioned in the civil suit. T. M. Paul vs. City Hospital (Pvt.) Ltd., reported in (1999) 97 Comp. Cases 216 the Court held that transactions which have already been concluded and which while in process could not support a petition under sections 397 and 398 of the Companies Act, can be questioned in the civil suit. Thus, it is clear that even a person claiming a relief before the Civil Court is having a right to move before the Tribunal or the Company Law Board under sections 398 and 399 of the Companies Act. The jurisdiction conferred to a Civil Court under common law has not been excluded. 19. The Karnataka High Court in a case of Prakash Road Lines Ltd. vs. Vijay Kumar Narang, (1995) 83 Comp. Cases 569 (Kar) held that sections 257 and 284 regulate the exercise of the power to appoint and remove Directors. No particular provision of the Act creates a specific jurisdiction to enforce such rights exclusively by the Court specified in the Companies Act, therefore, it was held that it remains a matter for the jurisdiction of the Civil Court. The Karnataka High Court in the case of Mrs. Jayanthi R. Padukone vs. I.C.D.S. Ltd., reported in (1999) 96 Comp. Cases 85 held that the jurisdiction of the Civil Court in a suit filed by the share holders seeking injunction to restrain the meeting of Board of Directors to remove the Managing Director on account of fraction of two groups in management held that jurisdiction of Civil Court is not ousted. In the case of Maharaja Exports and another vs. Appeals Export Promotion, reported in (1986) 60 Comp. Cases 3532 Delhi, the Delhi High Court has also taken the same view. 20. In view of the foregoing, it appears that the exclusion of jurisdiction of the Civil Court cannot be readily accepted as the said jurisdiction has been conferred to citizens under the common law. It has further been held that until and unless the Civil Court's jurisdiction is expressly or impliedly barred by the provisions of the statute, Civil Court is having jurisdiction to entertain a suit of civil nature as specified under section 9 of the Civil Procedure Code. It has further been held that until and unless the Civil Court's jurisdiction is expressly or impliedly barred by the provisions of the statute, Civil Court is having jurisdiction to entertain a suit of civil nature as specified under section 9 of the Civil Procedure Code. It is required to mention here that the view taken in the case of Vithalrao Narayanrao Patila (supra) has been reiterated by the Bombay High Court in the case of Khetan Industries Pvt. Ltd. vs. Manju Ravindraprasad Khetan, reported in AIR 1995 Bombay 43. But the judgment of Vithalrao Narayanrao Patil (supra) has been overruled in a case of Santosh Poddar (supra) and the view taken in the case of Khetan Industries Pvt. Ltd. (supra) is of no substance because the Division Bench of Bombay High Court in the case of CDS Financial Services (supra) has reiterated the view taken in the case of Santosh Poddar (supra) relying upon various Supreme Court judgments. 21. In view of the foregoing discussion and after going through the provisions of sections 9 and 10 of the Companies Act, it is clear that the word "Court" defined in the Companies Act would have a jurisdiction to decide the issue in relation to the affairs of the Company and by the specified Court. In the Companies Act, for the purpose of certain causes remedies have been specified. But under the Act, it has not been specified that the jurisdiction of the Civil Court has been barred even in cases to which remedy lies to Company Court. In the said context if section 9 of Civil Procedure Code has been read with the provisions of Companies Act, then it is clear that the remedy to file a civil suit conferred to a citizen to go in a Civil Court having jurisdiction to try the suit of civil nature, except in a case where the cognizance is expressly or impliedly barred. In cases where under the Companies Act remedy is available, the maintainability of civil suit is impliedly barred. In other cases where remedy is not available in Companies Act, civil suit can be maintained. 22. In the facts of the present case, Explanation No. (I) of section 9 of Civil Procedure Code is relevant whereby the issue with respect to contest of office of a Director may questioned in Civil Court. In other cases where remedy is not available in Companies Act, civil suit can be maintained. 22. In the facts of the present case, Explanation No. (I) of section 9 of Civil Procedure Code is relevant whereby the issue with respect to contest of office of a Director may questioned in Civil Court. In such circumstances, it can safely be observed that until and unless the remedy is provided under the Companies Act for a particular cause, jurisdiction of the Civil Court is not ousted. It is made clear that the jurisdiction of the Civil Court to entertain a suit shall continue for which such jurisdiction by express of implied implication is ousted by statute. The aforesaid analogy applies from the judgment of the Apex Court in the case of Dhulabhai, Raja Ram Kumar and Dwarka Prasad Agarwal (supra). The aforesaid view fortifies the judgment of various High Courts as discussed hereinabove. 23. Thus, in the said context the facts of the present case requires examination. In the present case, the plaintiff/respondent filed a suit seeking declaration and permanent injunction inter alia contending his removal as Director of the Company, by a meeting of Board of Directors on 15-3-2012 held illegally. It has further been prayed that the meeting held by the Board of Directors, and Form Nos. 32 and 23 submitted in the website of the Registrar of the Company be declared as void as void ab intito. The permanent injunction has also been prayed that defendant Nos. 1, 2 and 3 shall not be allowed to change in the in the share capital of the Company and new share holders shall not be permitted to be included. 24. In the said context, it can safely be observed that the relief regarding removal of the Director has been specified under section 284, but to which there is no specific remedy to the individual for the relief sought is available. As per the provisions of the Companies Act, under section 398, if a case of mismanagement is there, application may be submitted before the Tribunal, under section 399 of the Companies Act, by the persons so specified in the Act. As per the provisions of the Companies Act, under section 398, if a case of mismanagement is there, application may be submitted before the Tribunal, under section 399 of the Companies Act, by the persons so specified in the Act. On perusal of the aforesaid provisions, it is clear that in a case a Company having share capital not less than one hundred members of the Company or not less than one-tenth of the total number of its members, whichever is less or any member or members holding not les than one-tenth of the issued share capital of the Company, can apply to Tribunal/Board. The power has been conferred to the Tribunal only to grant the relief as specified by section 402 of the Companies Act. The power to grant relief specified in section 402 of the Companies Act do not cover the relief as prayed for in the civil suit. In addition to the aforesaid, it can safely be observed that on filing a civil suit for declaration of status to a post or a right to hold post is permissible to claim in Civil Court under section 34 of the Specific Relief Act. In such circumstances, looking to the averments of the suit and relief prayed for therein by the plaintiff/respondent, the trial Court has rightly rejected the application filed by the defendants by the order impugned. 25. Accordingly, the revision filed by the applicants is devoid of any substance and is hereby dismissed. The trial Court has rightly rejected the application under Order 7, Rule 11 of Civil Procedure Code filed by the defendants/applicants. However, the order passed by the trial Court is hereby upheld. In the facts of the case, parties are directed to bear their own costs. 26. At this stage, I am duty bound to express my gratitude for the valuable assistance rendered by Shri A. K. Chitale, Senior Advocate, in deciding the said issue, as amicus curiae, otherwise, it would amounting to failure in discharge the duties of this Court. C. C. as per rules. Revision dismissed.