Bombay High Court
Moniveda Consultants Llp vs Neelakantan Krishnan Iyer And 3 ... on 11 June, 2021
Bench: K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 12111 OF 2021
IN
COMMERCIAL ARBITRATION PETITION (L) NO.8887 OF 2021
Moniveda Consultant LLP ...Petitioner/Applicant
V/s
Neelakantan Krishnan Iyer & Ors. ...Respondents
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Mr. Kevic Setalvad, Senior Advocate a/w. Mr. Ravi Gandhi, Mr. Prerak
Choudhary, Mr. Rashmin Jain and Mr. Rishabh Ranka i/b. Kanga and Co. for
applicant/petitioner.
Mr. Nitin Thakkar, Senior Advocate a/w. Mr. Kunal Vajani, Ms. Jaymal
Ostwal and Ms. Komal Gosavi i/b J. J. Associates for respondents nos. 1 to
3.
Dr. Birendra Saraf, Senior Advocate a/w. Mr. Yash Momaya and Mr. Ryan
D'souza i/b DSK Legal for respondent no. 4.
----
CORAM : K.R. SHRIRAM, J.
DATED : 11th June 2021
P.C. :
1 This is an application filed by petitioner seeking leave to withdraw the
petition with liberty to file a fresh petition. The reasons are mentioned in
paragraphs 4, 5 and 7 of the application. Mr. Thakkar appearing for
respondent nos.1, 2 and 3 submits that petitioner having already preferred a
company petition in the NCLT, should not be permitted to raise the same
reliefs in the fresh petition that it may decide to file, if the court is inclined
to allow the relief that is sought by petitioner.
2 Dr. Saraf for respondent no.4 supports Mr. Thakkar and further
submits that it is settled law that a party should not be allowed to withdraw
Meera Jadhav
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the petition as and when they please and liberty should not be granted for
the mere asking. Dr. Saraf relied on a judgment of the Apex Court in the
matter of K.S.Bhoopathy & Ors. Vs. Kokila & Ors .1 Dr. Saraf also submitted
that if the defects which petitioner have been advised by the new advocates
can be cured by moving an appropriate amendment application, the court
should not permit withdrawal with liberty as prayed for.
3 There cannot be a dispute on these prepositions. At the same time,
Dr. Saraf in fairness agrees that the stage at which the proceedings were
allowed to be withdrawn with liberty in the matter of K.S.Bhoopathy
(Supra) was, at a later stage of those proceedings, whereas in the present
case, the petition has only been lodged, office objections have not yet been
cured, petition has not been finally numbered and not even one hearing has
taken place of the matter before the court. As regards moving appropriate
amendment application, whether an amendment application would suffice
or the court should permit withdrawal and grant liberty to file a fresh
petition, would depend on the facts and circumstances of each case and
there cannot be a straight jacket formula. From the contents of the
application, it does appear that extensive amendments would be required
and that would only make it difficult for the court to hear this petition.
4 Therefore, I am inclined to reject the objections raised by Mr. Thakkar
and Dr. Saraf and hereby permit petitioner to withdraw this petition with
liberty to file a fresh petition, if so advised. It will be open to respondents to
1 AIR 2000 SC 2132.
Meera Jadhav
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raise such objections as required / advised to the fresh petition to be filed
including pointing out to the court if there are any contradicting averments
in the fresh petition being filed and this petition. It is also open to
respondents to also object to the court granting any reliefs, if those reliefs
are already prayed for in the proceedings pending before the NCLT. In short
all rights and contentions are kept open.
4 Interim application accordingly stands disposed.
5 Petition also stands disposed.
(K.R. SHRIRAM, J.)
Meera Jadhav
