I. Case Reference
| Case Citation | : | (2023) ibclaw.in 224 NCLAT |
| Case Name | : | Suvas Reality Pvt. Ltd. Vs. Kailashchandra Ramgopal Lohiya |
| Appeal No. | : | Company Appeal (AT) No. 29 of 2022 [Arising out of Order dated 17th January, 2022 passed by NCLT, Ahmedabad, Division Bench, Coudrt-1 in Company Application No. 43(AHM)2021 in C.P. No. 100 of 2018] |
| Judgment Date | : | 17-Mar-23 |
| Court/Bench | : | NCLAT New Delhi |
| Present for Appellant(s) | : | Mr. Arvind Kumar Gupta, Ms. Heena George, Ms. Shivani Sharma, Advocates |
| Present for Respondent(s) | : | Mr. Pulkit Deora, Mr. Harsh Gurbani, Ms. Aphune K. Kezo, Advocates. |
| Member (Judicial) | : | Mr. Justice Anant Bijay Singh |
| Member (Technical) | : | Mr. Kanthi Narahari |
| Original Judgment | : | Download |
II. Full text of the judgment
J U D G M E N T
(17th March, 2023)
KANTHI NARAHARI, MEMBER (TECHNICAL)
Preamble:
The Present Appeal is filed by invoking provisions of Section 421 of the Companies Act, 2013 against the order dated 17th January, 2022 passed by the National Company Law Tribunal, Ahmedabad, Division Bench, Court-1 in Company Application No. 43(AHM)2021 in CP No. 100 of 2018 whereby the National Company Law Tribunal (in short ‘NCLT’) passed an interim direction to maintain the status-quo in respect of the immovable property of the Respondent Company.
Brief Facts:
Appellant’s Submissions:
2. The Learned Counsel for the Appellant submitted that aggrieved by the aforesaid order, the Appellant preferred the present Appeal and narrated the brief facts.
3. It is submitted that the 1st Respondent filed C.P. No. 100 of 2018 before the Ahmedabad, Bench alleging acts of Oppression and Mismanagement in the Affairs of the Company. The Respondent claimed to be 50% shareholder of the Company at the time of filing the C.P. On the other hand, the Appellants claimed to be owners of 45% shareholding in the company. While so, the Appellants also filed Company Petition being No. 07 of 2020 alleging acts of Oppression and Mismanagement in the affairs of the Company by the Respondents. The Appellants also lodged FIR against the 1st Respondent and the 1st Respondent was arrested on 13.01.2021.
4. During the pendency of litigation, a Settlement Agreement dated 23.01.2021 was signed between the parties. After signing the Settlement Agreement, the Appellants did not contest bail being granted to the Respondent. Having to abide by the Settlement Agreement, the Appellant group had filed withdrawal pursis to withdraw their C.P. No. 07 of 2020 and the C.P. stood withdrawn vide order dated 28.06.2021.
5. The Respondent also filed withdrawal pursis to withdraw their C.P. No. 100 of 2018. But in a mala fide manner they refused to withdraw C.P. No. 100 of 2018 and orally sought withdrawal of withdrawal pursis during the hearing held on 03.03.2021. The NCLT allowed withdrawal of withdrawal pursis vide impugned order dated 03.03.2021 in C.P. No. 100 of 2018.
6. The Learned Counsel for the Appellant submitted that the order passed by the NCLT is a non-speaking order and passed without appreciating the facts of the case. The Learned NCLT could not have been permitted to withdrawal the withdrawal pursis. By virtue of the said impugned order dated 03.03.2021 the Respondent No.1 herein obtained interim orders in C.P. No. 100 of 2018 on 17.01.2022 in a mala fide manner. It is submitted that the impugned order dated 17.01.2022 is bad in law.
7. The Learned Counsel for the Appellant submitted that the aforesaid interim order passed on 17.01.2022 is in violation of maintaining judicial propriety due to pending appeal being CA (AT) No. 99 of 2021 in which the Appellants have challenged the very withdrawal of withdrawal pursis in C.P. No. 100 of 2018 and the Hon’ble Appellate Tribunal seized of the matter.
8. The Learned Counsel submitted that in view of the facts and circumstances as stated above, he prayed this Bench to allow the Appeal by setting aside the impugned order dated 17.01.2022.
Respondent’s Submissions:
9. The Counsel appearing for the Respondents submitted that the present Appeal is a misguided attempt to scuttle proceedings brought by the Respondent before the NCLT. It is submitted that the withdrawal of the withdrawal pursis was bona-fide because the withdrawal pursis was moved under duress. It is also submitted that the 3rd Appellant who is in control of the affairs of the company filed a false criminal complaint on 13.01.2021 with allegations contrary to the Settlement Agreement entered between the parties dated 11.08.2017 wherein it was acknowledged the Respondent No.1 herein holds 50% shares and agreed to transfer 40% to Respondent No.5 upon certain terms. The Respondent No.1 herein under duress and coercion executed the Settlement Agreement dated 23.01.2021 to transfer 10,000 shares to Appellant No.3 and affixed his signatures on a withdrawal application prepared by the Appellants. It is submitted that on 27.01.2021 the 3rd Appellant reported settlement before the Sessions Court and the Respondent No.1 was released from judicial custody.
10. It is submitted that the Learned NCLT passed the interim order dated 17.01.2022 in C.A. No. 43 of 2021 in C.P. No. 100 of 2018 since the 1st Respondent withdrawn the withdrawal pursis in C.P. No. 100 of 2018 and the NCLT allowed such withdrawal of withdrawal pursis vide order dated 03.03.2021 and in the eye of law the C.P. No. 100 of 2018 filed by the 1st Respondent herein is in continuum. Hence the Learned NCLT passed the status-quo order and there is no illegality in passing such order.
11. In view of the reasons as stated above, the Learned Counsel for the Respondent prayed this Bench to dismiss the Appeal.
Analysis / Appraisal:
12. Heard the Learned Counsel appeared for the respective parties, perused the pleadings and documents. The NCLT vide its order dated 17.01.2022 passed the following order:
“Order
I. The Petitioner and Respondents in C.P. No. 100 of 2018 are directed to maintain the status quo in respect of the immovable property/fixed assets of the Respondent company (as that order is still in existence and not varied or set aside).
II. Above order to maintain status quo is subject to the decision in appeal bearing Company Appeal (AT) No. 99/2021 by Hon’ble NCLAT.
16. With these directions, Comp. App/43(AHM)2021 in C.P. No. 100 of 2018 stands disposed of.”
13. Since this Tribunal in Company Appeal (AT) No. 99 of 2021 sets aside the impugned order dated 03.03.2021 passed by the NCLT, Ahmedabad Bench in C.P. No. 100 of 2018 whereby the NCLT allowed withdrawal of withdrawal pursis made in C.P. No. 100 of 2018, consequently, the C.P. No. 100 of 2018 and the withdrawal of withdrawal pursis has to be heard and decided by the NCLT afresh. Thereby this Tribunal is of the view that the C.P. No. 100 of 2018 and its continuum was suspended until the issue of withdrawal of withdrawal pursis is decided. That being so, the passing of interim order in such a situation may not be appropriate. Further, the NCLT in its impugned order dated 17.01.2022 in para-II made it clear that the order to maintain status-quo is subject to the decision in Company Appeal (AT) No. 99 of 2021 by this Appellate Tribunal.
Conclusion:
14. For the aforesaid reasons the order of NCLT dated 17.01.2022 is hereby set aside.
15. Resultantly, the Company Appeal (AT) No. 29 of 2022 is allowed. No order as to costs.
[Justice Anant Bijay Singh]
Member (Judicial)
[Kanthi Narahari]
Member (Technical)
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