National Company Law Appellate Tribunal
Anirudh Kumar vs Hydraulics And Pneumatics India Llp on 10 February, 2025
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) No.8 of 2025
&
IA No.104, 134 of 2025
In the matter of:
Anirudh Kumar Applicant
Vs
Hydraulics & Pnecumatics India LLP & Ors. Respondent
For Appellant:Mr Rakesh Tikku, Sr Advocate, Mr Abhinav Bajaj, Mr Saksham
Ojha, Ms Geetashi Chandna, Advocates.
For Respondent:Mr Krishnendu Dutta, Sr Advocate, Mr Kunal Mimani, Mr
subhang Tandon, Ms Shraddha Chirania, Advocates.
ORDER
HYBRID MODE 10.02.2025: This is an application being IA No.133 of 2025 filed by the appellant under Rule 31 read with Rule 11 of the NCLAT Rules, 2016 for exemption from filing certified copy of the impugned order dated 26.07.2024 and for placing dim and typed copy of the documents. The application is allowed subject to filing of certified copy of the impugned order and legible documents within two weeks from today. IA No.133/2025 stands disposed.
2. IA No.134/2025 is filed on behalf of the appellant under Section 5 of the Limitation Act, 1963 read with Rule 11 and 31 of the NCLAT Rules 2016 seeking 15 days condonation of delay in filing the appeal. The reasons for delay in filing the appeal is stated in the application. Considering the reasons, the IA No.134 of 2025 is allowed and delay in filing the appeal is condoned. 2 APPEAL
3. This is an appeal against the impugned order dated 26.07.2024 wherein the Company Application No.133(ND)/2022 in CP No.53/45QA/ND/2022 was dismissed and alongwith that the CP No.53/45QA/ND/2022 was also dismissed. The appellant had filed CP under Section 43 of LLP Act, 2008 wherein he had moved an application under Rule 11 of NCLT Rules read with proviso to Section 241 of the Companies Act, 2013 to waive the condition contained under section 43(3) of the Act stipulating requirement of minimum of 1/5th of total number of partners to file a petition under Section 43 of the LLP Act.
4. Vide the impugned order the Ld. NCLT has held in the absence of any specific provision for waiver in the LLP Act it is not permissible under law to rely upon Companies Act, to seek waiver.
5. Section 43(1)(a) is as under:
43. Investigation of the affairs of limited liability partnership-
(1) The Central Government shall appoint one or more competent persons as inspectors to investigate the affairs of a limited liability partnership and to report thereon in such manner as it may direct if----
"(a) The Tribunal, either suo motu, or on an application received from not less than one-fifth of the total number of partners of limited liability partnership, by order, declares that the affairs of the limited liability partnership ought to be investigated; or
6. It is argued by the learned counsel for the appellant though the application as well as CP was dismissed on eligibility criteria (viz. 1/5th of partners) but the section requires the Ld. NCLT to examine allegations set 3 forth in the petition to find out if the facts complained of are such that it may suo moto direct investigation under Section 43 of the LLP Act.
7. We have examined the impugned order. Admittedly it does not discuss merits and is passed only on eligibility criteria discussed above. Both the Ld. Senior counsels are ad-idem to say the Ld. NCLT was though right in saying the provisions of Section 242 and 244 would not be applicable in the facts of the case as have not been incorporated per Section 67 of the LLP Act, yet admitted the merits of the company petition have not been discussed in the impugned order, though per respondent the merit was never argued.
8. Nevertheless to the limited effect viz eligibility criteria the impugned order does not require any interference but admittedly it does not discuss if the company petition contains such information as to enable the Tribunal to take a suo moto action per section 43(1)(a) of LLP Act. Thus with consent we dispose of this appeal by maintaining the impugned order but in case a petition is filed in future before the Ld. NCLT, the Ld NCLT may examine as to if the facts exist to exercise its suo moto power by examining its contents thereof and the impugned order shall not come in the way.
9. The appeal stands disposed of.
(Justice Yogesh Khanna) Member (Judicial) (Mr. Ajai Das Mehrotra) Member (Technical) Bm/md