National Company Law Appellate Tribunal
Delite Properties Pvt Ltd vs Sudhir Goenka on 15 November, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) No. 126 of 2020
[Arising out of order dated 03.03.2020 passed by the National Company Law
Tribunal, Kolkata Bench, Kolkata in CP No. 651/KB/2020)]
IN THE MATTER OF:
1. Delite Properties Private Limited,
a company within the meaning of the
Companies Act, 2013 and having its
registered office at Circular Court, 8,
Acharya Jagadish Chandra Bose
Road, Kolkata-700017
2. Deoki Nandan Goenka,
Son of late Sagarmal Goenka
3. Aloke Goenka,
son of Sri Deoki Nandan Goenka
4. Sm. Indu Goenka,
wife of Sri Deoki Nandan Goenka
5. Sm. Shilpa Goenka,
wife of Sri Aloke Goenka
All residing at "Radha Sagar", Flat
no. 4C and 4D, 8, Moira Street,
Kolkata-700017.
6. Om Prakash Goenka,
Son of late Sagarmal Goenka, residing
at F-100, 2nd Floor, Laj[atnagar Part-
I, New Delhi-110024.
...... Appellants
Versus
2
Sudhir Goenka,
son of late Parmeshwar Lal Goenka,
residing at Radha Sagar, Flat no. 4C and 4D, 8,
Moira Street, Kolkata-700017
....... Respondent.
Present:
For Appellant: Mr. Sunjo Seth, Advocate.
For Respondent:- Ms. Sneha Baul, Advocate.
JUDGMENT
(15th November, 2022) Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013 has been filed by the Appellants being aggrieved and dissatisfied by the order dated 03.03.2020 passed by the National Company Law Tribunal (Kolkata Bench, Kolkata) in CP No. 651/KB/2020 whereby and whereunder the application filed under Section 213, 241, 242 and 244 of the Companies Act, 2013 by a minority shareholder as well as a director holding 7.29% of the total issued, paid up and subscribed share capital in the Respondent No. 1 company praying for exemption under the proviso to Section 244(1)(a) of the Companies Act, 2013 for enabling him to initiate action against the Respondent No. 1 Company and its Directors and after hearing the parties the Tribunal passed the following orders:
"Being prima facie satisfied that an arguable case has been set out for permitting the applicant to waive the requirements specified in clause (a) and (b) of Section 244 (1) of the Companies Act, 2013, we are admitting this application as per proviso to Section 244(1) of the Act, 2013. Upon hearing the Company Appeal (AT) No. 126 of 2020 3 argument on both sides it is learned that the respondents sold the registered office of the R-1 that being so it is fair and just to direct the R-1 Company to submit the account regarding the sale proceed received in respect of sale of its Registered Office, which will not be used other than to clear debt, due and payable to the Financial Creditor as per the settlement admittedly executed by the R1, till the next date of hearing.
Copy of the petition has been served to the respondents. Respondents are directed to file reply within 3 weeks by giving copy to the petitioner and the petitioner may file rejoinder within 3 weeks of receipt of the reply affidavit by serving copy to the respondents.
List it for further consideration on 14/05/2020."
2. The Respondent herein- Sudhir Goenka filed application before the Tribunal bearing CP No. 651/KB/2020 with following reliefs along with interim reliefs also:
"a. Leave be granted to the petitioner in terms of Section 244 of the Companies Act, 2013, to initiate the instant proceedings as against the respondents. b. A scheme be framed for management and administration of the company.
c. The sale of assets of the company be declared null and void, and the deeds in connection with the same be cancelled and delivered up.
d. Injunction restraining the respondents, their men, servants, agents or assigns from involving themselves in or dealing with the affairs of the company in any manner whatsoever Company Appeal (AT) No. 126 of 2020 4 and/or in any manner dealing with the assets or investments of the company.
e. Injunction restraining the respondents, their men, servants, agents or assigns from dealing with the properties held by the company or interest in any of the property held by the company in any manner whatsoever including the registered office of the company situated at Circular Court, 8, A.J.C. Bose Road, Kolkata-700017.
f. Injunction restraining the respondents, their men, servants, agents or assigns from parting with the possession of any of the properties of the company held either as owner or under any joint venture agreement and/or agreement for sale, in any manner whatsoever.
g. Injunction restraining the respondents their men, servants, agents or assigns from operating the bank accounts of the company maintained with IDBI Bank Ltd, Park Street Branch, bearing Account No. 0012102000033293 or nay other account that may be found on enquiry. h. The petitioner be permitted to exclusively operate the bank accounts of the company.
i. In the alternative special officer be appointed to operate the bank accounts of the company.
j. Injunction restraining the respondents, their men, servants, agents or assigns from holding or convening or participating in or voting at nay meeting of the Board of Director or any Annual General Meeting or Extraordinary General Meeting of the Company.
k. Injunction restraining the respondents from involving themselves in the business or affairs of the company.
Company Appeal (AT) No. 126 of 2020 5 l. An order directing the Central Government be directed to appoint such number of inspector or inspectors to investigate the affairs of the company.
m. The respondents be directed to compensate the company for the loss and damages caused to the company by their wrongful and illegal acts including misappropriation of funds, wrongful representation to the public at large including the government authority and other acts of mismanagement and it necessary, an enquiry and/or investigation be ordered by this Hon'ble Tribunal in such regards.
n. Injunction restraining the respondents, their men, servants, agents or assigns from filing or uploading any documents or Forms pertaining to the company and its affairs with the Registrar of Companies and/or any other authority. o. Injunction restraining the respondents from altering and/or changing the shareholding pattern of the company in any manner whatsoever.
p. Injunction restraining the respondents, their men, servants, agents or assigns from conducting the affairs of the company or intermeddling with the affairs of the company or from operating the bank accounts of the company in any form or manner whatsoever.
q. Injunction restraining the respondents, their men, servants, agents or assigns from dealing with or encumbering or creating any charge in respect of the immovable properties or other assets of the company.
r. The respondents be directed to furnish to the petitioner all books, records and documents pertaining to the company that may be in their possession.
Company Appeal (AT) No. 126 of 2020 6 s. A Special Officer/Administrator be appointed to take charge and custody of the records or books of accounts of the company that are in the custody of the respondents and to allow the petitioner to inspect the same. t. Appropriate reliefs be passed in accordance with Section 242 and 243 of the Companies Act, 2013.
u. Cost and incidentals to this application be paid by the respondents 2 and 3.
v. Such further order or orders be passed and/or direction or directions be given as this Hon'ble Tribunal may deem fit and proper.
Interim reliefs: -
a. Leave be granted to the petitioner in terms of Section 244 of the Companies Act, 2013, to initiate the instant proceedings as against the respondents.
b. Ad interim order suspending the debit operation of the bank accounts of the company maintained with IDBI Bank Ltd., Park Street Branch, bearing account 0012102000033293. c. Ad interim Injunction restraining the respondents from dealing with or executing deed of conveyance or executing or performing any agreement, with respect to properties held by the company or interest in any property held by the company.
d. Ad interim order restraining the respondents, their men, agents and servants from parting with the possession of any properties held by the company either as owner or under any joint venture agreement and/or agreement for sale, in any manner whatsoever.
e. Ad interim order restraining the respondents from entering any agreement or parting with the possession in respect of Company Appeal (AT) No. 126 of 2020 7 the registered office of the company situated at Circular Court, 8, A.J.C. Bose Road, Kolkata-700017. f. Special Officer be appointed to take control of the management and affairs of the company, and operate the bank accounts of the company.
g. Direct the Central Government to appoint inspector or inspectors to investigate into the affairs of the company. h. Injunction restraining the respondents from altering the shareholding pattern of the company, by any means whatsoever."
3. The Ld. Counsel for the Appellants during the course of argument and in his memo of Appeal along with written submissions while assailing the impugned order submitted that a bare perusal of the Section 244 of the Companies Act, 2013 which reveals that only members of the company, holding specified shareholding in a company, to avail of the remedy envisaged therein. The intent of the legislature was to not allow a single member of a company, holding less than 1/10 of the issued share capital of a company, to be armed with such a right. The intent is 100 members or 1/10 but not 01 member to envisage the provisions of Section 241 of the Companies Act, 2013, this fact of the matter was not considered by the Tribunal and passed the impugned order in a mechanical manner waiving the requirements specified in clause (a) and (b) of Section 244 (1) of the Companies Act, 2013, therefore, the impugned order cannot be sustained in the eye of law and it is fit to be set aside.
4. The Ld. Counsel for the Respondent during the course of argument and in his reply affidavit along with written submission submitted that the Tribunal Company Appeal (AT) No. 126 of 2020 8 waive the requirements specified in clause (a) and (b) of Section 244 (1) of the Companies Act, 2013 and admitted the application as per proviso in Section 244(1) of the Companies Act, 2013 and parties were directed to file their reply affidavit and rejoinder and the matter was directed to list for further consideration on 14.05.2020. It is further submitted that in the case of "Archer Power System Pvt. Ltd. Vs. Cascade Energy Pvt. Ltd. and Ors. In Company Appeal (AT) No. 213 of 2017" this Tribunal held that NCLT under Rule 11 of National Company Law Tribunal Rules, 2016 has the inherent powers to pass such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Tribunal. Furthermore, the Tribunal was also of the opinion that the Tribunal has the power to make interim orders which it thinks fit for regulating the conduct of the company's affairs. Therefore, the interim order passed in accordance with law and in consonance with Section 242(4) of the Companies Act, 2013.
5. In view of the above and having gone through the record that the matter is still pending before the Tribunal, we dispose of the instant Appeal with the following observations without entering into the merit of the case.
• We request the National Company Law Tribunal (Kolkata Bench, Kolkata) to expedite the matter and dispose of at an early date. • The parties are at liberty to raise all the issues before the Tribunal and after hearing the parties, the Tribunal to pass appropriate orders.
With these observations, the instant Appeal is disposed of. Company Appeal (AT) No. 126 of 2020 9
6. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (Kolkata Bench, Kolkata), forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Ms. Shreesha Merla] Member (Technical) New Delhi 15th November, 2022 R. Nath.
Company Appeal (AT) No. 126 of 2020