National Company Law Appellate Tribunal
Payaash Capital ( Singapore) Pte.Ltd vs Trinity Alternative Investment ... on 1 September, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) No. 117 of 2022
IN THE MATTER OF:
Payaash Capital (Singapore) Pte. Ltd. ....Appellant
Vs.
Trinity Alternative Investment Managers Ltd. & Ors. ....Respondents
Present:
For Appellant:- Mr. Abhijeet Sinha, Mr. Supriyo Gole, Ms. Kinjal
Sheth, Mr. Saikat Sarkar, Advocates.
For Respondent:- Mr. Tushar Mehta, Solicitor General of India for R-
3.
Mr. Krishnendu Datta, Sr. Advocate with Mr. Raghav
Seth, Mr. Nishant Upadhyay, Mr. Abhisar Vidyarthi,
Mr. Akhilesh Mene, Advocates for R-2,
Mr. Rishav Banerjee, Mr. Rajarshi Banerjee,
Advocates for R-1
Mr. Abhimanyu Bhandari, Ms. Srishti Juneja,
Advocates for R- 4 & 7
Ms. Gauri Rishi, Advocate R- 5 & 6.
ORDER
01.09.2022: Heard Mr. Abhijeet Sinha, Advocate assisted by Mr. Supriyo Goel, Advocate appears on behalf of the Appellant.
2. Heard, Mr. Tushar Mehta, Solicitor General of India appears on behalf of the Respondent No. 3, Mr. Krishnendu Datta, Sr. Advocate appears on behalf of Respondent No. 2, Mr. Rishav Banerjee, Advocate appears on behalf of the Respondent No. 1, Mr. Abhimanyu Bhandari, Advocate appears on Behalf of Respondent Nos. 4 & 7 and Ms. Gauri Rishi, Advocate appears on behalf of Respondent Nos. 5 & 6.
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3. The Appellant has filed this Appeal being aggrieved and dissatisfied by the order dated 19.07.2022 passed by the National Company Law Tribunal (Kolkata Bench, Kolkata) in CP/230(KB)/2022 whereby and whereunder the Tribunal passed the following orders:
"12. We have considered the submissions of the Ld. Counsel for the parties and in view of the law laid down as referred above, we hereby decline to stay holding of EGM on 20th July, 2022.
13. Respondents are directed to file reply affidavit within four weeks by serving copies on the ld. Counsel on record for the petitioner. Rejoinders if any shall be filed within two weeks thereafter by serving copies on the Ld. Counsel on record for the respondent.
14. List this matter on 07.09.2022."
4. From the perusal of the order dated 25.07.2022 it appears that notices were issued on the Respondents and the Respondents were directed to file Reply Affidavit and the matter was directed to be listed today i.e. on 01.09.2022.
5. In the meanwhile, the Ld. Counsel for the Appellant filed application bearing I.A. No. 3084 of 2022 on 30.08.2022 for bringing on record the subsequent developments which have taken place in the matter including the email dated 28.07.2022 (Annexure-A-2 of the I.A.). Pursuant to the EGM which was held on 20.07.2022 the board of Directors has been reconstituted as follows:
a. Mr. Utam Pakash Agarwal, b. Mr. Venkateswarlu Karkerra, c. Mr. Hari Shankar Sharma, -3- d. Mr. Umakant Bijapur, and e. Mr. Sudipta Mukherjee.
6. Further, the Ld. Counsel for the Appellant has filed I.A. No. 3084 of 2022 with a following prayer:
"a. Allow the present application and stay of the operation and effect of the resolution passed by the Respondent No. 2 during the EGM held on 20.07.2022 whereby the Respondent No. 4 to
7 were removed; and b. Stay the removal of the four independent directors being Sri Ratan Kumar Sarawagi, Sri Sudhir Kumar Agarwal, Sri Chandra Shekhar Samal, Susil Kumar pal and stay the appointment of two new directors being Sudipta Mukherjee and Umakant Bijapure and status of the board of Directors of the Respondent No. 1 as existing on 19th July, 2022 be restored; and c. Appoint an Administrator (being a retired High Court or Supreme Court Judge) to administer the affairs of the Respondent No. 1 Company."
7. Learned Counsel for the Appellant Mr. Abhijeet Sinha drew our attention to Clause 85 of the 'Articles of Association' and submitted that the removal of the existing independent removal Directors was in contravention of the 'Articles of Association' and that the four independent Directors who were appointed, were working with SREI and also drew our attention to the letters dated 30.11.2021 and 27.05.2022 regarding requisition for calling EGM of the shareholders of the Company under Section 100 of the Companies Act, 2013 and special notice under Section 115 of the Companies Act, 2013.
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8. It is the case of the Appellant that the Respondents had resorted to this Act by force as they could not do so by way of any judicial proceedings and hence fall within the provisions of section 242 (4) of the Act.
9. Ld. Solicitor General Mr. Tushar Mehta appearing for the 3rd Respondent/Administrator of SREI Infrastructure Finance Limited drew our attention to the paras 8 and 9 of the impugned order and stressed on 'Corporate Democracy' in support of his arguments that holding 51% of the shares, the Respondent Company, by way of a majority decision has the power to convene the EGM and that there is no complaint that the requisition of the meeting itself is wrong. Learned Senior Counsel Mr. Krishnendu Datta supplemented that it was a decision taken by the majority shareholders and further that no person can have a "vested right" to continue as a Director. Learned Counsel Mr. Rishav Banerjee appearing on behalf of the Respondent No. 1 sought for an appointment of an Administrator to protect the interests of the Company.
10. Learned Counsel for the independent Directors Mr. Abhimanyu Bhandari submitted that Section 169 of the Companies Act was not complied with. It is seen from the record that there is no Reply Affidavit filed by these Respondents.
11. We are conscious of the fact that EGM was convened by majority shareholders of the Company and the requisition of the meeting per se cannot be said to be at fault. We have also taken into consideration the reliefs sought for in I.A. No. 3084 of 2022 whereunder, the Applicant/Appellant sought for stay of the operation of the effect of the resolution passed during the EGM dated -5- 20.07.2022 and also stayed of the removal of the independent Directors. A perusal of the impugned order shows that the matter is posted on 07.09.2022.
12. After hearing the parties, we dispose of the instant Appeal with a request to the National Company Law Tribunal (Kolkata Bench, Kolkata) to take up the matter on the fixed date i.e. 07th September, 2022 and decide the matter at the earliest and consider all these points raised by the parties. In view of the stand taken by the Learned Solicitor General of India implementation of the resolution passed in the EGM meeting dated 20.07.2022, is subject to the outcome of the decision taken by the NCLT after hearing all the parties.
With these observations, the instant Appeal is disposed of.
13. Registry to upload the order on the website of this Appellate Tribunal and send the copy of this order to the National Company Law Tribunal (Kolkata Bench, Kolkata), forthwith.
[Justice Anant Bijay Singh] Member (Judicial) [Ms. Shreesha Merla] Member (Technical) R.N./Kam./