National Company Law Appellate Tribunal
Sajan K Thomas & Ors vs Paragon Polymer Products Private ... on 2 July, 2024
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
TA (AT) No. 268/2021
(CA (AT) No. 43/2020)
In the matter of:
Sajan K Thomas & 3 Ors. ... Appellants
V
Paragon Polymer Products Pvt. Ltd. & 5 Ors. ... Respondents
Present :
For Appellants : Mr. Akhil Suresh, Advocate
For Mr. Shobit Jain, Advocate
For Respondents : Mr. Joseph Kodianthara, Senior Advocate
For Mr. Goutham Shivshankar, Advocate for R2-R6
ORDER
(Hybrid Mode) 02.07.2024:
Heard Learned Counsels for the Parties. Owing to the changed circumstances, we are not required to venture into the merits of the Company Appeal.
In the instant Company Appeal, the challenge has been given by the Appellant to the order dated 10.12.2019 which has been passed by the NCLT in IA No. 40/KOB/2019, as rendered in TCP 56/KOB/2019. By virtue of the said order, the NCLT, Kochi Bench declined to modify the orders of NCLT, Chennai, which were passed on 28.02.2019 & 04.06.2019 respectively, holding therein that
(a) The scope of the forensic audit of Respondent No.1 Company as decided for the period from 2011-12 to 2018-19.
(b) That Justice (Retd.) Mrs. Chitra Venkataraman shall closely monitor the forensic audit conducted by the Auditor appointed by her and ensure that TA (AT) No. 268/2021 (CA (AT) No. 43/2020) Page 1 of 4 the audit is completed well within 6 months and submit the final report with her opinion & suggestions.
(c) No extension of time shall be given to the Auditor and
(d) The order of NCLT, Chennai dated 28.02.2019 and the order dated 26.08.2019 by Hon'ble High Court, Kerala asking the concerned investigating authorities not to proceed with the investigation shall continue to be in force till the audit is completed and the Report is considered by it.
In so far as, the relief A & B as prayed for by the Appellant is concerned, since the forensic audit report has already been approved by Justice Mrs. Chitra Venkataraman and consequently, they have been accepted to be read for the purposes of Company Petition, no cause of action as such for relief A & B survives. Hence, the Company Appeal will be deemed to be dismissed, as having been rendered infructuous in respect of relief against A & B as above.
The Appellant vehemently presses for relief against action point D which reads as under:-
"D. As regards the criminal complaint, the Order dated 28.02.2019 of NCLT, Chennai Bench and the Order dated 26.08.2019 of Hon'ble High Court of Kerala shall continue to be in force until the Forensic audit is completed and the views of Justice (Retired) Mrs. Chitra Venkataraman is considered by this Tribunal."
The facts which have come on record in relation to relief D, refers to an order dated 28.02.2019 of NCLT Chennai, which has been derived to be constituted as to be the basis of the Interim Order in Cr MC (Criminal Miss. Case) 5737/2019, being a proceeding before Hon'ble High Court, Kerala, which is being carried under Section 482 of the Criminal Procedure Code. Based upon the Interim Order dated 28.02.2019, passed in Company Petition No.172/2019, TA (AT) No. 268/2021 (CA (AT) No. 43/2020) Page 2 of 4 criminal proceedings were stayed against the Respondents. The proceedings under section 482 of Cr Pc is reported to be still pending before the High Court.
The Learned Counsel for the Respondent submits that as against the Impugned Order which is under challenge in the instant Company Appeal, the Appellant has also invoked jurisdiction of the writ courts by filing a Writ Petition No. 1518/2020 and the said writ petition is still pending consideration. The Appellant has contended that the necessity to invoke a writ jurisdiction was felt because of the fact that an issue of the criminal proceedings was also involved and therefore the writ was filed. Filing of the writ petition in 2020, was on the premise that the Impugned Order dealt with the question of the Criminal Proceedings in the action point D, as subject matter herein. However, the writ itself ought not have been preferred for the reason being that there was a pending Criminal Miscellaneous Case No.5737/2019 preferred by the Respondent, by invoking yet another inherent jurisdiction of the Hon'ble High Court under Section 482 of the Cr Pc in which the Appellant is a party. As a matter of fact, on a similar subject matter of criminal proceedings, the Appellant has simultaneously resorted to two parallel inherent remedies, invoking the inherent powers of the Hon'ble High Court under Article 226 of Constitution of India, and as well as under Section 482 of CRPC; by way of Writ Petition No. 1514/2020 and CRMC No. 5737/2019.
Be that as it may, as against the anxiety expressed by the Learned Counsel for the Appellant, to give relief against the action point D of the order of NCLT, Kochi, as prayed for in the instant Company Appeal, we are of the view that as far as the said relief is concerned, the Company Appeal cannot be kept pending, as not being the subject matter of the proceedings under Section 61 of I & B Code, because that would be exclusively falling within the proceeding of a criminal domain and which has already been invoked by the Appellant by filing a Writ Petition No. 1518/2020 under Article 226 of Constitution of India and as being a TA (AT) No. 268/2021 (CA (AT) No. 43/2020) Page 3 of 4 party to CRMC No. 5737/2019 under section 482 of Criminal Procedure Code. Thus, for relief against D, it is the Appellant who will have to work out his remedies in the pending two proceedings where the said criminal proceedings is already a subject matter of consideration. In that eventuality, so far as relief D is concerned, the same is closed subject to the aforesaid liberty.
[Justice Sharad Kumar Sharma] Member (Judicial) [Jatindranath Swain] Member (Technical) RO/TM TA (AT) No. 268/2021 (CA (AT) No. 43/2020) Page 4 of 4