National Company Law Appellate Tribunal
Shubham Cements Pvt Ltd vs Jasjit Pal And Ors on 26 August, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
Principal Bench, New Delhi
Company Appeal (AT) No.151 of 2022
IN THE MATTER OF:
Subham Cements Pvt. Ltd. ...Appellant
Vs.
Jasjit Pal & Ors. ....Respondents
Present:
For Appellant: Mr. Vikrant Pachnanda and Mr. Mukul Katyal
Advocates.
For Respondent: Mr. Soumya Dutta Advocate for Caveator/ R1&2.
ORDER
26.08.2022: Heard Mr. Vikrant Ld counsel for the Appellant and Mr. Soumya Dutta, who is appearing on behalf of Caveator/R1-2.
2. The present appeal has been preferred under section 421 of the Companies Act, 2013 against the impugned order dated 01.07.2022 passed by the National Company Law Tribunal, Kolkata Bench (hereinafter referred 'The Tribunal') in E.P No.1/KB/2022 in CP No. 49/KB/2016. It is not in dispute that long back, considering the mismanagement in the affairs of the Company i.e Goldstar Enclave Pvt. Ltd (Respondent No.8 herein), the Respondent No.1 and 2 along with the another filed a petition before the tribunal under Section 235, 397, 398, 399, 402, 406 and 409 of the Companies Act, 1956 as well as Section 58 & 59 of the Companies Act, 2013. The said petition remained pending on one ground or other for a long period. Subsequently, the Applicant in CP No. 49/KB/2016, on the basis of Term of Settlement (hereinafter referred to as 'TOS'), withdrew the petition. The TOS was arrived in between the parties on certain terms and conditions. Despite settlement arrived in between the parties, terms of settlement Company Appeal (AT) No. 151 of 2022 1 were not implemented. The Applicant, thereafter, filed a petition for implementation of the same wherein other side appeared and they also took stand that the first party was not complying with the terms and conditions. Since it was disputed question of fact, the Ld Tribunal by impugned order directed for implementation of the earlier settlement in the following term which is reflected in paragraph 4.8 of the impugned order, and the same is reproduced below:
"4.8. We, therefore, hereby direct as follows: -
(a) We note the seemingly different stands taken by the Shant group in so far as the missing share certificates are concerned. In any case, section 46 of the Companies Act, 2013 shall come to the rescue of the Shant group, since there is no intent to defraud the Daga-Banthia group and it is only the procedural formality of issue of duplicate share certificate and its transfer in the name of R8 in exchange for a consideration of Rs.3.11 crore. The Shant group is in any case committed to its exit from R1 company, and this commitment was also reiterated during the course of arguments by the Ld Counsel for the petitioners.
(b) R1 company shall issue duplicate shares certificates in respect of the shareholding of the petitioners based on the application, indemnity bond and the surety already furnished by them to R1 company. We note that the net worth of the sole surety is enough to cover the market value of the total shares held by the Shant group. We make it clear that R1 company shall not insist on notarisation before a First-Class Magistrate, nor shall it insist on lodging of FIR when a General Diary has already been registered before the jurisdictional police authorities.Company Appeal (AT) No. 151 of 2022 2
(c) R1 company shall not insist upon rectification of the schedule of assets mentioned in the letters of administration granted by the Hon'ble Calcutta High Court, to include the shareholding of late D.S. Shant in the list. This is a matter that is covered by the indemnity bond given by the petitioners to R1 company, and there the matter should rest, since R1 company stands sufficiently indemnified.
(d) There shall be transfer of Rs.3.11 crore contemplated under the ToS in exchange for the 16.20% shareholding held by the Shant group, in favour of R8. The amount shall be paid on the same day as the deposit of the duplicate share certificates by the Shant group along with the share transfer forms duly filled in. The entire process shall be completed within a period of fifteen days from the date of issue of the duplicate share certificate.
(e) CS No.159/2017 shall be withdrawn by R1 company.
similarly, CS No.98/2015 shall be withdrawn by R6 company. These will be withdrawals simpliciter.
(f) FRT submitted by the Investigating Authorities clearly records withdrawal of complaint by the complaint filed by the petitioners. This will be accepted by R1 company since there is no detriment.
(g) R1 Company had along with Dhansri executed and registered several conveyances in the past even without completion certificate. Therefore, there should be no impediment in doing so once again.
(h) The petitioners' nominees shall pay the agreed sale consideration by electronic transfer, pay order, manager's cheque, or demand draft, within a period of one month from the date of this order. It is not enough merely to show Company Appeal (AT) No. 151 of 2022 3 photocopies, but actual instruments or actual transfer into the nominated bank accounts. Simultaneously with this, the petitioners shall also hand over to R1 company for its record details of all documents such as like letters, agreements, terms of agreements with nominated persons etc., which had to be incorporated in the deeds of conveyance. To avoid any unnecessary correspondence on both sides, it is hereby ordered that these shall be handed over once again even if such copies have been handed over earlier.
(i) Upon receipt thereof, R1 company shall execute deeds of conveyance in favour of the nominees on date to be fixed by mutual convenience of each party, within a further period of fifteen days. The nominees shall present themselves on the nominated date at the jurisdictional Registrar or Sub Registrar of Assurances to complete the registration formalities.
(j) The composite pay-out of ₹5.30 crore contemplated under the ToS to the P1 and P2 comprises of two parts - ₹2.19 crore to be paid by R1, and R6 to R8. These shall be paid by the company within a period of fifteen days from the date of this order
(k) R1 company's claim of ₹1,72,90,240/- has been settled and adjusted as recorded in clause 17(i) of the ToS. Therefore, R1 company shall issue a release letter within a period of fifteen days from the date of this order. The settlement of this figure is a matter between the Shant group and R1 company. Since this is recorded in this judicial order, no harm shall be caused to R1 company even if the same is not recorded in the Affidavit of Assets. It is made clear that both parties shall not litigate in this respect any further.
4.9. In view of our intention to put the matter to rest, we do not wish to go into the mudslinging indulged in by both sides. We record that that these Company Appeal (AT) No. 151 of 2022 4 allegations and counter-allegations would not go on record, to facilitate and smoothen the process of settlement arrived at between the two sides, and to facilitate the exit of the Shant group from the company. 4.10. With these directions, CA No.1397/KB/2020, Crs.A.No.1/KB/2021, Misc.A.No.21/KB/2020, CA No.1412/KB/2020, and EP No.1/KB/2022 in CP No.49/KB/2016 shall stand disposed of.
4.11. Liberty to apply in case of any difficulty in implementation. On perusal of the impugned order, it is evident that EP No.1/KB/2022 was disposed of along with other petitions.
3. Ld counsel for the Appellant assailing the said order, submits that despite the fact that counsel for the Applicant in EP No.1/KB/2022 was participating in the proceedings, however, on 27th June 2022 at 10:45 AM when it was taken up, it was passed over and when the Appellant appeared the order was already passed. He also submits that the impugned order is ex parte against the Appellant herein whereas the Appellant had appeared before the Tribunal. This stand was seriously opposed by Ld counsel for the Respondent No.1 & 2. It is argued that order on Petition i.e. EP No.1/KB/2022 was passed after hearing Ld counsel for the Appellant.
4. If it is a fact that the Appellant had appeared before the Tribunal and even, thereafter, the order was passed as claimed to be ex parte in EP No.1/KB/2022, such question of fact cannot be examined by this Tribunal, the reason is that it is only the court before whom the hearing had taken place can appreciate such question.
Company Appeal (AT) No. 151 of 2022 5
5. In any event, such alleged ex parte order cannot be assailed in appeal before this Tribunal. If the Appellant is of the opinion that despite his appearance, order was passed ex parte, in that event he was having a remedy to approach the same court, not to file appeal before this Appellate Tribunal.
6. On this very ground, we do not find any reason to interfere with the impugned order. If so advised, the Appellant may approach the Tribunal with the plea which has been taken before this Appellate Tribunal in relation to order passed in EP No.1/KB/2022.
7. It is made clear that only on the ground of order passed by this Appellate Tribunal, in relation to order in EP No.1/KB/2022., the NCLT, Kolkata Bench may not stay implementation of impugned order, i.e. order dated 07.01.2022.
8. It goes without saying that this Appellate Tribunal has not recorded any opinion on the merit of the case.
The Appeal stands disposed of.
[Justice Rakesh Kumar] Member (Judicial) [Kanthi Narahari] Member (Technical) Raushan/GC Company Appeal (AT) No. 151 of 2022 6