Anoop Sharma vs Cargo Flash Infotech Pvt. Ltd. & Ors.

18.01.2024: Heard the Ld. Counsel for the Appellant, Mr. Upamanyu Sharma, and Mr. Prashant Pakhiddey, Ld. Counsel appearing for Respondent No. 2 & 3 in the instant CA (AT) No. 7 of 2024.

The Ld. Counsel for the Appellant/Petitioner in CA/389/2023 has preferred the instant CA (AT) No. 7 of 2024, before this Tribunal, being aggrieved in respect of the order dated 23.11.2023 in CA/389/2023 (‘Status quo’ Ante Application) whereby and where under the National Company Law Tribunal, New Delhi Bench had observed that … ‘The applicant has also prayed for status quo ante as it existed on 01.11.2023 with respect to the Applicant/Petitioner Director. It may be noted that CA/397/2022 where question of directorship was involved, order had been reserved by this Bench on 18.08.2023. In the meantime, since the RoC has made some changes in the official portal and the present application has been filed seeking interim directions, we deem it appropriate to de-reserve the order in CA/397/2022 and direct this matter be listed before the Regular Bench for hearing the Ld. Counsel appearing for the Petitioner has objected for the same. Ld. Counsel for the Respondents have no objection if the matter is de-reserve and the matter is listed before the Regular Bench. In view of the facts and circumstances we deem it appropriate to de-reserve the order in CA/397/2022 and list the matter before the Regular Bench along with remaining IAs on 07.12.2023’.

The Contention of the Ld. Counsel for the Appellant/Petitioner in CA/389/2023 is that the Appellant/Petitioner in the main matter had filed the instant CA/389/2023 whereby the direction was sought to set aside a ‘change’ made by the ‘Registrar of Companies’ in the ‘Directorship’, details of the Appellant/Petitioner as appearing on the website of ‘Ministry of Corporate Affairs’ whereby the date of cessation as ‘Director’ of the Respondent No. 4 has been added as on 11.02.2022 etc.

Per-contra, it is the submission of the Ld. Counsel for Respondent No. 2 & 3 that the Second Respondent in the instant CA (AT) No. 7 of 2024 had filed the CA/368/2023 in CA/397/2022 in CP No. 32/2022 against Cargo Flash Infotech Pvt. Ltd. & Ors. (filed under Rule11 of the NCLT Rules, 2016) seeking permission being given to the ‘Applicant’ to file ‘Additional written submissions’ or in the alternative to Re-hear the ‘Arguments’ in the ‘Application’.

The Plea of the Respondent No. 2 in CA/368/2023 in CP No. 32/2022 before the ‘Tribunal’ is that the Petitioner/Non-Applicant’s sole contention as projected in the ‘written submissions’ filed on 16.08.2023 and during the ‘Oral Arguments’ on 17.08.2023 before the ‘Tribunal’ therein the Director, Ministry of Corporate Affairs before whom the matter was pending and the ‘Petitioner/Non-Applicant’ took a plea that as proceedings in respect of DIR-12 forms filed by the Company before the RoC are pending before the Regional Director as per Rule 11 (2) of the Companies (Registration Offices and Fees) Rules, 2014 and furthermore, it is the ‘Regional Director of MCA’ who exercises exclusive jurisdiction with respect to ‘Removal of the Directors’ from the companies. In short, the plea of the Petitioner/Non-applicant, is that the ‘Tribunal’, ‘does not have jurisdiction’ and as such the CA/397/2022 was liable to be dismissed for want of jurisdiction on the subject matter.

Furthermore, the plea taken by the Petitioner/Non-applicant was that the ‘Application’ had decided in parallel proceedings as the issue or ‘Removal of the Petitioner/Non-applicant as Director’ was being adjudicated by two ‘separate forums’ and as the Regional Director is the ‘Appropriate/Competent Authority’ to deal with process of ‘Removal of Director’ the ‘Application’, ought to be dismissed.

In this connection, on behalf of Respondent No. 2 & 3, it is brought to the notice of this ‘Appellate Tribunal’ that after the ‘order’ was ‘Reserved’ in CA/397/2022 on 17.08.2023, the ‘Regional Director of Ministry of Corporate Affairs’ had issued a report under Rule 11 (2) of the Companies (Registration offices and fees) Rules, 2014 dated 25.08.2023, wherein, while disposing the reference from the ‘Registrar of Companies’, it had refused to interfere in the matter and directed the ‘Registrar of Companies’ to take on ‘Record’ the ‘DIR-12 Forms’.

The fact of the matter is that there is a ‘substantial subsequent development’, which is ‘relevant fact’ to be taken note of for the purpose of ‘Adjudication’ of the Application in CA/397/2022 in main CP No. 32 of 2022 and as such the Petitioner/Applicant seeks to file ‘Additional written submissions’ or in the alternate to seek ‘Rehearing’ of the arguments in CA/ 397/2022 in CP No. 32/2022. The CA/397/2022 in CP No. 32/2022 filed by the Respondent No. 2/Petitioner before the ‘Tribunal’ was stoutly opposed by the Appellant based on the footing that there was a material ‘suppression of facts’ by the Petitioner in CA/397/2022 in main CP No. 32/2022 and further that the ‘Respondents’ were aware of the initial proceedings under ROF Rules and were also aware that the steps taken by them for ‘Removal of the Petitioner’ as ‘Director’ was not accepted by the ‘Registrar of Companies’.

The main contention advanced on behalf of the Appellant is that in view of the parallel proceedings pending before the ‘Regional Director, Northern Region’ the ‘matter of record’ is that the ‘First Respondent/Company had filed ‘written submissions’ before the Regional Director, through Ld. Counsel and further that the ‘Company Secretaries of the Respondent/ Company’ had filed the ‘Affidavits’ before the Regional Director, on 06.03.2023.

The Crystalline stand of the Appellant, is that there are ‘procedural lapses’ which are in the violation of ‘Companies Act/ Rules’ and the ‘propriety of the lapses’ are pending for ‘Adjudication’ before the ‘Registrar of Companies’, wherein the Respondent Companies have actively participated.

The primordial grievance of the Appellant is that without a ‘final finding’, rendered by the ‘Regional Director’ on the ‘process’ followed for ‘Removal of the Petitioner as ‘Director’, the ‘instant’ application is not sustainable, before this Tribunal in the ‘eye of Law’.

The other contention advanced on behalf of the Appellant before this ‘Tribunal’ is that the CA/397/2022 is liable to be dismissed by the ‘Tribunal’, because of the fact that the ‘Petitioner’ was reflected as the ‘Director’, of the Respondent/Company in public domain etc.

Admittedly, before the Regional Director CA/398/2023 in CP No. 32/2022 was filed by the Appellant/Petitioner against the ‘Regional Director, (Northern Region)’ and Ors., (filed under Rule 11 of the NCLT Rules, 2016 read with Section 420 of the Companies Act, 2013) seeking inter alia to set aside the report dated 25.08.2023 issued by the ‘Regional Director (Northern Region)’ and direction, was sought to be issued to the Registrar of Companies, NCT of Delhi not to take on ‘Record’ the DIR-12 Forms. The CA/398/2023 in CP No. 32/2022 filed by the Appellant /Petitioner is pending before the Tribunal for ‘Adjudication’, as on date.

The other plea of the Appellant, is that in the impugned report of the ‘Regional Director, Northern Region’ the First Respondent/Petitioner had filed W.P. (C) 13894/2023 as an ‘aggrieved person’ in respect of the ‘Report of the Regional Director’, before the Hon’ble High Court of Delhi, seeking to set aside the report dated 25.08.2023 of the Regional Director etc. The order passed in W.P. (C) 13894/2023 by the Hon’ble High Court of Delhi the relevant paragraphs 3,4, & 5 are as under:

It must be borne in mind that the Hon’ble High Court of Delhi, in W.P. (C) 13894/2023 had not dealt with the merits of the case and also had not expressed any observations touching upon the merits of the matter and indeed had left all questions ‘being left open’.

This Tribunal, has heard the Ld. Counsel for the Appellant, as well as the Ld. Counsel for the Respondent no. 2 & 3 and noticed their contentions.

It is pertinently pointed out by this ‘Tribunal’ ‘Inherent Power’ of the ‘Tribunal’ are to be exercised to meet the end of Justice or render ‘Justice’ between the ‘parties’. Indeed an ‘Inherent Power’ of the Tribunal, has its root in necessity, and its breadth co-extensive with the necessity as per the decision of Hon’ble Supreme Court of India in 1976/1/SCC/page no. 120.

Furthermore, as ‘the matter of fact, the ‘Inherent Power’ of a ‘Tribunal’ is in addition or complimentary to the ‘power conferred by means of statute Act’. It is to be remembered as ‘act of Court/Tribunal’ should not harm to any litigant (Actus Curiae Neminem Gravabit). ‘Inherent Power’ is exercisable only when no remedy is available under the existing Law. No wonder, an ‘Inherent Power’ of Court/Tribunal is to do justice and is in addition to ‘complimentary powers’ conferred under the Statute, expressly or by an implication.

Considering the fact that the Second Respondent as Petitioner in CA/368/2023 against the Cargo Flash Infotech Pvt. Ltd. & Ors., had sought a relief before the ‘Tribunal’ seeking to allow the CA/368/2023 in CP No. 32/2022 to place on record the ‘Additional written submissions’ filed as Annexure-1 along with the instant application or in the alternate to pass an order allowing the CA/368/2023 in CP No. 32/2022 to ‘Rehear the Arguments’ in the CA/397/2022, this Tribunal keeping in mind of the said relief sought for by the Petitioner in CA/368/2023 is of the considered view, that because of the fact that the ‘Registrar of Companies’ had effected some changes in the ‘official portal’ and the ‘present Application’ was filed with seeking interim directions, the NCLT/Tribunal thought it fit to ‘de-Reserve’ the order in CA/397/2022 which was ‘reserved’ originally on 18.08.2023, and the matter was directed to be listed before the ‘Regular Bench’ and this order passed by the Tribunal, on 23.11.2023 in CA/389/2023, in the considered opinion of this ‘Tribunal’ does not suffer from any ‘material irregularity’ or ‘patent illegality’ in the ‘eye of law’ because of the fact that a competent court of Law/Tribunal as the case may be when it has requisites powers to ‘Hear’ a particular matter or a given legal ‘proceeding’ is undoubtedly ‘inherent itself’ and also ‘inbuilt’ to ‘hear’ a particular matter also it empowers to ‘reopen the matter /or de-reserve’ the matter, where the matter was originally ‘Reserved for orders’ by it as it deems fit and proper based on the facts and circumstances which are float on the surface.

Subsequent developments or changes which admittedly are before the purview and knowledge of the ‘Tribunal’, and also the Ld. Counsels appearing for the respective parties and this Tribunal keeping in mind the fact that CA/398/2023 filed by the Appellant/Petitioner in CA/398/2023 in CP No. 32/2022 is pending before the ‘Tribunal’ seeking direction to set aside the Report of the Regional Director dated 25.08.2023 and also sought for direction being issued to Registrar of Companies, NCT of Delhi not to take on record the DIR-12 Forms is pending for final adjudication, this Appellate Tribunal is of the considered view that no fault can be found with the Tribunal in passing the impugned order dated 23.11.2023 in CA/389/2023 as stated supra and viewed in that perspective this Tribunal proceeds to point out that the de-reservation/re-opening of the matter reserved by the ‘Tribunal’, in CA/397/2022 is now directed to be Listed, in the ‘Regular Bench’, along with premising IA’s 07.12.2023 is free from any legal flaws.

In the light of the foregoing, this Tribunal is in complete agreement with a view that by the National Company Law Tribunal, New Delhi dated 23.11.2023 in CA/389/2023 and as such the instant appeal is devoid of merits.

In fine the instant appeal is dismissed. No costs. The impugned order dated 23.11.2023 in CA/389/2023 in CP No. 32/2022 passed by the National Company Law Tribunal, New Delhi Bench, Court-VI is affirmed. Of course for the reason assailed by this Tribunal in this appeal. No costs.

Before parting with the case, this Tribunal makes it lucidly quite clear that it is open to the respective parties through the Ld. Counsels to raise/agitate/all factual and legal issues before the NCLT, New Delhi and the Tribunal shall permit the Ld. Counsels in this regard.

Before parting, this Tribunal grants liberty to the respective parties to raise all legal and factual pleas (including the subsequent development taken place and to bring to the appraisal or knowledge of the Tribunal) who shall take into account of the subsequent developments/changes and also to provide ‘adequate opportunities to the parties to hear the grievances’ and to pass a just, fair, and speaking reasoned order, in a ‘dispassionate manner’, Of course ‘uninfluenced or untrammeled’ with any of the observations made by this ‘Tribunal’ in this ‘Appeal’.

With aforesaid observations, the ‘instant Appeal’ stands disposed of.

It is also open to the parties, to place reliance or to fortify the proposition of ‘both factual and legal’ pleas by relying upon certain documents earlier orders passed by this ‘Tribunal’ dated 20.03.2023 in CP No. 14/241-242/ND/2022 which they feel to their advantage and if those documents are brought to be notice of the Tribunal, the ‘Tribunal’, can permit the respective parties, to submit or deal with the same in the ‘final reasoned order’ by adverting to the pros and cons of the same after Rehearing of the CA/368/2023 and to pass appropriate orders, as deemed fit and proper, of CA (AT) No. 7 of 2024 course based on the facts and circumstances of the case, which ‘hovers around subject matter in issue’.