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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain:
This order shall dispose of three appeals i.e. CA (AT) No. 01, 02 & 03 of 2023, as the issues involved in all the three appeals are common. Even otherwise, all the three appeals have arisen from the same impugned order dated 16.12.2022.
Shorn of unnecessary details, C.P No. 149/MB/2017 came to be filed under Section 421 & 422 of the Companies Act, 2013 (in short ‘Act’) before the National Company Law Tribunal, Mumbai Bench (in short ‘Tribunal’). There was an application for an interim relief filed alongwith the main petition. The Tribunal passed an order on 17.11.2017, which read as under:-
“CP 149/241-242/NCLT/MB/MAH/2017 So that no direction has been given for completion of the pleadings in the main Company petition, the Respondent side is hereby directed to file reply within three weeks thereof and rejoinder, if any, within three weeks thereof. List this matter for interim reliefs as well as for hearing on main petition on 15.01.2018.”
Thereafter, another order was passed on 16.11.2021, which read as under:-
“The Learned Counsel for the Petitioner has prayed for interim relief to ensure that the basic Financial Statements are made available to him as well as access to ERP Software (Pg. Nos. 95 and 96 of Petition). It is submitted that this is his right under Section 128 of the Companies Act, 2013 and he has been denied access to these matters for last few years. The Learned Counsel for the Respondent, Mr. Fredun Divertri has stated that they have been providing all the required documents/financial statements to the Petitioner. The case requires detailed examination on various aspects including the evidence or no evidence of sharing documents/financial statements to the Petitioner. List this matter on 16.12.2021 for hearing.”
While the aforesaid matter was pending in regard to the interim relief, the present application bearing C.A No. 328 of 2022 was filed by the RA Group making almost similar prayers. The said application has been allowed by the impugned order.
We have heard Counsel for the parties at length.
After a detailed discussion on the issues involved, they are ad-idem that the impugned order may be set aside and the Tribunal may be directed to decide the first application for interim relief filed alongwith the main petition and was adjourned on 16.11.2021 for further hearing with the following observations which are reiterated “the case requires detailed examination on various aspects including the evidence or no evidence of sharing documents/financial statements to the Petitioner. List this matter on 16.12.2021”.
The case set up by the Respondent is that the present application was filed because of subsequent events whereas Counsels for the Appellant have submitted that the subsequent events could have been brought to the notice of the Tribunal by way of a miscellaneous application filed in the first application seeking interim relief instead of filing a separate application for the same purpose and keeping the earlier application alive on record. Therefore, the parties have come to a consensus that the application which was subsequently filed bearing CA No. 328 of 2022 may be treated to have been filed to bring on record subsequent events as a part of the first application for interim relief filed alongwith the main petition and the said application filed with the main petition be decided in accordance with law.
In view of the above, the impugned order is set aside. CA No. 328 of 2022, without prayers therein, bearing new facts may be considered by the Tribunal as a part of the first application for interim relief filed alongwith the main petition, which shall be decided, with the discretion of the Tribunal to decide the main petition, as early as possible but not beyond a period of three months from the date of this order. It is however made clear that all the contentions available to the Appellant herein to oppose the subsequent events to be raised by the Respondent as well as main application shall remain open.