Ashvany Kumar Bansal vs Aley Cherian & Ors.

Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):

The Appellant before this Appellate Tribunal is Respondent No. 4 to the proceedings of Company Petition No. 130 (CHE) / 2023, which is presently pending consideration before the NCLT, Division Bench-I, Chennai, being a proceeding which has been drawn under Section 213 (b) (i) r/w Section 221 & 447 of the Companies Act, 2013.

It is during the pendency of the proceedings of the said Company Petition, the Applicant / Appellant has filed an Interlocutory Application bearing No. IA (CA)/143(CHE)/2024, before the learned Adjudicating Authority contending thereof, that he would `not’ be the necessary party for the purposes of an effective adjudication of the controversy, engaging consideration in the Company Petition qua the provisions contained under Section 213 of the Companies Act, 2013.

The IA / 143 (CHE) / 2024 has been dismissed by the learned Adjudicating Authority on the premise that, when initially the notices were issued on the Company Petition, the Respondent No. 4 the Appellant herein, has put in appearance and he has already filed his reply on merits of Petition and the same is pending consideration. Further, in the Impugned Order an observation has been made therein that, since the stand of the Appellant that he would not be a necessary party to the Company Petition and also the question of maintainability has already been raised by the Appellant in the reply to the main Petition, these contentions of the Appellant would be considered and adjudicated by the learned NCLT at the stage of deciding the Petition on merits.

We are of the tentative opinion that the observation, which has been made in the Impugned Order, does not at all prejudice the right of the Appellant on merits because, being a Respondent in the Company Petition, it is still open for him, as a party to the proceedings, to agitate all issues including the issues being raised by him now before the learned Adjudicating Authority when the Company Petition itself will be decided on merits.

After having heard the learned counsel for the Appellant and having perused the records, particularly the reference made by the learned counsel for the Appellant to the contents of Para Nos. 7, 8 , 9 and 10 of the reply which was submitted by him, before the learned Adjudicating Authority in response to the notice issued to him, it is seen that, in the pleadings raised in Para Nos. 7, 8 & 9 therein, the Appellant has already raised objection about the maintainability of the proceedings on the basis of the similar set of allegations, as to whether, the proceedings at all could have been drawn against the present Appellant who is Respondent No. 4 in the Company Petition.

If that be the situation, when the Appellant has already responded to the notice and has raised a preliminary objection about the maintainability of the proceedings, we are of the view that there was no necessity for him to re-agitate the issue by filing the IA No. 143 (CHE) / 2024, raising the same issues, which he had already raised in his reply submitted before the learned Adjudicating Authority in response to the notices issued in the Company Petition.

In these circumstances, the only recourse which could be required to be ventured into by us, while considering the instant Company Appeal, given the apprehension though apparently unfounded, as expressed by the learned counsel for the Appellant, about the future impact of the proceedings on him due to his status as Respondent No. 4 in the Company Petition and is that, a request may be made to the learned Adjudicating Authority that, when the learned Adjudicating Authority ventures upon to decide the Company Petition on its merit, it would first decide all the issues engaging consideration in the Application i.e. IA(CA) / 143 (CHE) / 2024, by taking it as the preliminary objection raised by the Appellant in his principal reply, as a preliminary issue, prior to venturing to decide the Company Petition preferred under Section 213 of the Companies Act, 2013, on merits, which would form part of the final Judgment to be rendered in the Company Petition.

Subject to the aforesaid, the Company Appeal (AT) (CH) No. 11 / 2025, would stand closed.