D. Asokan vs Girija Muthukrishnan & Anr.

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

These are three connected company appeals, out of which;

The Company Appeal (AT) (CH) No. 45 / 2021 is accompanied with a Condone Delay Application being IA No. 549 / 2021, wherein the Appellant has sought a condonation of 603 days of delay, which has chanced in preferring the appeal by taking recourse to Section 433 of the Companies Act, to be read with Section 14 of the Limitation Act, on the ground that, as against the Impugned Order of 30.12.2019, initially he has approached the Writ Court, by filing a Writ Petition (C) No. 3175 / 2020, which was disposed of on 29.09.2021, with a direction and liberty granted to the appellant for preferring of an appeal and hence, the delay has been sought to be condoned was on the ground that, it was a bonafide opinion, which was extended to the Appellant, because of which he has preferred the Writ Petition and hence, he would be entitled for an exclusion granted under Section 14 of the Limitation Act. For the purposes to take a pragmatic view, we are not technically venturing into the question of limitation. Thus, the delay of 603 days which has chanced in preferring the appeal would stand condoned, in the light of the provisions contained under Section 433 of the Companies Act, to be read with Section 14 to be read with Section 5 of the Limitation Act. Accordingly, IA No. 549 / 2021, would stand allowed.

The Company Appeal (AT) (CH) No. 5 / 2022 too, is accompanied with a Condone Delay Application in IA No.42/2022, in which the condonation of delay of 5 days has been sought by the appellant, on grounds, almost identical to that of the Company Appeal (AT) (CH) No. 45 / 2021. Since the delay is of 5 days only which has chanced in preferring the appeal, and since it falls to be within an ambit of Section 421 of the Companies Act 2013, the same would stand condoned and accordingly, IA No. 42 / 2022, would stand disposed of.

Before dealing with the issue as it is involved in the instant appeal, challenging the Impugned Order dated 30.12.2019, which has been passed in the proceedings under Section 425 of the Companies Act, by drawing a Contempt proceedings and the consequential order which has been issued, thereafter by the learned Adjudicating Authority, we need to dwell upon the facts of the cases.

The facts which engage consideration in the Company Appeal (AT) (CH) No. 45 / 2021 and Company Appeal (AT) (CH) No. 5 / 2022, almost happen to be akin in nature and hence, they are being decided together.

The basic facts are, that on 30.07.2003, a Company Petition, being CP No. 43 / 2003, was instituted before the High Court of Kerala, for the purposes of the reliefs sought, wherein, the proceedings were drawn under Section 391 (2) of the Companies Act 1956. The Appellant therein, has sought a relief to the effect, that the compromise arrangement, as made between the parties may be sanctioned by the Court, so as to give it a binding effect on all the shareholders of the Company and on its Secured and Unsecured Creditors. The nature of relief as modulated in the said Company Petition which stood instituted on 30.07.2003 was of the following nature:

With the passage of time as it rolled, the NCLT, Chennai Bench was constituted under the Statute and as a consequence thereto, the Company Petition No. 43 / 2003, which initially stood instituted before the High Court of Kerala, was transferred to NCLT, Chennai Bench and was renumbered as TCP No.390/2019.

In the aforesaid Company Petition which was thus numbered as TCP No.390/2019, after its transfer, an IA No. 405/2019 was filed by the Respondent on 29.04.2019.

The said Company Petition, being CP No.390/2019 was yet again transferred from Chennai Bench of NCLT to NCLT, Kochi Bench after the creation of Kochi Bench on 05.08.2021 and upon its transfer was yet again re-numbered as TCP/13/KOB/2019 and accordingly, IA No. 405 / 2019, as it was preferred in TCP No.390/2019,was re-numbered as TIA/9/KOB/2019.

In the aforesaid proceedings of TIA/9/KOB/2019, as it was numbered, on its transfer to NCLT, Kochi Bench, an order was passed on 30.12.2019, imposing certain restrictions on the appellants of the two appeals i.e. Company Appeal (AT) (CH) No. 45 / 2021 & Company Appeal (AT) (CH) No. 5 / 2022. Despite the admitted fact under the Statute that the Appellants, had a remedy as against the Impugned Order by putting a challenge before the NCLAT by preferring an appeal under Section 421. But, for the reasons best known to the appellants themselves, they preferred two Writ Petitions before the High Court of Kerala, being Writ Petition No. 3175 / 2020 and Writ Petition No. 2523 / 2020 respectively.

Initially, when the motion, was carried at the behest of the appellant before the Hon’ble High Court of Kerala, the Interim Orders were granted on 05.02.2020& 29.01.2020 respectively and as a consequence thereto, the operation of the Impugned Order of 30.12.2019, as it was passed by the Kochi Bench in the proceedings under Section 425 of the Companies Act was directed to be kept in abeyance.

However, later on, when the proceedings of these two Writ Petitions were taken up, the Hon’ble High Court of Kerala disposed of the aforesaid Writ Petition, vide its Judgment dated 29.09.2021, holding thereof that, since there is a statutory remedy available to the appellants under Sec. 421 of the Companies Act, as against the Impugned Order of 30.12.2019, the appellants of the Company Appeal (AT) (CH) No. 45 / 2021 & Company Appeal (AT) (CH) No. 5 / 2022, were advised to approach NCLAT, by invoking the appellate provisions contained under Sec. 421 of the Companies Act.

Consequently, the two Appellants, approached NCLAT, Mr. D. Asokan on 26.10.2021 had preferred Company Appeal (AT) (CH) No. 45 / 2021 and Mr. S. Vijayakumar had preferred Company Appeal (AT) (CH) No. 5 / 2022, on 03.11.2021. There has had to be a detailed discussion with regards to the manner in which the learned Tribunal was constrained to pass an order on 30.12.2019, while exercising its power under Sec. 425 of the Companies Act, as against the Appellants by imposing certain restrictions in their functioning as the Managing Director of the company called as S.T. Reddiar & Sons (Quilon) Private Limited and as against the appellant of Company Appeal (AT) (CH) No. 5 / 2022, who exercised his powers as an administrator of the aforesaid Company.

The facts have emerged, and it was established too by evidence on record that, the appellants of the two appeals referred to above, were the legal professionals who are and were practising Advocates in the District Courts of Quilon Bar Association at Kollam. But, however later on, since the Appellant Mr. S. Vijayakumar, had qualified for his judicial examination and ultimately, he rose up to the level of as a District Judge in his career and he had later retired in the said capacity.

These two appellants, had maliciously colluded with one another, for the purposes of usurping the assets of M/s. S.T. Reddiar & Sons (Quilon) Private Limited and ultimately after the judicial analysis of the evidence, which were adduced before the learned NCLT, it was ultimately found that, there was an apparent dishonest alliance, between the Administrator Mr. S. Vijayakumar, the District Judge and Mr. D. Asokan who had claimed himself to be the Managing Director of the aforesaid Company.

As far as Mr. S. Vijayakumar, the Retired District Judge is concerned, he claimed his title and status as to be an Administrator having adorned, as such in the capacity by exercising its powers under Section 259 of the Companies Act, which is the provision which stood omitted and hence was a non-existing provision.

Apart from it, when he was claiming his status to be that of an Administrator, there was nothing brought on record by him as evidence, to establish the fact that there was any letter or order passed by any Competent Authority conferring him a power to function, as an Administrator of the company, there was no application which was filed by him, for appointment as an Administrator, and it was absolutely a false claim raised by Mr. S. Vijayakumar, the Retired District Judge, claiming to be an administrator, which belied his status as being a District Judge and was unethical too.

Mr. S. Vijayakumar, with his nefarious intention, got printed a fraudulent letter pad of the company and he also issued a notice on it on 10.04.2019, which was sent to the Company Petitioner, for the purposes of holding of the Meeting contending thereof, that he, in the capacity of an Administrator, was competent to hold the Meeting, which was received by Smt. Girija Muthukrishnan, the Managing Director of M/s. S.T. Reddiar & Sons (Quilon) Private Limited. It is only upon the receipt of the said notice, the Respondent got the knowledge that the appellant Mr. S. Vijayakumar, was fraudulently claiming himself to be an Administrator of the Company. It attracted an action to be resorted under Section 447, 448, 449 & 450 of the Companies Act.

In his Petition, the Company Petitioner had contended that, the issuance of the said notice of 10.04.2019, on the purportedly letterhead of the Company, itself attracted an action to be taken against Mr. S. Vijayakumar the, alleged proclaimed Administrator, by misusing his powers being a Retired District Judge, for the purposes of usurption of property in collusion with Mr. D. Asokan who too intended to usurp the property of the Company.

It was contended by the Company Petitioner that, the aforesaid letter i.e. 10.04.2019, as it was got issued by Mr. S. Vijayakumar, for the purposes of holding of the Board’s Meeting. It was misused by him and it was in apparent violation of Section 275(2) of the Companies Act, because the proclamation which was made by Mr. S. Vijayakumar, initially as an Administrator and later on, as a Provisional Liquidator, was contrary to the provisions of the Companies Act, which itself was sufficient to attract an action, to be taken under Section 447, 448, 449 and 450 of the Companies Act.

It was the Company petitioner’s case that, the entire story and claim which has been raised by the Appellant Mr. S. Vijayakumar, initially claiming himself to be an Administrator and later on in the alleged capacity as a Provisional Liquidator, is contrary to the records and documentary evidence, because in the absence of there being any evidence justifying his appointment, as such, he could not have functioned as an Administrator, nor could have even claimed himself as a Provisional Liquidator, for the reason being that, there was no order passed by any Competent Court, authorizing him to function either as an Administrator or as a Liquidator of the Company i.e. S.T. Reddiar & Sons (Quilon) Private Limited, coupled with the fact that, there was no such application which has been ever processed in accordance with law for the purposes of appointment of Mr. S. Vijayakumar as a provisional Liquidator of the said company.

Apart from that, he was not even qualified under law to be appointed as a provisional Liquidator, for the reason being that, he was not appointed as per the rules and besides that, since he was not even a registered Professional, who could have been appointed or even claim himself to be a provisional Liquidator, under law.

The petitioner to the Company Petition had submitted that, the said Letter-head which was fraudulently utilised for the purposes of issuance of notice of 10.04.2019, was in clear violation of Section 206 of I & B Code, 2016, and thus, his claim to be an Insolvency Professional, since it was a camouflage and not according to the provisions of law, he deserves to be prosecuted in accordance with the provisions of Section 425 of the Companies Act.

Having faced with the situation and the stand taken by the Company Petitioner, in the proceedings under Section 425, Mr. S. Vijayakumar, the Retd. District Judge, came up with the case that, he was appointed in the capacity of an Insolvency Professional by the order of Hon’ble High Court of Kerala and thus, he contends and claims, that he was conferred with an authority to function in the said capacity. In the proceedings of the Company Petition held before NCLT, Kochi Bench, he was called upon to place the said order of the Hon’ble High Court on record conferring him the responsibility to function as an Administrator / a Special Director / the Provisional Liquidator. The order which was placed on record by Mr. S. Vijayakumar dated 08.10.2014 of the Hon’ble High Court of Kerala, it reads as under:

Later, it was contended by the Company Petitioner that, in the proceedings which were held before the Hon’ble High Court of Kerala on 08.10.2014 and the proclamation made by Mr. S. Vijayakumar, claiming himself to have been appointed to be the Liquidator, was the aspect, which has been vehemently opposed and it was due to the objection, which was made by the petitioner, the Hon’ble High Court has not passed any positive or direct order as regards to the appointment of Mr. S. Vijayakumar, the Retired District Judge, as an Administrator / Director of the company or even as an Insolvency Professional.

Rather, in the order dated 08.10.2014 as passed by the Hon’ble High Court, it has also been observed and taken by way of an objection by the Company Petitioner that, in the proceedings held before the Company Law Board in Company Application No. 103 / 2002, an order was passed to the effect that, no Board Meeting shall be held till the disposal of the application itself. In that eventuality, the very factum of issuance of notice and false claim raised by Mr. S. Vijayakumar, on 10.04.2019 was apparently contrary to the very directions issued by the Company Law Board, as well as, that of the Hon’ble High Court of Kerala on 10.08.2014 and hence, based on these two orders, Mr. S. Vijayakumar, couldn’t have claimed as to be an Administrator or the Director of the Petitioner Company in any manner whatsoever, as the order contained no such direction to function in the capacities as claimed by Mr. S. Vijayakumar.

The company petitioner, in the proceedings which were held before the National Company Law Tribunal, Kochi Bench, had placed on record, the order which was passed on 01.12.2014,by the Hon’ble High Court of Kerala, in which the following observations were made:

On a careful perusal of the aforesaid order as it was passed on 01.12.2014, by the Hon’ble High Court of Kerala, it stands apparently established that there was no order, which was passed by the Hon’ble High Court of Kerala appointing Mr. S. Vijayakumar, as an Administrator / Director or even as a provisional Liquidator to manage the affairs of the Petitioner Company.

Apart from the aforesaid intentional act of misconduct, there are other facts which reveal that, there happened to be close connivance and a conspiracy hatched between Mr. D. Asokan and Mr. S. Vijayakumar, who had close affinity with one another, being professionals ever since 1988 as the members of Bar Council, before the appointment of Mr. S. Vijayakumar as the District Judge.

It was pointed out by the Company Petitioner that, this was not an isolated act of nefarious activities of Mr. S. Vijayakumar, the Retired District Judge, and that, he was habitual of functioning in the aforesaid manner, because in a Company Petition No. 24 / 2001, a stricture was passed against him, by the Hon’ble High Court, for his malafide functioning with an intention to usurp the property of the Petitioner’s Company, therein i.e. of Company Petition No.24/2001.

As against the order of the Hon’ble High Court, which was passed in CP No. 24 / 2001, issuing the strictures against Mr. S. Vijayakumar, he had preferred MFA/721/2002, before the Division Bench of Hon’ble High Court of Kerala, which was dismissed and it was observed therein that the Appellant i.e. Mr. S. Vijayakumar was engaged in malafide activities by joining hands with Mr. D. Asokan, as well as with such other unsecured Creditors, for the purposes engaging in the activities intending to usurp the property of the company. The Hon’ble High Court vide its order had appointed an Expert Committee in the Company Petition No. 43 as it was numbered prior to its transfer to the Chennai Bench and the aforesaid Expert Committee constituted, of a Retired District Judge, two Experts, Chartered Accountant, Engineer and a Valuer of the property.

The said Expert Committee thus appointed by the Hon’ble High Court of Kerala after detailed investigation, after collecting evidence from various sources, had submitted its report which ran almost as many as 7 volumes and therein it was held that, the sole objective of the conspiracy, was being made by Mr. D. Asokan and Mr. S. Vijayakumar, was to usurp the property of the company, which was otherwise a business held by a family holding 96% of shares and they were neither on the verge of Bankruptcy, nor they were Insolvent and it was also observed that, the said Company had a good market reputation, as they were having a total standing assets which were being exclusively managed by the affairs of the Board of the company for more than over 135 years.

Apart from the conclusions drawn in its report by the Expert Committee thus appointed by the Hon’ble High Court, later on, it was also revealed that owing to the nefarious activities of Mr. S. Vijayakumar, in connivance with Mr. D. Asokan, number of other proceedings were taken before the Consumer Forum which ultimately travelled upto the Hon’ble Apex Court and final conclusion was arrived at by Hon’ble Apex Court that, the sole objective of the two Appellants of the aforesaid Company Appeal, was to usurp the property of the company. The appellants in the Company Petition, without having any direct nexus with the affairs of the company and by a wrongful proclamation have come to be the Administrator and subsequently, the Insolvency Professional, which has already been observed and a finding has been recorded, in the Impugned Order that, the said self-ordained proclamation was contrary to the procedure prescribed under law for the purposes of being appointed as a Professional to undertake the liquidation process, as it was fraudulently claimed by Mr. S. Vijayakumar (the Retd. District Judge).

Almost the same implications and findings have been drawn and recorded as far as Mr. D. Asokan is concerned, in pursuance to the report which has been submitted by the Expert Committee, as it stood constituted by the Hon’ble High Court of Kerala, in the proceedings of the Company Petition No. 43 / 2003 and owing to the findings which has been recorded in the Impugned Order, it has been found that, based on the evidence and its appreciation by the Hon’ble High Court over the findings recorded by the Expert Committee and also by the NCLT itself, it is seen that these two persons were apparently found to be intentionally engaged in a activity which would be falling well within the ambit of Section 425 of the Companies Act and as a consequence thereto, the learned Adjudicating Authority had passed the Impugned Order of 30.09.2019, holding thereof that the Appellants, who had been the Respondent Nos. 1 & 2 to the Company Petition, would be barred from carrying out any activities of the Company and the following restrictions were levied by the learned NCLT by the Impugned Order, which are under challenge before us.

The restrictions which are imposed thereof are extracted hereunder:

As a consequence of the restrictions which were imposed on R1 & R2 by the Impugned Order, the Appellants were restrained from interfering in any of the activities by the Petitioner’s Company and moreover, Mr. S. Vijayakumar, who was the Retired District Judge, was reprimanded and was fined for Rs. 1 Lac as per the provisions contained under Section 447 of the Companies Act.

We have diligently scrutinized the entire proceedings, which has germinated right from the stage of initiation of the Company Petition on 30.07.2003, till the stage of passing of the Impugned Order on 30.12.2019 which is under challenge, before this Tribunal , by virtue of which, the Tribunal has imposed restrictions upon the appellants of the two Company Appeals.

This Tribunal is of the confirmed opinion, that looking to the historical background of the two appellants and coupled with their basic objective to usurp the property of the petitioner company, despite of the fact that, they have utterly failed to place on record any credible document by virtue of, which they could claim themselves as to be the legally reckoned Director or an Administrator of the Petitioner Company, coupled with the fact that by appreciation of evidence, they were found by the Expert Committee appointed by the Hon’ble High Court of Kerala, to be incompetent to be appointed as a Professional to look after the affairs of the company including its liquidation.

The ultimate analysis which has been made by the Impugned Judgment of 30.12.2019, by imposing restrictions in the exercise of powers of the appellants under Section 425 of the Companies Act, do not call for any interference in these appeals and rather, this Tribunal is of the view that, the quantum of punishment, which has been imposed upon Mr. S. Vijayakumar, the Retired District Judge, is too minimal, because he has to set an example in the Society, as he was an ex-Judicial Officer, and if he engages himself into such a nefarious activity in collusion with his professional colleague right from 1988 for his personal monetary benefits, he ought to have been imposed with a heavier fine then what has been imposed by the Impugned Order, so as to act as a deterrent and an example for such erring judicial officers.

In modification to the restrictions which has been imposed by the Tribunal by the Impugned Order, this Appellate Tribunal feel it apt to debar the Respondent Nos. 1 & 2, for all times to come in future, to engage themselves in any such nefarious affairs relating to any of the companies which are registered under the Companies Act.

Accordingly, for the aforesaid reasons these two Company Appeals i.e. Company Appeal (AT) (CH) No. 45 / 2021 and Company Appeal (AT) (CH) No. 5 / 2022, would stand dismissed.

In continuation to the restrictions which has been imposed upon the appellant of the two appeals by the Impugned Judgment of 30.12.2019, they are further debarred from functioning in any manner whatsoever, with regards to the affairs of the petitioner company i.e. M/s. S.T. Reddiar & Sons (Quilon) Private Limited.

Due to the aforesaid impugned restrictions, it happened so that the Company Petition which was being proceeded with before the NCLT, Kochi Bench, wherein the Petitioner in the Company Petition, has sought a relief for sanction of the compromise or an agreement, by preferring a Petition under Section 391(2) of the Companies Act to be read with Rule 79 of the Company Code Rules of 1959. The said Company Petition and interlocutory application, which was filed was ultimately dismissed for want of prosecution on 28.09.2020.

Mr. D. Asokan, who claimed himself to be the Director of the Company is said to have upon getting the knowledge of dismissal of the Appeal in default, by an order of 28.09.2020. Consequently, despite of the fact that he was debarred by the Impugned Order from dealing with any of the affairs of the company, he has preferred a Restoration Application, seeking recall of the Order dated 28.09.2020, dismissing the Company Petition being CP No. 43 / 2003 in default for want of prosecution, later on, renumbered as TCP/13/KOB/2019.

The said Restoration Application, as it was preferred on behalf of the Petitioner Company, by claiming himself to be the Chairman & Managing Director he sought a recall of the aforesaid Order. The said Restoration Application has been dismissed by the learned NCLT by the Impugned Order which is under challenge i.e. by an order of 18.11.2019.

The Restoration Application being Application No. C(Act)/01/KOB/2021 as it was preferred under Rule 48(2) of the NCLT Rules, to be read with 424(2)(g) of the Companies Act, was rejected by the Tribunal, on the ground that since the restriction has been imposed by the Judgment rendered in a proceedings under Section 425 of the Companies Act, exclusively as against Mr. D. Asokan, the Applicant of the Restoration Application, the said Application at his behest on behalf of the Company was held to be not maintainable.

To deal with the aforesaid peculiar issue, as to what would be the impact of the restrictions imposed upon Mr. D. Asokan by the Impugned Order of 30.12.2019, for the purposes of creating an embargo for him, from filing of the Restoration Application, in a Company Petition, we have to deal with certain provisions of law particularly in the context of the provisions contained under Section 9 of the Companies Act.

Section 9 of the Companies Act reads as under:

The consequential effect of the registration of the Company, as per the provisions of the Companies Act, and consequentially upon its registration, the Company acquires a status of being a ``juristic person’’ who is entitled under law to have a perpetual succession, power to acquire, hold and dispose of the property, both movable and immovable, tangible and intangible and more importantly, the Company thus registered under the Companies Act, the effect of its registration contemplated under Section 9 of Companies Act, it confers the power of right to sue and to be sued, the Company thus acquires status of ``juristic person’’, whose interest is represented, by Competent Authorized Person under law.

There has to be a distinction carved out at this stage, under this peculiar circumstances when we are considering Company Appeal (AT) (CH) No. 3 / 2022, emanating from the order of rejection of the Restoration Application.

As observed above, and in the light of the provisions contained under Section 9 of the Companies Act, the Company, itself being an `Inanimate Juristic Person’, has got a right to sue and to be sued on its behalf. Merely because of the fact that Mr. D. Asokan, who was an applicant to the Restoration Application was rendered incompetent to maintain Restoration Application due to the effect of Impugned Order under challenge in the other two company appeals, the restoration of the Company Petition, which was dismissed for want of prosecution on 28.09.2020 should not have been refused. As the Company, in itself who has got its distinct legal entity cannot be debarred from preferring of a Restoration Application, though, it might not be possible to sustain such application at the behest of Mr. D. Asokan, who has been debarred by the Judgment of 30.12.2019, which has been affirmed by the earlier part of this Judgment by this Tribunal.

The aforesaid perspective, as to what would be the status of the Company, for the purposes of filing of a Restoration Application and who would be the competent person, who could agitate a cause of an ``Inanimate Juristic Person’, could be culled out from the Judgment of the Hon’ble Apex Court, as it has been rendered by the Constitution Bench on 19.07.2019, in the context of the expansion of the provisions contained under Article 21 of the Constitution of India, with regards to right to legal remedies.

The Hon’ble Apex Court in the aforesaid judgment has held that, be it whatsoever, the right to litigate or right to a judicial remedy, cannot be curtailed either for an `Inanimate Juristic Person’ or an `Animate Juristic Person’, because that curtailment will amount to restricting an access to Justice. This Principle has been derived from the declaration made by the Universal Declaration of Human Rights which was drafted as back as in the year 1948 which in Article 8 & Article 10 contained therein, has provided that `Animate’ and `Inanimate Persons’, will have a right where the judicial remedies, cannot be curtailed in any manner whatsoever and the aforesaid convention of Universal Declaration of Human Rights, stood fortified by Clause 3 of Article 2 of the International Convention on Civil and Political Rights of 1966. Relevant paragraph nos. 9, 10 & 11 of the Hon’ble Apex Court Judgment are extracted hereunder:

The aforesaid Constitution Bench Judgment of the Hon’ble Apex Court, while dealing with the concept of protection of a right to litigate or a legal remedy, has determined with regard to the proposition laid down by the Judgment of Hon’ble Apex Court as reported in 2012 Vol. VI SCC P 502 in Brij Mohan Lal V. Union of India & Ors. by referring to Page 137 of the said Judgment, which is extracted hereunder:

In these circumstances, where the Hon’ble Apex Court, while expanding the provisions of Article 21 of the Constitution of India, so as to be inclusive of a right to judicial remedies, has arrived at the ultimate conclusion in Para 30 of the said Order, which postulates, that it is the duty of the State and the Courts too, to provide for an effective adjudicatory mechanism and a right to litigate or protect a legal right envisaged by an ``Inanimate Company’’, because that cannot be curtailed merely because of the fact, that the Director in his individual capacity, has been held to be not an eligible person to hold the affairs of the company by the Impugned Order of 30.12.2019, as already dealt with in the aforesaid Company Appeals.

The Hon’ble Apex Court has further gone on to hold that, a litigant’s access to the adjudicatory process should be ensured to meet the objective of the Article 21 of the Constitution of India and for the aforesaid purpose, the Hon’ble Apex Court has referred to various judicial precedence, but, at this stage we are not elaborately dealing, with it so as to burden the Judgment with the judicial precedence of this Tribunal.

But, having said so, and the ultimate analysis which we arrive at for the purposes of deciding the Company Appeal (AT) (CH) No. 3 / 2022 is concerned, we have to be conscious of the fact that, in the light of the following points:

This Tribunal is of the view that, as far as the order of 18.11.2019 (impugned in Company Appeal (AT) (CH) No. 3 / 2022) is concerned, the Restoration Application has not been decided on its merits, except for the fact that, it has been rejected on the ground that it was not tenable, since being preferred at the behest of Mr. D. Asokan, because Mr. D. Asokan in the capacity of Chairman has represented the cause in the Restoration Application No. 1 / KOB / 2021, for recalling the order, dismissing the appeal in default by an order of 28.09.2020.

Be that as it may, the situation the Company Petition itself cannot be laid to rest because of the legal restrictions imposed upon Mr. D. Asokan, in his individual capacity, who was claiming to be the then Chairman and the Director of M/s. S.T. Reddiar & Sons (Quilon) Private Limited. In order to protect the interest of an ongoing concern, as it has been portrayed from the evidence on record, any person who is authorized under law by the Board of the Company, except for Mr. D. Asokan and Mr. S. Vijayakumar, can file a Restoration Application or pursue the restoration by seeking recall of the order dated 28.09.2020, so that the Company Petition being CP No. TCP/13/KOB/2019, may be decided on its own merit.

If the Restoration Application is thus filed by the person authorized by the Board of the Company for seeking to restore the appeal on its number, the same would be decided by the learned NCLT, in accordance with law by keeping in mind the implications of Section 5, to be read with Section 14 of the Limitation Act.

As far as the Impugned Order of 18.11.2019 is concerned, since the restoration was dismissed exclusively on a limited count of its maintainability at the behest of Mr. D. Asokan, the Impugned Order of 18.11.2019, would hereby stand quashed with the liberty left open with a person made competent by the Board of the company, except for Mr. D. Asokan and Mr. S. Vijayakumar, to file an appropriate Restoration Application which would be considered by the learned NCLT in accordance with law.

As far as Company Appeal (AT) (CH) No. 3 / 2022 is concerned, the same would stand allowed, subject to the aforesaid observations.