Dilawri Motors Pvt Ltd & Ors. vs i T.R. Arya

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL)

The present appeal has been filed by the appellants under Section 421 of the Companies Act, 2013 against the impugned order dated 09.01.2024 passed by the National Company Law Tribunal, New Delhi in Company Petition No.CP/30/2007 whereby part relief was granted to Respondent No.1 in so far as Form No.32 qua the Respondent was cancelled and the respondent was reinstated in the position of a Director in appellant company.

Vide order dated 7.3.2024 this Tribunal had held ”this appeal is against the impugned order dated 9th January, 2024 whereby the partial relief is granted to Respondent No.1 in so much so the Form No.32 has been cancelled and the Respondent No.1 has been reinstated in the position of Director in appellant Company. It is the submission of the learned senior counsel for the Appellant the findings recorded in the order are wrong in so much so it had mentioned the admission on the part of the Appellant to the fact the Respondent No.1 is a shareholder having 5000 equity shares and/or the appellant has failed to produce any document or resignation letter of Respondent No.1 to show he had resigned. The learned Senior counsel for the Appellant refers to Page No.124 and 126 of the paper book. Page -124 is the transfer of shares and Page-126 is the resignation letter. However, the learned counsel for the Respondent No.1, who appears on advance Notice, refers to the minutes of meeting dated 29.06.2005 mentioned in para-25 of the impugned order, to say the said minutes does not mention the fact of resignation of the Respondent No.1. Rather such minutes are on some other business issues and are duly signed by Respondent No.1 and the Appellant. It is submitted by the Respondent No.1 the documents viz the sale certificate as well as resignation letter are all forged by the Appellant but whereas the argument of the Appellant is the minutes of the meeting dated 29.06.2005 as produced by Respondent No.1 are forged. Be that as it may, the fact as to if the documents showing resignation of Respondent No.1 or the minutes of the meeting dated 29.06.2005 filed by Respondent No.1 are forged or not, there is no discussion in the impugned order.”

Admittedly the appellant had taken a preliminary objection that the company petition was not maintainable since the Respondent was neither a director nor a shareholder of the company and had tendered his resignation from the directorship on 29.06.2005 and that his Form No.32 was filed with the ROC and factum of his resignation is recorded in the minutes of Meeting 29.06.2005.

On these contentions the Ld. NCLT rather noted there is no dispute the Respondent has 5000 equity shares in his name and in meeting dated 29.06.2005 the Respondent had participated it and signed its minutes book in the capacity of director of the company and since no document of his resignation was filed before the Ld. NCLT hence in the absence of such documents the submissions made by the appellant viz. the petitioner had resigned from the directorship of the company cannot be adhered to. Further the Ld. NCLT was of the opinion though the Respondent No.1 had raised various objections qua the fraudulent act

Now once the Ld. NCLT had come to a conclusion it could not look into the allegations of fraud and forgery then how could the Ld. NCLT decides Form 32 and other transfer documents were illegal or were forged by the appellant herein and how could it direct reinstatement of Respondent No.1 as a director in the company.

Admittedly the issue raised by the appellant viz. the Respondent No.1 had sold his shares on consideration was never looked into by the Ld. NCLT. The Ld. NCLT rather declared Respondent No.1 to be a director of the company while holding Form 32 filed with the ROC is illegal but admittedly there was no discussion upon the documents of sale/purchase of shares belonging to Respondent No.1 in the impugned order.

Though the learned senior counsel for the Respondent No.1 in order to support the impugned order submitted even otherwise the alleged resignation tendered by Respondent No.1 was illegal as under Companies Act, 1956 there existed no provision for resignation of a director under the Act of 1956 and a director could only be removed by rotation and not otherwise. However, we find that this argument was never raised before the Ld. NCLT. Further we find the impugned order is silent upon the legality of resignation tendered by Respondent No.1 and upon sale/purchase of shares of Respondent No.1.

We thus set aside the impugned order as it appears to be incomplete and hence we remand the matter and direct the Ld. NCLT to decide it afresh upon giving opportunity to both the sides to file further documents relevant to the issues involved. The Ld. NCLT is requested to hear arguments expeditiously, preferably within four weeks from filing of such documents/response thereupon and to decide the same.

The appeal is disposed of in above terms.

Pending applications are also disposed of.