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Judgment
ORDER
25.11.2022: Heard Mr. Sunil Fernandes, learned counsel assisted by Mr. Rajat Jariwal, learned counsel for the appellant in Company Appeal (AT) No.161/2022 and Mr. Karan Malhotra, learned counsel assisted by Ms Manisha Sharma, learned Counsel for the Respondent. Also heard Mr. Karan Malhotra, learned counsel assisted by Ms Manish Sharma, learned counsel for the appellant in Company Appeal (AT) No. 205/2022 in which Mr. Sunil Fernandes, learned counsel has appeared on behalf of Respondent.
The present appeal has been preferred against an order dated 30th August, 2020 passed in CP No.98/CTB/2019 whereby the Learned NCLT while appointing Administrator for three months has issued certain directions particularly in para 22 onwards of the impugned order which are quoted hereinbelow:-
“22.Thus, this Tribunal orders the purported EGM held on 30.04.2019 to be void and non-est and thereby all decisions taken therein in the said meeting to be null and void. Thereby, in respect of all subsequent Decisions/Meetings etc wherein R5 has participated in the role of Managing Director and wherein P1 has not participated or played the role of Managing Director shall stand cancelled and decision taken are reversed to attain the same status as has been prior to the purported EGM held on 30.04.2019, thereby the respondents to maintain status quo in respect of shareholding and directorship of the R1 Company prior to purported EGM held on 30.04.2019.
23.However, this Tribunal notes that P1 was reappointed on 23.06.2016 as Managing Director for another 5 yrs term upto 22nd June, 2021, which is already over. Therefore, if status quo as on the date prior to 30.04.2019 EGM is maintained in terms of the Orders at para 22 above and thereby P1 is reinstated as Managing Director on date, then his status as Managing Director after expiry of his term of appointment on June 22, 2021, shall remain unexplained and not serve any purpose as far as P1 and functioning of R1 concerned. Therefore, this Tribunal is constrained to suspend the Board of R1. This suspension is also justified by the above discussions more particularly at para 14 to 19 above that it is not only the irregularity in conduct of EGM on 30.04.2019 but there are various other deficiencies and irregularities as far as compliance with the provisions of the Companies Act, 2013 is concerned in functioning of the R1 company. This Tribunal is of the view that a qualified professional need to be appointed for a short term to set right and regularize the affairs of the Company.
24.Therefore, we Order that the Board of R1 the superseded by an Administrator, who appointed as below to ensure implementation of the aforesaid Orders passed by this Tribunal and they are the f the Company within 3-month time from the date of this Order Under e supervision of the Administrator the new set of the Company shall be constituted by following the due procedure specified in this regard. If the administrator deems it appropriate, he may appoint one Independent Director on the Board. In order that the functioning of the hospital (R1) is not affected and the patients do not face any inconvenience, the present Board shall continue till the Administrator takes on charge of the Compare, however during this interim period, the Board restrained from alienating any of the assets of properties of HL, and during this temporary period the rights responsibilities and activities of the Board shall be limited only to the extent of facilitating uninterrupted functioning of the hospital
25 The Administrator appointed herein shall ensure that Orders at para 22, 23 and 24 above and elsewhere in this Order are implemented in letter and aspect, shall regularize the affairs of the Company and facilitate of the Bond of the Company within 3 months time or earlier. On new Board coming in place the job of Administrator shall get over. Administrator shall be entitled to all-inclusive remuneration of Rx 1.50 lakh per month to be lone by the RI Company Initially he can draw an advance of Rs 1.00 lakh from the Company to start his work, which shall subsequently be adjusted his monthly remuneration On the Administrator taking over charge, the Suspended Band Management, staff members and all associated with R1 Company shall extend their full cooperation to him
26.As aforesaid, this Tribunal hereby appoints. Mr. Soumya Sai Mashes (Company Secretary) having email id sammal.com and having registered office address at Plot No. 784/2647, 3 Floor, Jagamara, Behind HDFC Bank, Khandagiri Bhubaneswar, Odisha. PIN: 751030 A Administrator of the Company, who shall take over charge of the R1 Company within 10-days from the date of this Order Also, file an affidavit confirming his acceptance of assignment in terms of this Order within 7-days from the date of this Order.
27.During the pendency of this CP No. 98/CB/2019, petitioner side has filed an application CA No. 45/CB/2021 under Section 242(4) of the Companies Act 2013 read with Rule 32 and 11 of the NCLT Rules, 2016 in alia with the prayer to declare the Rights issue of equity shares of the first respondent Company as illegal CA No. 21/CB/2022 is filed by the petitioner under Rule 55 of NCLT Rules, 2016 to grant leave to file rejoinder to reply of the respondent filed in CA No 45/CB/2021 It is noted that subsequently, action has been raised therein, primarily alleging ulterior motive and illegality in rights issue of shares of the RI Company impacting the shareholding of the petitioners etc. Since, these are subsequent separate matters and no reliefs have been prayed for in this regard in the main Petition CP 98/CTB/2019, therefore. this Tribunal is of conscious opinion that here in this regard no reliefs can be granted Irregularities and discrepancies in such matters, if any, shall be looked into by the Administrator, who is already empowered to take remedial measures as deemed appropriate by following the due procedure of law. Further, Section 242(4) speaks about passing of an Interim Order Interim order denotes to an order passed by Court or Tribunal during the pendency of mam petition or suit. The interim or interlocutory order will be in force until further order of the Court or the conclusion of main proceeding Any interim order passed, holds good and is effective only till the disposal of main petition/Proceeding. But during the final hearing of the main petition submissions were made in respect of these Interlocutory Applications also. Today, final order has been passed disposing of main CP No 98/CTB/2019. hence, these Interlocutory Applications stand DISMISSED.
28 On passing of the Orders as above the main Petition CP 98/CTB/2019 accordingly disposed of
29.The Registry is directed to send copy of this Order immediately by email and also by Speed Post/Courier/ Hand Delivery to Administrator appointed herein above namely. Mr. Soumya Sujit Mishra, (Company Secretary) for information and for taking necessary steps
30.The Registry is also directed to send e-mail copies of the order forthwith to all the parties to the Petition and their Lad Counsel for information and for taking necessary steps and also to ROC. Cuttack
31.Let the Certified copy of this order be issued, if applied for upon compliance of all requisite formalities
Both the parties have accepted that three months period of the Administrator has not been completed and in the meantime certain reports were submitted before the Learned NCLT. Both the parties agree that the appeal can be disposed with an observation that if either of the party files any objection or application those objection or application may be considered by the Learned NCLT and pass appropriate order in accordance with law.
We are of the opinion that both the appeals can be disposed off with an observation that if any objection/application is filed by either of the party, the Learned NCLT may examine the same and pass appropriate order in accordance with law.
With the above observations both the appeals are disposed off. It is clarified that we have not gone in to the merit of the appeal.