Gaurishankar Neelkanth Kalyani & Anr. vs Sulochana Neelkanth Kalyani & Ors.

15.12.2022: Both the aforesaid appeals were earlier taken up on 14.12.2022 and separate orders were passed. In both the appeals, the Appellants have prayed for quashing the orders dated 21.10.2022. In Company Appeal (AT) No. 194 of 2022, order dated 21.10.2022 passed by the NCLT, Mumbai Bench Court-II (hereinafter referred as to NCLT) was assailed. CP No. 21 of 2016 was primarily filed under Section 241-242 of the Companies Act, 2013 (hereinafter referred as to ‘the Act’) by the Respondent No.1 – Sulochna Neelkanth Kalyani. Similarly, in Company Appeal (AT) No. 195 of 2022 order dated 21.10.2022 is assailed. This impugned order was passed in CP No. 63 to 68 of 2016. The Ld.NCLT while passing different orders, had also appointed an ‘Administrator’, suspending the ‘Board of Directors’ of the Company. Of course, with same contents, two different orders were passed on the same date but in both the cases mainly certain reliefs were granted as well as ‘Administrator’ was appointed. Appellants in both the appeals are primary aggrieved with those order.

On 04.11.2022 in both the appeals, a prayer was made for staying the impugned order which was declined by this Tribunal. It was informed by Ld. Counsel for the parties, the said order i.e. order dated 04.11.2022 was assailed before the ‘Hon’ble Supreme Court’ vide ‘Civil Appeal No. 8367 of 2022’. However, ‘Hon’ble Supreme Court’ did not interfere with the impugned order and it was dismissed as withdrawn by its order dated 12.12.2022.

By order dated 04.11.2022 while declining to pass interim order, this Tribunal had directed issuance of notice to non-appearing Respondent whereas some of the Respondents had entered appearance on advance notice.

The Respondent No.1/Sole Contesting Respondent, who is Applicant before the Ld. NCLT, has appeared and filed an Interlocutory Application in both the appeals. In CA(AT) No. 194 of 2022, application vide IA No. 4809 of 2022 has been filed whereas in CA(AT) No. 195 of 2022, application vide IA No. 4810 of 2022 has been filed. On affidavit, IA No.4809 of 2022 in Company Appeal (AT) No. 194 of 2022, Respondent No.1 has sought the reliefs which are mentioned in para 7 of the application. It is appropriate to reproduced the same.

 “Set aside the impugned order dated 21.10.2022 by consent of Respondent No. 1;  Permit Respondent No. 1 to unconditionally withdraw Company Petition No. 21/ MB/ C11/ 2016; and  Such further and other reliefs as this Tribunal may deem fit in the circumstances of the case.”

Similarly in IA No. 4810 of 2022 filed in Company Appeal (AT) No. 195 of 2022 in para 7 following reliefs are sought for:

 “Set aside the impugned order dated 21.10.2022 in Company Petition No.63/MB/C-II/2017, Company Petition No.64/MB/C-II/2017, Company Petition No.65/MB/C-II/2017, Company Petition No.66/MB/C-II/2017, Company Petition No.67/MB/C-II/2017 and Company Petition No.68/MB/C-II/2017 by consent of Respondent No.1; and  Such further and other reliefs as this Tribunal may deem fit in the circumstances of the case.”

In view of the stand taken by Ld. Counsel for the Respondent No.1/Sole Contesting Respondent in aforesaid interlocutory application, Ld. Counsel for the Appellants proposed not to press these appeals. However, Ld. Counsel for Respondent No.1 requested that while permitting not to press this appeal, this Tribunal may set aside the impugned order and dispose the same.

We are of the opinion that since appeal has been preferred by the Appellant, in such appeal, the Respondent may not make a prayer for setting aside order impugned. In such situation, it would be appropriate to allow the Ld counsel for the Respondent No.1/Sole Contesting Respondent to file appropriate petition before the NCLT for withdrawal of the main Company Petition i.e. CP No. 21/2016 & CP No. 63 to 68 of 2016.

It goes without saying that if such petition is filed before the NCLT, the Ld. NCLT without any delay may examine the same and pass appropriate order in accordance with law. It goes without saying that if the main petition i.e. CP No. 21/2016 & CP No. 63 to 68 of 2016 are permitted to be withdraw and withdrawn, all the subsequent orders, after filing of the main petitions i.e. petitions filed under Section 241 -242 of the Act, shall stand automatically vacated including impugned order.

While permitting to withdraw the appeal, in view of the stand taken by the Respondent No.1/Sole Contesting Respondent in two aforesaid interlocutory applications liberty can be granted to the Appellants that in case, the Respondent No.1/ Sole Contesting Respondent declines to file such petition before the Ld. NCLT, the Appellant would be at liberty to file restoration application of the present appeals.

We expect that after filing of petition for withdrawal, the Ld. NCLT may pass final order preferably within a period of one week from the date of filing. With above observations and directions, the appeal stands disposed of.