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Judgment
O R D E R
11.11.2022: Heard Mr.Amar Dave, Learned counsel for the Appellant and Mr. Dhruba Mukherjee, Ld. Sr. Counsel assisted by Mr. Vaibhav Gaggar, Ld. Counsel for the R1.
The present appeal has been preferred under Section 421 of the Companies Act, 2013 (hereinafter referred as to ‘Act’) against an order dated 30.09.2022 passed by National Company Law Tribunal, Mumbai Bench (hereinafter referred as to ‘NCLT’) in CA No. 231/2022 in Company Petition No. 755/MB/C-I/2017.
By the said order, the Ld. NCLT, considering the facts and circumstances of the case, directed the Appellant herein to deposit an amount of Rs. 3,94,99,355/- with the registry of the NCLT within 15 days from the order to secure interest of Aranca (Mumbai) Pvt. Ltd. In paragraph 42 of the impugned order, it has been recorded that Ms.Malliaka Joshi Ld. counsel appearing for the Respondent, who is Appellant herein, on instruction requested that the Respondent be granted three weeks time to deposit the aforesaid amount. Thereafter, the Ld. NCLT considering the request made by Ld. counsel, allowed the said prayer and direct the Respondent to deposit the amount within three weeks from the date of the order.
Short facts of the case is that the Appellant had initially filed an application under Section 241-242 of the Act alleging ‘Oppression’ and ‘Mismanagement’ of the Company i.e Aranca (Mumbai) Pvt. Ltd. However, during pendency of the main Company Petition, since it was noticed that Corporate Guarantee was created, the Respondent herein noticing the fact that Corporate Guarantee was executed for an amount of Rs. 1 crore with 4% interest per month and finally on the date of the filing of the application, the said amount has come to Rs. 3,94,99,355/-, the Respondent No.5 filed an application before the Ld. NCLT and thereafter, the impugned order has been passed.
Mr. Amar Dave, learned counsel for the Appellant on being asked as to once the order was passed which is primarily consent order, under which circumstances, an appeal can be entertained.
Mr. Amar Dave, learned counsel for the Appellant by way of referring to two judgments of Hon’ble Apex Court in P.R.Deshpande Vs. Maruti Balaram Haibatti,1 & A.V.G.P Chettiar & Sons and Ors. Vs T.Palanisamy Gounder2, submits that even though submission was made by Ld counsel of the Appellant before the NCLT for deposit of the said amount, the Appellant cannot be precluded to assail the said order. He further submits that Ld. counsel for the Appellant before the NCLT without the proper instruction of the Appellant had made such submission and as such the said submission made by the Ld. Counsel for the Appellant may not be treated as a hurdle to assail the impugned order.
Mr. Dhruba Mukherjee, Ld. Sr. Counsel for the Respondent submits that under Section 421 of the Act, a party can file an appeal provided he is aggrieved with the order. By way of referring to para 42 of the impugned order he submits that once on instruction, Ld counsel for the Appellant admitted regarding deposit of the said amount, the Appellant was precluded to assail the order that too while invoking ‘Appellate Jurisdiction’ of this Tribunal under section 421 of the Act.
Besides hearing Ld. Counsel for the parties, we have perused the material available on record. Fact remains that on going through the record, it appears that on earlier occasion also the same allegation was made that this Appellant had taken a loan of Rs. 35 Lakh though it was treated for personal use, but it was shown, in the joint name of the Appellant and the Company. It is also not in dispute that till date whatever error was committed in the loan account of the Bajaj Finance, the error has not been got removed from the Bajaj Finance.
However, without going into the merit of the case, we are considering the appeal only on the point of maintainability. Before proceedings, it would be appropriate to reproduce the para 42 of the impugned order as follows:
“42.Considering the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355.00/- with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Private Limited. The Ld. Counsel Ms. Malliaka Joshi appearing for the Respondent has on instructions requested that the Respondent be granted three (3) weeks to deposit the aforesaid amount. Considering the request made by the Ld. Counsel we allow and direct the Respondent to deposit the amount within three weeks from the date of the order.”
On examination of the aforesaid direction, it is apparently clear that Ld. Counsel for the Appellant before the Ld. NCLT, stated in specific term that on instruction of his client, he made submission for deposit of the said amount. Of course, during the hearing of this appeal, it was submitted by the Ld counsel of the Appellant that before the NCLT without proper instruction of the Appellant, his counsel had made said submission and as such, such submission may not come in the way of preferring the present appeal. On being asked Ld. Counsel for the Appellant admitted that he had not filed any petition before the Ld. NCLT as to whether the Ld. Counsel, had made submission without instruction of the client. Ld. Counsel for the Appellant accepts that no proper application has been filed before the NCLT with an allegation that his counsel without instruction from his client, has made such submission.
We are of the opinion that if an authorization is given to a counsel and on authorization such submission is made by the counsel, the integrity of the counsel may not be questioned that too without apprising the concerned court. Such submission is not permissible to be raised before the Appellate Court.
For deciding the present appeal on the point of primary issue of maintainability, it is necessary to reproduce Section 421 of the Act as follows:
“Section 421: Appeal from orders of Tribunal.
421.(1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties.
(3)Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period.
(4)On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5)The Appellate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal.”
On examination of the aforesaid section, it is very much clear that only a person aggrieved with an order, can file appeal. Further consent order cannot be assailed in appeal. In this case, on perusal of para 42 of the impugned order which is quoted herein above, there is no dispute that the Appellant can be said to be aggrieved by the said order. Further the order impugned is a consent order. If the Appellant is of the view that his counsel had made incorrect statement before the NCLT, he would be at liberty to approach the NCLT, but he may not be permitted to raise such issue before this Tribunal. So far as the Judgments relied upon by the Ld. Counsel for the Appellant is concerned, facts remain that the said judgment was passed by the Hon’ble Apex Court while exercising power under Article 136 of the Constitution of the India. Here, we are exercising statutory jurisdiction under the Act. It goes without saying that law is settled on the point that if statute, states to do a thing in particular manner, the same is to be done in the same manner and not in other manner. We are bound to follow the statutory provisions and as such beyond statutory provisions, we are unable to entertain the present appeal.
Accordingly, the present appeal stands dismissed.