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Judgment
JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL)
This appeal has been preferred under Section 421 of the Companies Act, 2013 against order dated 19.05.2023 passed in Company Application No.19/2023 and in Contempt Petition No.8/MB/C-1/2022 in CP No.755/MB/C-1/2017 by National Company Law Tribunal, Mumbai (hereinafter referred to as NCLT).
By the impugned order the Learned NCLT in Contempt Petition No.8/2022 held the appellant guilty for disobeying the order dated 30.09.2022. However, opportunity was accorded to the contemnor to purge the contempt by depositing the amount of Rs.3,94,99,355/- with the Registrar of the NCLT within four weeks and further imposed a fine of Rs.2,000/-. It was further directed that if the contemnor fails to deposit the said amount within the period of four weeks, the NCLT will direct for forfeiture of shares held by contemnor in applicant company against the said amount of Rs.3,94,99,355/- and directed the contempt petition to be listed after four weeks. By the same impugned order learned NCLT rejected the CA No.19/2023 which was filed for rectification of order dated 30.09.2022. The appellant before NCLT by filing CA No.19/2023 had prayed for rectification of order dated 30.09.2022 for deletion of line in para 42 of the order i.e. “the learned counsel Ms Malika Joshi appearing for Respondent has on instructions requested that the Respondent be granted three weeks to deposit the aforesaid amount. Considering the request made by learned counsel we allow and direct the Respondent to deposit the amount within three weeks from the of order.” However, the NCLT dismissed the rectification application i.e. CA No.19/2023 by the impugned order dated 19.05.2023.
Mr. K.D. Chatterjee, learned senior counsel appearing on behalf of the appellant at the very outset has argued that the learned counsel on behalf of the appellant before NCLT without any authorization or permission had given consent on behalf of the appellant. He submits that the said consent order was passed on 30.09.2022 and thereafter on 03.10.2022 the order was uploaded. According to learned senior counsel no such consent was given by learned counsel appearing on behalf of the appellant before the NCLT and immediately after coming to know about the said order only on 04.10.2022 the same counsel sent an email to the Registrar of the NCLT disputing her consent. Mr. Chatterjee, learned senior counsel has taken us to running page 95 of the Memo of Appeal which is reproduced hereinbelow_-
“We are concerned for Mr. Hemeridra Aran the abovenamed Respondent/ original Petitioner. Vide Order dated 30th September 2022 ("said order"), the captioned Company Application was disposed of as allowed in terms of the said order by the Hon'ble Court-1, NCLT and the Respondent/original Petitioner was directed to deposit an amount of Rs.3,94,99,355.00/-. During the course of the pronouncement of the said order, we had prayed for the stay of the said Order and an extension of time by 3 (three) weeks for the Respondent to deposit the said amount of INR 3,94,99,355/- as directed by the Hon'ble Tribunal. While the Hon'ble Tribunal was pleased to reject the stay, the Hon'ble Tribunal was pleased to allow the request for extension and recorded the following statement in the said Order-"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 Ltd. 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." It may please be noted that the extension of three weeks as sought hereinabove was merely an extension of the time period of 15 days as initially directed by the Hon'ble Tribunal, and does not indicate any acceptance of the said order by the Respondent. Yours faithfully. For SOLOMON & CO. Advocates for the Respondent Sd/- Partner”
He submits that the said communication i.e. email dated 04.102022 was enclosed with the rectification application which starts from running page 56 to 110. He further submits that there was no question of instructing the counsel of the appellant to give consent due to the reason that even before the order was pronounced, in the morning on 30.09.2022, the learned counsel Ms Malika Joshi. who was appearing on behalf of the appellant before NCLT was intimated through WhatsApp message that the appellant in worst scenario was prepared to file appeal. The learned senior counsel had drawn our attention to running page 91 of the present Memo of Appeal which are photo copies of said WhatsApp message. In this context he has also referred to para 5 of the rectification application which is at running page 67 of the Memo of Appeal. It is better to reproduce same as follows:-
“5.That on 30th September, 2022 at around 9.42 am before the Tribunal working hours, applicant had instructed Adv. Mallika Joshi in writing that he will file appeal if an adverse order is passed in Company Application No.231 of 2022. A printout of the written instructions dated 30th September, 2022 communicated by Applicant to Adv. Mallika Joshi via WhatsApp is annexed hereto as Exhibit B.”
He has further drawn our attention to running page 40 para 25 of the impugned order to show that the learned NCLT without application of mind and discussing about on either WhatsApp message or praecipe dated 04.10.2022, assigning no reason dismissed the rectification application i.e. CA No.19/2023. Mr. Chatterjee, learned senior counsel has also placed reliance on a judgement of Hon’ble Supreme Court reported in (2002) 3 SCC 39 Swami Krishnanand Govindanand Vs M.D. Oswal Hosiery (Regd). He has specifically placed para 4 of the said judgement which is reproduced hereinbelow:-“4. The learned counsel next contended that the statement of the learned counsel for the respondent should be treated as a compromise as the Court granted five years’ time to the respondent for vacating the suit premises. In our view, this contention has to be rejected. The compromise like a contract postulates consensus between two parties. A statement of a counsel conceding the grounds of eviction and seeking some time for the respondent to vacate the premises, cannot be termed a compromise.”
Taking clue from the aforesaid judgement, he submits that if for the time being it is presumed that learned counsel for the appellant Ms Malika Joshi had given the consent, the said consent may not deprive the right of the appellant to assail the said order.
In sum and substance it has been argued that the order whereby rectification application was rejected is non-speaking order and simultaneously the order passed in Contempt Petition No.8/2022 is liable to be set aside.
Mr. N. Ganapathy, learned senior counsel assisted by Ms Shivani Sharma, learned counsel appearing on behalf of Respondent No.1 company/Aranca (Mumbai) Private Ltd, opposing the appeal has prayed that the appeal is required to be rejected as the same is barred by principle of resjudicata. At the very outset he has referred to prayer made in the present Memo of Appeal. For better appreciation it is necessary to reproduce the relief sought for which is at para 21 running page 24 of the Memo of Appeal:
“a)pass an order setting aside the impugned order dated 19.05.2023 passed in Company Application 19/2023 and in Contempt Petition bearing No.8/MB/C-1/2022 in CP No. 755/MB/C-1/2017 passed by the National Company Law Tribunal, Mumbai Bench, and;
b)Pass a consequential order setting aside order dated 30.09.2022 passed in CP No.755/MB/C-1/2017.”
Mr. N. Ganapathy, learned senior counsel submits that the order dated 30.09.2022 passed in CA No.231/MB/C-1/2023 in CP No.755/MB/C-1/2017 was earlier assailed by the appellant by filing an appeal vide Company Appeal (AT) No.198/2022. However, by a detailed order the said appeal was dismissed by this Tribunal by its order dated 11.11.2022. He submits that once the appellant was aggrieved with the order of rejection of appeal which was preferred against order dated 30.09.2022 passed by the NCLT in Petition No.255/2017, the appellant was having a remedy to file appeal before the Hon’ble Supreme court. However, only with a view to delay compliance of the order of the NCLT by way of not depositing Rs.3,94,99,355/-, the appellant instead of preferring the appeal before the Hon’ble Supreme Court, filed the rectification application which was number as CA No.19/2023. The order passed by this Tribunal in Company Appeal (AT) No.198/2022 is at running page 97 to 103. He has further referred to para 42 of the order dated 30.09.2022 which is at running page 89. The same is reproduced as follows:-
“42.Consider the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355/-with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Pvt Ltd. 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.”
By way of referring to aforesaid observation/direction of the NCLT it was argued that the direction to the respondent to deposit an amount of Rs.3,94,99,355/- within 15 days was independent of the consent given by Ms Mallika Joshi, learned counsel for the appellant herein. He further submits that learned counsel for the appellant herein Ms Malika Joshi on specific instructions of Respondent requested for granting three weeks time to deposit the aforesaid amount. Only after request made by learned counsel for the appellant herein before NCLT, the learned NCLT instead of 15 days directed to deposit the amount within three weeks from the date of the order. According to Mr. Ganapathy, learned senior counsel once the said order was assailed by way of filing an appeal before this Appellate Tribunal and appellant did not get any favourable order, the appellant was not permitted to approach the same court i.e. NCLT with a plea of rectification of order as if consent was incorrectly recorded. He submits that the appellant was only buying time to delay the deposit in terms of the order passed by the NCLT and this was the reason that even though appeal preferred against the order of the NCLT was dismissed by this Tribunal, instead of preferring appeal before the Hon’ble Supreme Court, the appellant again approached the NCLT with a plea of rectification of order.
Mr. N. Ganapathy, learned senior counsel has also referred to running page 95, 96 of the Memo of Appeal which is the praecipe dated 04.10.2022. It has been argued that if Ms Malika Joshi learned counsel who had given consent before the NCLT was of the opinion that she had not given such consent then in that event only Ms Malika Joshi was required to file such praecipe. However, the present praecipe has been signed by one of the partners of Solomon & Co. Even in the said letter there is no whisper as to whether the signatory of said communication was instructed by Ms Malika Joshi or informed by her that she had not given consent.
It has further been argued on behalf of Respondent No.1 that the appellant with the Memo of Appeal has brought on record one another email i.e. email letter dated 24.11.2022 sent by Ms Malika Joshi, learned counsel for the appellant. However, the said communication/email reflects nothing about earlier filing of the appeal and rejection of the same. He submits that against the order dated 30.09.2022 which was consent order the appellant had preferred an appeal and the appeal was finally dismissed on 11.11.2022 which is at running page 92-93. In the present Memo of Appeal nothing has been disclosed regarding the dismissal of the appeal by this Tribunal.
Mr. N. Ganapathy, learned senior counsel by way of referring to proviso to Section 420 (2) of the Companies Act, 2013 has argued that after the rejection of the appeal by this Tribunal rectification petition was itself not maintainable. However, rectification petition was entertained and same was rejected by learned NCLT. He has further drawn our attention to para 10 of the order dated 11.11.2022 passed by this Tribunal in Company Appeal (AT) No.198/2022 which is at running page 101, the same is reproduced hereinbelow:
“10.We are of the opinion that if an authorisation is given to a counsel and on authorisation 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.”
Taking clue from the aforesaid observation it was argued that once the counsel representing the appellant who was authorized to represent his case gives a consent it will be deemed as consent was given by the appellant which subsequently may not be allowed to be questioned. It has further been argued on behalf of the Respondent No.1 that though at subsequent stage before the NCLT a plea was taken that the Registrar of the NCLT was intimated through praecipe dated 04.10.2022 disputing in the consent, on earlier occasion while assailing the same order i.e. order dated30.09.2022, the appellant filed appeal vide Company Appeal (AT) No.198/2022 but in the said appeal no assertion was made that Ms Malika Joshi had given consent without authorisation or no consent was given on behalf of the appellant.
In reply filed on behalf of the Respondent No.1 in the present appeal, the Respondent No.1 has brought on record copy of Memo of Appeal which was numbered as Company Appeal (AT) No.198/2022 wherein order dated 30.09.2022 passed by NCLT was assailed. Learned counsel for Respondent No.1 further submits that despite consent given on behalf of the appellant for depositing the amount of Rs.3,94,99,355/- within three weeks, till date payment has not been made by the appellant and as such the learned NCLT has rightly passed order in contempt petition for depositing the money. Mr. N. Ganapathy has also referred to para 6, 7 and 9 of the rectification petition filed by the appellant before the NCLT which is at running page in between Page 67 to 70. Those paras are quoted herein below:-
“6.That Applicant was not present at the time of passing of the said order and he had not given any instructions to Adv. Mallika Joshi to offer to pay the money. It is submitted that Applicant had vehemently contested the said Company Application No.231 of 2022 by filing Affidavit dated 1st August, 2022 in Reply and the Written Submissions dated 10th August, 2022. The said Company Application was extensively argued too. Respondent has falsely alleged that Applicant executed a fraudulent transaction during his tenure as Director and allegedly Respondent have filed a criminal complaint. Hence under no conceivable circumstances Applicant would have instructed Adv Mallika Joshi to admit the alleged liability or submit to the findings and observation in the said Order without exercising Applicant’s right of appeal. It is submitted that admitting to the alleged liability would have far reaching repercussions on the said Company Petition No.755/2017
7.That the said order was uploaded on 03rd October, 2022 that’s when Applicant became aware of the erroneous statement of Adv Mallika Joshi. He enquired with Adv. Mallika Joshi as to what transpired on 30th September, 2022 for such a statement to be recorded. Adv. Mallika Joshi informed Applicant as under:
“At this hearing, the Hon’ble Bench pronounced its judgement that it had allowed the said Company Application and directed the Respondent, i.e. you, to deposit a sum of INR 3,94,99,355/- with Registry of NCLT Mumbai Bench within 15 days. On learning that the order was passed against you, we immediately requested for a stay on the operation of the order to enable you to pursue your remedy of appeal. However, the Hon’ble Tribunal rejected our request for stay. Hence, as of a necessity, and so that you have some time to consider the order and your position, we requested the Hon’ble Bench for more time. The said request was intended to be made without prejudice to your rights to exercise your right of appeal, and so that you would have enough time to pursue your stattuory right of appeal given that the NCLAT was closed for vacations from 3rd October, 2022 to 8th October, 2022. Applicant requested Adv Mallika Joshi to give her narration in writing so he can produce before the Hon’ble Bench as he has no personal knowledge of the details of the submissions on 30th September, 2022. A printout of the Email of Adv Mallika Joshi dated 24th November, 2022 and Praecipe dated 4th October 2022 is annexed hereto as Exhibit C.
9.That Applicant filed Appeal being Company Appeal (AT) No.198 of 2022 (Appeal) before the Hon’ble National Company Law Appellate Tribunal challenging the said order. Since Applicant filed Appeal, his then Advocate on record unilaterally decided not to pursue the praecipe under the mistaken opinion that the same would be dealt with before the Appellate Tribunal.”
Taking clue on the aforesaid statement in the rectification petition filed before the NCLT it has been argued that the communication dated 24.11.2022 issued by learned Advocate, Ms Malika Joshi was obviously prepared after the order passed by this Tribunal which was passed on 11.11.2022 in Company Appeal (AT) No.198/2022. He submits that the conduct of the appellant shows that he is not proceeding in fair manner; rather one way or the other he is interested in not depositing the amount as directed by the Tribunal below. He further submits that once the order passed by the NCLT was not interfered with by this Appellate Tribunal and appeal i.e. Company Appeal (AT) No.198/2022 was dismissed by this Tribunal even before filing rectification petition it was mandatorily required on the part of the appellant to deposit the amount of Rs.3,94,99,355/- in terms of direction whereby within three weeks the appellant was required to deposit the amount. After rejection of rectification petition again till date the said amount has not been deposited. However, while present appeal was filed an interim order of stay was passed by a Bench of this Tribunal. He submits that interim order was passed for the limited period. However, even after expiry of the limited period of stay the appellant has preferred not to comply the order passed by NCLT. He has placed reliance on para 20 and 26 of judgement passed by the Hon’ble Supreme Court reported in (2007) 8 Supreme Court Cases 449 Prestige Lights Ltd Vs State Bank of India. Accordingly it was argued that neither there is any error in either of the order passed by the Tribunal which has been assailed nor the appellant deserves any relief from this Tribunal due to the reason that the appellant has not approached this Tribunal with clean hands.
Mr. Dhruba Mukherjee, learned senior counsel assisted by Mr Anmol Chandan, learned counsel has appeared on behalf of Respondent No.5. He submits that the Respondent No.5 is major shareholder of the company in question i.e. Respondent No.1 and on his prayer the order dated 30.09.2022 was passed by learned NCLT. The order dated 30.09.2022 passed by learned NCLT was assailed by the appellant by way of filing appeal vide Company Appeal (AT) No.198 of 2022. However, this Appellate Tribunal by detailed judgement declined to interfere with the impugned order and appeal was dismissed on 11.11.2022. He submits that once the original order i.e. order dated 30.09.2022 after rejection of the appeal by this Tribunal had attained its finality the appellant was not permitted to move before the NCLT in the garb of rectification of the order. Moreover, it has been argued by Mr. Mukherjee, learned senior counsel that once consent was given on behalf of the appellant and thereafter an order was passed by the learned NCLT on 30.09.2022 the appellant was not permitted to assail the order on the plea as if learned counsel had given consent without any authorisation by the appellant. He has placed reliance on para 34 of judgement Hon’ble Supreme Court reported in (1994) 2 SCC 155 at page Svenska Handelsbanken V. Indian Charge Chrome Ltd which has been reproduced at running page 19 and 20 of the Memo of Appeal and accordingly we propose to reproduce the same as follows:-
“34.The Supreme Court also had an occasion to examine the power of the pleader to enter into a compromise without the consent of the party concerned in the case of Jamilabai Abdul Kadar V. Shankarlal Gulabchand (1975) 2 SCC 609. It upheld the implied power of the advocate as well as the pleader to compromise but in paragraph 9 of the judgement observed that one thing is certain “that if a suitor countermands his pleader’s authority to enter into a compromise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader (or, for that matter, the advocate) cannot go against such advice and bind the principal, his client. This is as illegal as it is unprofessional.”
Mr. Mukherjee has emphasised that consent which was given by the learned counsel for the appellant before the NCLT cannot be repudiated by the appellant at this stge. He submits that it is not the case of the appellant that his counsel Ms Malika Joshi was in a special term was prohibited to give any consent on behalf of the appellant and in absence of any such pleading in terms of the aforesaid judgement of the Hon’ble Supreme Court the appellant was deprived from filing rectification application before NCLT. He has also drawn our attention to running page 22 para 13 of present Memo of Appeal which is reproduced hereinbelow:-
“13.Details of appeals, if any, preferred before this Appellate Tribunal against the same impugned order/direction, by respondents with numbers, dates…and interim order, if any. None”
He submits that in para 13 despite the fact that the appellant against the earlier order had approached this Tribunal by filing an appeal vide Company Appeal (AT) No.198 of 2022 and the same was rejected. The appellant made concealment of fact by not disclosing the fact of filing the appeal. He emphasised that in the present appeal also the appellant has also prayed for the setting aside of order dated 30.09.2022 passed in CP No.755/2017 which has already been assailed by filing an appeal and dismissed by this Tribunal. According to Mr Mukherjee the present appeal is fit to be rejected on the ground that the appellant has made concealment of fact.
Mr Krishnendu Dutta, learned counsel assisted by Mr. Shivam Sharma, learned counsel has appeared on behalf of Respondent No.2, one of the shareholder of Respondent No.1. He has also referred to email dated 24.11.2022 which is at running page 92 sent by Ms Malika Joshi, learned counsel to the appellant. He emphasised that in this whole communication there is no whisper regarding filing of appeal and its rejection by this Tribunal vide its order dated 11.11.2022 which was filed against the order dated 30.09.2022. He further submits that it appears that email dated 24.11.2022 was brought on record for justification of filing rectification petition, which was filed on 29.11.2022 before the NCLT. According to him the conduct of the appellant is itself enough for rejection of the present appeal.
In rejoinder also Mr. K.D. Chatterjee, learned senior counsel for the appellant advanced his arguments and tried to assail the impugned order.
Besides hearing learned counsel for the parties, we have minutely gone through the materials available on record. It is not in dispute that initially on 30.09.2022 in a petition filed under Section 241-242 of the Companies Act, 2013 i.e. CP No.755(MB)/C-1/2017 the learned NCLT had recorded a detailed finding which is at running page 48 to 55 of the present appeal and is reproduced hereinbelow:
“Findings:
21.Upon perusal of documents, we have observed that Meher Miracles Pvt. Ltd. defaulted in making payment of dues as per the terms of MoU. Thereby, constituting the default in terms of the MoU. Meher Miracle Pvt. Ltd. made payment of four instalments of Rs. 6,90,000 /- per month including interest at the rate of four percent per month in default amount of 10.07.2017, 10.08.2017, 08.09.2017, and 11.10.2017. However, it is apparent that Meher Miracle Private Ltd. has failed to make the balance payment.
22.Mr. Vikram Kumar by his notice dated 11.06.2019, called upon Meher Miracle Pvt. Ltd. and other directors of Aranca (Mumbai) Pvt. Ltd. to make payment of dues as per the terms of MoU in the Deed of Corporate Guarantee. Original Respondent No. 1 hereto replied to the said letter of 20.06.2019 inter-alia denying the liabilities and calling upon Mr. Vikram Kumar to share the copy of the Corporate Guarantee.
23.Therefore, Mr. Vikram Kumar, invoked the Corporate Guarantee issued by the Respondent on behalf of the Aranca (Mumbai) Pvt. Ltd. by his notice Dated 25.08.2020, and called upon Aranca (Mumbai) Pvt. Ltd to make payment of Rs. 3,94,99,355/- computed as on August 24.08.2020. Aranca (Mumbai) Pvt. Ltd. replied to the aforesaid letter thereby denying the liability and sought for a copy of the Corporate Guarantee.
24.Thereafter, Mr. Vikram Kumar through his Advocate addressed a letter to Aranca (Mumbai) Pvt. Ltd. on 28.09.2020 under the cover of which a copy of the Corporate Guarantee was shared.
25.In response to the same, Aranca (Mumbai) Pvt. Ltd. addressed the letter to Mr. Vikram Kumar, Advocate on 20.10.2020 inter-alia stating that they had not issued the Corporate Guarantee and it is a fraudulent document. Thus, nothing is due and payable by Aranca (Mumbai) Pvt. Ltd. to Mr. Vikram Kumar.
26.In these circumstances, Mr. Vikram Kumar filed an Insolvency Petition Under section 7 of the Insolvency & Bankruptcy Code, 2016, seeking to initiate for Insolvency Resolution Process for Aranca (Mumbai) Pvt. Ltd. The Petition was stated to be heard at length and an order was reserved on March 2022. However, due to reconstitution of the Benches, the petition will now to be heard afresh.
27.In view of the above, the Applicant herein, has filed the present application seeking directions against the Respondent to make payment of the amount claimed by Mr. Vikram Kumar in C.P.(IB) No. 143 of 2020 on the ground that the respondent issued the Corporate Guarantee without any authorisation from Aranca (Mumbai) Pvt. Ltd. amongst other grounds as detailed in the present Application.
28.The Respondent filed an affidavit in reply on 01.08.2022 denying allegations made by the Applicant.
29.The Applicant has at the outset clarified the it is not pressing for Prayer A of the application, at the moment only seeking interim relief in the nature of Prayer Clause B. Wherein the Applicant is seeking direction to the Respondent to make payment of the amount claimed by Mr. Vikram Kumar and secure Aranca (Mumbai) Private Ltd. (Limited) from going into insolvency.
30.The Applicant contends that the respondent deliberately suppressed before this Bench, the settlement agreement dated 24.07.2017 (settlement agreement) entered into between Aranca (Mumbai) Private Ltd., Aranca U. K. Ltd., Anker Holdings, Mr. Christopher Kingsman, Greenwood Investment (Mauritius Limited), Mr. Hemendra Aran and Mr. Madhusudan Rajgopalan.
31.It is a matter of record that Aranca (Mumbai) Private Ltd. greatly suffered at the time when the respondent was in-charge of the day to day management. For instance, the Respondent entered into several related party transactions and misuse of Aranca Funds unjustly enrich himself report of the SKP Business consulting LLP in November 2017 set out in significant detail the conduct of the respondent.
32.In the past the Respondent has also forged signature of Mr. Madhusudan Rajgopalan on a Board Resolution of Aranca to avail loan from Bajaj Finance Limited in favour of Aranca. However, the respondent has misappropriated the loan amount of Rs. 35,00,000 to his personal account.
33.On account of the said forging the respondent stood disqualified as a director of Aranca by operation of law. This is as per Section 84 and Section 167(1)(D) of the Companies Act, 2013.
34.The rights issue of December 2017 was undertaken to address the repayment of obligations of Aranca to R. B. L. Bank Limited. This default itself was the result of conduct of the Respondent. The said rights issue was not undertaken to dilute the Respondent’s shareholding since he was at liberty to subscribe to shares in the said rights issue. Even at the time granting Interim relief in CP No. 755 of 2017 this Adjudicating Authority vide its Order dated 10.01.2018 did not grant stay on the rights issue, the Hon’ble NCLAT vide Order dated 19.02.2018 upheld the decision of the NCLT.
35.Pursuant to Section 7 Petition Aranca (Mumbai) Private Ltd. was exposed to the possibility of dragged into CIRP on account of the conduct of the Respondent. In any event, the Respondent is exposed to liability of at least Rs.3,94,99,355/- which is an amount claimed by Mr. Vikram Kumar in the Section 7 petition.
36.In the circumstances, the Respondent did not approach the NCLT with clean hands and has suppressed material information. We direct the Respondent to indemnify Aranca (Mumbai) Private Ltd. from any liability arising from signing of the unauthorised, purported Corporate Guarantee by the Respondent contrary to Section 185 of the Companies Act, 2013 that is all liabilities arising out of the purported transactions with M/s Sourya Containers leasing Company ought to be borne solely by the Respondent.
37.The Respondent has opposed the present application, on the ground that Aranca (Mumbai) Private Ltd. and its directors on the board were at all times aware about the transactions with Sourya Containers Leasing Company. They had taken responsibility of signing purported authorisation. Furthermore, the Respondent has contended that the loan was in fact taken for Celebrity Football Match organised by Aranca (Mumbai) Private Ltd. The Respondent has also alleged delay in filing the present application and contended that Aranca (Mumbai) Private Ltd. was aware of the Corporate Guarantee since 2020, however, no steps were taken by them till 2022, and therefore, no urgent ad-interim relief ought to be granted in favour of the applicant on the ground of their acquiescence. Although, the Respondent has made several allegations in respect of Corporate Guarantee and the loan transactions in a signed document of record has been placed in support of his contentions.
38.In addition to the above, it is clear that the Respondent by way of his unauthorised act has exposed Aranca (Mumbai) Private Ltd. to liability and potential insolvency commencement.
39.The Applicant has submitted that there appears to be elaborate conspiracy between Mr. Hemendra Aran and Mr. Vikram Kumar to extort monies from the respondent. None of the persons such as Mr. Christopher Kingsman, Mr. Madhusudan Rajgopalan ever approached Mr. Vikram Kumar.
40.It appears from record placed before us that Corporate Guarantee has been issued without any authority which rendered the Corporate Guarantee illegal. The above conduct of Mr. Hemendra Aran and issuance of engineered Corporate Guarantee demonstrates initiation to perpetuate fraud against Aranca (Mumbai) Private Limited.
41.After considering rival submissions, we are of the view that there is express irregularity in issuance of the Corporate Guarantee by the respondent and provisions under section 85 and provisions under section 185 of the Companies Act, 2013, were not followed.
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 Ltd. 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.
43.With the aforesaid observation present CA No. 231 of 2022 In C.P No. 755/MB/C-I/2017 stands disposed of as allowed in above terms.”
Against the said order the appellant preferred an appeal before this Tribunal which was numbered as Company Appeal (AT) No.198 of 2022. After noticing the fact that Ms Malika Joshi, learned counsel appearing on behalf of the appellant herein on instructions requested for extension of time for depositing of the aforesaid amount this Tribunal by a detailed judgement dismissed the appeal primarily on the ground that a consent order was not appealable one. The order dated 11.11.2022 passed by this Tribunal in Company Appeal (AT) No.198/2022 is reproduced hereinbelow:-
“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.
2.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.
3.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.
4.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.
5.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. 6. 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 1 (1998) 6 SCC 507, para 9 & 11 2 (2002) 5 SCC 337 para 22 Company Appeal (AT) No.198 of 2022 3 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.
6.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.
7.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.
8.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.”
9.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.
10.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.
11.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.”
12.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 appeal stands dismissed.
Against the rejection of the appeal the appellant instead of preferring an appeal preferred to file a rectification application before the NCLT. It appears that the appellant was persuaded with some of the observations recorded by this Tribunal in its order dated 11.11.2022 as if we permitted him to file rectification petition. However, this Tribunal was not inclined to interfere with the order since it was a consent order. In the said order i.e. order dated 11.11.2022 this Tribunal noticed that if an authorisation is given to a counsel and on authorisation 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 was not permissible to be raised before Appellate Court. In para 12 of the same order it was further observed “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”. Such observation of this Tribunal may not be termed as if this Tribunal granted liberty to file rectification petition before the NCLT. The said observation appears to have been recorded while this Tribunal was not inclined to interfere with the impugned order. In normal course if the appellant was aggrieved with the order of this Tribunal he was at liberty to avail remedy of appeal. It has also not been disputed by learned counsel for the appellant that in the earlier appeal the appellant had not whispered as if his counsel before NCLT had given undertaking without authorisation of the appellant or learned counsel before the NCLT the appellant had not given such consent. If recording of the consent of the learned counsel for the appellant by the NCLT was incorrect in such situation learned counsel for the appellant herself was required to file an application for rectification. However, no such application was ever filed by Ms Malik Joshi. A praecipe dated 04.10.2022 has been brought on record in the present appeal which was addressed to Registrar, NCLT, in which this dispute was raised. The praecipe dated 04.10.2022 which is at running page 95, 96 is reproduced hereinbelow:-
“We are concerned for Mr. Hemeridra Aran the abovenamed Respondent/ original Petitioner.
Vide Order dated 30th September 2022 ("said order"), the captioned Company Application was disposed of as allowed in terms of the said order by the Hon'ble Court-1, NCLT and the Respondent/original Petitioner was directed to deposit an amount of Rs.3,94,99,355.00/-. During the course of the pronouncement of the said order, we had prayed for the stay of the said Order and an extension of time by 3 (three) weeks for the Respondent to deposit the said amount of INR 3,94,99,355/- as directed by the Hon'ble Tribunal. While the Hon'ble Tribunal was pleased to reject the stay, the Hon'ble Tribunal was pleased to allow the request for extension and recorded the following statement in the said Order-
"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 Ltd. 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."
It may please be noted that the extension of three weeks as sought hereinabove was merely an extension of the time period of 15 days as initially directed by the Hon'ble Tribunal, and does not indicate any acceptance of the said order by the Respondent.
Yours faithfully. For SOLOMON & CO. Advocates for the Respondent”
On perusal of the aforesaid communication it is evident that Ms Malika Joshi, learned counsel who had given consent before the Tribunal had not signed this communication. We are in agreement with the submission of the learned counsel for the Respondent that in the aforesaid communication it has not even been indicated as if the signatory of the said praecipe has received any instructions or information from Ms Malika Joshi, learned counsel for the appellant. If the appellant was of the view that without any authorisation such consent was given by his counsel then in that event he would have taken immediate steps for filing a rectification application, instead of preferring an appeal before this Tribunal. Again alongwith the present Memo of Appeal one another communication has been brought on record which is dated 24.11.2022 i.e. email sent by Ms Malika Joshi, learned counsel for the appellant to the appellant which is at running page 92 and 93 and reproduced hereinbelow:
“As requested by you, please find below an update on the hearing of Company Application No. 231 of 2022, which was listed at Sr. No. 1 on 30th September 2022 for pronouncement of order, when we were present through video conference.
At this hearing, the Hon'ble Bench pronounced its judgment that it had allowed the said Company Application and directed the Respondent, L.e. you, to deposit a sum of INR 3,94,99,355.00/- with Registry of NCLT Mumbai Bench within 15 days. On learning that the order was passed against you, we immediately requested for a stay on the operation of the order to enable you to pursue your remedy of appeal. However, the Hon'ble Tribunal rejected our request for stay. Hence, as of a necessity, and so that you have some time to consider the order and your position, we requested the Hon'ble Bench for more time. The said request was intended to be made without prejudice to your rights to exercise your right of appeal, and so that you would have enough time to pursue your statutory right of appeal given that the NCLAT was closed for vacations from 3rd October 2022 to 8th October 2022. While the order was passed on 30th September, 2022, the same was uploaded and made available to us only on 3rd October 2022 and upon perusing the same in detail, we noted that the order recorded our request for time 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 Ltd. 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."
Since our submissions requesting for a stay was not recorded, hence, as and by way of abundant precaution, to ensure that no other meaning is attached to our request and to the statement recorded during the pronouncement of the order, on the very next day we filed a praecipe dated 4th October 2022 through email on [email protected] l.e. the email address of this Hon'ble Bench, clarifying that our request ought to be construed merely as an increase to three weeks from the time period of 15 days Initially directed by the Hon'ble Bench and in no manner should be read to be understood as . acceptance of the order. The next day Le. 5th October 2022, being a public holiday on account of Dussehra, a physical copy of the praecipe could not be filed with the Hon'ble Bench. On 8th October 2022, we again went to the registry to submit the praecipe physically, however, the registry refused to accept the same. Since by then you had already commenced the process of fing an appeal at NCLAT, we did not pursue this further considering the same would be dealt with before the appellate court. Please find attached our email filing the said praecipe dated 4th October 2022 on [email protected] i.e. the email address of this Hon'ble Bench.
Please do note that the intention in requesting the increase of time was only to enable you to consider your position and not to imply your consent to the order. It is not conceivable-that any kind of consent to the order of deposit would be made by us. The Company Application was heavily contested on the ground of maintainability and also merits and hence we had initially requested for stay of the order so as to prefer appeal against the Order of deposit. We re-emphasize that we, as your advocates have at no point of time consented to the order dated 30th September 2022 of the Hon'ble Bench and further we state and confirm that we did not have any instructions from you to give such consent on your behalf. We hope we have clarified your queries. If you require any further clarification, please do not hesitate to contact us.
Best regards.
Mallika Joshi | Associate
signature 1233334122
signature 508678466
We are concerned for Mr. Hemendra Aran, the Respondent/ original Petitioner hereinabove.
Please find attached herewith our letter dated 04th October 2022, for your reference and kind action.
If you require any further information or clarification, please do not hesitate to contact us.
Best regards.
Mallika Joshi | Associate
signature 1233334122
signature 508678466”
It is difficult to perceive as to why even after rejection of the appeal against order dated 30.09.2022 by this Tribunal in Company Appeal (AT) No.198/2022 on 11.11.2022 this fact was not disclosed which was obviously sent on 24.11.2022. The aforesaid fact reflects that the appellant one way or the other was taking steps to frustrate order dated 30.09.2022 by way of not depositing Rs.3,94,99,355/- as directed by the NCLT. The order was passed in the month of September, 2022 and we are in the month of August, 2023 still the Respondent has been deprived to enjoy the fruit of the order passed by the NCLT. Obviously besides the actual amount i.e. Rs.3,94,99,355/- the Respondent is suffering loss of interest also on the said amount.
We are in agreement with the submission of the learned counsel for the Respondent that the appellant has suppressed/concealed the fact regarding dismissal of his appeal in the present Memo of Appeal. In para 13 of the Memo of Appeal at Page 22 the appellant has made false statement and on this ground alone the appeal was required to be rejected forthwith. However, we have examined the materials on record and also the impugned order. Though the learned senior counsel for the appellant had referred to last para of the impugned order i.e. para 31 to highlight that without any reason CA No.19/2023 i.e. rectification application was rejected, but facts remains that learned Tribunal/NCLT has discussed the submission of the appellant particularly in para 24, 25, 26 for rejecting the rectification petition. The appeal is accordingly required to be rejected on the ground that learned NCLT after applying its mind with reasons has rejected rectification petition. The order dated 30.09.2022 was even assailed before this Appellate Tribunal and the appeal was dismissed by this Appellate Tribunal and thereafter the appellant was not authorised to file a rectification petition particularly in view of proviso of Section 420(2). It would be appropriate to reproduce Section 420 as follows:-
“420.Orders of Tribunal.— (1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit.
(2)The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties:
Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act.
(3)The Tribunal shall send a copy of every order passed under this section to all the parties concerned.”
Admittedly the rectification application was filed for rectification of order dated 30.09.2022 against which the appellant had preferred appeal and the same was rejected by this Tribunal on 11.11.2022 in Company Appeal (AT) No.198/2022.
Non-disclosure of the fact regarding dismissal of the earlier appeal in the present appeal is itself enough to draw inference that appellant before this Tribunal has not come with clean hands and on this score also the appeal is required to be rejected.
As discussed the case in detail hereinabove we are of the opinion that there is no merit in the appeal nor appellant has approached this Tribunal with clean hands, accordingly we are left with no option but to dismiss the appeal.
The appeal stands dismissed.