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Judgment
Introduction
The ‘Appellant’/‘1st Respondent’ has filed the ‘instant Appeal’ being dissatisfied with the order dated 08.04.2021 in CA/39/KOB/2021 (Filed under Rule 32 of the National Company Law Tribunal Rules, 2016) in CP/51/KIOB/2021 passed by the National Company Law Tribunal, Kochi Bench.
Earlier, the National Company Law Tribunal, Kochi Bench while passing the ‘Impugned Order’ on 08.04.2021 in CA/39/KOB/2021 in CP/51/KIOB/2021 (Filed by the Respondents No.1 to 6 as ‘Applicants’ at paragraph 5 and 6 had inter alia observed the following:
5…. “He has stated that the application filed for amendment of Company Petitions is pending for orders of this Tribunal and that at this stage if the relief sought for is granted, that will be against the interests of the petitioner in the Company Petition.
6.On going through the records, it is seen that when the petitioner in CP/51/KOB/2020 filed IA/213/KOB/2020 for stay of Annexure A6 Circular No.A4/234/2020-21 dated 27.10.2020 to conduct the 114th Annual Meeting of SNDP Yogam, the learned counsel for the respondents strongly opposed the grant of the interim relief. However, he has stated that the Yogam General Body Meeting will not be held on or before 29.12.2020. This submission of the learned counsel for Respondents was recorded and the matter was adjourned to 29.12.2020 and then to 6th January, 2021. On 6th January, 2021 the undertaking given by the respondents 1 to 5 that the Yogam General Body Meeting will not be held was extended until further orders. Since the respondents stated that there is no disqualification to the respondents 2 to 5 to continue in office they are entitled to conduct the Annual General Body Meeting and the election, and that this Tribunal has not stayed the Annexure A6 mentioned above, the Petitioners/Respondents’ counsel is permitted to withdraw the undertaking given by him in IA/213/KOB/2020 on 10th December, 2020 which was extended until further orders on 6th January, 2021. However, if the AGM of Yogam is held, the decision taken therein would be subject to the outcome of the Company Petition No.51/KOB/2020 and connected matters pending before this Tribunal.” and disposed of the application with the above directions.
Appellant’s Contentions
Challenging the ‘Impugned Order’ dated 08.04.2021 in CA/39/KOB/2021 in CP/51/KIOB/2021 passed by the National Company Law Tribunal, Kochi Bench, the Learned Counsel for the ‘Appellant/1st Respondent submits that the ‘Appellant’ had filed CP/51/KIOB/2021 before the ‘Tribunal’ under Section 241 and 244 of the Companies Act, 2013, primarily on the ground of mismanagement of the affairs of the 1st Respondent/Company, committed by the Respondents No.2 to 5, in breach of the mandatory provisions of the Companies Act, 2013. Further, in the main Company Petition, the ‘Appellant’ had claimed the relief of declaration that the Respondents No.2 to 5 as disqualified to act as Directors/Office Bearers of 1st Respondent and pass consequential orders removing them from their positions in the 1st Respondent/Company, a declaration that all the actions done by the respondents 2 to 5 in their capacity as office bearers of 1st Respondent as illegal and thus null and void, and to set aside, etc.
The Learned Counsel for the Appellant contends that the ‘Tribunal’ had passed the ‘Impugned Order’ dated 08.04.2021 in CA/39/KOB/2021 in CP/51/KIOB/2021 against law. Further the ‘Tribunal’ had not provided an opportunity to the ‘Appellant’ to file the ‘Reply Statement’ to CA/39/KOB/2021 in CP/51/KIOB/2021 filed by the Respondents.
The Learned Counsel for the Appellant submits that the ‘Tribunal’ failed to note that in IA/213/KOB/2020, the undertaking recorded of Respondents No.2 to 5 was made absolute and the said ‘Interlocutory Application’ in CP/51/KIOB/2021 was disposed of by means of an order dated 06.01.2021 and further that the said order had attained finality, in view of the fact that no ‘appeal’ was preferred against it.
Advancing his arguments, the Learned Counsel for the Appellant points that the ‘Tribunal’ had failed to note whether Respondents No.2 to 5 are competent to act as ‘Office Bearers’ of the 1st Respondent/Company, which is the issue in main CP/51/KIOB/2021, the permission to withdraw the undertaking is without any basis.
The Learned Counsel for the Appellant brings it to the notice of this ‘Tribunal’ that the 2nd Respondent issued a Circular dated 27.10.2020 (bearing No.A4/234/2020-2021) by calling upon the SNDP Yogam Unions to elect their representatives for the Annual General Meeting of the 1st Respondent, in accordance with Rule 44 of the Articles of Association of the 1st Respondent.
The Learned Counsel for the Appellant contends that the ‘Tribunal’ had committed an error in holding that there was no stay of the circular dated 27.10.2020, but on the other hand, IA/213/KOB/2020 seeking for stay of the circular dated 27.10.2020 was disposed of by the ‘Tribunal’ making the undertaking an absolute one.
The Learned Counsel for the Appellant submits that the ‘Tribunal’ had passed the ‘Impugned Order’ dated 08.04.2021 in CA/39/KOB/2021 in CP/51/KIOB/2021 (filed by the Respondents No.2 to 5) to withdraw their undertaking dated 10.12.2020) without providing adequate opportunity of being Heard and hence the same is an illegal one.
Analysis
In the instant case, it transpires that main Company Petition/51/KIOB/2021 is pending on the file of the National Company Law Tribunal, Kochi Bench. Indeed, the Respondents in the present Appeal No.1 to 5 filed CA/39/KOB/2021 in CP/51/KIOB/2021 (as Applicants) before the National Company Law Tribunal, Kochi Bench seeking to permit the Learned Counsel to withdraw the undertaking given by him in IA/213/KOB/2020 and to vacate the interim order extending the undertaking until further orders. As a matter of fact, the ‘Tribunal’ after contest, in the subject matter, ultimately had passed the ‘Impugned Order’ permitting the Respondents No.1 to 5/‘Applicants’ Learned Counsel to withdraw the undertaking given by him in IA/213/KOB/2020 on 10.12.2020, etc. It cannot be gain said that the ‘Tribunal’ at the time of passing the ‘Impugned Order’ in CA/39/KOB/2021 in CP/51/KIOB/2021 on 08.04.2021, had in a crystalline fashion made it quite clear that if the Annual General Meeting of Yogam is held, the decision taken therein, would be subject to the outcome of the main Company Petition No. 51/KIOB/2021 and connected matters pending before it, and disposed of the application, which in the considered opinion of this ‘Tribunal’ will not cause any prejudice to the ‘Appellant’ and the same, in turn does not suffer from any material irregularity or patent illegality in the ‘eye of law’. In fact, this ‘Tribunal’ is in complete agreement with the view taken by the ‘Tribunal’ in the ‘Impugned Order’. Consequently, the appeal fails.
Result
In fine, the Company Appeal (AT)(CH) No.23 of 2021 is dismissed. No costs. IA/274/2021 (Stay Application) is closed.