Mrs Leena Khosla vs Alliance Industries Ltd & Ors.

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL)

This appeal is filed against an impugned order dated 08.01.2025. The learned senior counsel for the appellant submits the impleadment application was filed before the Ld. NCLT on 28^th August, 2024 i.e. much before the argument in the main Company Petition got concluded. The impleadment application got listed on 11.09.2024 and the Respondent was directed to file reply. Oral arguments were continuing in the main Company Petition. It is argued upon conclusion of final arguments in main petition, it was reserved for Judgement alongwith order on impleadment application but without hearing the appellant on such application vide the impugned order.

It is argued the impleadment application was never heard before it being reserved alongwith the main Company Petition for the purposes of it to be disposed of in a single combined order. The impugned order dated 08.01.2025 is as under:-

It is the submission of the learned senior counsel for appellant the Ld. NCLT in an arbitrary manner had gone ahead with keeping the impleadment application pending only for it to be reserved alongwith main Company Petition and thus it leads to denial of an opportunity of being heard to the appellant.

It is the submission of the learned counsel for appellant the Respondent No.1 is a foreign company, in which the appellant’s husband is claiming shares and the Respondent No.1 company had filed a Company Petition against Respondent No.2 alleging oppression and mismanagement. The appellant is guardian/wife of Suresh Kumar Khosla viz. the brother of Mr. Ashok Kumar Khosla, and he claims shares in Respondent No.1 Company. Presently Suresh Khosla is not a shareholder in Respondent No.1 company.

Now the appellant intended to be impleaded in the main Company Petition, filed by Respondent No.1 against Respondent No.2 on the plea that Suresh Khosla is also entitled to shares in the Respondent No.1 company and that without hearing on his applicatioin, it cannot be reserved for orders alongwith main petition. In support of his argument, the learned senior counsel for the appellant has relied upon Kamlesh Gupta Vs Mangat Rai and Another (2020) 17 Supreme Court Cases 132; Pradeep P Agarwal Vs Indiabulls Asset Reconstruction Company Ltd , Company Appeal (AT)(Insolvency) No.607 of 2024 and M/s Mumbai International Airport Pvt Ltd Vs Regency Convention Centre and Hotels Pvt Ltd & Others (2010) 7 Supreme Court Cases 417 to say if an impleadment application is filed and the court finds impleader is a necessary party then it must pass an order to implead such person and thereafter would afford an opportunity to such person to contest the matter.

The Ld. Senior counsel for Respondent argues otherwise.

Heard

At the outset we are not convinced with the argument of the learned senior counsel for the appellant that as the appellant claims a right to receive shares in Respondent No.1 company hence he should be impleaded in main Company Petition filed by Respondent No.1 against Respondent No.2. Admittedly the Company Petition is not a lis between two brothers viz. Mr. Suresh Kumar Khosla and Mr. Ashok Kumar Khosla. The argument which the appellant is trying to develop is in case he succeeds to get shares in Respondent No.1 company and then if not impleaded in this Company Petition 137/2019 then it could be decided without giving him an opportunity of being heard.

As already noted above, this Company Petition is not a lis between the two brothers. Further without adverting to the merits of the impleadment application, suffice is to say the impugned order dated 08.01.2025 does not in any manner dilute any right of the appellant and is only a procedural order. Admittedly the main Company Petition was filed in the year 2015 by Respondent No.1 against Respondent No.2 on the ground Respondent No.1 company had invested Rs.144 crore in Respondent No.2’s business and it holds 47% shares in Respondent No.2 and that Respondent No.2 has engaged in oppression and mismanagement.

Admittedly as of now Mr. Suresh Khosla did not hold a single share in Respondent No.1 company and admittedly till date no claim qua such shares is either filed or is pending in any court against Respondent No.1. Admittedly affairs of Respondent No.1 company are not in issue before us.

Admittedly CP (TP) No.137 of 2019 was earlier finally heard in the year 2020-2021 but before the matter could be reserved for orders the Bench was reconstituted. Now since April, 2024 re-hearing of CP TP No.137/2019 was going on. Admittedly there was no impleadment application filed between 2019 till 2024 and hearing of Respondent No.1 viz. the petitioner in CP TP No.137/2019 stood concluded in August, 2024 and thereafter hearing of Respondent No.2 had started. It was only in the midst of hearing of Respondent No.2 i.e. on 11.09.2024 an IA No.17(MP)/2024 was filed by appellant in such Company Petition for impleadment. This IA No.17/2024 was taken up on 11.09.2024 and direction qua filing of reply etc. was given.

Further this application was listed on 09.10.2024, 13.11.2024, 27.11.2024, 04.12.2024 and 11.12.2024 when it was taken up alongwith the main Company Petition and hearing in the main Company Petition continued. No grievance was raised by the appellant from September, 2024 till 11.12.2024 that her application IA 17/2024 be also taken up for hearing and be also heard. Nevertheless on 11.12.2024 the impleadment application was in fact taken up and Mr. Sumit Nema, Sr. Advocate appeared on behalf of the appellant herein and had argued IA 17(MP)/2024. Thus arguments in the main CP TP No.137/2019 as well as the present IA No.17(MP)/2024 got concluded and the matter was listed for 08.01.2025 for filing of notes of submission. On 07.01.2025 the notes of submission were filed by the appellant herein and the impugned order dated 08.01.2025 merely records this fact and then reserved it for judgement.

Thus vide the impugned order none of the rights of any of the parties were decided and it was merely a procedural order recording filing of notes of submission. The procedural order are not appealable orders per Central Bank of India Vs Gokal Chand AIR 1967 SC 799; in A. Vijayan & Ors Vs. M/s Silver Line Retreat Hotels Pvt Ltd & Ors, Company Appeal (AT)(CH) No.30/2024; Shreya Life Sciences Pvt Ltd Vs LIC Housing Finance Ltd, Company Appeal (AT) (Insolvency) No.880 and 881 of 2023 and Loramitra Rath (suspended director of Maa Durga Commotrade P Ltd) Vs JM Financial Asset Reconstruction Co Ltd and another (2024) 248 Comp Cas 335.

Further we note the appellant had failed to challenge the main order dated 18.12.2024 which records conclusion of hearing of arguments and fixing the matter for 08.01.2025 for procedural compliances viz. filing of notes of submission. Rather the appellant had complied with order dated 18.12.2024 by filing her notes of submission. Hence after compliance the appellant has no right to challenge the impugned order. In Gaon Shiksha Samiti, Gram Sabha Sabhad, Auraiya and another Vs State of UP and others, 2003 SCC OnLine All 359 it was held in the absence of challenge to the basic order, subsequent consequential order cannot be challenged.

15 Thus we find the impugned order is nothing but a consequential order and in the absence of challenge to the main order dated 18.12.2024, the challenge to procedural order is not maintainable. We thus find no merit in the appeal and accordingly it is dismissed.

Pending applications are also disposed of.