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Judgment
O R D E R
22.11.2022: Heard Mr. Dhiren Dave, Ld. Counsel for the Appellant.
The present appeal has been preferred under Section 421 of the Companies Act, 2013 (hereinafter referred as to ‘Act’) against an order dated 05.07.2022 passed by ‘National Company Law Tribunal, Ahmadabad Bench (hereinafter referred as to ‘NCLT’) in CA/50(AHM) 2021 in TP 99-A/2016 (CA 153 of 2015) whereby the Ld. NCLT has rejected the Application filed by the Appellant for impleadment.
TP 99-A/2016 was filed for allowing the Appellant to implead proposed Respondent No.5 whereas CA/50(AHM) 2021 was filed for impleading proposed Respondent No.6. In the present memo of Appeal, the Appellant has sought for the following reliefs:
a. Admit the present appeal
b. Set aside the impugned order dated 05.07.2022 passed by NCLT in Comp. Appl/50(AHM)2021 in TP 99-A/2016 (CA153 of 2015) with TP 99 of 2016 and join proposed R-5 and proposed R-6 as parties to the petition etc.
Ld. Counsel for the Appellant submits that the Appellant was one of the ‘Director’ of the Company i.e Respondent no.1. However, he was removed incorrectly on 03.12.2013, without notice to the Appellant and thereafter, in the month of November, 2014, intimation of removal was filed with the ‘Registrar of Companies’. Thereafter, the Appellant filed an application under Section 241-242 of the Act which was numbered as CP 48 of 2015. It has been alleged that the Company in question in connivance with other Directors, transferred some of the land to proposed R-5. The said transfer had taken place on 23.05.2015. At belated stage, proposed R-5 transferred the said land to proposed R-6. It was argued that in Company Petition, by order dated 16.07.2015, the Company Law Board had passed an order for maintaining ‘status quo’. Despite interim order, the land in question was got transferred and this was the reason that the Appellant has filed petition for allowing the appellant to implead both first transferee and second transferee as Respondents in the company petition. However, same has been incorrectly rejected by the Ld. NCLT.
He further submits that even in para 11 of the impugned order, there is error of record, since date has incorrectly been mentioned as 2017. On aforesaid ground, it has been prayed for quashing of the impugned order and passing interim order in favour of the Appellant. It would be better to reproduce the para 11 of the impugned order as follows:
“11.On this backdrop, it appears to us that the Petitioner, having lost in Civil Court way back in the year 2017, has come out with this application. It is seen from the material on record that proposed R-5 had purchased the assets of R-1 company prior to filing of main company petition. Before purchasing the assets, a notice was published calling upon the objections. It appears to us that the proposed R-5 may be a bona fide purchaser of the assets. He cannot be dragged into this litigation at this stage, more particularly, when the issue that “whether the proposed Respondent No.5 is a bona fide purchaser of the assets? Is still pending before the Civil Court”
Ld. Counsel for the Appellant has also referred to para 10 of the impugned order. it would also be appropriate to reproduce the para 10 of the impugned order, as follows:
“10.It is not in dispute that the sale deed was executed on 22.05.2015 a month prior to the main company petition which was brought before the then Company Law Board (CLB) for the first time on 10.06.2015. The Petitioners herein had filed the Special Civil Suit No. 47 of 2016 for an injunction restraining respondent No.1 to 3 herein from alienating the assets of the company. That suit was filed on 28.01.2016. The proposed respondent No.5 was brought on record as party-defendant in that suit. The prayer in that suit was also amended in the following words:
“….On date 21.05.2015, the sale deed executed between defendant no.1 to 4/2 bearing no. SRT/1/ATV no.8949 is required to be cancelled because, the said sale deed is not lawful wherein no signature and consent of the plaintiff is given. This sale deed is done with an only malafide intention to snatch valuable rights of the plaintiff and for which the defendants have no legal right to do so and therefore the same is required to be cancelled…” In that suit, the petitioner had filed another application for an interim injunction which was rejected by the learned Civil Court vide order dated 27.02.2017. In that order, the learned Civil Judge observed that the plaintiff (petitioner herein) has no prima-facie case. This finding is obviously relating to the petitioner’s claim that he sale deed is void. That order is carried in appeal. Now, that appeal is pending before the Hon’ble Gujarat High court. The Hon’ble Gujarat High Court did not stay above findings of the learned Civil Judge.”
At the time of hearing, we have minutely perused the impugned order and after going through the same it is evident that the Appellant for cancellation of the sale deed, which was firstly executed in favour of proposed Respondent No.5, the Appellant had filed a ‘suit’ and prayed for cancellation of the sale deed. In the said suit, interim relief was sought for which was rejected. Thereafter, the Appellant filed an appeal before the Hon’ble Gujarat High Court. However, the Hon’ble Gujarat High Court also did not grant any interim relief and the said appeal is still pending before the Hon’ble Gujarat High Court. However, at the time of hearing, ld. Counsel for the Appellate has informed this Tribunal that he has already withdrawn the said appeal which was pending before the Hon’ble Gujarat High Court.
Considering the fact that regarding cancellation of the sale deed suit is still pending before the ‘Court of Competent Jurisdiction’, we do not find any error in the impugned order.
The appeal stands dismissed. No order as to costs.