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Judgment
O R D E R
06.02.2024: Heard Mr. Gaurav Kumar, Ld. Practicing Company Secretary appearing for the Appellant. Earlier, the Appellant/Petitioner had filed a Petition under Section 213 of the Companies Act, 2013 seeking for an issuance of direction to the Respondent No. 1 to make payment of the deposit along with interest due there on in accordance with the terms and conditions of the agreement indicating that the Principal amount claimed is Rs. 26,59,375/-interest @ 18% is Rs. 9,65,926/- and aggregating in all the sum of Rs. 36,25,301/-. Apart from the relief seeking repayment of the deposit as mentioned supra.
The Appellant/Petitioner before the Tribunal, had also sought a relief, in regard to the issuance of direction to the Central Government to investigate into the ‘affairs of the Company’ since true and fair view, was not being projected in the ‘books of company’, in directing the ‘Registrar of Companies’ to investigate into affairs of company and to take necessary actions against the Respondent Nos. 1, 2, 3, 4 & 5 as per Section 447 of the Companies Act, 2013.
Not resting with the above, the Petitioner/Appellant, had also sought for issuance of a ‘Non bailable warrants’, to secure the presence of the ‘Directors’ and Officers Respondent No. 2 to 5, in terms of Section 94 of CPC read with Section 424 of the Companies Act, 2013. Also that, direction is sought for by the Petitioner/Appellant in directing Respondent No. 9 to conduct a relevant investigation into the ‘dubious affairs of the Respondent No. 1 Company’ for any alleged Income Tax evasions. Added further, a prayer is also sought for issuance of a direction to the Respondent No.1 to produce its Assets and Liabilities and ‘MSME Form-I’ documents before the ‘Tribunal’, etc.
The National Company Law Tribunal, Ahmedabad, Court -2 when it heard the CP/12 (AHM)2022, at the time of passing of the order among other things observed that ‘debt amount is below the threshold limit of Rs. One Crore, therefore, Section 9 would not be applicable and it seems that this is the way out found by the Petitioner/Appellant in seeking recovery of its ‘Amount’. ‘No Proof of Fraud’ was brought on ‘Record’ and ultimately, the main Company Petition was not entertained and the same got dismissed.
A mere running of the eye, over the reliefs sought for in the main CP No. 12(AHM)2022 dated 09.05.2022, latently and patently indicates that the ‘Tribunal’, had fell into an error in coming to the conclusion that the ‘Debt amount’ was below the threshold limit of Rs. One Crore etc. In reality, the NCLT was mislead in regard to the applicability of Section 9 of the I & B Code, 2016. To put it precisely and succinctly, the Petitioner/Appellant had sought only reliefs apart from claiming the repayment of the ‘Deposit’ the other relief’s sought for in the ‘main petition’, is pertaining to investigation into the ‘Affairs of Company’, etc.
Ongoing through the reliefs sought for in the main CP No. 12 (AHM)2022 on the file of NCLT, Court -2, this Tribunal, is of the Cocksure opinion that the ‘Assumption’, ‘Presumption’, ‘Surmises’ in the realm of the NCLT, Ahmedabad, Court-2 while passing the impugned order dated 09.05.2022 indicates that the Tribunal instead of looking into the reliefs sought for and the Petition being filed for the relief of investigating, into the Affairs of company by the Central Government, ‘Registrar of Companies’ to investigate the affairs of the Company, had wrongly came to the conclusion that Section 9 would not be applicable and this is the way found out by the Applicant for seeking recovery of its amount. As such, this Tribunal is left with no option but is perforced to interfere with the impugned order dated 09.05.2022 and sets aside the same to secure the ends of justice.
Further, the matter is remitted back to the NCLT, Ahmedabad, Court-2 for ‘De-novo Enquiry’ into the Petition in CP No. 12 (AHM)2022 filed by the Petitioner/Appellant as per Section 213(b) (i) of the Companies Act, 2013 pertaining to M/s Astra Lifecare (India) Pvt. Ltd. & 8 Ors.
It cannot be gain said, that while passing the ‘De novo’ order the Tribunal, is to provide a Reasonable opportunity of Hearing to the Petitioner/Appellant by adhering to the ‘Principles of Natural Justice’, to pass a ‘reasoned speaking order’, in a qualitative and quantitative terms (and not bereft of any details), and further, that to pass in a fair, just, and in a dispassionate manner, of course uninfluenced and untrammelled’ with any of the observations made by this ‘Tribunal’ in this ‘Appeal’. The Learned Appellant/Petitioner shall appear through his Learned Practising Company Secretary before the Tribunal on 06.03.2024.
With the aforesaid observations and directions, the CA (AT) No. 167 of 2022 stands disposed of.