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Judgment
O R D E R
Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):
In the instant Appeal, CA (AT) (CH) No. / 114 / 2023, the Appellant seeks to challenge the Impugned Order dated 07.09.2023 as rendered in CP/31/59/HDB/2018, wherein the Petition filed under Section 59 of the Companies Act, 2013, was dismissed as not maintainable by the learned NCLT, Hyderabad.
A similar issue came up for consideration before this Appellate Tribunal, in an earlier Company Appeal (AT) (CH) No. 95 / 2023 Gireesh Kumar Sanghi V. Sanghi Industries & 19 Ors., as well as, in Company Appeal (AT) (CH) No. 96 / 2023 Gireesh Sanghi (HUF) V. Sanghi Industries Limited & 17 Ors., where the challenge was given to the orders which were passed in the respective Company Petitions i.e. CP / 10 / 59 / HDB / 2018 and CP/33/59/HDB/2018, being the proceedings held under Section 59 of the Companies Act, 2013, by virtue of which the Company Petitions were dismissed holding them as to be not maintainable.
The aforesaid Appeals were preferred before this Appellate Tribunal being aggrieved as against the Impugned Order of 07.09.2023, which was rendered in CP / 10 / 59 / HDB / 2018, as well as in CP / 33 / 59 / HDB / 2018. When these matters were finally taken up by this Appellate Tribunal in the aforesaid two Company Appeals, this Appellate Tribunal had passed an order on 01.12.2023, whereby the Impugned Orders under challenge were set aside, observing thereof that, since Section 59 Application has been dismissed for want of jurisdiction by learned NCLT, the matters are being remanded back to the learned NCLT, to be decided afresh in accordance with law and the parties were directed to appear before learned NCLT on the date fixed by the Order.
The relevant conclusion arrived at by this Tribunal in the earlier set of proceedings, as contained in Para Nos. 13 & 14 of the Judgment of 01.12.2023, is extracted hereunder:
``13. Therefore, in our considered opinion, once the legislature has created a complete bar of the jurisdiction of the Civil Court by enacting Section 430 in the Act as per which no civil court shall have the jurisdiction to entertain any suit or proceedings in respect of any matter which the Tribunal or Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no civil court has the jurisdiction to grant injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the act or any other law for the time being in force by the Tribunal or Appellate Tribunal, there is no shred of doubt that the jurisdiction to decide the rectificatory jurisdiction under Section 59 of the Act shall be available to be exercised even where there are contested facts and disputed questions and regard may be had to the decision in the case of Shashi Prakash Khemka (Supra) as decided by the Hon’ble Supreme Court while referring to Section 430 of the Act.
14.With these observations, we allow both the appeals and set aside the impugned orders. Since, the application filed under Section 59 of the Act by the Appellant has simply been dismissed for want of jurisdiction, therefore, we remand the matter back to the Tribunal to decide it in accordance with law and the parties are directed to appear before the Tribunal on 18th December, 2023.’’
The aforesaid Judgment of 01.12.2023 was made the subject matter of challenge in Civil Appeal Nos. 536 & 537 / 2024 (bearing Diary No. 50400 / 2023 – Ravi Sanghi V Gireesh Sanghi & Ors. The Hon’ble Apex Court, after condoning the delay, has dismissed the Appeals, observing thereof that, since the Impugned Order i.e. the Order of 01.12.2023 being an order of remand, it will be decided by the learned NCLT on its own merit leaving all contentions of the parties left open to be placed before the learned NCLT.
The relevant observation made by the Hon’ble Apex Court in its Judgment of 16.01.2024 is extracted hereunder:
``Delay condoned. Heard the learned senior counsel appearing for the appellant. The impugned order is an order of remand by which the proceedings under Section 59 of the Companies Act, 2013 have been remanded. It is obvious that after remand, the proceedings will be decided on its own merits and all contentions of the parties are left open. Subject to what is observed above, the appeals are dismissed.’’
The subject matter in the instant Company Appeal being Company Appeal (AT) (CH) No. 114 / 2023, where the Appellant, impugns the Order of 07.09.2023, is same as the subject matter of the earlier Company Petitions, which have attained finality by the Judgment of the Hon’ble Apex Court. These facts are not disputed by the learned counsels.
In order to maintain a parity and particularly owing to the fact that, the matter has been ultimately adjudicated upon by the Hon’ble Apex Court, this Company Appeal too would stand disposed of, in terms of the Order of this Appellate Tribunal, to be read with the directions as contained in the Judgment of the Hon’ble Apex Court rendered on 16.01.2024.
The Company Appeal (AT) (CH) No. 114 / 2023, would accordingly stand allowed. The Impugned Order would stand quashed and the matter is remitted back to the learned NCLT, to decide the Company Petition, afresh in the light of the directions issued by the Hon’ble Apex Court, in its Judgment of 16.01.2024, which has been extracted above.