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Judgment
ORDER
25.09.2023: Heard Mr. Gaurav Mitra, learned counsel for the appellant and Mr. Manish Jain, learned counsel for the Respondent.
Since in the present appeal an order dated 28.04.2023 has been assailed by the appellant which has been passed without issuance of notice to Respondents and Company Petition No.78/241-242/ND/2023 has been rejected only on the ground of maintainability, we feel that the present appeal can be disposed of even without issuance of notice to parties. However, Respondent No.2 has appeared and filed its reply and rejoinder to the reply has also been filed. On behalf of Respondent No.2 it was submitted that CP was not maintainable and the Learned NCLT has passed a detailed order which requires no interference.
Mr. Abhijeet Sinha, learned counsel has appeared on behalf of Respondent No.1. He tried to persuade that since there was MOU which prescribe for an arbitration in case of certain dispute the Learned NCLT has committed no error in passing the impugned order. He further submits that the appellant who was petitioner before the NCLT has suppressed those fact.
The Company Petition was filed under Section 241-242 of the Companies Act, 2013 on allegation of oppression and mismanagement in Respondent No.1/Pristine Infracon Pvt Ltd. The appellant claim that they were holding 49% shares in the company in question and since there were serious allegations of oppression and mismanagement the appellant filed company petition giving detailed reasons and detail facts of oppression and mismanagement. Learned counsel for the appellant by way of referring to impugned order submits that the learned NCLT after hearing learned counsel for the appellant reserved order on the point of issuance of notice to respondents, however, without issuance of notice to the respondents the learned NCLT has dismissed the company petition by the impugned order. Learned NCLT has concluded that the application filed before the Learned NCLT was not having material to establish the allegation of oppression and mismanagement and thereafter relying on a judgement of Delhi High Court in Chander Krishan Gupta Vs Pannalal Girdhari Lal Pvt Ltd 1984 55 ComCas 702 Delhi, passed the impugned order.
Learned counsel for the appellant tried to persuade the Court that at least learned NCLT was required to issue notice to the parties and after hearing all the parties and examining facts disclosed in the petition on the point of oppression and mismanagement the learned NCLT was within its jurisdiction to pass order on the point of maintainability. In the present appeal the appellant has filed rejoinder to the reply filed on behalf of Respondent No.2 and in rejoinder para 7 running page 4 and onwards has disclosed the relevant statement made in the main petition with relevant paras showing oppression and even syphoning of funds from the company. For better appreciation it is apt to reproduce para 7 of the Rejoinder filed by the appellant as follows:
“7.The main grounds taken in the instant Company Petition before the Learned Tribunal, in addition to the grounds of mismanagement, are summarised hereinunder, for ease of reference. It is also submitted that a copy of the Company Petition No.78 of 2023 is annexed at Annexure A-2, pg.73 of the present Appeal:
| Allegation | Paragraph No in Company Petition No.78 of 2023 | Relevant documents annexed in support of the contention |
| Diversion of business by Respondent Nos 2 to 5 to their own group hospital (Promotion by Respondent Nos 2 to 5 of their own hospital at the cost and expenses of Respondent No.1 company. | Para 7.5, Para 7.8, Para 7.23, Para 7.41, Paras 7.49 to 7.60 | Documents evincing that sensitive information is being shared with Respondent No.2 company @ Annexure P/28, Annexure P/29, Annexure P/44, Annexure P/45, |
Annexure P/46 (Colly) | ||
| Siphoning off funds of Respondent No.1 company to Respondent No.5 | Paras 7.17 to 7.22, Paras 7.25 to 7.27, Paras 7.61 to 7.75, Paras 7.78 | Emails evincing loss of revenue of Respondent No.1 company due to related party transactions and siphoning off @ Annexure P/23, Annexure P/24 (Colly), Annexure P/25, Annexure P/26, P:/27, P/31, P/32, P/33, P/47 |
Fabrication of Board resolution | Para 7.12 | Annexure P/19, Annexure P/20 (Colly) |
| Interference and disruption in the operations of Respondent No.1 Company by the acts of employees of Respondent No.2 | Para 7.6, para 7.31, Paras 7.35 to 7.38, Para 7.40, Para 7.49 | Whatsapp group screenshot @ Annexure P/14, Emails evincing said interference @ Annexure P/36 (Colly), Annexure P/40 (Colly), annexure P/41 (Colly), annexure P/42, Annexure P/43 |
| Undue exclusive control over the data and IT servers of Respondent No.1 to gain control over sensitive data of the patients | Para 7.9, Para 7.23, Para 7.50 | Annexure P/16 Annexure P/28, Annexure P/29 (Colly) |
Non-disclosure and non-compliance of Rules for related party transactions in 2021-22 and 2022-23 | Para 3.12, Para 7.18, Paras 7.76 to 7.85 | MCA record @ Annexure P/7 Agreements dated 15.04.2021 and 01.04.2022 @ Annexure P/24 (Colly) Agreement dated 01.04.2021 @ Annexure P/30 Director’s Reports, Financial Statements and Independent Auditor Reports @ Annexures P/49 to P/51 |
| Involvement of Respondent No.1 company into frivolous litigations | Para 7.10, Para 7.11 | Board Meeting minutes of Respondent No.2 company dated 21.10.2022 and FIR dated 03.03.2022 @ Annexure P/18 (Colly) |
| Modification of company Infrastructure | Para 7.3, Para 7.6 | Emails evincing said misutilisation @ Annexure P/11 (Colly) |
Learned counsel for the appellant submits that certain documents were also brought to the notice of the Learned NCLT which reflects oppression, however, none of such documents were noticed by Learned NCLT and impugned order has been passed.
In view of aforesaid facts and circumstances we are of the opinion that the NCLT was required to hear all the parties. It is also evident from the order impugned that none of such submission particularly facts as stated in paragraph 7 of the rejoinder, which is based on statement made in the Company Petition was noticed by the learned NCLT. Accordingly on this ground alone the impugned order can be set aside and it is set aside and the matter is remitted back to the NCLT with a request to issue notice to the Respondents and after hearing all the parties if learned NCLT is satisfied that company petition was not maintainable, then sufficient reasons may be assigned while passing the order afresh. It is clarified that since the impugned order was passed by the NCLT without issuance of notice to other side we also proposed to proceed without issuance of notice. However, Mr. Abhijeet Sinha, learned counsel for R1 and Mr. Manish Jain, learned counsel for R2 appeared and made their submissions.
With the above observations after setting aside the impugned order the matter is remitted back to the NCLT for considering the point of maintainability of the company petition and passing order afresh expeditiously.