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Judgment
O R D E R
20.10.2022: Heard Mr. Shashwat Tripathi, learned counsel for the Appellant as well as Mr. Gaurav Rana, appearing on behalf of the Respondent No.2. Though no formal notice has been issued to the Respondents, learned counsel for the Respondent No.2 has appeared on the basis of advance notice, served on him.
The present Appeal has been preferred under Section 421 (1) of the Companies Act, 2013 against an order dated 12th September, 2022. By the said order, the National Company Law Tribunal, New Delhi Court –III (Special Bench) (hereinafter referred as to ‘Tribunal) has disposed of the CA No. 343 of 2022 in CP No. 133/(ND)/2022.
The Ld. Tribunal has actually allowed most of the prayers which was sought for by the Appellant. However, in respect of prayer for restraining Respondent No.2 from withdrawing fund from the Bank Account, no order was passed at the stage of passing of the order. It would be better to reproduce the impugned order dated 12th September, 2022 as follows:
“CA-343/2022:
The present application has been filed under Rule 11 of the NCLT Rules, 2016 r/w Section 241-242 of the Companies Act, 2013 R/w Rule 9 of the Company Court Rules, 1959 seeking certain directions from this Tribunal which are mentioned hereunder:
a.Pass an order for appointment of neutral Valuer in accordance with order dated 03.08.2022 with the directions to complete valuation of the Respondent No.1 company within one month from the date of appointment and submission of report with this Hon’ble Tribunal within 3 days.
b.Pass an order directing the Respondent No.1 to render necessary cooperation to the aforementioned Valuer as and when required by him
c.and pass an order directing the Respondent No.2 to handover the Laptop containing confidential data of the Respondent No.1 Company of ex-employee Mr. Dharmendra Kumar, Deputy Manager (Quality Assurance Department) to the Applicant and /or to Mr. Dharmendra Kumar and,
d.Pass an order directing the Respondent No.2 to share the Login credentials of the Company Server with the Applicants and,
e.Pass an order restraining the Respondent No.2 from withdrawing any funds from the Bank Account bearing No.921020036051025 maintained at AXIS Bank, Defency Colony Branch."
Heard Ld. Counsel appearing for both the parties in a physical mode.
Having considered the submissions made by Ld. Counsel appearing for the parties, we deem it appropriate to pass the following directions :
1)We appoint GTech Valuers Private Limited as registered Valuer who is registered under ICMAI Registered Valuers Organization bearing Registration No.IBBI/RV-E/05/2020/124, having its address at 2nd floor, 10A/7, Shakti Nagar, Delhi-110 007 (e-mail id : [email protected]). The Valuers so appointed shall submit their report within 4 weeks. The fees of the Valuers shall be shared equally by both parties.
2)We direct both the parties to render necessary assistance and cooperation to GTech Valuers Private Limited as and when required.
3)We direct the respondent No.2 to handover the Laptop which contains confidential data of the Respondent No.1 Company to the Applicant and,
4)We also direct Respondent No.2 to share the Login credentials of the Company Server with the Applicant.
5)With respect to the prayer to pass an order restraining R-2 from withdrawing funds from the Bank Account No.921020036051025, maintained at AXIS Bank, Defence Colony, New Delhi, we do not wish to pass any order at this stage which may be considered at an appropriate stage.
With the aforesaid directions, IA stands disposed of.”
Learned Counsel for the Appellant tried to persuade the court that Respondent No.2 despite has tendered his willingness to exit the office, was unauthorizedly withdrawing the fund from the Bank Account of the Company and as such, a prayer was made that Respondent No.2 be restrained from withdrawing any amount from the Bank Account of the Company.
Learned counsel for the Respondent No.2 submits that he is not siphoning the money but he is only withdrawing his salary and other operational payment.
Besides hearing learned counsel for the parties, we have carefully perused the materials available on record.
From the record itself, it is evident that prior to filing petition i.e CP No. 133 of 2022 by the Appellant, from the Respondent side, a petition with similar allegation was filed under Section 241-242 of the Companies Act, 2013 which is still pending before the Tribunal. Even though, earlier petition filed by Respondent was pending, under the same provisions, to the reason best known to the Appellants, fresh petition was filed under section 241-242 of the Companies Act, 2013 and in this case CA No. 343 of 2022 was filed. On the said Interlocutory Application, the Ld. Tribunal has passed the order aforementioned.
On perusal of the order, it is evident that prayer of the Appellant for appointing ‘Valuer’, was accepted and ‘Valuer’ was asked to submit valuation report within four weeks and till that date, Ld. Tribunal refrained to pass any order regarding restraining Respondent No.2 from withdrawing the amount from the Bank account of the company. The impugned order was passed on 12th September, 2022 and as such almost after expiry of four weeks, it is not advisable for us to examine the correctness of the order.
The Appeal stands disposed of with an observation that Ld. Tribunal, immediately on receipt of the valuation report may take final decision, particularly, in respect of prayer which has been refused to the Appellant by the Tribunal. We expect that learned NCLT may take appropriate decision in the matter without any delay.
Accordingly, the Appeal stands disposed of.