Tushar Kanti Roy & Ors. vs Mrs. Shuili Roy & Ors.

29.09.2023 The ‘Appellant’/’Petitioner’, an ‘aggrieved person’ in respect of ‘Impugned Order’ dated 23.11.2021 in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 passed by National Company Law Tribunal, Guwahati, has preferred the instant Company Appeal (AT) No. 21 of 2022 before this ‘Tribunal’.

Earlier, ‘National Company Law Tribunal, Guwahati Bench’ while passing the ‘Impugned Order’ dated 23.11.2021, in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019, amongst other things, at paragraphs 14 to 20 had observed the following:

According to the Learned Counsel for the ‘Appellant’, the ‘Appellant’/’Petitioner’, had preferred I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 and sought a relief for ‘impleading’, the ‘Appellant’/’Petitioner’ as a ‘Proforma Respondent’, in the main Company Petition No. 14/241/242/GB/2019 since, there is no direct allegation posed against him in the main Company Petition No. 14/241/242/GB/2019 and holds a position of ‘shareholder’ of the Hotel.

The ‘Appellant’/’Petitioner’ filed before the National Company Law Appellate Tribunal, Guwahati Bench, I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 (Filed under Rule 32 of NCLT Rules, 2016) had made prayer that the ‘Interim Relief’ granted to the Petitioner through order dated 24.10.2019 passed by the ‘Tribunal’ is to be set aside and the same may be considered after incorporating/impleading the Applicant/Petitioner as ‘Director/Shareholder’ of the ‘Company’.

Apart from the above, a mere running of eye over the contents of the Application, in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 makes it crystalline clear, that the ‘Appellant/Petitioner’, had sought a direction, to be issued to the ‘Respondent’ Nos. 2 & 3 to resume the payment of Rs. 25,000/-to the ‘Applicant/Appellant’ for service rendered to the ‘Respondent’ No. 1 Hotel as ‘Director’, and to quash and set aside the Form-32 filed with the Registrar of Companies by Mr. Pronoy Roy regarding resignation of Applicant/Petitioner/Appellant as Director, as the same is not true and without any merit.

According to the Learned Counsel for the ‘Appellant/Petitioner’, the ‘Appellant/Petitioner’ was appointed as a Director of ‘Respondent’ No. 1/Hotel during the year 1980 and was paid a remuneration in cash by his mother deceased Sunity Roy (during her lifetime) and thereafter, he received remuneration, through cheque of the Hotel though he received the ‘remuneration’ somewhat in an irregular manner.

At this stage, the Learned Counsel for the ‘Appellant/Petitioner’ emphatically pointed out that because of the ‘Interim Order’ dated 24.10.2019, the Appellant/Petitioner’s remuneration was stopped and thereafter the ‘Appellant’/’Petitioner’ had not received remuneration from ‘Respondent’ No. 1/hotel and further that if the ‘Appellant/Petitioner’ is not permitted to be arrayed as one of the ‘Respondents’, in the instant Company Petition No. 14/241/242/GB/2019, the controversies/disputes, hovering around the main petition, will not be adjudicated in a proper and rightful manner by the ‘Tribunal’. If the ‘Appellant/Petitioner’ is not impleaded in the main Petition CP No. 14/241/242/GB/2019, then, he would suffer serious loss which could not be compensated/damnified in law.

It is pertinent to mention here that the ‘Tribunal’ had passed an order dated 24.10.2019 in CP No. 14/241/242/GB/2019 wherein the ‘Petitioner’ therein had prayed the relief of grant of ‘status quo’ on the ‘Board of Directors’ of the ‘Respondent’ No. 1/Company, for seeking relief of ‘status quo’ on the shareholder pattern of the Respondent No. 1/Company, praying for ‘status quo’ in respect of movable and immovable property of the ‘Respondent’ No. 1/Company.

Apart from the aforesaid reliefs in the main petition CP No. 14/241/242/GB/2019, the ‘Petitioner’/’Appellant’ had also sought an order of prohibition restraining the ‘Respondent’ Nos. 2 & 3 from representing themselves as Members of the ‘Respondent’ No. 1 Company or in any other capacity without prior written consent of the ‘Board of Directors’ of the ‘Respondent’ No. 1 Company and also before any Bank Authority or third parties.

It transpires that the ‘Tribunal’ through its order dated 24.10.2019 had granted ‘interim relief’ as claimed in player clauses IX (a),(b)(c) and in return the Respondents were directed to maintain ‘status quo’, on the Board of Directors of ‘Respondent’ No. 1/Company and also its ‘shareholding pattern’.

The main grievance of the ‘Appellant/Petitioner’, is that if the ‘Appellant’/’Petitioner’, is not permitted to be arrayed, as one of the Respondents in the main Petition i.e., CP No. 14/241/242/GB/2019, then it will cause an irreparable loss and hardship to the ‘Appellant’/’Petitioner’.

The other line of contention projected on behalf of the ‘Petitioner’/’Appellant’, is that from the inception of ‘Respondent’ No. 1/Company, the ‘Appellant’/’Petitioner’ was subjected to removal in his capacity as ‘Director’ and of course, at an irregular manner.

The primordial stance of the ‘Appellant/Petitioner’, is that the ‘Appellant/Petitioner’ not only be permitted to protect his interest in ‘Respondent’ No. 1/Company but his ‘sources of livelihood’ is be taken away in an ‘illogical’ and ‘improper manner’. Furthermore, the ‘Appellant’/’Petitioner’ was not provided with an opportunity of being ‘heard’ which is the basic tenants of ‘Principle of Natural Justice’. Therefore, the ‘Appellant’/’Petitioner’ prays that his I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 be allowed and thereby he may be arrayed as one of the ‘Respondents’ in main Appeal No. CP No. 14/241/242/GB/2019.

A mere glance of the ‘Reply’ filed by ‘Respondent’ No. 7 exhibits that the ‘Appellant/Petitioner’, is ceased to be Director of the ‘Respondent’ No. 4/Company from the year 2005, he was not aware of his resignation from ‘Respondent’ No. 5/Company and the said averment is nothing but an ‘unfounded’ and ‘unsustainable’ one.

According to the Learned Counsel for ‘Respondent’ Nos. 1 to 3, 7 & 8, the ‘Appellant/Petitioner’ was paid remuneration by the ‘Respondent’ No.4/Company in lieu of his services as ‘Director’ and in fact, the ‘Appellant/Petitioner’ had resigned from the company in the year 2005 and he was paid/remitted a salary of Rs. 25,000/- on humanitarian ground and not on account of being an employee of the ‘Respondent’ No. 4/Company

Be it noted, that when a person seeks an impleadment in the main pending legal proceeding before the ‘Tribunal’/’Court of Law’, then prospective ‘Applicant’/’Petitioner’ is to satisfy the subjective conscience of the ‘Tribunal’/’Court of law’ that he is a ‘necessary’ or a proper party for the adjudication of the controversies/disputes, centring around CP No. 14/241/242/GB/2019. However, it cannot be lost of sight or that in the instant case, the ‘Appellant/Petitioner’ was ceased to be a Director from the ‘Respondent’ No. 1/Company from the year 2005 (Form -42)/page 51-52 of the Application and the status of the ‘Appellant’/’Petitioner’ in ‘Respondent’ No. 1/Company is only in his capacity as a shareholder.

It cannot be gainsaid that the power of the ‘Court’/’Tribunal’ to add, substitute or strike out parties in a given pending, legal proceeding, is a discretionary one. Furthermore, the object of impleadment, is to enable the ‘Court’/’Tribunal’ to determine effectively, efficaciously, completely and comprehensively upon all controversies involved in a pending legal proceeding before it, without much delay, inconvenience and expenses.

Undoubtedly, the addition/array of parties will depend on the ‘judicious discretion’ which is to be exercised by the competent ‘Court’/’Tribunal’ of course, on the basis of facts and circumstances of the which float on the surface.

There is no two opinions of a primordial that an individual cannot be added as a party just because he will be incidentally affected by an order/judgment, as opined by this ‘Tribunal’.

The onus lies on a person who seeks to implead himself as a proper/necessary party in a pending legal proceeding and essentially he must satisfy the subjective judicial conscience of the ‘Court’/’Tribunal’ in either allowing or rejecting the Application, as the case may be.

Be that as it may, this ‘Tribunal’, on going through the ‘Impugned Order’ dated 23.11.2021 in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019 is of the considered view that the payment of Rs. 25,000/-, being paid to the ‘Appellant’/’Petitioner’ mainly on humanitarian ground, he being ceased to be Director of the ‘Respondent’ No. 1/Hotel, then the payment of such salary heighten/impure the case of the ‘Appellant’/’Petitioner’ to get himself impleaded as one of the ‘Respondents’ in CP No. 14/241/242/GB/2019 on the file of ‘Tribunal’.

In the light of qualitative and quantitative discussions, as mentioned supra’ this ‘Tribunal’ on going through the ‘Impugned Order’ dated 23.11.2021 also taking note of the fact that when the ‘Appellant’/’Petitioner’ was ceased to be a Director from the year 2005 and ‘Respondent’ No. 1/Company on transmitting the ‘Form-32’ and the same being filed before the Registrar of the Companies, on his resignation as ‘Director’ of the Company, then nothing remains to be done on the part of the ‘Respondent’ No. 1/Company in respect of the plea which is projected on the side of ‘Appellant’/’Petitioner’.

Looking from any angle, the impleadment sought for by the ‘Appellant’/’Petitioner’ in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019, is not a Bonafide, Legitimate, Reasonable and Prudent one in the considered opinion of this ‘Tribunal’.

Continuing further, this ‘Tribunal’ on going through the ‘Impugned Order’ dated 23.11.2021 passed in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019, is of the earnest opinion that the same is in order and further the ‘Petitioner’/’Appellant’ was given the liberty to file a petition under appropriate Section of the Companies Act, if otherwise, eligible in accordance with law.

It is brought to the notice of this ‘Tribunal’ that the fact of the matter, as it prevails to them, is that pursuant to the order dated 23.11.2021 in I.A. No. 08 of 2020 in CP No. 14/241/242/GB/2019, the ‘Appellant’/’Petitioner’ had projected a Company Petition 17/GB/21 referring thereto in such a situation/context, the ‘Appellant’/’Petitioner’ cannot have any sustainable grievance in the eye of law. In fact, the instant appeal preferred by the ‘Appellant’ is nothing but an otiose one. As such, the instant Company Appeal(AT) No. 21 of 2022, filed by the ‘Appellant’/’Petitioner’ before this ‘Tribunal’ sans merits. Accordingly, the instant ‘Appeal’ fells.

In fine, the instant appeal Company Appeal (AT) No. 21 of 2022 is dismissed. No costs.

Before parting, with the instant appeal, it is made abundantly clear that dismissal of the instant ‘Appeal’, will not preclude the ‘Appellants’/’Petitioners’ to take CP No. 14/241/242/GB/2019 to the logical end, of course in the manner known to Law, in accordance with Law, before the ‘Tribunal’, if they so desire/advised.

Connected Interlocutory Application, if any, is accordingly disposed of.