Yamuna Roller Flour Mills Pvt. Ltd. vs TR Venugopal & Ors.

ORDER

“The applications I.A.No.32,33 and 34 of 2019 are filed by the respondents in main petitions under Rule of NCLT Rules 2016 with prayer to dismiss the main petitions C.P.No.69,71 & 72 of 2019 for non-obtaining of prior permission under Rule 23A of NCLT Rules 2016. I.A.No.54,55, & 53 of 2023 are filed by the petitioners in main petitions under Rules 11,32 and 23A of NCLT Rules 2016 to grant post facto permission to file Joint petitions of C.P.No.69,71 & 72 of 2019 under Rule 23A of NCLT Rules 2016.

2.

Brief contents of averment in Applications I.A.No.32,33, &34 of 2019 are as follows: The company petitions are filed under sections 213.241 & 242 of the Companies Act 2013. The reliefs under section 213 and 241 of the companies Act 2013 cannot go together, since relief under section 213 is an investigative nature and reliefs under section 241 is curative in nature. The company petitions are also not maintainable since unconnected multiple prayers are joint together. The petitions are also barred by limitation. As per Rule 23A of the National Company Law Tribunal Rules 2016 permission from this Tribunal is required to present a joint petition by more than one person but no such permission has been obtained hence the company petitions are liable to be dismissed

3.

Brief contents of averment in Reply of 1.A.No.32,33, &34 of 2019 are as follows: The main petitions are filed under section 213,241 and 242 of the companies Act 2013 Section 244 (1) (a) of Companies Act, 2013 permits the petitioners to join in a single company petition. The objection raised in this regard is technical in nature.

4.

On the applicant side restricted the argument, only to the applicability of Rule 23A of NCLT Rules 2016 to obtain leave of the Tribunal to file a joint petition under sections 241 & 242 of the Companies Act 2016. On the basis of both side submission the following points are framed for consideration:

The point for consideration is as follows:

(i)

Whether the prior permission of Tribunal under Rule 23A of NCLT Rules 2016 is necessary to file petition by more than one person under section 241 of the companies Act 2013?

5.

Brief contents of averment in Applications I.A.No.54,55, & 53 of 2023 are as follows:

The applicants are holding total share capitals of 37.64% in M/s. Elite Tasty Toast Private Limited, 36.5% in M/s Yamuna Roller Flour Private Limited and 33.35% in M/s Elite Foods Private Limited. Thus, the applicants are holding not less than One-Tenth of issued share capital of the companies as the pre-condition mentioned in section 244(1) of the Companies Act 2013 and shall have the right to file application under section 241 of the Companies Act 2013. Rule 23A of NCLT Rules 2016 states that for the presentation of a joint petition prior permission shall be obtained. Where the joining of the petitioners by a single petition is specifically permitted by the Act. Section 244 of the companies Act 2013 specifically provides for such permission, this Tribunal is bound to provide such permission in accordance with Rule 23A(2) of the NCLT Rules 2016.

6 Brief contents of averment in Reply of 1.A.No.54.55, & 53 of 2023 are as follows:

The permission to jointly file a petition under Rule 23A to be obtained prior to filing of the petition. Post facto permission cannot be granted since it is not contemplated in law. The contention of implied permission was granted is misnomer. The respondent already filed the applications LA No 32,33, & 34 of 2019 at the very first instance to decide the maintainability of company petitions for non-compliance of Rule 23A of NCLT Rules 2016. The company petitions are liable to be dismissed and the supra defects cannot be permitted to be cured by a belated petition

The point for consideration is as follows:

(i)

Whether the post facto permission can be granted?

7.

For the sake of convenience, the parties are referred as mentioned in 1.A.No.32,33,& 34 of 2019. Further the pleadings involved in all the applications and issue for determination in all the applications are similar, hence it is decided to pass the following

COMMON ORDER

Point No. 1 in L.A.No.32,33, & 34 of 2019:

8.

On the applicant side argued that Rule 23A is mandatory provision, the non- compliance of said Rule is fatal to the main petitions. Further submitted that the said permission should obtain prior to register the case, and post facto permission is not permissible.

9.

In our case main petition was filed by three shareholders having more than one-Tenth requisite shareholdings, but prior permission is not obtained to file the petition. Hence according to the applicant, the main Company petitions are not maintainable.

10.

On the Respondent side relies upon section 244(1) of the Companies Act 2013. which provides the eligibility criteria for filing getition before the Tribunal to seek relief in case of oppression

11.

The Companies Act 2013, Chapter XVI deals with the Prevention of Oppression and Mismanagement: Section 244(1) of the Companies Act 2013 describes eligibility criteria to file petition under section 241, they are

(1)

The following members of a company shall have the right to apply under section 241, namely

(a)

in the case of a company having a share capital, not less than one hundred members of the company or

(b)not less than one-tenth of the total number of its members, whichever is less, or

(c)

any member or members holding not less than one tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares;

12.

The section 244(1)(a) mentioned member or members holding not less than one-tenth of the issued share capital of the company, are eligible to file the petition, otherwise permission to waive the condition to be obtained under section 244(1)(b) of the Companies Act 2013, from the Tribunal.

13.

The four Respondents herein, who filed the main petitions have requisite shareholdings to file the petition under section 241 of the Companies Act 2013. Section 244 is inbuilt section, hence once the conditions mentioned therein is full filled the petition under section 241 can be filed.

14.

There is no bar to file a single petition by more than one person if the cause of action is same and relief sought is common and not prayed individually. Jainder of petitioners in the petition filed under section 241 of the companies Act 2013 is akin to Order I of Code of Civil Procedure 1908. There it is defined when the joinder of more than one plaintiff is permissible. Order 1 of CPC 1908 rans as follows:

Who may be joined as plaintiffs.

All persons may be joined in one suit as plaintiffs where- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative, and

(b)if such persons brought separate suits, any common question of law or fact would arise.

Illustration. --An altercation takes place between A on one hand and B and C on the other hand. A assaults B and C simultaneously. B and C may join plaintiffs in one suit for damages against A for that tortious act since both the above conditions are fulfilled.

15.

In view of above situation since the four petitioners in main petitions having same causes of actions arose on the same transactions and serious of transactions, hence the petition filed under section 241 of the companies Act,2013 is proper, no permission is required under Rule 23A of NCLT Rules 2016

16.

The permission under Rule 23A of NCLT 2016 is required only if more than one person having separate cause of actions but having common interest with similar reliefs. The Rule 23A runs as follows:

23A- Presentation of joint Petition: -(1) The Bench may permit more than one person to join toger and present a single petition if it is satisfied, having regard to the cause of action and the nature of relief prayed for, that they have a common interest in the matter.

17.

The permission under Rule 23A of NCLT Rules 2016 requires if more than one person having a separate cause of action. There is a difference between the same cause of action and a similar cause of action, if the petitioners having a same cause of action permission under Rule 23A of NCLT Rules 2016 is not required, if the petitioners have a different cause of actions and similar cause of action prior permission is required.

18.

In our case the four petitioners in the main petitions are having same cause of action and filed the petition with common prayer, hence prior permission under Rule 23A is not necessary. Thus, this point is answered.

Point:1 in L.A.No.54.55. & 53 of 2023:

19.

In view of the answer arrived to point in L.A.No.32,33, & 34 of 2019, that prior permission under Rule 23A of NCLT Rules 2016, is not required hence the question of issuance of post facto permission does not arise. Thus, this point is answered.

20.

For the reasons stated above all the Applications Viz I.A.Nos.32/KOB/2019 & 54/KOB/2023 in C.P.No.69/KOB/2019, I.A. Nos. 33/KOB/2019 & 55/KOB/2023 in C.P.No.71/KOB/ 2019, & I.A. Nos. 34 /KOB/2019 & 53 /KOB/2023 in CP.No.72/KOB/2019 are DISMISSED, there is no order of Cost.

21.

The Registry is hereby directed to send e-mail copile of the order forthwith no all the parties and their counsel for information and for taking necessary steps.

22.

Let the certified copy of the order be issued upon compliance with requisite formalities

23.

File be consigned to records”