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Judgment
Per: Justice Rakesh Kumar Jain (Oral)
This appeal is directed against the order dated 16.6.2022 passed by the Adjudicating Authority while dealing with CA No. 272 of 2022 and CA No. 276 of 2022. At the time of preliminary hearing held on 06.07.2022, this court passed the following order:
06.07.2022: Heard Ld. Counsel for the Appellant. The Appellant has preferred this Appeal being aggrieved and dissatisfied by the orders dated 07.06.2022 in C.P. 168/MB/2022 and 16.06.2022 in CA 270/2022 CA 276/2022 in C.P. 168/MB/2022 passed by the National Company Law Tribunal, Court-I, Mumbai whereby and where under the Tribunal given liberty to file reply affidavit and the matter was directed to be listed on 06.07.2022.
2.Mr. Sridharan Agaram, Advocate appears and accepts notice on behalf of the Respondent Nos. 1 and 5. Mr. L.C.N. Shahdeo, Advocate appears on behalf of the Respondent No. 4. They are directed to file hard copy of the reply affidavit within three weeks.
3.Issue notice on Respondent Nos. 2 and 3 through Speed Post as well as email (Both Mode). Requisites along with process fee be filed by 08.07.2022. The Appellant to provide email address of the Respondent Nos. 2 and 3.
4.The Respondent Nos. 2 and 3 are directed to file hard copy of the reply affidavit within four weeks.
5.Rejoinder, if any, may be filed by the Appellant within one week thereafter. 6. The Ld. Counsel for the Appellant is also directed to file hard copy of the up-to-date order sheet passed by the NCLT in the matter, before the next date of hearing. List the Appeal ‘For Admission (After Notice)’ on 17th August, 2022.
In the meanwhile, status quo prevailing as on today in the matter shall be maintained by the parties.”
The said order is continuing till date. During the pendency of this appeal, respondent no. 2 (Yasmin Mohammed ali Karmali) died on 18.8.2022 and respondent no. 3 (Mohammedali Gulamali Karmali) died on 19.07.2023. The application bearing IA No. 4274 and 4276 of 2022 has been filed by respondent no.5 (Anjum Karmali), daughter of Respondent no.2 and 3, in which she has prayed that she may be allowed to be substituted in place of respondent no. 2 on the ground that respondent no. 2 has left behind a registered will dated 13.08.2021 (document no. 6370/1/13, registered with Sub-Registrar Office, SR Mumbai City) and bequeathed her share and beneficiary interest in the company (Respondent No. 1). This application has been contested by the appellant, inter alia, on the ground that respondent no. 2 and 3 have also left behind another daughter, namely, Nahid Mashoqullah who is presently resident of Karachi, Pakistan and therefore, until and unless a probate is obtained by respondent no.5 of the Will dated 13.08.2021, the same cannot be relied upon for the purpose of transfer of share of respondent no.2 in favour of respondent no.5.
In reply to the argument, counsel for respondent no.5 has submitted that the other daughter (Nahid) has sworn an affidavit dated 02.09.2022 to the effect that respondent no.5 is the only legal heir, meaning thereby she has waived her rights in the property owned by the late respondent no.2.
We have heard counsel for the parties and perused the records.
In our considered opinion, the impugned order is totally silent on the issue of stay, therefore, it would be just and expedient if the matter is remanded back to the Tribunal for passing a categoric order on the applications filed by the appellant regarding the interim orders, after assigning reasons.
Counsel for respondent no.5 has also submitted that because of this appeal pending before this court, the proceedings in the main Company Petition filed before the Tribunal has been adjourned sine die. We are though maintaining the innocuous order dated 16.06.2022 remanding the matter back to the Tribunal to decide the application i.e. CA No. 272 of 2022 and CA No. 276 of 2022 by a specific order about the stay which has been prayed for by the appellant. The parties are directed to appear before the Tribunal on 01st March, 2024.
It is needless to mention that the proceedings in the main case pending before the Tribunal which has adjourned sine die shall stand revived with the appearance of the parties by virtue of this order. It is also made clear that the order passed by this Court on 06.07.2022 by which the parties have been directed to maintain the status quo shall prevail till the application for stay filed by appellant is decided by the Tribunal in one way or other. It is needless to mention that the issue regarding substitution and other issues on merits are kept open for the Tribunal to decide in accordance with law.