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Judgment
ORDER
Heard Mr. Mukul Rohtagi, learned senior counsel assisted by Mr. Nitesh Jain, learned counsel appearing on behalf of the appellant, Ms Surekha Raman, learned counsel for R1/BSE Ltd and also Mr. Pranav Sarthi, learned counsel for R2/NSE Ltd.
The appellant is aggrieved with the order dated 11.05.2023 passed by National Company Law Tribunal, Mumbai Bench, Court III in CA 151/2023, Intervention Petition No.1/2023, IA No.124/2022 in CA(CAA)/204/MB/2022 in CP(CAA)/209/MB/ 2022. It was submitted that merger process is going on under Section 230-232 of the Companies Act, 2013, however, in course of hearing an order issued by SEBI dated 25.04.2023 in respect of Shirpur Gold Refinery was placed by learned counsel appearing on behalf of both the Respondents before the NCLT. It was contended that the said copy of the order was not even supplied to the appellant herein and learned NCLT on strength of the said order had passed the impugned order dated 11.05.2023. Relevant portion of order dated 11.05.2023 is quoted hereinbelow:
“Heard the arguments on both sides in part. The counsels of NSE and BSE have raised some fresh points relating to scheme of merger and placed the recent SEBI order dated 25.04.2023 on Shirpur Gold Refinery for Bench’s cognizance, where the Zee Promoters’ names appears in context of diversion of funds. The court hereby directs both NSE and BSE to review their earlier approval for Zee-Sony merger scheme and provide their fresh NOCs for the same before the next hearing date. The exchanges should also review and confirm that the Non-compete clause of the scheme has been reviewed and approved by them and SEBI, and the manner of payment of non-compete fee from one Mauritius Entity to another is in compliance with the SEBI policies in this regard.”
It was submitted by the learned senior counsel that at the moment the appellant is not raising any issue on the merit of the case but it is argued that at least before passing such order it was required on the part of the learned NCLT to grant opportunity to the appellant herein to response in such situation. Since the said copy of order of SEBI, which was directly produced before the learned NCLT without providing copy of SEBI order to the appellant herin, there was no occasion for appellant to place its appropriate response.
On this sole ground a prayer is being made for setting aside the impugned order and remitting back the matter to the NCLT. However, learned counsel for Respondent No.1 and 2 have not disputed the fact that the order of the SEBI was produced before the NCLT in course of the proceeding.
In view of the above, without going into the merits of the case, we are of the opinion that the impugned order is required to be set aside primarily on the ground of non-compliance of the principle of natural justice. Accordingly the impugned order is set aside and the matter is remitted to the NCLT to examine the same and pass appropriate order after hearing both the parties without being influenced by this order. It is clarified that we have not recorded any opinion on the merit of the case.
With the above observations the appeal stands disposed off.