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2022 (6) TMI 621 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHIScope of the "Point of difference" - Divergent views of the members of tribunal - matter referred to third member - appealable order or not - appellant sight that more points to be included in the reference made to third member - Seeking Permanent Injunction restraining the Respondent No.1 and/or Vindhya Telelinks Limited from holding any purported `Extra Ordinary General Meeting’ of the 1st Respondent, proposed to be held at Kolkata on 19.06.2021 or on any other date - HELD THAT:- In the instant case on hand before this Tribunal, the point of difference, stated / formulated by the Hon’ble Members of the National Company Law Tribunal dated 11.02.2022 in CP Nos. 112, 113 and 114/KB of 2021 is a mere statement upon a Ministerial Act and it is neither a preliminary order nor an interlocutory order and does not partake the character and status of an Order, as per Section 421 (1) of Companies Act, 2013. Further, the point of difference formulated by the Hon’ble Members of the Tribunal on 11.02.2022 does not finally and conclusively determine the Right of Parties, in quite earnest, as opined by this Tribunal. Although, in the instant case, it is argued on the side of the Appellants that an Appeal lies against any Order passed by the Tribunal and therefore, the instant Company Appeal Nos. 67, 68 and 69 of 2022 are preferred before this Tribunal as against the Order dated 11.02.2022 made in CP Nos. 112, 113 and 114 of KB of 2021, because of the fact that the term, `any proceedings’ before the `Tribunal’ occurring in Section 420 (1) of the Companies Act, 2013, is wider than Judicial Proceedings, this Tribunal is of the earnest opinion that the said `impugned order’ dated 11.02.2022 of the Tribunal in CP Nos. 112, 113 and 114 of KB of 2021 cannot be termed by no stretch of imagination as an Order, in the teeth of culling out of the point of difference (between the Hon’ble Two Members of the Tribunal) and formulating the same, is just a Ministerial Act (on Administrative Side) of the Tribunal, without an entry upon any Adjudicatory Process. It does not effectively determine any Right or Obligation of the Parties to the LIS. Apart from that, the impugned order dated 11.02.2022, passed by the Hon’ble Members is nothing but a part and parcel of their Statutory Duty because of their occupational status enjoined upon them, in referring the matter to the Hon’ble President of the Principal Bench of National Company Law Tribunal, to resolve the impasse in regard to the point of difference formulated by them and no opportunity is to be provided to the Parties for the purpose of hearing, when Section 419 (5) of the Companies Act, 2013, is conspicuously silent in this regard, of Hearing the Parties and also there is no requirement of supply of formulation of the point of difference framed by the Hon’ble Members of the Tribunal on 11.02.2022 to the Parties. The appeal filed by the Appellants before this Appellate Tribunal are per se not maintainable in the eye of law and they are otiose one, because of the crystalline fact that the formulation of point of divergence is not an Appealable Order, pending rendering of an opinion/decision by the Hon’ble Third Member (on the aspect of maintainability of CP Nos. 112, 113 and 114/KB of 2021 on the file of the Tribunal) in embarking upon the aspect of resolving the differences/controversies centering around the subject matter in issue. Resultantly, the instant Appeals fail.
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