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2019 (6) TMI 641

..... s - principles of natural justice - HELD THAT:- In the present matter, NCLT has noted that the Petitioner moved NCLT for “Ad Interim Orders” but the Orders as have been passed, do not purport to say that they are Interim Orders and the original Respondents (Appellants) are to be heard. When the Hon’ble High Court itself in its wisdom had on 21.09.2018, preferred to issue Notice and in the meanwhile, directed that the meeting may go on but the outcome therein shall not be given effect till next date, the NCLT could have itself adopted similar recourse and the Order could have stated that the Resolution as may have been adopted would remain stayed till the next date. Instead of that, NCLT simply pronounced magic words that there was a prima facie case in favour of the Petitioner and balance of convenience is also in favour of Petitioner and that if Interim Orders are not passed, Petitioner will suffer irreparable loss on the basis that if the Company which runs the hospital suffers bad name, the Petitioner will bear the negative image apart from losing valuable investments. The question of Company suffering bad name appeared to be based on de-empanelment of the hosp .....

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..... ch of NCLT due to vacation was not available, the Writ Petition was required to be filed and taken up before the High Court. 3. The matter came up before NCLT on 26.09.2028 at 10.30 A.M. This was at Mumbai and NCLT passed the following Order at 10.30 A.M.:- AT 10.30 a.m. The professional appearing for the petitioner requested this bench for ad interim orders. As the judicial protocol demands, the matter cannot be taken up when the Hon ble High Court is likely to hear the same today itself and concurrently hearing the same matter by two forums is not proper. In view of the above, the professional may inform the Hon ble High Court that the NCLT is taking up the matter for hearing on 03.10.2018 for passing appropriate orders. The professional representing the petitioner may take up appropriate steps towards the same. List this matter on 03.10.2018 for further consideration. 4. Thus, the NCLT adjourned the matter to 3rd October, 2018 for further consideration. On the same date of 26.09.2018, the Writ Petition came up before the High Court Bench at Nagpur and the Hon ble High Court passed the following Order:- By way of present petition, the petitioner seeks a writ to the respondent no. .....

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..... carried out, the construction of the hospital is completed and is functioning till this date. Sometime in the middle of 2017 the petitioner on the advice of the respondent No 2 and for the smooth functioning and betterment of the company and to facilitate bank finances, had transferred about 17% shares to the Respondent No. 2. It has come to light that the competent committee constituted by the Government had de-empanelled the Respondent No. 1 hospital from the MGPJAY scheme which was intended to serve the poor patients. As a result of de-empanelment, the petitioner submits, the company would lose lot of income and would incur bad name in the medical circles. The petitioner who invested his money in the company made efforts to find out the reasons as to why such de-empanelment had taken place and in the said process of enquiry he had come to know that several irregularities pertaining to the management had taken place. The Respondent No. 2 who is a Managing Director of the company, as submitted by the petitioner, could not have created such a situation warranting the interferences of the Government authorities for the de-empanelment. The petitioner was making his own efforts to saf .....

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..... ution, if any, removing the petitioner as director of the company until further orders. In the event, the respondent had uploaded the resolution removing the petitioner as a director of the company, respondents are directed to immediately remove/ delete the said resolution from the MCA postal, the DIR-12 must be cancelled and take appropriate steps to restore the name of the petitioner as a director of the company. The respondents are directed to file their counter within four weeks by duly serving the copies to the petitioner and get ready to argue the matter on 15th November, 2018. Hence this order. [Emphasis supplied - Highlighted and marked portions - See para 12 infra] Aggrieved by such Order passed at 4.30 p.m., the present Appeal has been filed by the Appellants - original Respondents. The case Original Petitioner put up before NCLT to seek the ad-interim orders , we can see in the Impugned Order itself. Although at the time of arguments before us, the Counsel for Respondent - original Petitioner tried to say that he had sent Notice by speed post and e-mail before Impugned Order was passed by the learned NCLT, the Counsel accepted that the Impugned Order does not show anywhe .....

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..... ef to the Respondent contrary to the law. Order in the nature of mandatory permanent injunction has been passed without affording any opportunity to the Appellants and is in complete violation of principles of natural justice. According to the Appellants, the Respondent obtained the above Impugned Order misleading the NCLT by keeping NCLT in dark regarding his own financial misconduct because of which, he had already tendered his resignation from the chairmanship of the Company on 24.11.2017. According to the Appellants, the Respondent suppressed that he had been issued letters dated 09.07.2018, 25.07.2018 and 27.08.2018 to pay back amounts. At interim stage, no such orders in the nature of final orders could have been passed without hearing both sides. 7. The learned Counsel for the Respondent accepted that the Respondent was Managing Director in the Company since before and till November, 2017. According to the Counsel for Respondent, the Respondent had invested about 12 Crores of rupees in the Company against hardly one Crore on the part of the Appellant No.2. The Counsel stated that the Respondent earlier had 50% shareholding and Appellant No.2 had 50% shareholding. The Appella .....

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..... yet to consider and analyse the cases of both sides, we refrain from referring to the allegations and counter allegations in details. Brief reference to the rival cases is already reflected in the Impugned Order and arguments of the parties against each other. We are not making detailed references to the rival cases because on the face of the Impugned Order, we are convinced that it was improper on the part of NCLT to pass the Impugned Order, in the manner in which it has been passed foreclosing further considerations on the Impugned Order, as the Impugned Order does not say that it is Interim Order subject to conformation after hearing the other side. When a Company Petition is filed, the Petitioner may show the NCLT that circumstances exist for passing immediate Interim Orders. In such circumstances, NCLT would be justified in passing Interim Orders, if the case of extreme urgency is made out. Such Orders would and should be subject to confirmation on hearing the other side for which opportunity should be left open. In the present matter, NCLT has noted that the Petitioner moved NCLT for Ad Interim Orders but the Orders as have been passed, do not purport to say that they are Int .....

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