TMI Blog2018 (5) TMI 2082X X X X Extracts X X X X X X X X Extracts X X X X ..... .m. on February 23, 2018 the interim orders and operative part of the order had been communicated to counsel for the petitioner. But then, there is material showing that even on February 24, 2018 by two e-mails, counsel for the original petitioners kept requesting the original respondents to postpone the extraordinary general meeting as the orders were yet not in their hands and that the matter was sub judice. At the time of arguments, we asked learned counsel for the appellants (original respondents) as to what would be the benefit to the original petitioners not to inform the stay to the extraordinary general meeting (which they were clamoring for) if they had really come to know about it. There was no clear answer from the learned counsel. Appeal dismissed. - Company Appeal (AT) Nos. 94 and 95 of 2018 - - - Dated:- 30-5-2018 - A.I.S. Cheema and Balvinder Singh, JJ. For Appellant: Amar Dave, Pradhuman Gohil and Himanshu Chaubey For Respondents: Rajiv Singh and Dhawal Deshpande ORDER A.I.S. Cheema, J. 1. The appellants (original respondents Nos. 2 to 13) have filed this appeal against order dated February 23, 2018 passed by the National Company Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for various acts. The petitioners claimed that respondent No. 2 group with intention to take over the company, called extraordinary general meeting on February 24, 2018 at 4.00 p.m. and had issued notice to petitioner No. 1 dated January 30, 2018. The explanatory statement had been added to the notice. 5. The impugned order shows that it was brought before the National Company Law Tribunal that the explanatory statement to the notice made allegations against petitioner No. 1 and, inter alia, it was alleged that an amount of ₹ 4,19,75,606 had been written off as bad debts in respect of amounts receivable in the annual accounts. It was also alleged that original petitioner No. 2 had failed to make any progress in the business and obstructed the performance of independent directors from bringing best practices and corporate governance in the company. The petitioners claimed that from their side reply had been sent to the explanatory statement. 6. The respondents claimed before the National Company Law Tribunal, mainly contending that illegal activities were committed by the petitioner which had serious bearing on the company and said acts had surfaced subsequent to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive director of the company with full powers as that of the managing director and every decision which is involving more than ₹ 1 lakh shall be decided by the committee of directors consisting of the petitioner, respondent No. 2 and the newly appointed nominee director Dr. Gajanan Ratnaparkhi, a shareholder of the company. 9. Such order appears to have been passed on February 23, 2018. It appears that the petitioner again moved the National Company Law Tribunal for urgent mentioning on February 26, 2018 and the National Company Law Tribunal passed following order: ORDER 1. Learned counsel from both the sides are present. 2. An urgent mention has been made by learned counsel for the petitioner. He contended that they informed the respondents that the matter is sub judice and requested them not to proceed with the holding of the extraordinary general meeting on February 24, 2018. 3. It is on record that two e-mails are sent to the respondent by the petitioner. 4. However, learned counsel for the respondent contended that they were not aware of any interim order passed against them or a stay restraining them from holding the extraordinary general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in implementing the same and they were harming the interest of the company. As such notice dated January 30, 2018 was issued convening extraordinary general meeting on February 24, 2018 to remove original petitioners Nos. 1 and 2 as directors of the company. The original petitioners then filed the company petition on February 17, 2018. It was heard on February 22, 2018 and orders were reserved. On February 24, 2018 at 11.27 a.m., advocate of the original petitioners sent e-mail to the company of the present appellants to restrain themselves from holding extraordinary general meeting for passing any resolution till order is communicated by the National Company Law Tribunal. Counsel referred to copy of the said e-mail at page 132. The learned advocate for the appellants (original contesting respondents) then referred to another e-mail sent by the original petitioners (copy of which is at page 134) which was sent at 2.33 p.m. and the original petitioners claimed that on enquiry they had learnt that the National Company Law Tribunal has passed orders and copy of order shall be made available to the parties in due course and so the original respondents should restrain from holding ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants were not communicated order dated February 23, 2018 still the second impugned order came to be passed. According to learned counsel, the original petitioners who are the respondents in this appeal have now claimed that they were communicated the first impugned order only on February 24, 2018 but the statement of the Deputy Registrar before the National Company Law Tribunal was that counsel had been informed at 11.00 p.m. on February 23, 2018. Thus, according to him, there is contradictory stand. Thus, learned counsel for the appellants requested that this Tribunal may dispose the present appeal on the lines of interim order as was passed on April 6, 2018 to the following effect: In the meantime, paragraphs 8, 9 and 10 of the impugned order dated February 26, 2018 passed in Company Petition No. 272/241-244/NCLT/MB/2018 in so far it relates to the order of status quo ante and institution of management committee shall remain stayed. However, the company or its board of directors will not give effect to the decision taken in meeting on February 24, 2018 except the decision relating to the day-to-day functioning of the company and payment of salary, etc. 13. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled in this regard vide Diary No. 4432 and documents annexed which includes resolution dated March 27, 2018. The submission is that the appellants are acting upon the directions of the National Company Law Tribunal but still questioning the orders. It has been argued that National Company Law Tribunal did not modify the first impugned order when it passed the second impugned order. The second impugned order was under rule 11 of the National Company Law Tribunal Rules giving inherent powers to the National Company Law Tribunal to do justice. Due to confusion regarding communication of the first impugned order, even if the extraordinary general meeting was held, what the National Company Law Tribunal did by the second impugned order was to restore the position as it stood when the first impugned order was passed. According to learned counsel, interest of the company was material and that is what the National Company Law Tribunal has done. 17. Having heard counsel for both sides and considering the rival cases of both the parties and the stage at which the present litigation stands, as well as keeping in view the fact that this appeal is only against the interim order dated Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protect the interest of the company till the petition is decided. We do not wish to interfere in the discretion exercised. 19. We find no substance in the argument that the interim order dated February 23, 2018 could not have been passed as the National Company Law Tribunal observed that the situation of the company as presented in the petition does not in any way lead or aim at the winding up. According to us at interim stage like the present one, this observation was premature. Looking to rival claims, case of oppression and mismanagement is yet to be decided. The National Company Law Tribunal itself has to above observation added that the petition definitely projects the oppressive acts purportedly committed by the respondent group. 20. As regards the various contentions raised with regard to the order dated February 26, 2018 what appears from overall reading of the order is that the National Company Law Tribunal did pass orders on February 23, 2018 in the course of the day. It is true that the National Company Law Tribunal accepted what the Deputy Registrar appeared in the court and said that at 11.00 p.m. on February 23, 2018 the interim orders and operative part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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