TMI Blog2021 (10) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of Natural Justice - reasonable and sufficient opportunity should be given to the Appellants for filing a reply - Appeal disposed off. - Company Appeal (AT) No. 121 of 2021 - - - Dated:- 7-10-2021 - Justice Jarat Kumar Jain Member (Judicial) And [V.P. Singh] Member (Technical) For the Appellant : Mr Navroz Seervai and Mr Krishnendu Dutta, Sr. Advocates with Mr Prateek Seksaria, Mr Anuj Tiwari, Mr Nitesh Jain, Mr Atul Jain, Mr Adrish Majumdar, Ms Ritika Ajit Saria, Ms Vatsala Kumar and Mr Brihad Ralhan, Advocates For the Respondent : Mr Mukul Rohatgi and Mr Janak Dwarkadas, Sr. Advocates with Mr Kingshuk Banerjee, Mr Zacarias Joseph, Mr Manesh Aggarwal, Mr Chaitanya Mehta, Mr Bhavik Mehta, Mr Rishabh Parikh, Mr Arshit Anand, Ms Sonali Aggarwal and Ms Prakruti Joshi, Advocates for R-1 2. Mr Arun Kathpalia, Sr. Advocate with Mr Mahfooz Nazki and Mr Amitabh Sinha, Advocates for R- 4 to 9. ORDER ( Through Virtual Mode ) 1. The Appellant has filed this Appeal under Section 421 of the Companies date, 2013 (for brevity Companies Act read with Rule 11 of the National Company Law Tribunal Rules, 2016 (for brevity NCLT Rules) against the order passed by the Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, such ancillary and consequential directions be given as this Tribunal may think necessary or expedient including directions regarding the time and place of the meeting to be held, appointment of an independent Chairman for the meeting, deposit of proxies with such Chairman and all such other directions modifying or supplementing the operation of the provisions of the Companies Act, 2013 and of the Articles of Association of the Respondent No. 1 Company, relating to the calling, holding or conducting of the meeting, by exercise of its powers under Section 98 of the Companies Act, 2013; b) For interim and ad-interim reliefs in terms of (a) above; c) For costs of and incidental to this Application to be paid by the Respondents; d) For such further and other or orders and/or directions of this Hon'ble Tribunal as may deem fit and proper. 7. The said Company Petition was mentioned by the Respondent No.1 and 2 before the Learned NCLT on 29 September 2021, citing purported grave urgency in the matter and purported urgent requirement of the grant of ad-interim relief (s). Therefore the Ld.NCLT listed the Company Petition on 30 September 2021 for considering a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 100 of the Companies Act, 2013. List the matter for further consideration on 04.10.2021. High up in the list. 9. Thereafter, the Company Petition was taken up on 4 October 2021 the Respondent No.1 and 2 main submissions was for grant of ad-interim reliefs. However, the case was adjourned to 5 October 2021. On 5 October 2021, when the matter was heard for ad interim relief, the Appellant pointed out that no ad-interim reliefs can be granted to Respondent No.1 and 2;the Appellant for the 1st time became aware that the Company Petition was being heard finally merely five days after filing of the Company Petition. 10. The Appellant also submitted that the objection in relation to the jurisdiction and maintainability must be decided before any hearing of the Company Petition. Appellant also contended that the final and ad-interim reliefs in the Company Petition are identical. Hence, no interim reliefs amounting to final reliefs can be granted at the interim stage. However, the Appellant categorically stated that if the matter was to be heard and decided finally, sufficient and a reasonable opportunity must be granted to the Appellant to file its reply/counter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents on 30 September itself. Today when the matter had come up Mr. Navroz Seervai, learned senior counsel, Mr. Sudipto Sarkar, learned senior counsel and Mr. Arun Kathpalia, learned senior counsel who are appearing for the respondents strenuously and tactically, submit that at this point of time, no orders can be passed without there being an opportunity of filing the counter. 5. On hearing the arguments of all the parties concerned, we are of the considered view that a minimum but a fair opportunity/time should be given to the respondents to file a reply to the Petitioner and get ready to argue the matter. Apart from that timelines prescribed in the Act and constraints on the part of the Tribunal with regard to the legal aspects must also be considered by this Bench and in view of the same and in order to meet the ends of justice, we the Tribunal direct the respondent to file a reply to the application by 07.10.2021 by duly serving a copy on the petitioners. No further time shall be granted to either of the parties. This is not a usual case where weeks and weeks of time can be granted to file replies and hear the matter for days together and finally write an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Sr. Counsel Mr Mukul Rohtagi and Mr Janak Dwarkadas on behalf of the Petitioner, directed the respondents to consider the requisition made by the Petitioners under Section 100 of the Companies Act, 2013 positively. 18. Learned NCLT had stated in its order that the Petitioner contends that they have submitted a requisition to the Board of the Company for calling of the Extraordinary General Meeting under the powers vested according to Section 100 of the Companies Act, 2013. It also appears that on 4 October 2021 matter again came up for hearing. The argument of the Learned Counsel for the Applicants was completely heard and after that Learned Senior Counsel appearing on behalf of the Respondents submitted that the final relief which has been asked in the petition, is being sought as ad-interim relief without there being an opportunity for filing the counter on the part of the respondents. The Respondents sought time for filing counter. However, the Learned NCLT made an observation that the timeline prescribed in the Act and constraints on the part of the Tribunal with regard to the legal aspects must also be considered. In the circumstances, Learned NCLT directed the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with any order made under sub-section (1) shall, for all purposes, be deemed to be a meeting of the company duly called, held and conducted. Corresponding Law: S. 186 of Act 1 of 1956. Section 98 enforced w.e.f. 1-6-2016 100. Calling of extraordinary general meeting.-(1) The Board may, whenever it deems fit, call an extraordinary general meeting of the company. [Provided that an extraordinary general meeting of the company, other than of the wholly owned subsidiary of a company incorporated outside India, shall be held at a place within India.] (2) The Board shall, at the requisition made by,- (a) in the case of a company having a share capital, such number of members who hold, on the date of the receipt of the requisition, not less than one-tenth of such of the paid-up share capital of the company as on that date carries the right of voting; (b) in the case of a company not having a share capital, such number of members who have, on the date of receipt of the requisition, not less than one-tenth of the total voting power of all the members having on the said date a right to vote, call an extraordinary general meeting of the company wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting documents. (2) If the respondent does not appear on the date specified in the Notice in Form No. NCLT. 5, the Tribunal, after according reasonable opportunity to the respondent, shall forthwith proceed ex-parte to dispose of the application. (3) If the respondent contests to the Notice received under sub-rule (1), it may, either in person or through an authorised representative, file a reply accompanied with an affidavit and along with copies of such documents on which it relies, with an advance service to the Petitioner or applicant, to the Registry before the date of hearing and such reply and copies of documents shall form part of the record. 23. Therefore, it is clear that the Learned NCLT has committed an error in not granting reasonable and sufficient time for filing a reply, which is a complete violation of Rule 37 of NCLT Rules and Principles of Natural Justice. Therefore, in the circumstances, as stated above, we are of the opinion that reasonable and sufficient opportunity should be given to the Appellants for filing a reply. After hearing both the parties, the Learned NCLT should proceed further. The appeal is disposed of accordingly-no order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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