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TMI Blog2017 (1) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... licant herein against the respondents herein alleging acts of oppression and mismanagement in the conduct of affairs of the first respondent-company. (iii) During the pendency of the said petition on November 22, 2016, I.A. No. 31 of 2016 was filed by the original second respondent seeking the following reliefs: "(1) That the hon'ble Company Law Board may please quash this petition so as to maintain the corporate status of the company or else it would affect the going-on status of the company. (2) That the applicant being the promoter director, hereby by this interlocutory application request the hon'ble Tribunal to direct respondents Nos. 2, 3, 4, and 5 to comply with statutory requirements under various enactments. (3) That a scheduled board meeting shall be called by the Tribunal, whereby respondent No. 2 should be directed to be present and duly approve the accounts so that proper audit of the same shall be conducted and accordingly proper statutory returns shall be filed under the Income-tax Act, 1961, Commercial Tax an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and respondents Nos. 2 and 3 are hereby directed to hold annual general meeting of respondent No. 1 to complete the legal formalities pending so that the statutory compliances under several statutes such as the Companies Act, Income-tax Act, etc. can be finalised. The parties are directed to formulate a proper agenda for the annual general meeting directed to be convened on or before December 15, 2016 for which the notice as required under the Companies Act should immediately be served to the concerned parties. (c) That the parties are directed to maintain harmony among themselves and participate in the annual general meeting in the amicable manner. The resolutions passed in the annual general meeting shall be immediately conveyed to the Registrar of Companies having jurisdiction and a copy to the National Company Law Tribunal, Ahmedabad Bench. (d) The legal representative of respondent No. 2, being present, is hereby directed to communicate this order to the bank authorities and also to the petitioner, the registry is directed to supply a certified copy as per rules." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly passed the order on November 22, 2016. It is further stated that the order dated November 22, 2016 is passed only for complying statutory compliances and to pay the tax, interest, penalty and other dues. It is further stated in the reply that respondent No. 2 has maintained sanctity of the order of the erstwhile hon'ble Company Law Tribunal and maintained status quo over the shareholding and assets of the company. In the said reply, respondent No. 2 denied the averment mat he never approached the petitioner for operation of the bank accounts of the first respondent-company. It is also stated that respondent No. 2 has called upon the board meeting on October 19, 2015 but the petitioner did not attend. On the other hand, the petitioner by letter dated October 29, 2015 warned the second respondent with contempt. It is further stated that the order of the hon'ble Company Law Board was an interim relief which was quashed by this Tribunal vide its order dated November 22, 2016. It is further stated that the order dated November 22, 2016 is an interim order for a specific purpose and for a limited period. The second respondent requested the Tribunal to dismiss the application a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench on November 22, 2016. An application in I.A. No. 31 of 2016 has been moved on November 22, 2016 by original respondent No. 2 and the same was taken on the Board and interim order has been passed. 5. So, from the above said facts, it is crystal clear that without giving any notice to the original petitioner and without serving copy of the application to the petitioner in a pending matter, interim application was moved and order was passed on it. Here, it is pertinent to refer to rule 23, sub-rule (5) of the National Company Law Tribunal Rules, 2016, which reads as follows: "23. Presentation of petition or appeal.-- ... (5) In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative." Therefore, what happened in this case on November 22, 2016 is in violation of sub-rule (5) of rule 23. It is also pertinent to refer to another aspect, that is the status quo order passed by the Company Law Board, Delhi Bench on July 9, 2015. It was a consent order. In that order, the original respondents are directed to maintain status quo over the shareholding and assets of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only, it may be set aside as against all or any of the other respondents also." A reading of rule 49 clearly shows that if the respondent does not appear in an application, the Tribunal may adjourn the hearing or hear and decide the application ex parte. In the case on hand, in spite of not giving notice to the original petitioner, this Tribunal did not choose to adjourn the matter but chose to hear and decide the said application. Therefore, said decision can only be called as an "ex-parte hearing" and "ex parte disposal". 8. Sub-rule (2) of rule 49 says, that when an application is heard ex-parte against the respondents, such respondents are given right to apply to the Tribunal to set aside the said order and the Tribunal can set aside the order if the respondents satisfy the Tribunal that the notices were not duly served or that they were prevented by any sufficient cause from appearing for hearing. In the case on hand, admittedly, no notice has been given on the application, I.A. No. 31 of 2016 to the original petitioner. Therefore, it is a case of non-tendering of notice to the original petitioner in I.A. No. 31 of 2016, leave alone due service of notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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