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TMI Blog2023 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant to amend the schedule of property attached to the Approved scheme removing New Mill Factory Estate from property scheduled and also imposed penalty of Rs. 50,000/-. Brief Facts: Appellant's Submissions: 2. The Learned Counsel for the Appellant submitted that aggrieved by the aforesaid order, the Appellant preferred the present Appeal and narrated the brief facts. 3. It is submitted that the Appellant was incorporated as a limited company under the name & style of "Kettlewell Bullen & Company Limited" in the year 1923 under the Indian Companies Act, 2013. 4. In the year 2017, the respective Board of Directors of the Appellant and M/s Gloster Jute Mills Limited (GJML) propounded a scheme of amalgamation for amalgamation of GJML with the Appellant. As per the scheme of amalgamation the scheme becoming effective and the name of the Appellant Company shall be changed from "Kettlewell Bullen & Company Limited" to "Gloster Limited". In pursuance of a joint application filed by the Appellant and GJML the NCLT, Kolkata Bench by an order dated 19.01.2018 passed in CP (CAA) No. 518/KB/2017 sanctioned the scheme of amalgamation for amalgamation of GJML with the Appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 filed a Suit being No. 192/2019 in Uluberia Court for ejectment of the Respondent No.1 from the North Mill and duly annexed a copy of the plaint filed in the ejectment suit before the NCLT. 11. It is submitted that the application filed by the Respondent herein is not maintainable since the Appellant was not impleaded as a party to the said application. The Tribunal erred in holding that the Appellant is in illegal position of North Mill and the fact is that the Appellant filed title suit for ejectment of the Respondent from the North Mill. The Tribunal failed to consider the fact that the legal title in the North Mill is vested in the Appellant and consequently there was no error in the schedule of assets appended to the amalgamation order. The Respondent has no right or cause of action to seek deletion of the North Mill in the schedule of assets appended to the order dated 19.01.2018 sanctioning the scheme of amalgamation. 12. In view of the reasons as stated above, the Learned Counsel prayed this Bench to allow the Appeal and set aside the impugned order. Respondent's Submissions : 13. The Learned Senior Counsel appearing for the Respondent put fourth his argument in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of FGIL and therefore, it was rightly not mentioned in the schedule of assets which was filed before the High Court of Calcutta after scheme of demerger was sanctioned pursuant to the order dated 31.05.1993. 19. The Learned Senior Counsel further submitted that the Appellant committed breach of Section 230(2) of the Companies Act, 2013 by not disclosing the particulars of litigation relating to the North Mill. 20. In view of the reasons as stated above, the Learned Senior Counsel prayed this Bench to dismiss the Appeal. Analysis / Appraisal : 21. Heard the Learned Counsel appeared for the respective parties, perused the pleadings and documents. The point for consideration is whether the Appellant has made out any case to allow the Appeal as prayed for. 22. The NCLT vide its order dated 27.02.2020 in an application filed by the Respondent herein in M.A. No. 948/KB/2019 in CP(CAA) No.518/KB/2017 passed the following directions at para 16 of the Impugned Order: "16. In this case, the Applicant was admittedly not party to the proceeding under Section 230-232 of the Companies Act, 2013 (CP(CAA) No.518/KB/2017). Hence, no mistake can be corrected at its instance. At the same ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the Respondent is not party to the said scheme. However, the Respondent filed the application before the NCLT after the scheme was approved seeking directions that the order dated 19.01.2018 passed by the NCLT be recalled and set aside and further sought a direction to the RoC not to give effect the scheme of amalgamation and the schedule of assets appended to the order dated 19.01.2018. Upon contest of the Appellant and after hearing the parties, the NCLT passed the above Impugned Order. 26. The Respondent contended that the Appellant wrongly shown the property of North Mill area in the schedule of assets at Part-I to be its assets. On the contrary, the Respondent contend that the North Mill area is owned by them and they are in possession of the assets through its predecessor i.e. Hooghly Mills Company Limited (HMCL). It is the contention of the Respondent that the North Mill area was originally the property of Fort Gloster Industries Limited (FGIL), on 24.03.1988, the said FGIL executed an agreement for sale of North Mill Factory in favour of HMCL. The said asset was taken out of the scheduled of fixed assets forming part of consolidated balance sheet of the said compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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