Agarpara Jute Mills Limited vs The Agarpara Company Ltd

IN THE MATTER OF: Agarpara Jute Mills Limited Through its Authorized Representative Sh. Ajay Kumar Mandal 28, B.T. Road, Kolkata - 700 001 ...Appellant

Versus

1. The Agarpara Company Ltd. 15, Braburne Road, Kolkata - 700 001

2. Lake View Agencies Pvt. Ltd. 6B, Bentinck Street, 1st Floor, Kolkata - 700 001

3. Foreever Vyapar Pvt. Ltd. 6B, Bentinck Street, Aloka House, 1st Floor, Kolkata - 700 001

4. Abhinav Dadhich, 24 Pollock Street, Kolkata - 700 001

5. Shyam Sunder Bagri 4F, 1st Ram Sett Road, Kolkata - 700 006

6. Ankit Kumar Bajaj, Doctors S Bld, Garden Reach Road, 80 West Port, Kolkata - 700 043

7. Ajay Kumar Golcha, D/72 Bangur Avenue, Block - B, Kolkata - 700 055

8. Sajjan Kumar Dhanuka 29/3 Dayal Banerjee Lane, Shibpur, Howrah - 711 103

Company Appeal (AT) Nos.18, 19 and 37 of 2018 2

9. Subhro Banerjee, 206/1, Rashbehari Avenue, Kolkata - 700 029

10. Rajesh Sethi, 15, Brabourne Road, Kolkata - 700 001

11. Anil Kumar Bhansali 77, G. T. Road, Howrah - 711 106

12. Shyam Binani, 22A, Kali Krishna Tagore Street, Kolkata - 700 007

13. Saurav Banerjee, 1/58B, Ashok Nagar, 3rd Floor, Regent Park, Kolkata - 700 040

14. Jitendra Nath Choubey, 5, Srinath Das Lane, Bowbazar, Kolkata - 700 012

15. Suresh Kumar Tibrewal, 10, Narsingh Bose Lane Howrah - 711 101

16. Saroj Kumar Shaw, 25, Narsingh Bose Lane, Howrah - 711 102

17. Om Prakash Thard, Loomtex Engineering Pvt. Ltd. Titagarh, Jute Mills No.2, Titagarh, District North 24 Parganas

18. Beltas Merchants Pvt. Ltd. Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Sector - V, Kolkata - 700 091

19. Yashdeep Trexim Pvt. Ltd. Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Kolkata - 700 091

Company Appeal (AT) Nos.18, 19 and 37 of 2018 3

20. Srikanta Dutta, P - 26B, C.I.T. Road, Kolkata - 700 014

21. Saroj Kabra, 7, Tilak Road, Ground Floor, Kolkata - 700 029

22. Jagdhatri Vyapar Pvt. Ltd. 14/2, Judges Court Road, Alipore, Kolkata - 700 027

23. Evershine Barter Pvt. Ltd. 7A, Bentinck Street, 2nd Floor, (Old Wing) Kolkata - 700 001

24. Gajrajya Properties Pvt. Ltd. 3A, Shakespeare Sarani, Kolkata - 700 071

25. Concord Suppliers Pvt. Ltd. 7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

26. Chitravali Dealers Pvt. Ltd. 7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

27. Millenium Securities Pvt. Ltd., 174C, Bhupen Roy Road, Kolkata - 700 034

28. S.B. Marine Products Ltd. Milanpur, Rehabari, Guwahati, Assam - 781 008

29. Neeta Sarda, Wife of Ghanshyam Sarda, 187, Rabindra Sarani, Kolkata - 700 007

30. Ghanshyam Sarda, Son of Late Sri Shiwlal Sarda, 187 Rabindra Sarani, Kolkata - 700 007

31. Mahendra Saraswat, 187, Rabindra Sarani, Room No.47, Kolkata - 700 007

Company Appeal (AT) Nos.18, 19 and 37 of 2018 4

32. Rabindra Kumar Walia, 18, Rabindra Sarani, Liluah, Howrah - 711 204

33. Ramawatar Ashopa, C/o, Sunbio Manufacturing Pvt. Ltd. Daharia Mills, Katihar, Bihar - 854 105 ...Respondent Nos.1 to 33

Present: Shri Amit S. Chadha, Senior Advocate with Shri Atanu Mukherjee, Advocate for the Appellant

Ms. Purti Marwaha, Advocate for Respondent Nos.1 & 32

WITH

Company Appeal (AT) No.19 of 2018

IN THE MATTER OF:

The Agarpara Company Limited ...Appellant Through its Authorized Representative Sh. Shankar Sharma 21A, Shakespeare Sarani, 3rd Floor, Kolkata - 17

Versus

1. Agarpara Jute Mills Ltd.

28 B.T. Road, Kolkata - 700 001

2. Lake View Agencies Pvt. Ltd.

6B, Bentinck Street, 1st Floor, Kolkata - 700 001

3. Foreever Vyapar Pvt. Ltd.

6B, Bentinck Street, Aloka House, 1st Floor, Kolkata - 700 001

4. Abhinav Dadhich, 24 Pollock Street, Kolkata - 700 001

Company Appeal (AT) Nos.18, 19 and 37 of 2018 5

5. Shyam Sunder Bagri 4F, 1st Ram Sett Road, Kolkata - 700 006

6. Ankit Kumar Bajaj, Doctors S Bld, Garden Reach Road, 80 West Port, Kolkata - 700 043

7. Ajay Kumar Golcha, D/72 Bangur Avenue, Block - B, Kolkata - 700 055

8. Sajjan Kumar Dhanuka 29/3 Dayal Banerjee Lane, Shibpur, Howrah - 711 103

9. Subhro Banerjee, 206/1, Rashbehari Avenue, Kolkata - 700 029

10. Rajesh Sethi, 15, Brabourne Road, Kolkata - 700 001

11. Anil Kumar Bhansali 77, G. T. Road, Howrah - 711 106

12. Shyam Binani, 22A, Kali Krishna Tagore Street, Kolkata - 700 007

13. Saurav Banerjee, 1/58B, Ashok Nagar, 3rd Floor, Regent Park, Kolkata - 700 040

14. Jitendra Nath Choubey, 5, Srinath Das Lane, Bowbazar, Kolkata - 700 012

15. Suresh Kumar Tibrewal, 10, Narsingh Bose Lane Howrah - 711 101

Company Appeal (AT) Nos.18, 19 and 37 of 2018 6

16. Saroj Kumar Shaw, 25, Narsingh Bose Lane, Howrah - 711 102

17. Om Prakash Thard, Loomtex Engineering Pvt. Ltd. Titagarh, Jute Mills No.2, Titagarh, District North 24 Parganas

18. Beltas Merchants Pvt. Ltd.

Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Sector - V, Kolkata - 700 091

19. Yashdeep Trexim Pvt. Ltd.

Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Kolkata - 700 091

20. Srikanta Dutta, P - 26B, C.I.T. Road, Kolkata - 700 014

21. Saroj Kabra, 7, Tilak Road, Ground Floor, Kolkata - 700 029

22. Jagdhatri Vyapar Pvt. Ltd.

14/2, Judges Court Road, Alipore, Kolkata - 700 027

23. Evershine Barter Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing) Kolkata - 700 001

24. Gajrajya Properties Pvt. Ltd.

3A, Shakespeare Sarani, Kolkata - 700 071

25. Concord Suppliers Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

26. Chitravali Dealers Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

Company Appeal (AT) Nos.18, 19 and 37 of 2018 7

27. Millenium Securities Pvt. Ltd., 174C, Bhupen Roy Road, Kolkata - 700 034

28. S.B. Marine Products Ltd.

Milanpur, Rehabari, Guwahati, Assam - 781 008

29. Neeta Sarda, Wife of Ghanshyam Sarda, 187, Rabindra Sarani, Kolkata - 700 007

30. Ghanshyam Sarda, Son of Late Sri Shiwlal Sarda, 187 Rabindra Sarani, Kolkata - 700 007

31. Mahendra Saraswat, 187, Rabindra Sarani, Room No.47, Kolkata - 700 007

32. Rabindra Kumar Walia, 18, Rabindra Sarani, Liluah, Howrah - 711 204

33. Ramawatar Ashopa, C/o, Sunbio Manufacturing Pvt. Ltd. Daharia Mills, Katihar, Bihar - 854 105 ...Respondent Nos.1 to 33

Present: Shri Gaurav Kejriwal and Shri Arjun Aggarwal, Advocates for the Appellant

Ms. Purti Marwaha, Advocate for the Respondent No.32

WITH

Company Appeal (AT) No.37 of 2018

IN THE MATTER OF:

Ghanshyam Sarda ...Appellant Son of Late Sh. Shiwlal Sarda 21A, Shakespeare Sarani 3rd Floor, Kolkata - 700 017

Versus

Company Appeal (AT) Nos.18, 19 and 37 of 2018 8

1. The Agarpara Company Ltd.

21A, Shakespeare Sarani, 3rd Floor, Kolkata - 700 017

2. Lake View Agencies Pvt. Ltd.

6B, Bentinck Street, 1st Floor, Kolkata - 700 001

3. Foreever Vyapar Pvt. Ltd.

6B, Bentinck Street, Akola House, 1st Floor, Kolkata - 700 001

4. Abhinav Dadhich, 24 Pollock Street, Kolkata - 700 001

5. Shyam Sunder Bagri 4F, 1st Ram Sett Road, Kolkata - 700 006

6. Ankit Kumar Bajaj, Doctors S Bld, Garden Reach Road, 80 West Port, Kolkata - 700 043

7. Ajay Kumar Golcha, D/72 Bangur Avenue, Block - B, Kolkata - 700 055

8. Sajjan Kumar Dhanuka 29/3 Dayal Banerjee Lane, Shibpur, Howrah - 711 103

9. Subhro Banerjee, 206/1, Rashbehari Avenue, Kolkata - 700 029

10. Rajesh Sethi, 15, Brabourne Road, Kolkata - 700 001

11. Anil Kumar Bhansali 77, G. T. Road, Howrah - 711 106

Company Appeal (AT) Nos.18, 19 and 37 of 2018 9

12. Shyam Binani, 22A, Kali Krishna Tagore Street, Kolkata - 700 007

13. Saurav Banerjee, 1/58B, Ashok Nagar, 3rd Floor, Regent Park, Kolkata - 700 040

14. Jitendra Nath Choubey, 5, Srinath Das Lane, Bowbazar, Kolkata - 700 012

15. Suresh Kumar Tibrewal, 10, Narsingh Bose Lane Howrah - 711 101

16. Saroj Kumar Shaw, 25, Narsingh Bose Lane, Howrah - 711 102

17. Om Prakash Thard, Loomtex Engineering Pvt. Ltd. Titagarh, Jute Mills No.2, Titagarh, District North 24 Parganas

18. Beltas Merchants Pvt. Ltd.

Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Sector - V, Kolkata - 700 091

19. Yashdeep Trexim Pvt. Ltd.

Pekon Building, 4th Floor, Plot - Y 13, Block - EP, Kolkata - 700 091

20. Srikanta Dutta, P - 26B, C.I.T. Road, Kolkata - 700 014

21. Saroj Kabra, 7, Tilak Road, Ground Floor, Kolkata - 700 029

22. Jagadhatri Vyapaar Pvt. Ltd.

14/1, Judges Court Road, Alipore, Kolkata - 700 027

Company Appeal (AT) Nos.18, 19 and 37 of 2018 10

23. Evershine Barter Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing) Kolkata - 700 001

24. Gajrajya Properties Pvt. Ltd.

3A, Shakespeare Sarani, Kolkata - 700 071

25. Concord Suppliers Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

26. Chitravali Dealers Pvt. Ltd.

7A, Bentinck Street, 2nd Floor, (Old Wing), Kolkata - 700 001

27. Millenium Securities Pvt. Ltd., 21A, Shakespeare Sarani, 3rd Floor, Kolkata - 700 017

28. S.B. Marine Products Ltd.

Milanpur, Rehabari, Guwahati, Assam - 781 008

29. Neeta Sarda, Wife of Ghanshyam Sarda, 187, Rabindra Sarani, 1st Floor, Kolkata - 700 007

30. Agarpara Jute Mills Ltd., 28, BT Road, Kolkata - 700 058

31. Mahendra Saraswat, 187, Rabindra Sarani, Room No.47, Kolkata - 700 007

32. Rabindra Kumar Walia, 18, Rabindra Sarani, Liluah, Howrah - 711 204

33. Ramawatar Ashopa, C/o, Sunbio Manufacturing Pvt. Ltd. Daharia Mills, Katihar, Bihar - 854 105 ...Respondent Nos.1 to 33

Company Appeal (AT) Nos.18, 19 and 37 of 2018 11

Present: Shri Ashok Jain and Shri Aniket Bhattacharya, Advocates for the Appellant

Ms. Purti Marwaha, Advocate for the Respondent Nos.1 & 32

ORAL JUDGEMENT

16.02.2018

1. These 3 appeals arise out of same impugned order dated 7th December,

2017 passed by National Company Law Tribunal, Kolkata Bench, Kolkata ('NCLT'

in short). The order is passed in CP No. 364 of 2010. Learned counsel for the

Appellant, however, has referred to earlier orders of this Tribunal passed in

Company Appeal (AT) 264 of 2017 on 16.08.2017. The learned counsel points

out that after these orders were passed, Respondent No.1 in spite of directions

that no interim application be filed in NCLT without prior permission, did file an

application - CA No. 529 of 2017 seeking injunction and the NCLT after hearing

the parties for such application went ahead to pass the present impugned order.

2. It would be appropriate to first refer to the order dated 16.08.2017 of this

Tribunal. It was mentioned in para - 4 and 5 as under:

"4. The Appellant - 1st Respondent - Agarpara Jute Mills Ltd.

('Company' for short) filed an Interlocutory Application being

Company Application No.69 of 2010 in main Company Petition

No.364 of 2010 questioning the maintainability of the Company

Petition under sections 397 and 398 of the Companies Act, 1956.

According to appellant, the respondent - petitioners do not qualify

Company Appeal (AT) Nos.18, 19 and 37 of 2018 12

in terms of Section 399 of the Companies Act, 1956 (Section 244(1)

of the Companies Act, 2013).

5. The Tribunal by impugned order dated 26th April 2017,

ordered that the objection raised in Company Application No. 69

of 2010, shall be considered and decided along with the main

Company Petition No. 364 of 2010. The respondents, including the

appellants were directed to file reply within two weeks and

petitioners (respondents herein) were allowed another two weeks'

time to file rejoinder."

3. The above gives a background as to how these parties came up to this

Tribunal in the earlier round. On that occasion, after hearing the parties, this

Tribunal passed the following orders:

"6. ................However, taking into consideration the fact that

Tribunal has not decided such issue and has ordered to decide

the same at the time of hearing the main Company Petition, this

Appellate Tribunal is not inclined to decide such issue at this

stage. Let the issue of maintainability be decided by Tribunal

simultaneously at the time of hearing of the Company Petition.

After hearing the parties and at the time of delivering the

judgement, the Tribunal will decide the issue of maintainability

and if it is answered in affirmative will decide the petition on

merits. In order word while delivering the final judgement, if the

maintainability is decided against the petitioners-respondents,

the Tribunal may not decide the petition on merit.

Company Appeal (AT) Nos.18, 19 and 37 of 2018 13

7. It is informed that there are other Interlocutory

Applications including Company Application No. 74 of 2010 etc.

are also pending before the Tribunal. We are of the view that the

Tribunal will hear all those Interlocutory Applications (CAs) at

the time of final hearing and will decide after final hearing."

Emphasis we have supplied. In fact, last sentence of para - 6 made it more

than enough clear.

4. When the matter went before NCLT and the application as pointed out by

learned counsel for the appellant is stated to have come up, strangely the order

passed by NCLT reads as under:

"Ld. Counsel for the petitioners and the respondent nos.1,

13, to 16, 25, 26, 27 and 37 are present.

Hon'ble NCLAT has passed an order dated 16/08/2017

whereby direction has been issued for deciding the issue of

maintainability and if it is answered in affirmative will decide the

petition on merits. So in compliance of the said directions we

have to decide the issue on maintainability first and thereafter if

it is found that the petition is maintainable then the petition will

be decided on merit.

Both the parties are directed to file written submissions

within 2 weeks from today regarding the maintainability of the

petition. Till then in the interest of justice both the parties are

directed to maintain status quo regarding the fixed assets of the

company as on today.

Company Appeal (AT) Nos.18, 19 and 37 of 2018 14

List on 18/01/2018 for disposal of I.A."

5. The submissions of the learned counsel for the Appellant are that the

NCLT could not have passed such order in the face of directions of the Appellate

Tribunal which clearly required that the pending interim applications would be

decided at the time of final hearing and the dispute raised about maintainability

under Section 399 of the old Companies Act would also be decided

simultaneously. According to the learned counsel, the Respondent No.1 -

Petitioner could not have filed such application which had the effect of prolonging

the matter further.

6. Advocate Ms. Purti Marwaha is present and she claims that she is

representing the Respondent - The Agarpara Company Ltd. She accepts that CA

529 of 2017 referred above was moved by her client. Interestingly, advocate Shri

Gaurav Kejriwal is also present and he claims that it is he who represents the

Agarpara Company Ltd. He says that the Appeal No.19 of 2018 has been field by

him. Both the counsel claim to be instructed by different Directors of the

Company. Both are not in-sink with each other.

It appears that similar contentions were raised before this Tribunal in the

earlier round also which find reference in para - 9 of the order dated 16.08.2017

of this Tribunal. As directed earlier, the issue is left open to be determined by

the Tribunal as to who represents Respondent No.1 - original Petitioner.

7. The parties are trying to raise disputes regarding the contents of the

affidavit in reply filed in CA 37 of 2018 making grievances regarding what has

Company Appeal (AT) Nos.18, 19 and 37 of 2018 15

been mentioned and trying to raise disputes. We are not entering those fields as

we find that to decide the present appeals, it is not necessary.

8. Reading the direction of this Tribunal as recorded in para-6 which we have

reproduced above, it is shocking as to how the NCLT could have recorded in the

present impugned order that in compliance of the directions of this Tribunal, it

has to decide the issue on maintainability first. It is apparent misreading of

directions, tearing portion out of context. We are refraining from recording

further displeasure regarding such impugned order passed as we find that it is

totally opposite to what was directed by this Tribunal. The present impugned

order cannot be maintained for a minute.

9. The parties are now raising disputes regarding the directions of status quo

directed in impugned order. The learned counsel Ms. Purti Marwaha is trying to

refer to order of CLB dated 11th July, 2013 and observation in para - 8 of that

order. She is trying to say that only because in that order words used were that

the order would be effective "till the next date of hearing" will not mean that they

are not to be followed without the same being set aside. We find that for deciding

the present appeals, we are not required to deal with these issues in the matter.

The present impugned order needs to go as a whole. It would be appropriate for

NCLT to concentrate on the directions given by this Tribunal in para - 6 of the

order dated 16.08.2017 and make serious efforts to dispose the matter at the

earliest, as per directions in Order dated 16.08.2017.

Company Appeal (AT) Nos.18, 19 and 37 of 2018 16

10. Impugned order is set aside. NCLT may carefully re-examine the orders

passed by this Tribunal in CA (AT) 264 of 2017 on 16.08.2017 and proceed in

accordance with the same. All the above 3 appeals are disposed accordingly.

[Justice A.I.S. Cheema] Member (Judicial)

[Balvinder Singh] Member (Technical)

/rs/nn

Company Appeal (AT) Nos.18, 19 and 37 of 2018