Ambadi Investment Ltd vs M V Valli Murugappan

M/s. Ambadi Investments Limited Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 ..... Appellant/1st Respondent v. 1. Ms. Valli Arunachalam, Wife of N. Arunachalam, Having permanent address at New No. 10, Old No.30, Ranjith Road, Kotturpuram, Chennai - 600085 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram, Chennai - 600028

2. Ms. Vellachi Murugappan Wife of Natarajan Alagappan, Having permanent address at No. 449, 3rd Cross, 16th Main, Koramangala 3rd Block, 16th Main, Koramangala 3rd Block, Bangalore - 560034 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram,

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 1 of 86 Chennai - 600028 (Substituted as Legal Heirs of Mrs. M.V. Valli Murugappan (Deceased) (vide Order dated 23.03.2022)

3. M/s. M.V. Murugappan Hindu Undivided Family, Rep. by Ms. Valli Arunachalam Kartha Through Power of Attorney Mr. S. Nagarajan (Amended vide Order Dated 23.03.2022)

4. Mr. M.V. Subbiah Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

5. Mr. Alagappan Arunchalam Murugappan Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 6. Mr. Vellayan Arunachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 7. Mr. Murugappan Murugappan Muthiah Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 2 of 86 8. Mr. Murugappan Muthiah Venkatachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 9. Mr. M A M Arunachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 10. Mr. Vellayan Subbiah Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 11. Mr. Padmanabhan Nagarajan Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 12. Mr. Poondi Ramarathnam Ravi Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 13. Tube Investments of India Limited ``Dare House'', 2 (Old No. 234), N S C Bose Road, Chennai - 600001, India 14. Carborundum Universal Limited, Parry House, 43, Moore Street, Chennai - 600001

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 3 of 86 15. Coromandel International Limited Coromandel House, Sardar Patel Road, Secunderabad - 500003 Telangana, India 16. Cholamandalam Investment & Finance Company Limited (CIFCL), Dare House, 1st Floor, 2, NSC Bose Road, Chennai - 600001 ..... Respondents/Respondents

Present :

For Appellant : Mr. PH. Arvindh Pandian, Senior Advocate For Ms. Rohini Musa & Mr. Sandeep Kumar Ambalavanan, Advocates For Respondent No.1 : Ms. Pinky Anand, Senior Advocate For Mr. S. Manuraj, Advocate For Respondent No.2 : Mr. Arun Kathpalia, Senior Advocate For Mr. S. Manuraj, Advocate

WITH

Company Appeal (AT) (CH) No. 4 of 2022

In the matter of:

1. Mr. Alagappan Arunchalam Murugappan Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 2. Mr. Vellayan Arunachalam Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 3. Mr. Murugappan Murugappan Muthiah Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 4 of 86 4. Mr. Murugappan Muthiah Venkatachalam Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 5. Mr. M A M Arunachalam Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 6. Mr. Vellayan Subbiah Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001

7. Mr. Padmanabhan Nagarajan Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001

8. Mr. Poondi Ramarathnam Ravi Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 ..... Appellants/Respondents v. 1. Ms. Valli Arunachalam, Wife of N. Arunachalam, Having permanent address at New No. 10, Old No.30, Ranjith Road, Kotturpuram, Chennai - 600085 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram, Chennai - 600028

2. Ms. Vellachi Murugappan Wife of Natarajan Alagappan, Having permanent address at No. 449, 3rd Cross, 16th Main, Koramangala 3rd Block, 16th Main, Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 5 of 86 Koramangala 3rd Block, Bangalore - 560034 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram, Chennai - 600028 (Substituted as Legal Heirs of Mrs. M.V. Valli Murugappan (Deceased) (vide Order dated 23.03.2022)

3. M/s. M.V. Murugappan Hindu Undivided Family, Rep. by Ms. Valli Arunachalam Kartha Through Power of Attorney Mr. S. Nagarajan (Amended vide Order Dated 23.03.2022)

4. Ambadi Investments Limited Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001 5. Mr. M.V. Subbiah Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 6. Tube Investments of India Limited ``Dare House'', 2 (Old No. 234), N S C Bose Road, Chennai - 600001, India 7. Carborundum Universal Limited, ``Parry House'', 43, Moore Street, Chennai - 600001

8. Coromandel International Limited Coromandel House, Sardar Patel Road,

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 6 of 86 Secunderabad - 500003 Telangana, India 9. Cholamandalam Investment & Finance Company Limited (CIFCL), Dare House, 1st Floor, 2, NSC Bose Road, Chennai - 600001 ..... Respondents

Present : For Appellants : Mr. C. Aryama Sundaram, Senior Advocate For Mr. Cibi Vishnu & Mr. Jerin Asher Sojan, Advocates For Respondent No.1 : Ms. Pinky Anand, Senior Advocate For Mr. S. Manuraj, Advocate For Respondent No.2 : Mr. Arun Kathpalia, Senior Advocate For Mr. S. Manuraj, Advocate

WITH Company Appeal (AT) (CH) No. 6 of 2022 In the matter of: Mr. M.V. Subbiah S/o. A M M Vellayan Chettiar, Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 ..... Appellant/2nd Respondent v. 1. Ms. Valli Arunachalam, Wife of N. Arunachalam, Having permanent address at New No. 10, Old No.30, Ranjith Road, Kotturpuram, Chennai - 600085 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram, Chennai - 600028

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 7 of 86 2. Ms. Vellachi Murugappan Wife of Natarajan Alagappan, Having permanent address at No. 449, 3rd Cross, 16th Main, Koramangala 3rd Block, 16th Main, Koramangala 3rd Block, Bangalore - 560034 Now currently at 8/1, Boat Club Road, Raja Annamalaipuram, Chennai - 600028 (Substituted as Legal Heirs of Mrs. M.V. Valli Murugappan (Deceased) (vide Order dated 23.03.2022)

3. M/s. M.V. Murugappan Hindu Undivided Family, Rep. by Ms. Valli Arunachalam Kartha Through Power of Attorney Mr. S. Nagarajan (Amended vide Order Dated 23.03.2022)

4. Ambadi Investments Limited Parry House, 5th Floor, No. 43, Moore Street, Chennai - 600001

5. Mr. Alagappan Arunachalam Murugappan Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 6. Mr. Vellayan Arunachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 8 of 86 7. Mr. Murugappan Murugappan Muthiah Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 8. Mr. Murugappan Muthiah Venkatachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

9. Mr. M A M Arunachalam Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

10.Mr. Vellayan Subbiah Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 11. Mr. Padmanabhan Nagarajan Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001 12. Mr. Poondi Ramarathnam Ravi Director, Ambadi Investments Ltd. Parry House, 5th Floor, 43, Moore Street, Chennai - 600001

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 9 of 86 13. Tube Investments of India Limited ``Dare House'', 2 (Old No. 234), N S C Bose Road, Chennai - 600001, India 14. Carborundum Universal Limited, ``Parry House'', 43, Moore Street, Chennai - 600001 15. Coromandel International Limited Coromandel House, Sardar Patel Road, Secunderabad - 500003 Telangana, India 16. Cholamandalam Investment & Finance Company Limited (CIFCL), Dare House, 1st Floor, 2, NSC Bose Road, Chennai - 600001 ..... Respondents

Present: For Appellant : Mr. C. Aryama Sundaram, Senior Advocate For Mr. Harishankar Mani & Mr. Roshan Atiq, Advocates

For Respondent No.1 : Ms. Pinky Anand, Senior Advocate For Mr. S. Manuraj, Advocate

For Respondent No.2 : Mr. Arun Kathpalia, Senior Advocate For Mr. S. Manuraj, Advocate

JUDGMENT

(Virtual Mode)

Justice M. Venugopal, Member (Judicial):

Company Appeal (AT) (CH) No. 54 of 2021:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 10 of 86 Introduction:

The Appellant/1st Respondent has filed the instant Comp. App

(AT) (CH) No. 54 of 2021, before this `Tribunal' as an `Aggrieved

Person, on being dissatisfied with the `impugned order' dated 29.09.2021

in MA (Comp. Act)/79/CHE/2021 in CP/29/CHE/2021, passed by the

`National Company Law Tribunal', Division Bench-I, Chennai.

2. The `National Company Law Tribunal', Division Bench-I,

Chennai, while passing the impugned order dated 29.09.2021 in

MA(Comp. Act)/79/CHE/2021 in CP/29/CHE/2021, filed by the

Petitioners/Applicants, at paragraphs 12 to 19, had observed the

following:

12.``Heard the submissions made by the Learned Senior Counsel for both the parties. The present Application is filed under Rule 44 of NCLT Rules, 2016 seeking withdrawal of the waiver Application CP/29/2021 and for the sake of convenience Rule 44 of NCLT Rules, 2016 is extracted hereunder;

44. Hearing of petition or applications:-

(1) The Tribunal shall notify to the parties the date and place of hearing of the petition or application in such manner as the President or a Member may, by general or special order, direct.

(2) Where at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 11 of 86 necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice.

13. Rule 44(2) of NCLT Rules, 2016 states that at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the Justice.

14. A careful reading of Rule 44(2) of NCLT Rules, 2016, would posit the fact that withdrawal of the Application under this provision can be done only at a stage prior to hearing. Admittedly the waiver Application is not taken up for hearing and only pleadings were directed to be complete. A further perusal of Rule 44(2) would manifest the fact that an Application for withdrawal is required to be filed by the Applicant if he desires to withdraw his petition or application. Secondly, it states that the Tribunal on hearing the applicant and if necessary, such other party may permit such withdrawal upon imposing such cost.

15. The Learned Senior Counsel for the Respondents contended that the Application for withdrawal ought to have been filed under Rule 82 of NCLT Rules, 2016 which is as follows;

82. Withdrawal of Application filed under section 241.

(1) An application under clause (a) or clause (b) of sub-

section (1) of section 241 of the Act, shall not be withdrawn without the leave of the Tribunal.

(2) An Application for withdrawal under sub-rule (1) shall be filed in the Form NCLT-9.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 12 of 86

16. A perusal of the aforesaid Rule would manifest the fact that Rule 82 will apply in the cases where the Petitioners have sought for withdrawal of the Main Company Petition filed under Section 241 of the Companies Act, 2013 and not otherwise. In the present case, this Tribunal has not yet passed any orders on the waiver Application filed under Section 244 of the Companies Act, 2013, by the Petitioner/Applicants and in the said circumstances, withdrawal of an Application filed under Section 241 of the Companies Act, 2013 will not arise and hence Rule 82 of NCLT Rules, 2016 will not attract for the withdrawal of the present Application.

17. However, based upon just and equitable ground and upon perusal of the Application and also based upon the averments made in the Application, we are of the considered view that the withdrawal Application filed by the Petitioner / Applications is required to be allowed.

18. Thus, in so far as prayer (a) is concerned, the Petitioners / Applicants are permitted to withdraw the CP/29/2021 pending on the file of this Tribunal and accordingly CP/29/2021 stands dismissed as withdrawn. All the connected IA's / MA's filed in CP/29/2021 stands closed.

19. In so far as prayed (b) is concerned, the Petitioners / Applicants have sought for a liberty to file and proceed with the New Company Petition and New Waiver Application. However, it is a fact borne on record that the second waiver Application (CP/95/2021) was filed before the Tribunal when the earlier waiver Application (CP/29/2021) was pending and hence the relief in so far as the liberty is concerned, the same has become infructuous. However, by considering the factual matrix of the present case, the CP/95/2021 is taken on the file of this Tribunal and the objections if any, in relation to the same, shall be taken up at an appropriate stage when the matter is listed for hearing on 13.10.2021.''

and disposed of the said `Miscellaneous Application'.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 13 of 86 Appellant's Submissions (in Comp. App (AT)(CH) No. 54 of 2021):

3. The Learned Senior Counsel for the Appellant submits that the

Respondent Nos. 1 and 2 / Petitioners had filed an `Application'

(unnumbered one under Section 241 - 242 of the Companies Act, 2013),

before the `National Company Law Tribunal', Chennai, and further that

they did not possess the `requisite shareholding' to maintain the said

`Petition' and therefore, preferred a `Waiver Application'/

`CP/29/CHE/2021', before the `Tribunal', praying for waiver of the

shareholding requirements mentioned in Section 244 (1) (a) of the

Companies Act, 2013.

4. According to the Appellant, on perusal of the `Waiver Application /

Petition CP/29/CHE/2021' and the copy of the `Company Petition',

`Verifying Affidavits' and `Documents', etc., had discovered that;

(a) On 08.02.2021, the Respondents 1 and 2 filed an application under Sections 241-242, Companies Act, 2013 (hereinafter referred to as ``the Act'') before the Ld. NCLT, Chennai and as Respondents 1 and 2 did not possess the requisite shareholding to main such a petition, they also filed an Application seeking waiver of the shareholding requirements stipulated in Section 244 (1) (a) of the Act.

(b) The said Waiver Application was numbered as CP/29/CHE/2021 and was listed for the first time on 10.03.2021, on which date, the Hon'ble NCLT was pleased to grant 3 weeks time to the Respondents therein to file their replies.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 14 of 86

(c) The Appellant on perusal of the Waiver Application and the copy of the Company Petition, verifying affidavits and documents therewith, discovered the following:

(i) The stamp paper of the verifying affidavit was post-dated (i.e. beyond the date of the deponent affixing signature) and did not match the date of execution by the Deponent and the date of notarisation by the notary officer. The verifying affidavit is executed on 27.01.2021 and the accompanying stamp paper is dated 08.02.2021 and that there was no date for the notarisation obtained therein.

(ii) The date of execution/verification by Late Mrs. M.V. Valli Murugappan for herself as Respondent No.1 and as purported POA holder of the Respondent No.2 was stated as 27.01.2021 and therefore the date of notarisation by the notary officer, Mr. A. Devanathan ought to have been only 27.01.2021.

(iii) This clearly shows that the execution of the document by the Deponent, the Respondent No.1 herein and the notarisation by Mr. A. Devanathan had been done on an earlier date, i.e., 27.01.2021, which is prior to the date of purchase of stamp paper i.e., 08.02.2021.

(iv) Certain documents filed by the Respondents 1 and 2 dated 01.02.2021 and another document dated 14.02.2021 of the documents paperbook with the copy of the Company Petition under Sec. 241 and 242 of the Companies Act, 2013, were post dated and had obviously been inserted subsequent to the date of verification and filing of application.

(v) In the verifying affidavit filed in support of the waiver application, the Deponent, Late Mrs. M.V. Valli Murugappan in paras 3 and 4 has stated as follows:

3. ``I state that the documents filed along with the Application M.A. No. of 2021 in C.P. No. of 2021 which

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 15 of 86 forms part of the application are true copies which were available at the time of filing the application.

4. I further state that documents are not forged or altered in any manner known to law and are true copies of the original.''

and these lapses indicate that the acts of the Respondent Nos. 1 and 2 are

against the `Form' and `Procedure' specified under the NCLT Rules,

2016, and they have `Perjured' themselves.

5. It is represented on behalf of the Appellant that the Appellant had

filed (a) MA/24/CHE/2021 in CP/29/CHE/2021, seeking to reject the

Waiver Application filed by the Respondent Nos. 1 and 2;

(b) MA/27/CHE/2021 in CP/29/CHE/2021, praying for passing of an

`Order' in directing the `Stamp Vendor to furnish the `Register of

Stamps' maintained under the Rules for Supply and Distribution of

Stamps and to direct the Notary Public to furnish the `Notarial Register'

maintained and (c) Company Application/37/CHE/2021, seeking for an

`enlargement of time', in filing Counter to the `Waiver Application

CP/29/CHE/2021'.

6. It is the version of the Appellant that MA/24/CHE/2021 (MA SR

No. 906 of 2021) was filed as per Rule 11 read with Rules 126, 127 of the

NCLT Rules, 2016 and in terms of the ingredients of Rule 83 (A) of

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 16 of 86 NCLT Rules, 2016, an `Application' for waiver ought to be filed under

NCLT Form-9, which should consequently to be filed under the

procedures prescribed under Rule 34 (4), in and by which, every

`Petition' or `Application' (including an Interlocutory Application) ought

to be verified by an `Affidavit' in a Format, specified in Form No.

NCLT 6.

7. Added further, it is pointed out on behalf of the Appellant that, as

per Rule 126 of the NCLT Rules, 2016, an `Affidavit' shall conform to

the requirements of Order XIX, Rule 3 of Civil Procedure Code, 1908 (5

of 1908) and as per Rule 127, an `Affidavit' had to be `sworn' or

`affirmed' before an `Advocate' or `Notary', who would then affix his

official seal.

8. The Learned Counsel for the Appellant takes a plea that in the

present case, the Respondent Nos. 1 and 2 had failed to follow any of the

requirements adumbrated in the NCLT Rules, 2016 mentioned aforesaid

and had filed a perjured `Affidavit' in utter violation of the Rules, as the

`Verifying Affidavit' to the `Application' was dated 27.01.2021, but the

`Stamp Paper' on which it was filed dated 08.02.2021 and the

Notarisation' was on 27.01.2021. In effect, the `Notarisation' was

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 17 of 86 effected on a `Stamp Paper' on 27.01.2021, when the said document was

not in existence.

9. The Learned Counsel for the Appellant urges that the stand taken

by the Respondents is that, `Notarising an Affidavit is not a mandatory

requirement and that an affidavit need not be engrossed on a `Stamp

Paper' and in fact the `Affidavit' verifying CP/29/CHE/2021 was signed

on 27.01.2021 and notarised on 27.01.2021, etc.

10. The Learned Counsel for the Appellant brings to the notice of this

`Tribunal' that the `Notary Public' who had notarised the `Verifying

Affidavit' to the copy of the `Company Petition' filed his `Counter

Affidavit' on 06.08.2021 (vide E-Filing Diary No.3112021/3 and that the

physical copy was received as No. 3377/06 inter alia, mentioning as

under:

``2. I said that M. Valli Murugappan applicant and her advocate approached me for attestation and signed before me and I attested her affidavit on 08.02.2021 and I did not make any entry in my Notary Register maintained by me.''

11. The Learned Counsel for the Appellant comes out with a plea that

the `act of filing of a new `Waiver Application' and a `Company Petition

(CP/95/2021)', on the file of the `Tribunal', although no `Leave' was

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 18 of 86 granted by the `Tribunal' to prefer the `Second Waiver Application' and

more so, considering the fact that the `1st Respondent's Waiver

Application (CP/29/CHE/2021)', continued to be pending on the file of

the `Tribunal' along with the aforesaid `Application'.

12. The Learned Counsel for the Appellant contends that the `Tribunal'

on 11.08.2021 in CP/95(CHE)/2021, CP/29(CHE)/2021 and all pending

Applications in CP/29(CHE)/2021 was pleased to direct the Respondents

to file Application, if any, to withdraw the `First Waiver Application

(CP/29(CHE)/2021)'.

13. In this regard, the Learned Counsel for the Appellant points out that

pursuant to the order dated 11.08.2021, the Respondents filed

MA/79/CHE/2021 dated 31.08.2021 (without mentioning the relevant

NCLT Rules, 2016, and sought leave for withdrawal of `Waiver

Application (CP/29/CHE/2021)' and the liberty to file and proceed with

the `New Company Petition' and `New Waiver Application'.

14. The Learned Counsel for the Appellant projects an argument that

MA/79/CHE/2021 was numbered without there being a `Verifying

Affidavit', as per Form 6 of the NCLT Rules 2016. In fact, on

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 19 of 86 15.09.2021, all the aforesaid Interim Applications in CP/29/CHE/2021

were listed and also CP/95/CHE/2021 was listed.

15. The grievances of the Appellant is that, though a time was sought

for to file a `Reply' to MA/79/CHE/2021 in CP/29/CHE/2021, the matter

was heard and `Reserved for Orders' and only five days' time was granted

to file `Notes of Submissions' and not `Counters' in the said `Withdrawal

Application' and that the remaining Applications in CP/29/CHE/2021

were adjourned for hearing and disposal on 13.10.2021.

16. The Learned Counsel for the Appellant submits that by virtue of the

impugned order dated 29.09.2021, the `Tribunal' had `allowed' the

`Respondent Nos. 1 and 2' to `withdraw CP/29/CHE/2021' and `closed

all IAs / MAs in CP/29/CHE/2021', without even not providing an

opportunity either to the Appellant or to the other Respondents, when the

said Interlocutory Applications are due to be heard on 13.10.2021.

Moreover, the CP/95/CHE/2021 was taken on record as per the Order

dated 29.09.2021 and the matter was posted to 13.10.2021, against

which, the Appellant has preferred the instant Comp. App (AT) (CH) No.

54 of 2021.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 20 of 86

17. The Learned Counsel for the Appellant refers to the Judgment of

the Principal Bench, New Delhi of this `Tribunal' dated 14.07.2022 in the

matter of Mr. Ashok Tiwari v. DBS Bank India Limited (`DBIL') and

Another (vide Company Appeal (AT) (INS.) No. 464 of 2022), wherein it

is held that a Respondent in a proceeding should be given a reasonable

opportunity to file a `Reply' and in fact only an `Opportunity' to file

`Notes of Submission' was given, inspite of request made an

`Opportunity' to file `Counter'. Hence, the `impugned order' was passed

by the `Tribunal', in breach of the `Principles of Nature Justice'. Also, the

Learned Counsel for the Appellant adverts to the `Order' of this

`Tribunal' in Comp. App (AT) No. 121 of 2021 dated 07.10.2021,

between Zee Entertainment Enterprises Limited v. Invesco Developing

Markets Fund & Ors., wherein at paragraphs 22 and 23, it is observed as

under:

22. It is also important to mention that Rule 37 of NCLT Rules provides a grant for reasonable and sufficient time to file a reply/counter. Rule 37 of NCLT Rules, 2016 is quoted below for ready reference:

"37. Notice to Opposite Party.--(1) The Tribunal shall issue Notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such Notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting documents.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 21 of 86 (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.''

18. The Learned Counsel for the Appellant points out that in

MA/79/CHE/2021 in CP/29/CHE/2021, the Respondent had admitted to

the fact that CP/95/CHE/2021 had filed during the pendency of

CP/29/CHE/2021 which is contradictory to the averments made in

CP/95/CHE/2021.

19. The Learned Counsel for the Appellant submits that the term

`Hearing' is not defined either under the Companies Act, 2013, or under

the NCLT Rules, 2016 and a reference is made to the decision in Mukh

Ram v. Siri Ram & Ors., reported in ILR 1959 PUNJ 2102, wherein it is

held that ``the expression ``Hearing'' is used to describe whatever takes

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 22 of 86 place before a Tribunal clothed with judicial function at any stage of the

proceedings subsequent to its inception''.

20. The Learned Counsel for the Appellant contends that on the same

`cause of action', the Respondent Nos. 1 and 2 had filed `two Waiver

Applications' and `two Company Petitions', as per the NCLT Rules 2016

r/w. Order 2 Rule 2 r/w. Order 23 Rule 1 (3) of the CPC, 1908, and in

fact, the plea of the Appellant is that the `two Waiver Applications' and

`two Company Petitions', on the same `cause of action' cannot be

maintained at the same time.

21. According to the Learned Counsel for the Appellant, the `Leave'

ought to be obtained earlier to the filing of the `Waiver' of the `Company

Petition' and the very fact that `Leave' was obtained by the Respondent

Nos. 1 and 2's Learned Counsel by mentioning before the `Tribunal' on

09.08.2021, which was informed to the Appellant through an Advocate's

email dated 09.08.2021 does not hold water, as no orders to that effect

ever granting `Leave' was in existence. Furthermore, all concerned

Petitions/Applications were listed on 09.08.2021 and reposted to

11.08.2021.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 23 of 86

22. The Learned Counsel for the Appellant advances an argument that

the `Petitioners' must not suppress material facts or utter falsehoods in

their affidavits and if they act in such a manner, they are not entitled to

claim any `equitable reliefs', much less an `interim relief' and that the

`Petition' is to be rejected.

Appellant's Decisions:

23. The Learned Counsel for the Appellant cites the decision of the

Hon'ble Supreme Court of India in Dharani Sugars and Chemicals

Limited v. Union of India, reported in (2019) 5 SCC 480, at Spl Pgs: 528

and 529, wherein at paragraph 63, it is observed and held as under:

63.``When one section of a statute grants general powers as opposed to another section of the same statute which grants specific powers, the general provisions cannot be utilised where a specific provision has been enacted with a specific purpose in mind. Thus, in J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. (AIR 1961 SC 1170), this Court held: (SCR pp. 194-95 : AIR p. 1174, para 9)

`` 9. There will be complete harmony however if we hold instead that clause 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 24 of 86 conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly (1859) 26 Beav 606) (quoted in Craies on Statute Law at p. 206, 6th Edn.) Romilly, M.R., mentioned the rule thus: `The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply'. The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: [De Winton v. Brecon Corpn. (1859) 28 LJ Ch 598]: [Churchill v. Crease (1828) 5 Bing 177], [United States v. Chase (1890) SCC Online SC 153] and [Carroll v. Greenwich Insurance Co. of New York (1905) SCC OnLine US SC 177].'' This judgment has been followed in CTO v. Binani Cements Ltd.

and Anr., (2014) 8 SCC 319 [at paragraph 39]''

24. The Learned Counsel for the Appellant refers to the decision of the

Hon'ble Supreme Court of India in Arjun Singh v. Mohindra Kumar &

Ors., reported in (1964) 5 SCR 946, wherein at paragraph 20, it is

observed as follows:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 25 of 86

20. ``On this submission, which we might mention has been urged for first time in this court, the first question that arises is whether the Court has the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code, need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. We shall confine our attention to the topic on hand, namely applications by defendants to set aside exparte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX Rule 1, requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the preceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff along with the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 26 of 86 the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, Rule 6 (1) (a) enables the Court to proceed exparte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the saut, and (2) where the stage of the first hearing is passed and the hearing which, is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding exparte in the two sets of cases would obviously mean a great difference in the result.

So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case Order IX, Rule 13 would come in. The defendant can, besides filing an appeal or an application for review have recourse to an application under Order IX. Rule. 13 to set aside the exparte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remainsofar as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX. Rule. 7 if the defendant appears on such adjourned date and satisfies the court by the showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled -- "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 27 of 86 of a suit has been provided for and Order IX. Rule. 7 and Order IX. Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak, however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where, the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order XX. Rule 1 permits judgment to be delivered after interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by Order IX. Rule 7 is passed the next stage is only the passing of a decree which on the terms of Order IX. Rule 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under Order IX. Rule 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of Order IX. Rule 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under Order IX. Rule 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition undo Order IX. Rule 13 filed by the appellant.''

25. The Learned Counsel for the Appellant falls back upon the Order

of the Company Law Board, Chennai Bench, dated 22.04.2013 in the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 28 of 86 matter of N. Venkateshwar Rao & Ors. v. Sharvani Energy P. Ltd & Ors,

reported in MANU/CL/0002/2013, wherein it is observed as under:

``..... The principles analogous to the Civil Procedure Code can be adopted for proper and effective adjudication and to prevent the abuse of process of this Bench.....''

26. The Learned Counsel for the Appellant seeks in aid of the decision

of the Hon'ble Supreme Court of India in the matter of Rajahmundry

Electric Supply Corporation Ltd. v. A. Nageswara Rao (AIR 1956) SC

213, wherein at paragraph 5, it is observed as under:

5. `` This point is not dealt with in the judgment of the trial court, and the argument before us is that as the objection went to the root of the matter and struck at the very maintainability of the application, evidence should have been taken on the matter and a finding recorded thereon. We do not find any substance in this contention. Though the objection was raised in the written statement, the respondents did not press the same at the trial, and the question was never argued before the trial Judge. The learned Judges before whom this contention was raised on appeal declined to entertain it, as it was not pressed in the trial court, and there are no grounds for permitting the appellant to raise it in this appeal.

Even otherwise, we are of opinion that this contention must, on the allegations in the statement, assuming them to be true, fail on the merits. Excluding the names of the 13 persons who are stated to be not members and the two who are stated to have signed twice, the number of members who had given consent to the institution of the application was 65. The number of members of the Company is stated to be 603. If, therefore, 65 members consented to the application in writing, that would be sufficient to satisfy the condition laid down in Section 153-C, sub-clause (3)(a)(i). But it is

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 29 of 86 argued that as 13 of the members who had consented to the filing of the application had, subsequent to its presentation, withdrawn their consent, it thereafter ceased to satisfy the requirements of the statute, and was no longer maintainable. We have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. In our opinion, the withdrawal of consent by 13 of the members, even if true, cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the court to dispose of it on its own merits''

Comp. App (AT) (CH) No. 4 of 2022:

Preamble:

27. The Appellants/Respondent Nos. 3 to 10 have projected the instant

Comp. App (AT) (CH) No. 4 of 2022, before this `Tribunal' on being

`Aggrieved' with the `impugned order' dated 29.09.2021 in

MA/79/CHE/2021 in CP/29/CHE/2021, passed by the `National

Company Law Tribunal', Division Bench-I, Chennai.

Comp. App (AT) (CH) No. 6 of 2022:

Preface:

28. The Appellant/2nd Respondent has preferred the instant Comp. App

(AT) (CH) No. 6 of 2022, before this `Tribunal' as an `Affected Person',

on being dissatisfied with the `impugned order ' dated 29.09.2021 in

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 30 of 86 MA/79/CHE/2021 in CP/29/CHE/2021, passed by the `National

Company Law Tribunal', Division Bench-I, Chennai.

Appellant(s)' Submissions (in Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022):

29. The Learned Senior Counsel for the `Appellants/Appellant' in both

the `Appeals' contend(s) that the `impugned order' dated 29.09.2021 in

MA/79/CHE/2021 in CP/29/CHE/2021 of the `Tribunal' (National

Company Law Tribunal'), Division Bench-I Chennai, is `Exfacie', an

`Arbitrary one', besides in violation of the `Principles of Natural Justice'

and also suffers from the `malice of predetermination'.

30. It is represented on behalf of the Appellants/Appellant that the

`Tribunal' had failed to consider that as per NCLT Rules, 2016, r/w.

Order XXIII Rule 1 (3) of the Civil Procedure Code, two `Waiver

Applications' and two `Company Petitions' on the same `Cause of

Action', cannot be maintained at the same time.

31. The Learned Counsel for the Appellants/Appellant advance(s) an

argument that the `Tribunal' had committed an error in permitting the

`Filing of Withdrawal Application' (MA/79/CHE/2021 in

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 31 of 86 CP/29/CHE/2021), after taking on file the `Second Waiver Application'

(CP/95/CHE/2021).

32. The Learned Counsel for the Appellants/Appellant submit(s) that

MA/79/CHE/2021 was numbered, despite the same not having a

`Verifying Affidavit' as per Form-6 of the NCLT Rules, 2016. Although,

the Appellants had prayed for time, to file a `Reply' to MA/79/CHE/2021

in CP/29/CHE/2021, the matter was heard, reserved for orders and only 5

days' time was granted to file `Written Submissions' and not `Counter' in

the `Withdrawal Application' and that the said `Objection' was raised in

the `Written Submissions'. However, the other `Applications' in

CP/29/CHE/2021 were adjourned for `Hearing' and `Disposal' on

13.10.2021.

33. The Learned Counsel for the Appellants/Appellant point(s) out that

the `Tribunal' had permitted the `Respondent No.1 and 2' to `Withdraw'

CP/29/CHE/2021 and closed all the connected IAs/MAs in

CP/29/CHE/2021 without even providing an `Opportunity' of being

`Heard', either to the `Appellants' or to the other `Respondents', when the

said `Interlocutory Applications' were due to be `Heard on 13.10.2021.

As a matter of fact, the `Tribunal' by the same order took

CP/95/CHE/2021 on record and post the matter on 13.10.2021.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 32 of 86

34. The Learned Counsel for the Appellants/Appellant refer(s) to the

Judgment of this `Tribunal' dated 14.07.2022 in the matter of Ashok

Tiwari v. DBS Bank India Limited & Anr., (which follows the Judgment

of Zee Entertainment Enterprises Ltd. v. Invesco Developing Market

Funds & Ors. dated 07.10.2021), wherein it is held that a `Respondent' in

a `Proceeding' should be given a reasonable opportunity to file `Reply'.

However in MA/79/CHE/2021, inspite of requests, `Opportunity to file

Counter' was prayed for, but, only an `Opportunity to file Written

Submission' was given, therefore, the plea of the `Appellant' that there is

a breach of the `Principles laid down in the aforesaid Judgments'.

35. The Learned Counsel for the Appellants/Appellant project(s) an

argument that the `Fresh Waiver Application' (CP/95/2021) was not in

the prescribed NCLT Form-9, as mentioned in the Rule 83A of NCLT

Rules., 2016. Also that, the `Tribunal' came to a wrong conclusion that

Rule 82 of NCLT Rules, 2016, would apply only to the main Company

Petition (filed under Section 241 of the Companies Act, 2013) and not

under an `Application' for `Waiver' (filed under Section 244 of the

Companies Act, 2013.

36. The other contention raised on the side of the Appellants/Appellant

is that the `Tribunal' should not have directed the `Respondents' to cure

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 33 of 86 the defects by filing an `Affidavit' especially in the light of the decision

of the Supreme Court of India in Dharani Sugars and Chemicals Ltd. v.

Union of India (2019) 5 SCC 480, which enjoins that, `When a procedure

is prescribed by statute/rules, then, the same must be strictly complied

with and `inherent powers' of the `Tribunal' cannot be used to cure the

same'.

37. The Learned Counsel for the Appellants/Appellant refer(s) to the

Judgment of the Hon'ble Supreme Court of India in Arjun Singh v.

Mohindra Kumar & Ors., reported in (1964) 5 SCR 946, wherein it is

held that it is common ground that the `inherent power' of the Court

cannot override the express provision of `Law'. Further, if there are

specific provisions of the Code, dealing with a particular topic and they

expressly or by necessary implication exhausts the scope of the powers of

the `Court'/Jurisdiction' that may be exercised in relation to a matter, the

`inherent' power of the Court, cannot be invoked in order to cut across the

powers conferred by the Court.

38. The Learned Counsel for the Appellants/Appellant relie(s) on the

decision of the Company Law Board in N. Venkateshwar Rao & Ors. v.

Sharvani Energy P. Ltd & Ors, reported in MANU/CL/0002/2013,

wherein it is held that the `principles analogues to the Civil Procedure

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 34 of 86 Code can be adopted for proper effective adjudication and to prevent the

abuse of process of this Bench in Company matters'.

39. The Learned Counsel for the Appellants/Appellant cite(s) the ratio

laid down by the Hon'ble Supreme Court in Rajahmundry Electric Supply

Corporation Ltd. v. A. Nageshwara Rao (1956) 26 Comp. Cases Page 91,

wherein it is observed that the `validity of the Petition', must be judged

on the facts as they were at the time of its presentation.

40. In this connection, the Learned Counsel for the

Appellants/Appellant contend(s) that in the present case, when

CP/29/CHE/2021 was presented, the same was `invalid', and hence the

`Petition' has to be dismissed at the threshold and not liberty ought to be

granted to prosecute CP/95/CHE/2021, which also suffers from `perjury'.

41. It is represented on behalf of the Appellants/Appellant that the

Appellant had filed (a) MA/46/CHE/2021 in CP/29/CHE/2021, seeking to

reject the Waiver Application filed by the Respondent Nos. 1

and 2 numbered as `Waiver Application' (CP/29/CHE/2021);

(b) MA/67/CHE/2021 in CP/29/CHE/2021, praying for passing of an

`Order' in directing the `Stamp Vendor to furnish the `Register of

Stamps' maintained under the Rules for Supply and Distribution of

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 35 of 86 Stamps and to direct the `Notary Public' to furnish the `Notarial Register'

maintained and (c) Company Application/68/CHE/2021, praying to

enlarge the time in filing Counter to the Waiver Application

CP/29/CHE/2021.

42. It is brought to the fore on behalf of the Appellants/Appellant that

the Appellant filed (i) MA/25/CHE/2021 in CP/29/CHE/2021, seeking to

reject the Waiver Application filed by the Respondent Nos. 1

and 2 numbered as `Waiver Application' (CP/29/CHE/2021);

(b) MA/26/CHE/2021 in CP/29/CHE/2021, praying for passing of an

`Order' in directing the `Stamp Vendor to furnish the `Register of

Stamps' maintained under the Rules for Supply and Distribution of

Stamps and to direct the `Notary Public' to furnish the `Notarial Register'

maintained and (c) MA/28/CHE/2021, praying for an `enlargement of

time', in filing Counter to the Waiver Application CP/29/CHE/2021.

43. It is the version of the Appellants/Appellant that MA/46/CHE/2021

(MA SR No. 1519 of 2021) was filed as per Rule 11 read with Rules 126,

127 of the NCLT Rules, 2016 and in terms of the ingredients of Rule 83

(A) of NCLT Rules, 2016, an `Application' for waiver ought to be filed

under NCLT Form-9, which should consequently to be filed under the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 36 of 86 procedures prescribed under Rule 34 (4), in and by which, every

`Petition' or `Application' (including an Interlocutory Application) ought

to be verified by an `Affidavit' in a Format, specified in Form No.

NCLT 6.

44. According to the Appellants/Appellant that MA/25/CHE/2021 (MA

SR No. 914 of 2021) was filed as per Rule 11 read with Rules 126, 127 of

the NCLT Rules, 2016 and in terms of the ingredients of Rule 83 (A) of

NCLT Rules, 2016, an `Application' for waiver ought to be filed under

NCLT Form-9, which should consequently to be filed under the

procedures prescribed under Rule 34 (4), in and by which, every

`Petition' or `Application' (including an Interlocutory Application) ought

to be verified by an `Affidavit' in a Format, specified in Form No.

NCLT 6.

45. Added further, it is pointed out on behalf of the

Appellant(s)/Appellant (in both the Appeals), as per Rule 126 of the

NCLT Rules, 2016, an `Affidavit' shall conform to the requirements of

Order XIX, Rule 3 of Civil Procedure Code, 1908 (5 of 1908) and as per

Rule 127, an `Affidavit' had to be `sworn' or `affirmed' before an

`Advocate' or `Notary', who would then affix his official seal.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 37 of 86

46. The Learned Counsel for the Appellants/Appellant take(s) a plea

that in the present case, the Respondent Nos. 1 and 2 (in both `Appeals')

have failed to follow any of the requirements specified in the NCLT

Rules, 2016 mentioned aforesaid and had filed a perjured `Affidavit' in

utter violation of the Rules, as the `Verifying Affidavit' to the

`Application' was dated 27.01.2021, but the `Stamp Paper' on which it

was filed dated 08.02.2021 and the Notarisation' was on 27.01.2021. In

effect, the `Notarisation' was effected on a `Stamp Paper' on 27.01.2021,

when the said document was not in existence.

47. The Learned Counsel for the Appellants/Appellant urge(s) that the

stand taken by the Respondents is that, `Notarising an Affidavit is not a

mandatory requirement and that an affidavit need not be engrossed on a

`Stamp Paper' and in fact the `Affidavit' verifying CP/29/CHE/2021 was

signed on 27.01.2021 and notarised on 27.01.2021, etc.

48. The Learned Counsel for the Appellants/Appellant bring(s) to the

notice of this `Tribunal' that the `Notary Public' who had notarized the

`Verifying Affidavit' to the copy of the `Company Petition' filed his

`Counter Affidavit' on 06.08.2021 (vide E-Filing Diary No.3112021/3

and that the physical copy was received as No. 3377/06 inter alia,

mentioning as under:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 38 of 86 ``2. I said that M. Valli Murugappan applicant and her advocate approached me for attestation and signed before me and I attested her affidavit on 08.02.2021 and I did not make any entry in my Notary Register maintained by me.''

49. The Learned Counsel for the Appellants/Appellant come(s) out

with a plea that the `act of filing of a new `Waiver Application' and a

`Company Petition (CP/95/2021)', on the file of the `Tribunal', although

no leave was granted by the `Tribunal' to prefer the `Second Waiver

Application' and more so, considering the fact that the `First Waiver

Application' Viz., CP/29/CHE/2021 continued to be pending on the file

of the `Tribunal' along with the aforesaid `Application'.

50. The Learned Counsel for the Appellants/Appellant contend(s) that

the `Tribunal' on 11.08.2021 in CP/95(CHE)/2021, CP/29(CHE)/2021

and all pending Applications in CP/29(CHE)/2021 was pleased to direct

the Respondents to file Application, if any, to withdraw the `First Waiver

Application (CP/29(CHE)/2021)'.

51. In this regard, the Learned Counsel for the Appellants/Appellant

point(s) out that pursuant to the order dated 11.08.2021, the Respondents

filed MA/79/CHE/2021 dated 31.08.2021 (without mentioning the

relevant NCLT Rules, 2016, and sought leave for withdrawal of `Waiver

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 39 of 86 Application (CP/29/CHE/2021)' and the liberty to file and proceed with

the `New Company Petition' and `New Waiver Application'.

52. The Learned Counsel for the Appellants/Appellant project(s) an

argument that MA/79/CHE/2021 was numbered without there being a

`Verifying Affidavit', as per Form 6 of the NCLT Rules 2016. In fact, on

15.09.2021, all the aforesaid Interim Applications in CP/29/CHE/2021

were listed and also CP/95/CHE/2021 was listed.

53. The grievance of the Appellants/Appellant is that, though a time

was sought for to file a `Reply' to MA/79/CHE/2021 in

CP/29/CHE/2021, the matter was heard and `Reserved for Orders' and

only five days' time was granted to file `Notes of Submissions' and not

`Counters' in the said `Withdrawal Application' and that the remaining

Applications in CP/29/CHE/2021 were adjourned for hearing and

disposal on 13.10.2021.

54. The Learned Counsel for the Appellants/Appellant submit(s) that

by virtue of the impugned order dated 29.09.2021, the `Tribunal' had

`allowed' the `Respondent Nos. 1 and 2' to `withdraw CP/29/CHE/2021'

and `closed all IAs / MAs in CP/29/CHE/2021', without even not

providing an opportunity either to the Appellant(s)/Appellant or to the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 40 of 86 other Respondents, when the said Interlocutory Applications are due to be

heard on 13.10.2021. Moreover, the CP/95/CHE/2021 was taken on

record as per the Order dated 29.09.2021 and the matter was posted to

13.10.2021, against which, the Appellant has preferred the instant Comp.

App (AT) (CH) Nos. 4 & 6 of 2022.

55. The Learned Counsel for the Appellants/Appellant refer(s) to the

Judgment of the Principal Bench, New Delhi of this `Tribunal' dated

14.07.2022 in the matter of Mr. Ashok Tiwari v. DBS Bank India Limited

(`DBIL') and Another (vide Company Appeal (AT) (INS.) No. 464 of

2022), wherein it is held that a Respondent in a proceeding should be

given a reasonable opportunity to file a `Reply' and in fact only an

`Opportunity' to file `Notes of Submission' was given, inspite of request

made an `Opportunity' to file `Counter'. Hence, the `impugned order'

was passed by the `Tribunal', in breach of the `Principles of Nature

Justice'. Also, the Learned Counsel for the Appellants/Appellant advert(s)

to the `Order' of this `Tribunal' in Comp. App (AT) No. 121 of 2021

dated 07.10.2021, between Zee Entertainment Enterprises Limited v.

Invesco Developing Markets Fund & Ors., wherein at paragraphs 22 and

23, it is observed as under:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 41 of 86

22. ``It is also important to mention that Rule 37 of NCLT Rules provides a grant for reasonable and sufficient time to file a reply/counter. Rule 37 of NCLT Rules, 2016 is quoted below for ready reference:

"37. Notice to Opposite Party.--(1) The Tribunal shall issue Notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such Notice in Form No. NCLT. 5 shall be accompanied by a copy of the application with supporting 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.''

56. The Learned Counsel for the Appellants/Appellant point(s) out that

in MA/79/CHE/2021 in CP/29/CHE/2021, the Respondent had admitted

to the fact that CP/95/CHE/2021 had filed during the pendency of

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 42 of 86 CP/29/CHE/2021 which is contradictory to the averments made in

CP/95/CHE/2021.

57. The Learned Counsel for the Appellants/Appellant submit(s) that

the term `Hearing' is not defined either under the Companies Act, 2013,

or under the NCLT Rules, 2016 and a reference is made to the decision in

Mukh Ram v. Siri Ram & Ors., reported in ILR 1959 PUNJ 2102,

wherein it is held that ``the expression ``Hearing'' is used to describe

whatever takes place before a Tribunal clothed with judicial function at

any stage of the proceedings subsequent to its inception''.

58. The Learned Counsel for the Appellants/Appellant contend(s) that

on the same `cause of action', the Respondent Nos. 1 and 2 had filed `two

Waiver Applications' and `two Company Petitions', as per the NCLT

Rules 2016 r/w. Order 2 Rule 2 r/w. Order 23 Rule 1 (3) of the CPC,

1908, and in fact, the plea of the Appellants/Appellant is that the `two

Waiver Applications' and `two Company Petitions', on the same `cause

of action' cannot be maintained at the same time.

59. According to the Learned Counsel for the Appellants/Appellant, the

`Leave' ought to be obtained earlier to the filing of the `Waiver' of the

`Company Petition' and the very fact that `Leave' was obtained by the

Respondent Nos. 1 and 2's Learned Counsel by mentioning before the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 43 of 86 `Tribunal' on 09.08.2021, which was informed to the

Appellants/Appellant through an Advocate's email dated 09.08.2021 does

not hold water, as no orders to that effect ever granting `Leave' was in

existence. Furthermore, all concerned Petitions/Applications were listed

on 09.08.2021 and reposted to 11.08.2021.

60. The Learned Counsel for the Appellant(s)/Appellant advance(s) an

argument that the `Petitioners' must not suppress material facts or utter

falsehoods in their affidavits and if they act in such a manner, they are not

entitled to claim any `equitable reliefs', much less an `interim relief' and

that the `Petition' is to be rejected.

61. The Learned Counsel for the Appellants/Appellant in both the

`Appeals' come(s) out with a plea that `Hearing' in CP/29/CHE/2021 had

commenced before the `Tribunal', as such, Rule 44 of the National

Company Law Tribunal Rules, 2016, would not apply and only Rule 82

of the said Rules, would apply.

Contentions of Respondent Nos. 1 and 2 (in Comp. App (AT) (CH) No. 54 of 2021, Comp. App (AT) (CH) Nos. 4 and 6 of 2022:

62. The Learned Senior Counsels for the Respondents No.1 and 2

submit that the `Appellant' has prevented the adjudication on merits of

the `First Waiver Application' (CP/29/CHE/2021) filed by the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 44 of 86 Respondent Nos. 1 and 2, by raising technical objections through

`Miscellaneous Applications' and there is not a single averment of any

false statement in the `First Waiver Application' (CP/29/CHE/2021)

under Section 244 of the Companies Act, 2013, nor is there any allegation

pertaining to any fabrication of any documents annexed therewith; the

allegations dancing around dates of Stamp Papers, date of signing and

notarisation and not one allegation on merits.

63. The Learned Counsels for the Respondents No.1 and 2 point out

that in regard to relying upon an `Article' which was post the signing of

the `First Waiver Application' (CP/29/CHE/2021), an `Article' was

published in the `Business Line' (Online Edition) which was included,

while filing the `First Waiver Application', on 08.02.2021.

64. The Learned Counsels for the Respondents No.1 and 2 takes a

stand that it is not the Appellant's case that the contents of the `Article'

where otherwise or in any manner tampered with or that any false

statement was made on the basis of the contents of the `Article' or that the

`Article' is a fabricated one.

65. The Learned Counsels for the Respondents No.1 and 2 contends

that the 1st Respondent, signed the `First Company Petition'

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 45 of 86 (CP/29/CHE/2021 - First Waiver Application) and that the `Respondents

Nos. 1 and 2' were promised by a `Settlement Offer' by the `Appellant'

and the Respondent Nos. 3 to 8 with an outer time limit of 1st February

2021 to respond on the `Settlement'. Hence, the pleadings that were

signed, were kept on hold and not filed.

66. According to the Learned Counsels for the Respondent Nos.1 and 2

that the `First Waiver Application' (CP/29/CHE/2021) was filed on

08.02.2021, when nothing was heard from the `Appellant' and therefore,

the `Stamp Paper' was purchased on 08.02.2021. Hence, it is clear that

the `Verifying Affidavit' and the `First Waiver Application'

(CP/29/CHE/2021) were signed on 27.01.2021 and the Stamp Paper alone

was purchased subsequently and `No Perjury' was committed on the part

of the Respondent Nos. 1 and 2.

67. It is represented on behalf of the Respondent Nos. 1 and 2 that, to

address all the purported technical defects and to bring on record the new

and material facts showing further eroding of the value of the Appellant

and continued acts of oppression, which had then recently came to the

knowledge of Respondent Nos. 1 and 2, coupled with the facts already

existing, and for an expeditious and effective adjudication of all facts,

circumstances and issues involved in the matter in a `single proceeding'

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 46 of 86 and to prevent unnecessary and further plurality of proceedings, the

Respondent Nos. 1 and 2 had filed a new Company Petition

(CP/95/CHE/2021) and `Fresh Waiver Application', bearing No.

CP/95/2021, before the `Tribunal'.

68. The Learned Counsels for the Respondents No.1 and 2 comes out

with a plea that the Appellant's endeavour to rely upon the `Counter

Affidavit' of the `Notary Public' is to overcome the contents of the

`Counter' of the `Respondent Nos. 1 and 2' realised perjury was

established and decided to file the `New Waiver Application', is patently

a false one. Since, the `Notary's Counter Affidavit' though filed on

06.08.2021, was only served on the Respondent Nos. 1 and 2 on

10.08.2021. Moreover, the `Affidavit of the Notary' was brought on

record through an `Affidavit' dated 10.08.2021, after being served on the

`Advocates' of the `Respondent Nos. 1 and 2' during night on

10.08.2021, by which time, the `New Waiver Application' was already

filed, by the `Respondent Nos. 1 and 2' on 09.08.2021.

69. It is contended on behalf of the Respondents No.1 and 2 that the

allegation of the `Appellant' that the `Notary' affirming the date on which

he notarized the documents, falls completely to the ground, in as much as

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 47 of 86 the `Notary' has not, in his `Notarisation' of the `Verifying Affidavit'

indicated on any date on which he actually `Notarised' the document.

70. Besides the above, it is the stand of the Respondent Nos. 1 and 2

that the allegation of signing on 08.02.2021 is contrary to the Appellant's

allegation that the `First Waiver Application' (CP/29/CHE/2021) was

signed on 27.01.2021 and wrongly contains documents post 27.01.2021

and the `Notarisation' is an `incorrect one'. If the 1st Respondent had

signed on 08.02.2021, has now alleged, the allegations even therein fail as

even the technical issues do not survive and that the `Appellant' is

making an attempt again, to prevent an adjudication, on merits of the

`Application', as per Section 244 of the Companies Act, 2013.

71. The Learned Counsels for the Respondents No.1 and 2 submits that

the 1st Respondent had expired on 21.01.2022 and that the purported

perjury allegations in the Miscellaneous Application's filed by the

`Respondent Nos. 3 to 8' do not survive, as the allegation of an offence

abates on the death of an `Accused', as per Section 394 (2) of the

Criminal Procedure Code, 1973.

72. In this connection, the Learned Counsels for the Respondent Nos. 1

and 2 refers to the decision of the Hon'ble Supreme Court in U.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 48 of 86 Subhadramma & Ors. v. State of A.P. & Anr., reported in AIR 2016 SC

Page 3095, wherein at paragraph 7, it is observed as under:

7. ``As far as the circumstances of this case are concerned, we find that there has been a gross mis-carriage of justice at several steps.

In the first place, the finding of the trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties.''

73. The Learned Counsels for the Respondent Nos. 1 and 2 brings it to

the notice of this `Tribunal', that the `Appellant' and the remaining

`Respondents' have not filed an `Application' for `Perjury' and in reality,

the `Appellant' and the remaining `Respondents' had filed `Miscellaneous

Applications', seeking to reject the `First Waiver Application' and has not

prayed for the permission to commence prosecution expressly, against the

`1st Respondent'.

74. The Learned Counsels for the Respondent Nos. 1 and 2 points out

that the `Withdrawal Application' (MA/79(CHE)/2021), filed by the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 49 of 86 `Respondent Nos.1 and 2' (`Withdrawal Application') is as per Rule 44

read with Rule 11 of National Company Law Tribunal Rules, 2016 which

is a proper and valid one. In this regard, the Respondent Nos. 1 and 2

takes a plea that Rule 44 of the NCLT Rules, 2016, provides for

`Withdrawal of Petitions' / `Applications', at any stage, prior to the

`Hearing' of the same, and further that the said Rule is `Generic' and will

regulate the `Withdrawal of Applications' / `Petitions', for which there

are no specific provisions in the NCLT Rules, 2016, in particular, an

`Application', in terms of Section 244 of the Companies Act, 2013.

75. The other contention projected on the side of the Respondent Nos.

1 and 2 is that, Rule 82 of the National Company Law Tribunal Rules,

2016, only provides for `Withdrawal of Application', filed under Section

241 of the Companies Act, 2013 and it is not for `Withdrawal of

Application'/`Petition', under Section 244 of the Companies Act, 2013.

76. The Learned Counsels for the Respondent Nos. 1 and 2 adverts to

the fact that while the `Proposed Company Petition' of the Respondent

Nos. 1 and 2 was annexed with the `First Waiver Application'

(CP/29/CHE/2021), the same is not an `Institution of a Petition' under

Section 241 of the Companies Act, 2013 and / or not in terms of the

`NCLT Rules'. In this regard, the Learned Counsels for the Respondent

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 50 of 86 Nos. 1 and 2 refers to Rule 29 of the NCLT Rules, 2016, which reads as

under:

``Registration of proceedings admitted.__ On admission of appeal or petition or caveat or application, the same shall be numbered and registered in the appropriate register maintained in this behalf and its number shall be entered therein.''

77. The Learned Counsels for the Respondent Nos. 1 and 2 submits

that the `First Waiver Application' (CP/29/CHE/2021) was filed under

Section 244 of the Companies Act, 2013, and in fact, no number was

given to the Petition filed under Section 241 of the Companies Act, 2013,

moreover, the `Petition' under Section 241 of the Companies Act, 2013,

was incapable of being numbered, till such time, the `Tribunal' allowed

the `First Waiver Application' (CP/29/CHE/2021) under Section 244 of

the Companies Act, 2013. Only upon the said `Application' being

`Allowed', the `Company Petition' will be assigned a `Number', after

which only, the same is admitted on the file of the `Tribunal'. Therefore,

it is the contention of the `Respondent Nos. 1 and 2' that on the date of

passing of the `impugned order', the only proceeding that was on the file

of the `Tribunal' was the `First Waiver Application' (CP/29/CHE/2021)

as per Section 244 of the Companies Act, 2013.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 51 of 86

78. To fortify this plea, the Learned Counsels for the Respondent Nos.

1 and 2 project a point that till such time, as the `First Waiver

Application' was not permitted, the `Petition' under Section 241 of the

Companies Act, 2013, is not instituted in `Law', and falls back upon the

Judgment of this `Tribunal' in Cyrus Investment Pvt. Ltd. & Anr. V. Tata

Sons Limited & Ors., 2017 SCC Online NCLAT 261 at paragraph 150,

wherein it is observed as under:

``150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any of the requirements specified in clauses

(a) and (b) of sub-section (1) of Section 244. Such opinion required to be formed on the basis of the (proposed) application under Section 241 and to form opinion whether allegation pertains to 'oppression and mismanagement' of the company or its members.

The merit cannot be decided till the Tribunal waives the requirement and enable the members to file application under Section 241.''

79. In effect, the submission of the Learned Counsels for the

Respondent Nos. 1 and 2 is that, in the instant case, there was no Petition

`instituted' in `Law', as per Section 241 of the Companies Act, 2013, and

resultantly Rule 82 of the NCLT Rules, 2016, has no `Application',

whatsoever.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 52 of 86

80. The Learned Counsels for the Respondent Nos. 1 and 2 urges

before this `Tribunal' that the reliance placed on the Appellant's side that

the `Withdrawal' of the `First Waiver Application' (CP/29/CHE/2021) is

under Rule 82 of the NCLT Rules, 2016, is contradictory to its

submissions that `it was not given an opportunity to file a Counter'

because of the fact that Rule 82 only enjoins `Leave of the Tribunal' as a

requirement for `Withdrawal' and does not require a `Hearing' to be

accorded.

81. The Learned Counsels for the Respondent Nos. 1 and 2 contends

that the `National Company Law Tribunal' is endowed with an `inherent

power', as per Rule 11 of the National Company Law Tribunal Rules,

2016 and by virtue of the said `inherent power', the `National Company

Law Tribunal' is empowered to permit an `Application' for `Withdrawal'

or `Settlement', as per decision of the Hon'ble Supreme Court of India in

Swiss Ribbons (P) Ltd. v. Union of India, reported in 2019 4 SCC Page

17, at Spl. Pg. 87, wherein at Paragraph 82, it is observed as under:

82. ``It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceeding that is before the Adjudicating Authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim. A question arises as to what is to happen before a

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 53 of 86 committee of creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach the NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of the NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.''

82. The Learned Counsels for the Respondent Nos. 1 and 2 refers to

Rule 44 (2) of the NCLT Rules, 2016, which prescribes `Withdrawal'

prior to the stage of `Hearing' of the `Petition' / `Application'.

83. The Learned Counsels for the Respondent Nos. 1 and 2 cites the

decision of the Hon'ble Supreme Court of India in Siraj Ahmad Siddiqui

v. Prem Nath Kapoor (1993) 4 SCC, wherein in at Paragraph 13, it is

observed as under:

13. `` The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression "first hearing" for the purposes of Section 20(4) mean something different? The ``step or proceeding mentioned in the summons'' referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a "hearing" that is the subject matter of the definition, unless there be something compelling in the said Act to indicate

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 54 of 86 otherwise; and we do not find in the said Act any such compelling provision. Further, it is not possible to construe the expression "first date for any step or proceeding" to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.''

84. The Learned Counsels for the Respondent Nos. 1 and 2 cites the

decision of the Hon'ble Supreme Court in Mahadev Govind Gharge v.

LAO, reported in (2011) 6 SCC 321, wherein at Paragraph 39, it is

observed as under:

39. ``First and foremost, we must explain what is meant by `hearing the appeal'. Hearing of the appeal can be classified in two different stages; one at the admission stage and the other at the final stage. Date of hearing has normally been defined as the date on which the court applies its mind to the merits of the case.''

85. The Learned Counsels for the Respondent Nos. 1 and 2, in response

to the decision of the Hon'ble High Court of Madras in Ramakrishna

Industries (P) Ltd. & Ors. v. P.R. Ramakrishnan & Ors., reported in

(1985) SCC Online Madras 260, which noted that hearing the `Petitioner'

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 55 of 86 for the purpose of `Admitting the Petition' and `issuing Notice' is part of

`Hearing', points out that in `Winding up Petition', the `Court' has limited

option _ to (i) issue notice to show cause why the petition ought not be

admitted; (ii) admit the petition and fix a date for hearing; and issue a

notice to the Company before giving directions about advertisement of

the petition; or (iii) may admit the petition, fix the date of hearing of the

petition, and order that the petition be advertised and direct that the

petition be served upon persons specified in the order.'', as per decision

of the Hon'ble Supreme Court of India in National conduits (P) Ltd. v.

S.S. Arora, AIR 1968 SC 279.

86. The Learned Counsels for the Respondent Nos. 1 and 2 submits

that there was no `Hearing' on the `First Waiver Application'

(CP/29/CHE/2021) and even the `Pleadings' were yet to be completed, as

the `Appellant' had not filed any `Counter', at the time of passing the

`Impugned Order' and this was considered by the `Tribunal', at Paragraph

14 of the `Impugned Order'. Therefore, in the instant case, the

`Withdrawal' was made prior to the `Hearing'.

87. The Learned Counsels for the Respondent Nos. 1 and 2 advances

an argument that the aspect of permitting or not-permitting a `Withdrawal

Application' is between the `Petitioner' and the `Tribunal' and in any

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 56 of 86 event, the compliance of Rule 44 (2) of the NCLT Rules, 2016, is met in

the instant case, as the `Tribunal' had provided sufficient opportunity to

the `Appellants', to advance detailed oral arguments on 15.09.2021

`Hearing', in addition and permitted the submission of `Written Note' on

`Arguments'.

88. The Appellants had filed their `Notes of Submission', on

22.09.2021 and the Appellants submission were noticed at paragraphs 8

and 9 of the `impugned order'.

89. The Learned Counsels for the Respondent Nos. 1 and 2 contends

that Rule 44 of the National Company Law Tribunal Rules, 2016,

`Hearing' of `Petitions' / `Applications', does not mandatorily require the

`Tribunal' to `Hear' the `Other Party', while permitting `Withdrawal' of

the `Application', let alone the need of filing the `Counter Submissions'.

90. In this connection, on behalf of the Respondent Nos. 1 and 2, it is

pointed out that the `Appellants' have provided with a `Hearing', before

passing the `impugned order' by the `Tribunal'. Furthermore, the

`Tribunal' was `within its power', in not requiring the `Appellants' to file

a `Counter' for the `Withdrawal of the First Waiver Application'

(CP/29/CHE/2021) as per Rule 111 of the NCLT Rules, 2016.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 57 of 86

91. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the

Order passed by the `Tribunal' on 15.09.2021, specifically recording

``Heard the detailed arguments submitted by both the parties. They are

permitted to file one page compilation of their arguments within five

working days from now.'' and submits that the `Appellants' were heard

prior to the passing of the `impugned order' by the `Tribunal' and the

`Appellants' argued their case on 15.09.2021 and they were given the

time to file `Notes of Submissions'. Hence, there is no breach of

adherence of the `Principles of Natural Justice'.

92. The Learned Counsels for the Respondent Nos. 1 and 2 adverts to

Section 424 of the Companies Act, 2013, and points out that the

`Tribunal' and the `Appellate Tribunal' are not bound by the procedure

prescribed under the Civil Procedure Code and for that reason, the

National Company Law Tribunal, Chennai, is not bound to `Hear',

`Dispose' of an `Application' on the ground of `Maintainability' under

Order XXIII Rule 1 (3) of the Civil Procedure Code.

93. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the

decision in the matter of Pahuja Takii Seed Ltd. and Ors. v. The Registrar

of Companies, NCT of Delhi & Haryana (2019) 2 Comp LJ 108), wherein

at Paragraph 14, it is observed as under:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 58 of 86

14. ``Section 424 of the Companies Act, 2013 deals with `procedure before Tribunal and Appellate Tribunal'. As per the said provision, the Tribunal and the Appellate Tribunal, while disposing of any proceeding or appeal will not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act or of the Insolvency and Bankruptcy Code, 2016 and of any rules made thereunder, the Tribunal and the Appellate Tribunal have the power to regulate their own procedure. Therefore, it is clear i.e., for the Tribunal and the Appellate Tribunal to decide the procedure to be followed while dealing with the application under Section 441 of the Companies Act, 2013, or any other petition under the said provision.''

94. The Learned Counsels for the Respondent Nos. 1 and 2 contends

that the `First Waiver Application' (CP/29/CHE/2021) was withdrawn

entirely without any `Effective Hearing' being conducted and a fresh

`Company Petition' and a fresh `Waiver Application' (CP/95/CHE/2021)

were filed in the `whole matter', by including a `fresh Cause of Action'.

95. The Learned Counsels for the Respondent Nos. 1 and 2 submits

that the Respondent Nos. 1 and 2 are not vexing the `Appellants' twice by

carrying on with two separate proceedings, on the same `Cause of

Action'. In fact, according to the Respondent Nos. 1 and 2, the new

`Waiver Application' (CP/95/CHE/2021) was sought to be proceeded

with and the `First Waiver Application' (CP/29/CHE/2021) sought to be

withdrawn in entirety.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 59 of 86

96. The Learned Counsels for the Respondent Nos. 1 and 2 forcefully

comes out with a plea that the ingredients of Order XXIII Rule 1 of the

Civil Procedure Code, does not apply, where during the pendency of the

`First Suit', a fresh `Second Suit' is filed, and the `First Suit' sought to be

withdrawn, and in that event, Order XXIII Rule 1 of CPC does not

`apply' in entirety.

97. The Learned Counsels for the Respondent Nos. 1 and 2 takes a plea

that Order II Rule 2 of the CPC would not apply, as on the date of passing

of the `impugned order', a fresh `Petition', under Section 244 of the

Companies Act, 2013, was already instituted and further that Order XXIII

Rule 1 of the Civil Procedure Code, as a whole, does not apply to the

present case.

98. In this regard, the Learned Counsels for the Respondent Nos. 1 and

2 relies on the decision of the Hon'ble Punjab & Haryana High Court in

Shri Girdhari Lal Bansal v. The Chairman Bhakra Beas Management

Board, Chandigarh & Ors., AIR 1985 P & H 219, wherein at Paragraph 4,

it is observed as under:

``Issue No. 1. This issue relates to the matter whether the second petition filed by the contractor on the same allegations and fertile same relief is barred under O. 23, Rule 1(4) of the C.P.C. or not in

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 60 of 86 view of the fact that the earlier petition was got dismissed as withdrawn. The Court below relied on Teja Singh v. Union Territory of Chandigarh, AIR 1982 Punj & Har 169 (FB) and decided the issue against the contractor and held that the present petition was barred. The learned counsel for the appellant has not challenged the dictum laid down in the aforesaid decision but has argued that on the facts of this case that decision is not applicable because here the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal v. Upendra Dutt, AIR 1928 Lah 710 and Mangi Lal v. Radha Mohan, AIR 1930 Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or over-ruled. The aforesaid two Lahore decisions clearly say that if second suit if filed before the first suit is withdrawn then Order 23, C.P.C. is not attracted and the second suit cannot be dismissed under Order 23, Rule 1(4) of the Civil Procedure Code. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under Order 23, C.P.C.''

99. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the

decision of the Hon'ble Supreme Court of India in Vimlesh Kumari

Kulsrestha v. Sambhaji Rao & Anr. (2008) 5 SCC at Page 58 at Spl. Pgs.:

62 and 63, wherein at Paragraphs 9 and 14, it is observed as under:

9. ``Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the respondent in regard to payment of proper court fee. We, therefore, are of the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 61 of 86 opinion that Order 23 Rule 1 of the Code was not applicable to the facts and circumstances of the present case.

14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. The respondent, therefore, was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid.

The said objection was accepted by the learned trial court. The respondent even accepted the costs as directed by the court, granting permission to withdraw the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the order passed by the court. It is trite that even a presumption of implied grant can be drawn.''

100. The Learned Counsels for the Respondent Nos. 1 and 2 submits

that Order XXIII Rule 3 (1) of the Civil Procedure Code, deals with

`Compromise' and hence, it has no `Application' to the instant case on

hand. Further, the `Civil Procedure Code' grants a `Right to the

`Plaintiff', to withdraw from a `Suit', as per decision Hulas Rai Baij

North v. Firm K B Bass & Co., reported in (1976) 3 SC Reporter Page

886 (vide paragraphs 2 and 3). Apart from that, there is no provision of

`Law', which can compel a `Party' to carry on `Litigation', as per

decision Damyanti Rani Bakshi v. Maharaj Kumar Mehta, 2004 (73) DRJ

504, Vide paragraphs 2, 3 and 7,

101. The Learned Counsels for the Respondent Nos. 1 and 2 points out

that on 09.08.2021, during mentioning, the Respondent Nos. 1 and 2 had

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 62 of 86 sought leave of the `Tribunal', Chennai to file a Fresh Company Petition

and a Fresh Waiver Application. Pursuant to the `Deemed Leave', to file

`New Waiver Application' granted to it, the Respondent Nos. 1 and 2, on

09.8.2021 had filed a `New Company Petition' (on Electronic Mode) and

a New Waiver Application bearing CP/95/2021 and this was recorded in

email dated 09.08.2021 (vide Page 2840 of the Appeal Paper Book) sent

by the Learned Counsel of the Respondent Nos. 1 and 2 to the Appellant

and to other Respondents.

102. The Learned Counsels for the Respondent Nos. 1 and 2 advances a

plea that the `Second Waiver Application' (CP/95/CHE/2021) was filed

on 09.08.2021, which came up for `Hearing' on 11.08.2021, on which

date, the objection was raised by the `Appellant' that earlier `Waiver

Application' (CP/29/CHE/2021) was not formerly withdrawn. In fact, the

`Tribunal', after hearing the `Parties, had permitted Respondent Nos. 1

and to rectify this position and take necessary steps to withdraw the First

Waiver Application (CP/29/CHE/2021).

103. The Learned Counsels for the Respondent Nos. 1 and 2 refers to the

decision of the Hon'ble Supreme Court of India in Grindlays Bank Ltd. v.

Central Government Industrial Tribunal and Others, reported in AIR

(1981) at Page 606, Paragraph 6, it is observed as under:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 63 of 86

6. ``We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary.''

104. The Learned Counsels for the Respondent Nos. 1 and 2 adverts to

the decision of Hon'ble Supreme Court of India in Union of India & Anr.

v. Paras Laminates (P) Ltd. AIR (1991) at Page 696, wherein at Paragraph

8, it is observed as under:

8. ``The Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, though the powers of the Tribunal are limited and its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 64 of 86 all such means as are reasonably necessary to make the grant effective.''

105. The Learned Counsels for the Respondent Nos. 1 and 2 while

summing up submits that the `Appellants' have avoided `Hearing' on

`Merits' of the matter, and hence prays for `dismissal of the Appeals'.

Order II Rule 2 of the CPC:

106. It is relevantly pointed out that a plea of bar under Order II Rule 2

of the Civil Procedure Code is a highly technical plea. It tends to defeat

justice and to deprive a `Person' of a legitimate right. As a matter of fact,

it is the duty of a `Tribunal' to feel subjectively satisfied that there exists

proper ground, for `granting permission' in regard to the `Withdrawal' of

the `Suit'.

107. To be noted that, only with the `leave' of the `Court'/`Tribunal',

which will be granted naturally will depend upon the due satisfaction and

for `Sufficient' / `Good Reasons'. If the `Court'/`Tribunal' grants `Leave'

to file fresh `Suit' / `Proceeding', the `Withdrawal' of an `Application'

has no existence in `Law'.

108. It is pointed out that a permission to `Withdraw' with `Liberty' to

file fresh `Proceeding' / `Suit' is not the Petitioner's indefeasible right.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 65 of 86 An unconditional `Withdrawal' of the `Suit'/`Application', will be

complete, as soon as the `Plaintiff' / `Petitioner' communicate his

intention / desire to the `Court'/`Tribunal'. Indeed, the `Principle of

Resjudicata' may not `Apply', once the `Suit' is filed and `Withdrawn'

unconditionally.

109. Moreover, the `leave' under Order II Rule 3 of the Civil Procedure

Code, ought not to be an express one, may be inferred from the

circumstances of the case. Apart from that, the `leave' under Order II

Rule 3 of the Civil Procedure Code to omit the `relief' need not be sought

simultaneously with the filing of a `Suit' and `leave' may be sought and

granted at any stage of `Suit'.

110. It is significantly pointed out that if a second `Suit' is maintainable,

as per Order II Rule 4 of the Civil Procedure Code, `No Leave' is

required to be granted therefor. It is to be remembered that a `Civil Court'

does not grant `Leave' to file another `Suit'.

111. In this connection, this `Tribunal' points out the decision of the

Hon'ble Supreme Court of India in Shivkumar Sharma v. Santosh Kumari

AIR 2008 SC 171., wherein at paragraph 23, among other things, it is

observed as under:

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 66 of 86

23. ``..... In any event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a superior court.''

112. At this stage, this `Tribunal' points out that `Leave' of the `Court',

may not be an `express one', as per decision AIR 1924 Patna at Page 613.

Also that the `Leave' of the `Court', though should be obtained prior to

the institution of `Suit', but it can be obtained even afterwards, as per

decision AIR 1972 Bom. 199.

113. It is pointed out that when an `Application' is `Withdrawn', the

`Parties' are relegated to the old position and the concept of `Cause of

Action' is `inapplicable' to a `Petition' under Section 397 of the

Companies Act, 1956 / under Section 241 of the Companies Act, 2013.

Order XXIII of the Civil Procedure Code:

114. The principle of Order XXIII Rule 1 of the Civil Procedure Code is

that, `Law' confers `no right', which a `Person' does not derive. It is

relevantly pointed out that where the `Second Suit' is filed before the

`Withdrawal' of the `First Suit', permission obtained in the `First Suit', in

regard to the `Second Suit' is not `hit' by the `Principle of Resjudicata',

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 67 of 86 as per decision M.A. Faiz Khan v. Municipal Corporation of Hyderabad,

reported in AIR 1998 Andhra Pradesh, Page 414.

115. Where the `Suit' is `Withdrawn', the `Suit' has no `existence' in

the `eye of Law' and the `Parties' are relegated to the position which they

occupied prior to the `Fresh Suit' is brought.

116. It must be borne in mind, that no `Application' seeking

`Withdrawal', `Leave of the Court for Withdrawal of a case', is necessary,

where the `Statement is necessary', where Statement to that effect, before

the `Court' is sufficient, as per decision (2009) 2 Gau LR 649, at Page

652 (Gau).

117. Also that, a `Plaintiff / Petitioner / Applicant has an absolute and

indefeasible right to withdraw a `Suit' / `Given Proceeding'

unconditionally. However, for an `Individual' to file a `Fresh Suit' for the

same `relief', there must exist `Lawful' reason, like `Formal Defect' in

`Suit', etc.

118. As a matter of fact that the term `Formal Defect' means, `defect of

form' and not the `Merits'. The words `Sufficient Ground' should be

given a wide meaning in respect of `Formal Defect', as per the decision

1957 Mad. 207. Moreover, the term `Sufficient Ground' should be

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 68 of 86 construed `ejusdem generis' with `Formal Defects', as per decision 1951

Mad. 715.

Civil Suit:

119. When a `Suitor' files a `Civil Suit', before a `Court of Law', then,

the ingredients of `Civil Procedure Code' applies, in relation to the

`conduct of proceedings', as opined by this `Tribunal'.

Company Petition:

120. In regard to the `Legal Proceedings', filed under the Companies

Act, 2013, before the `Tribunal' and `Appellate Tribunal', the procedure

enunciated are to be followed.

Court:

121. The term `Court' may mean `a Body of Organization, conferred

with `power'/`authority' to decide the `Controversies'/`Disputes' between

the `Citizens'/`Subject' of the `States' and its `Subject'. In fact, the

Hon'ble Supreme Court of India in Canara Bank v. Nuclear Power

Corporation of India Ltd. (1995) 84 Comp. Cas 70 SC, has observed that

the word `Court' must be read in the context in which it is used in a

`Statute'.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 69 of 86 Tribunal:

122. It is pointed out that a mere duty to act `judicially', either

`expressly imposed' or `arising by implication' by the `nature of duties',

to be performed whilst so acting does not itself make a `Tribunal' whether

`judicial' or `quasi-judicial', a `Court', as per decision in Rama Rao &

Anr. v. Narayan & Anr., AIR 1969 SC 724.

Appraisal:

123. The `Applicants/Respondents' in CP/29/CHE/2021, before the

`National Company Law Tribunal', Division Bench-I, Chennai, had inter

alia averred that they have a substantial interest of 8.21% of the `Equity

Shareholding' in the `Respondent No.1 Company' and their `combined

Shareholding' in `Respondent No.1 company' is less than 10% of the

`Total Paid up Capital' of the Company and the `Applicants' do not

satisfy the requirements of Section 244 (a) of the Companies Act, 2013.

Furthermore, it was mentioned in CP/29/CHE/2021 that the `Applicants'

are part of the Murugappa family which manages and holds more than

92.95% in all of the Total Paid up Share Capital of the Respondent No.1

company. It was averred specifically that the total number of Members of

the Respondent No.1 company are 293 and the Applicants do not hold

10% of the Total Number of Members. But they satisfy all the

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 70 of 86 requirements for seeking a `Waiver' of the Condition, set out in Section

244 (a) of the Companies Act, 2013 and hence, filed the Application.

124. As a matter of fact, that `First Waiver Application'

(CP/29/CHE/2021) was filed by the `Applicants/Petitioners' (Respondent

Nos.1 and 2 under Section 244 of the Companies Act, 2013) in Comp.

App (AT) (CH) No. 54 of 2021, Comp. App (AT) (CH) No. 4 of 2022

and Comp. App (AT) (CH) No. 6 of 2022, before the `National Company

Law Tribunal', Division Bench-I, Chennai, praying for exercise of its

`Powers', under the proviso to Section 244 of the Companies Act, 2013

and `Waive' the requirements of Section 244 (1) (a) of the Act, and allow

the instant `Application', thereby permitting the `Applicants' to `Apply'

under Section 241 of the Act for the reliefs as claimed in the captioned

`Petition'.

125. The `Second Waiver Application' (CP/95/CHE/2021) was filed by

the `Applicants' /`Petitioners'/ `Respondents 1 and 2' (as per Section 244

of the Companies Act, 2013) in Comp. App (AT) (CH) No. 54 of 2021,

Comp. App (AT) (CH) No. 4 of 2022 and Comp. App (AT) (CH) No. 6 of

2022, before the `National Company Law Tribunal', Division Bench-I,

Chennai, among other things mentioning that the combined Shareholding

of the `Applicants'/`Respondent Nos. 1 and 2', in the `1st

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 71 of 86 Respondent'/`Company' (`Ambadi Investments Limited' - the

`Appellant' in Comp. App. (AT) (CH) No. 54 of 2021) is less than 10%

of the `Total Paidup Capital' of the Company and they do not fulfill the

requirements of Section 244 of the Companies Act, 2013, and prayed for

allowing the `Application' by waiving the requirements of Section 244 of

the Companies Act and permit them to apply, as per Section 241 of the

Companies Act, 2013, for the `reliefs' claimed in the captioned `Petition'.

126. According to the Appellant(s), the `First Waiver Application'

(CP/29/CHE/2021) along with the connected `Applications' were listed

on 09.08.2021 and was reposted to 11.08.2021. However, the `Second

Application' for `Waiver' (filed by the `Respondent Nos. 1 and 2' /

`Applicants') was numbered as CP/95/CHE/2021 and that the

`Appellant'/`Appellants' was informed that the said CP/95/CHE/2021

would be listed for hearing on 10.08.2021.

127. It is the stand of the `Appellant(s)'(in Comp. App (AT) (CH) No.54

of 2021) / `1st Respondent' in (CP/95/CHE/2021 and CP/29/CHE/2021)

that inspite of the objections, in regard to the numbering of the `Waiver

Application' in CP/95/CHE/2021, the `Tribunal' on 11.08.2021 in

CP/95/CHE/2021, CP/29/CHE/2021, MA/24(CHE)/2021 and in other

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 72 of 86 Applications (vide Pages 2510 to 2512 - Vol. 10 of the `Appeal Paper

Book'), had observed the following:

``Learned Counsel for the Respondents state that there are procedural and factual irregularities in filing the waiver Petition. The same was objected by the Learned Counsel for the Petitioner when the matter was taken up for hearing during the previous dates. Thereafter, a fresh waiver Petition in CP (Companies Act)/95/CHE/2021 has been filed by the Petitioner.

Learned Counsel for the Respondents state that the earlier Petition was filed for the same cause of action and it is pending on the file; without the permission of this Tribunal, CP (Companies Act)/95/CHE/2021 has been filed by the Petitioner and without withdrawal of the earlier waiver Petition, the second waiver Petition filed by the Petitioner is not maintainable and both cannot be taken up for hearing. They further state that the Respondents have the right to object on withdrawal of the waiver Petition. Learned Counsel for the Petitioner state that they have not yet filed an affidavit for withdrawal of the 1st Petition before this Tribunal. However, to rectify the procedural and factual irregularities, an affidavit shall be filed by the Petitioner on or before the next date of hearing. The 2nd waiver Petition has already been filed and numbered as CP (Companies Act)/95/CHE/2021 is also strongly objected by the Learned Counsel for the Respondents. The Petitioner shall take necessary steps for rectifying the mistake committed, if any.

On the request of the Learned Counsel for the Petitioner, list this matter on 15.09.2021 at 11.30 A.M. for further hearing. If the Petitioner wishes to file any Application, citation in the Registry, the Petitioner shall serve a copy of the same by way of an e-mail as well as by serving hard copies of the same to the Learned Counsel for the Respondents on or before the next date of hearing.''

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 73 of 86 and directed the listing of the matter on 15.09.2021 at 11.30 A.M. for

hearing and disposal.

128. It is brought to the fore that on 09.08.2021, on behalf of the

`Respondent Nos. 1 and 2', a `Leave' was sought before the `Tribunal', to

file a `Fresh Company Petition' and `Fresh Waiver Application' and

based on which, the same were filed through `Electronic Form' and when

the matter was came up for hearing on 11.08.2021, despite objection

taken on behalf of the `Appellant' that previous Waiver Application

(CP/29/CHE/2021) was not `Withdrawn', the `Tribunal' only after

hearing the `Parties', had permitted the `Respondent Nos. 1 and 2' to

rectify this position and necessary steps were to be taken, to `Withdraw'

the `First Waiver Application'.

129. In this connection, this `Tribunal' pertinently points out that the

mere perusal of the `Order' dated 11.08.2021 in CP/95/CHE/2021,

CP/29/CHE/2021, MA/24(CHE)/2021 and in other Applications (vide

Pages 2510 to 2512 - Vol. 10 of the `Appeal Paper Book') patently

indicates that a `Just and Fair Process' in an `Adversarial' / `Legal

Proceeding' (having civil consequences) was followed by the `Tribunal'

and a reasonable `Opportunity of Hearing' was provided to the respective

Learned Counsels and further to `rectify the procedural and factual

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 74 of 86 irregularities', an `Affidavit' was directed to be filed by the Petitioner

therein, on or before the next date of hearing and in reality, the Petitioner

was accorded the permission by the `Tribunal' to take necessary steps for

the mistake committed, if any, and the said `Order' dated 11.08.2021 has

become `Final', `Conclusive' and `Binding between the Parties' inter se,

especially in the teeth of the said order, which is not assailed by the

`Aggrieved', in the considered opinion of this `Tribunal'. Viewed in that

perspective, the contra stand taken on behalf of the `Appellant(s)' is not

acceded to this `Tribunal'.

130. In regard to the plea of the `Appellants' that Rule 44 of the NCLT

Rules, 2016 under the caption `Hearing of Petition or Applications' that

the said rule permit `Withdrawal' of the `Petition' or `Application'

provided that the same has not been heard and that MA/03/2021 was

moved for Urgent Listing of CP/29/CHE/2021 and that on 02.03.2021,

the said MA/03/2021 was allowed and that the hearing of

CP/29/CHE/2021 was on 10.03.2021 before the `Tribunal' and therefore,

the `Hearing' had commenced in CP/29/CHE/2021 and therefore, Rule 44

of the NCLT Rules, 2016 would not apply and only Rule 82 of the NCLT

Rules would `Apply', it is significantly pointed out by this `Tribunal' that

`Date of Hearing' means that the `Date on which the `Tribunal' / a `Court

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 75 of 86 of Law', applies its mind to the merits of the subject matter of the issues /

points involved in a given case.

131. There is no two opinion of a prime fact that before the `Tribunal',

there was no `Hearing' on the `First Waiver Application'

(CP/29/CHE/2021) and the pleadings were not yet over and in the instant

case on hand, the `Withdrawal' of the `First Waiver Application'

(CP/29/CHE/2021).

132. This `Tribunal', on going through the ingredients of Rule 44 (2) of

the NCLT Rules, 2016, to the effect that;

(2) ``Where at any stage prior to the hearing of the petition or application, the applicant desires to withdraw his petition or application, he shall make an application to that effect to the Tribunal, and the Tribunal on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for the Tribunal in the interests of the justice.''

is of the considered opinion that it is not either `compulsory' or

`mandatory' for the `Tribunal' to hear the opposite `Party / Parties' in the

`Petition' or the `Application', at the time of permitting the `Withdrawal'

of `Application', leave alone, the aspect of projecting the `Counter'.

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 76 of 86

133. Admittedly, before passing of the `impugned order', an

`opportunity' of `Hearing' was given to the `Appellants'. In this

connection, a cursory perusal of the ingredients of Rule 111 (1) of the

NCLT Rules, 2016, `Filing of objections by Respondent, Form and

Consequences', unerringly points out that the `Respondent', if so

directed, shall file `Objections' or `Counter' within the time allowed by

the `Tribunal'. In effect, the `Tribunal' has an `inherent power' while

exercising its discretion not to direct the Respondent to file a `Counter /

Reply / Response in regard to the `First Waiver Application'

(CP/29/CHE/2021), as opined by this `Tribunal'.

134. Dealing with the contention of the Appellants that the `Hearing' in

CP/29/CHE/2021 had commenced before the `Tribunal' and that `Rule

82' (`Withdrawal of Application'), filed under Section 241 of the

Companies Act only `applies' and Rule 44 `Hearing of Petition or

Application' of the NCLT Rules, 2016, will not `apply', this `Tribunal'

points out that a careful reading of Rule 82 (1) of the NCLT Rules, 2016,

candidly indicates that `Leave' of the `Tribunal' is to be obtained for

`Withdrawal of an Application', filed under Clause (a) or Clause (b) of

Section 1 of Section 241 of the Companies Act, 2013, because of the fact

that the `Proceedings' under Section 241 of the Companies Act, 2013 are

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 77 of 86 the `Proceedings' in `rem'. In reality, Rule 82 of the NCLT Rules, 2016,

is conspicuously silent, as to the `Opportunity' being given to a `Person'

to `Hear' him.

135. In the case on hand, under Section 241 of the Companies Act,

2013, there are no pending `Proceedings' before the `Tribunal'.

Therefore, this `Tribunal', `safely', `securely' and in a `cocksure fashion'

holds that the `Appellant(s) cannot seek the aid / invocation of Rule 82 of

the NCLT Rules, 2016'.

136. Besides the above, there is no negation of the `principles of natural

justice', in as much as the `impugned order' was to `allow' a filing of

`Fresh Petition', as per the ingredients of Section 244 of the Companies

Act, 2013, pertaining to the affairs of the `Appellant' (in Comp. App (AT)

(CH) No. 54 of 2021) / `1st Respondent'(`Ambadi Investments Limited').

It cannot be brushed aside that at the time of passing the `impugned

order', the `First Waiver Application' Viz. CP/29/CHE/2021 was pending

and the `Petition' (filed under Section 241 of the Companies Act, 2013)

was not to be numbered, till the time the `Tribunal', permitted the

CP/29/CHE/2021 (the `First Waiver Application', under Section 244 of

the Companies Act, 2013).

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 78 of 86

137. It cannot be gainsaid that the `Prospective Company Petition' of the

`Respondent Nos. 1 and 2' filed with the `First Waiver Application '

(CP/29/CHE/2021) in the `eye of Law', cannot be construed to be a

`Petition' filed under Section 241 of the Companies Act, 2013 / or under

the NCLT Rules, 2016, because of the Rule 29 of the NCLT Rules, 2016,

which categorically enjoins that `on admission of `Appeal' or `Petition' or

`Caveat Application', the same shall be numbered and registered in the

appropriate Register maintained in this behalf and its number shall be

entered therein'.

138. Coming to the stand of the Appellants that there were two `Waiver

Applications' and two `Company Petitions' filed by the Respondent Nos.

1 and 2, before the `Tribunal', on the same `Cause of Action' in terms of

NCLT Rules, 2016, read with Order II Rule 2 read with Order XXIII (1)

(3) of the Civil Procedure Code, 1908, two `Waiver Applications' and

two `Company Petitions' are not maintainable, at the same time, this

`Tribunal' points out that the ingredients of Section 424 of the Companies

Act, 2013, clinchingly exhibit that the `Tribunal' and the `Appellate

Tribunal' are not bound by the procedure laid down in the Code of Civil

Procedure, but shall be guided by the `Principles of Natural Justice', and

subject to the other provisions of this Act (or of the Insolvency and

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 79 of 86 Bankruptcy Code, 2016 (31 of 2016) and of any rules made thereunder,

the `Tribunal' and the `Appellate Tribunal' shall have the power to

regulate their own procedure. Therefore, going by the `tenor' and `spirit'

of the Section 424 of the Companies Act, 2013, this `Tribunal' without

any hesitation holds that the ingredients of Civil Procedure Code are

inapplicable in stricto senso of the term, in relation to the matters under

the Companies Act, 2013. Indeed, the `prohibition'/`fetter' of `Civil

Procedure Code' are not `binding' on the `Tribunal'/`Appellate Tribunal'

(creatures of `Law') and they are free to regulate their `own procedure', in

regard to the `conduct of proceedings', before it.

139. Indeed, the ingredients of Order II Rule 2 of the Civil Procedure

Code are not to be pressed in to service by the Appellant(s) because of the

fact that the `Second Waiver Application' (CP/95/CHE/2021) was alone

sought to be proceeded further and that the `First Waiver Application'

(CP/29/CHE/2021) was required to be `Withdrawn' as a whole, as opined

by this `Tribunal'.

140. Also that, on the date of passing the `impugned order' by the

`Tribunal', a new `Petition' under Section 244 of the Companies Act,

2013 was already filed and viewed in that perspective, the `Appellant(s)'

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 80 of 86 cannot seek the assistance of Order II Rule 2 of the Civil Procedure Code

and it is of no avail. Proceeding further, the `Appellant(s)', endeavouring

to rely upon the Rule 83A `Application under sub-section (1) of 244' of

the NCLT Rules, 2016, and adverting to Order II Rule 2 of the Civil

Procedure Code, is an incorrect one, because of the fact that on the facts

of the instant case on hand, the ingredients of Order II Rule 2 of the Civil

Procedure Code have no application, whatsoever, in the earnest opinion

of this `Tribunal'.

141. In so far as the Appellant(s) plea in regard to the `applicability' of

Order XXIII Rule 1 of Civil Procedure Code, this `Tribunal', `aptly'

points out that the ingredients of Order XXIII Rule 1 of the Civil

Procedure Code, are inapplicable in a given case where at the time of

pendency of `First Suit', a `New / Second Suit', is filed and the `Former /

First Suit', is `Withdrawn'.

142. There is no gain saying of the pivotal fact that `Law' does not

coerce / force `any Litigant' to pursue the `Litigation'. In fact, in a `Civil

Suit' / `Civil Proceeding', a `Plaintiff'/ `Petitioner' is a `Dominus Litis'.

143. It is an `axiomatic principle in Law', that an `inherent power' of a

`Tribunal', is not to be pressed in to service, when there are

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 81 of 86 `express'/`explicit' provisions, provided under the `Companies Act,

2013'. However, in terms of Rule 11, `inherent powers' of the `National

Company Law Tribunal Rules, 2016', the `NCLT Tribunal' has an

`inbuilt', `incidental' or `ancillary' power to perform its `duties'

effectively and in an efficacious manner, ofcourse, well within its

`jurisdiction'.

144. It transpires that in MA/79/CHE/2021 in CP/29/CHE/2021, on the

file of `National Company Law Tribunal', Division Bench, Chennai, the

`Applicants'/`Petitioners' therein, at Paragraphs 7, had inter alia averred

that `to address all the technical defects without prejudice, to bring on

record the new and material facts which have recently come to the

Petitioners' knowledge along with the facts already existing, and for

expeditious and effective adjudication of all facts, circumstances and

issues involved in the matter in a single proceeding and to prevent

unnecessary and further multiplicity of proceedings, on 9 August 2021,

the captioned matter was mentioned by the Petitioners before this

Hon'ble Tribunal for filing the fresh waiver application and fresh

company petition. The Petitioners have thereafter filed a fresh company

petition (``New Company Petition'') and fresh waiver application bearing

no. CP No. 95 of 2021 (``New Waiver Application'').''

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 82 of 86 and a `Leave' was sought to withdraw the captioned `Petition' and the

captioned `Waiver Application' (CP/29/CHE/2021).

145. The `Applicants'/`Petitioners' in MA/79/CHE/2021 in

CP/29/CHE/2021 (vide email dated 31.08.2021) at paragraph 10 had

stated that the `New Company Petition' and the `New Waiver

Application' were filed during the pendency of the captioned `Company

Petition' and captioned `Waiver Application'. Hence, no `Leave' to file

`New Company Petition' and `New Waiver Application' or proceed with

the same is necessary or required, as per `applicable laws'. However, out

of abundant caution, the `Petitioners' would seek such `Liberty' if the

`Hon'ble Tribunal' deems it necessary during the `oral submission', etc.

and prayed for the grant of `Leave', to `Withdraw' the captioned

`Company Petition' and the captioned `Waiver Application'

(CP/29/CHE/2021) and sought if necessary, a `Liberty' to file and `to

proceed with the `New Company Petition' and the `New Waiver

Application', on such terms and conditions'.

146. It is to be remembered that on 11.08.2021, the `Tribunal' in

`CP/95/CHE/2021, CP/29/CHE/2021, MA/24(CHE)/2021 and in other

Applications' had directed the filing of an `Affidavit' by the `Petitioner'

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 83 of 86 to rectify the procedural and factual irregularities on or before the next

date of hearing and proceeded to observe that the `Second Waiver

Petition' was already filed and numbered as `CP(Companies

Act)/95/CHE/2021 which was strongly objected by the Learned Counsel

for the Respondents and directed the `Petitioner' to take necessary steps

for rectifying the mistake committed, if any, and listed the matter on

15.09.2021 at 11.30 A.M. for hearing.

147. It is pointed out that the `National Company Law Tribunal',

Division Bench-I, Chennai had permitted the `Withdrawal' of

CP/29/CHE/2021, pending on its file and `dismissed' the said

CP/29/CHE/2021 as `Withdrawn' through its `Order' dated 29.09.2021 in

MA(Comp.Act)/79/CHE/2021. In fact, all the connected IAs and MAs

filed in CP/29/CHE/2021 were `Closed'.

148. It is evident that consequent to the disposal of

MA(Comp.Act)/79/CHE/2021 in CP/29/CHE/2021, by virtue of the

`impugned order' dated 29.09.2021, passed by the `National Company

Law Tribunal', Division Bench-I, Chennai, the `Tribunal' had closed the

connected IAs / MAs. In this connection, although before this `Tribunal',

on behalf of the `Appellant(s)', a plea is taken, in regard to the `lapses and

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 84 of 86 irregularities', committed by the `Respondent Nos.1 and 2'/`Applicants'

against the `Form' and `Procedure' prescribed under the NCLT Rules,

2016, thus, had `perjured themselves', and therefore, Miscellaneous

Applications were filed in CP/29/CHE/2021, this `Tribunal' pertinently

points out that as against the closure of the said IAs/MAs (vide

`impugned order' dated 29.09.2021), the `Appellant(s)' in these three

`Appeals' admittedly, they have not proceeded any further and as such,

the said `Closure Order dated 29.09.2021' has become a `conclusive',

`final' and `binding' between the `inter se Parties'.

149. It is not in dispute that the 1st Respondent (Mrs. M.V. Valli

Murugappan, died on 21.01.2022) and as per Section 394 (2) of the

Criminal Procedure Code, the `offence of perjury' abates on her death.

Further, it must be borne in mind that Section 340 of the Criminal

Procedure Code, 1973, lays down the `Procedure' therein, for dealing

with an `Application' for `Perjury', before the `Competent Forum'.

150. In the light of foregoing detailed deliberations, this `Tribunal',

considering the divergent contentions advanced on either side, keeping in

mind the facts and circumstances of the present case and also on going

through the `impugned order' dated 29.09.2021 in MA(Comp.

Act)/79/CHE/2021 in CP/29/CHE/2021, comes to a consequent

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 85 of 86 conclusion that the views arrived at by the `National Company Law

Tribunal', Division Bench-I, Chennai, in permitting the `Withdrawal of

CP/29/CHE/2021' (`First Waiver Application') on its file, dismissing the

same as `Withdrawn' and taking the `CP/95/CHE/2021' (`Second Waiver

Application') on its file, to take up the objections, if any, in relation to the

`Second Waiver Application' at an `appropriate stage', etc. are free from

any `legal' flaws. Resultantly, the `Appeals' fail.

Disposition:

In fine, Comp. App (AT) (CH) No. 54 of 2021, Comp. App (AT)

(CH) No. 4 of 2022 and Comp. App (AT) (CH) No. 6 of 2022 are

dismissed. No Costs.

I.A. No. 619 of 2022 (For Stay) in Comp. App (AT) (CH) No. 54

of 2021, I.A. No. 27 of 2022 (For Stay) in Comp. App (AT) (CH) No.4 of

2022 and I.A. No. 49 of 2022 (For Stay) in Comp. App (AT) (CH) No.6

of 2022 are `Closed'.

[Justice M. Venugopal] Member (Judicial)

[Kanthi Narahari] Member (Technical) 19/09/2022

SR/TM

Comp. App (AT) (CH) No. 54 of 2021 Comp. App (AT) (CH) No. 4 of 2022 & Comp. App (AT) (CH) No. 6 of 2022 Page 86 of 86