Anoop Sharma vs Ascent Air Private Limited & Ors

Company Appeal (AT) No. 8 of 2024 IN THE MATTER OF: Anoop Sharma ....Appellant

Vs.

Ascent Air Pvt. Ltd. & Ors. ....Respondents

Present: For Appellant: Mr. Upamanyu Sharma, Advocate For Respondents: Mr. Prashant Pakhiddey, Mr. Byron Sequeira, Advocates for R- 2 & 3.

ORDER

(Hybrid Mode) 18.01.2024: Heard the Ld. Counsel for the Appellant, Mr. Upamanyu

Sharma, and Mr. Prashant Pakhiddey, Ld. Counsel appearing for Respondent

No. 2 & 3 in the instant CA (AT) No. 8 of 2024.

2. The Ld. Counsel for the Appellant/Petitioner in CA/391/2023 has

preferred the instant CA (AT) No. 8 of 2024, before this Tribunal, being

aggrieved in respect of the order dated 23.11.2023 in CA/391/2023 ('Status

quo' Ante Application) whereby and where under the National Company Law

Tribunal, New Delhi Bench had observed that ... 'The applicant has also prayed

for status quo ante as it existed on 01.11.2023 with respect to the

Applicant/Petitioner Director. It may be noted that CA/392/2022 where question

of directorship was involved, order had been reserved by this Bench on

18.08.2023. In the meantime, since the RoC has made some changes in the

official portal and the present application has been filed seeking interim

directions, we deem it appropriate to de-reserve the order in CA/392/2022 and

CA (AT) No. 8 of 2024 2

direct this matter be listed before the Regular Bench for hearing the Ld. Counsel

appearing for the Petitioner has objected for the same. Ld. Counsel for the

Respondents have no objection if the matter is de-reserve and the matter is listed

before the Regular Bench. In view of the facts and circumstances we deem it

appropriate to de-reserve the order in CA/392/2022 and directed to list the

matter before the Regular Bench along with remaining IAs on 07.12.2023'.

3. The Contention of the Ld. Counsel for the Appellant/Petitioner in

CA/391/2023 is that the Appellant/Petitioner in the main matter had filed the

instant CA/391/2023 whereby the direction was sought to set aside a 'change'

made by the 'Registrar of Companies' in the 'Directorship', details of the

Appellant/Petitioner as appearing on the website of 'Ministry of Corporate

Affairs' whereby the date of cessation as 'Director' of the Respondent No. 4 has

been added as on 11.02.2022 etc.

4. Per-contra, it is the submission of the Ld. Counsel for Respondent No. 2

& 3 that the Second Respondent in the instant CA (AT) No. 8 of 2024 had filed

the CA/370/2023 in CA/392/2022 in CP No. 14/2022 against Ascent Air Pvt.

Ltd. & Ors. (filed under Rule11 of the NCLT Rules, 2016) seeking permission

being given to the 'Applicant' to file 'Additional written submissions' or in the

alternative to Re-hear the 'Arguments' in the 'Application'.

5. The Plea of the Respondent No. 2 in CA/370/2023 in CP No. 14/2022

before the 'Tribunal' is that the Petitioner/Non-Applicant's sole contention as

projected in the 'written submissions' filed on 16.08.2023 and during the 'Oral

Arguments' on 17.08.2023 before the 'Tribunal' therein the Director, 'Ministry

CA (AT) No. 8 of 2024 3

of Corporate Affairs' before whom the matter was pending and the

'Petitioner/Non-Applicant' took a plea that as proceedings in respect of DIR-12

forms filed by the Company before the RoC are pending before the Regional

Director as per Rule 11 (2) of the Companies (Registration Offices and Fees)

Rules, 2014 and furthermore, it is the 'Regional Director of MCA' who exercises

exclusive jurisdiction, with respect to 'Removal of the Directors' from the

companies. In short, the plea of the Petitioner/Non-applicant, is that the

'Tribunal', does not have jurisdiction and as such the CA/392/2022 was liable

to be dismissed for want of jurisdiction on the subject matter.

6. Furthermore, the plea taken by the Petitioner/Non-applicant was that

the 'Application' had decided in parallel proceedings as the issue or 'Removal of

the Petitioner/Non-Applicant as 'Director', was being adjudicated by two

'separate forums' and as the 'Regional Director', is the 'Appropriate/Competent

Authority' to deal with process of 'Removal of Director', the 'Application', ought

to be dismissed.

7. In this connection, on behalf of Respondent No. 2 & 3, it is brought to

the notice of this 'Appellate Tribunal', that after the 'order' was 'Reserved' in

CA/392/2022 on 17.08.2023, the 'Regional Director of Ministry of Corporate

Affairs' had issued a report under Rule 11 (2) of the Companies (Registration

offices and fees) Rules, 2014 dated 25.08.2023, wherein, while disposing the

reference from the 'Registrar of Companies', it had refused to interfere, in the

matter and directed the 'Registrar of Companies', to take on 'Record' the DIR-

12 Forms.

CA (AT) No. 8 of 2024 4

8. The fact of the matter is that there is a 'substantial subsequent

development', which is 'relevant fact' to be taken note of for the purpose of

'Adjudication' of the Application in CA/392/2022 in main CP No. 14 of 2022

and as such the Petitioner/Applicant seeks to file 'Additional written

submissions' or in the alternate to seek 'Rehearing' of the arguments in CA/

392/2022 in CP No. 14/2022. The CA/392/2022 in CP No. 14/2022 filed by

the Respondent No. 2/Petitioner before the 'Tribunal' was stoutly opposed by

the Appellant based on the footing that there was a material 'suppression of

facts' by the Petitioner in CA/392/2022 in main CP No. 14/2022 and further,

that the 'Respondents' were aware of the initial proceedings under ROF Rules

and were also aware that the steps taken by them for 'Removal of the

Petitioner' as 'Director' was not accepted by the 'Registrar of Companies'.

9. The main contention advanced on behalf of the Appellant is that in view

of the parallel proceedings pending before the 'Regional Director, Northern

Region' the 'matter of record' is that the First Respondent/Company had filed

'written submissions' before the Regional Director, through Ld. Counsel and

further that the 'Company Secretaries of the Respondent/Company' had filed

the 'Affidavits' before the 'Regional Director', on 06.03.2023.

10. The Crystalline stand of the Appellant, is that there were 'procedural

lapses' which were in the violation of 'Companies Act/ Rules' and the propriety

of the lapses are pending for 'Adjudication', before the 'Registrar of Companies',

wherein the Respondent Companies have actively participated.

CA (AT) No. 8 of 2024 5

11. The primordial grievance of the Appellant, is that without a 'final finding'

rendered by the 'Regional Director' on the 'process' followed for Removal of the

Petitioner as 'Director', the 'instant' Application is not sustainable, before this

Tribunal in the 'eye of Law'.

12. The other contention advanced on behalf of the Appellant before this

'Tribunal' is that the CA/392/2022 is liable to be dismissed by the 'Tribunal'

because of the fact that the 'Petitioner' was reflected as the 'Director', of the

Respondent/Company in public domain etc.

13. Admittedly, before the Regional Director CA/395/2023 in CP No.

14/2022 was filed by the Appellant/Petitioner against the 'Regional Director,

(Northern Region)' and Ors. (filed under Rule 11 of the NCLT Rules, 2016 read

with Section 420 of the Companies Act, 2013) seeking inter alia to set aside the

Report dated 25.08.2023 issued by the 'Regional Director (Northern Region)'

and a direction was sought to be issued to the Registrar of Companies, NCT of

Delhi not to take on 'Record' the DIR-12 Forms. The CA/395/2023 in CP No.

14/2022 filed by the Appellant /Petitioner (Petition assailing Regional

Director's Report) is pending before the Tribunal for 'Adjudication', as on date.

14. The other plea of the Appellant, is that in the impugned report of the

Regional Director, Northern Region the First Respondent/Petitioner had filed

W.P. (C) 13894/2023 as an 'aggrieved person', in respect of the 'Report of the

Regional Director before the Hon'ble High Court of Delhi, seeking to set aside

the Report dated 25.08.2023 of the Regional Director etc'. The order passed in

CA (AT) No. 8 of 2024 6

W.P. (C) 13894/2023 by the Hon'ble High Court of Delhi the relevant

paragraphs 3,4, & 5 are as under:

"3. In light of the above submissions, it is open for the Petitioner to move an appropriate application to bring on record the subsequent events and obtain appropriate Orders from the NCLT.

4. Confronted with this, the Ld. Counsel appearing for the Petitioner prays for two weeks time to approach the NCLT to bring on record the subsequent events to establish the effect of the order dated 25.08.2023, issued by the Regional Director (Northern Region) on the pending Company Petitions bearing No. 13,14,15,32 & 33/2022 before the NCLT. Two weeks time is granted to the Ld. Counsel for the Petitioner to do the needful.

5. The NCLT shall decide the effect of the order dated 25.08.2023 on the pending Company Petitions bearing No. 13, 14, 15, 32 & 33 of 2022 before the NCLT, and pass necessary orders in accordance with law".

and with these observations, the writ petition was disposed of.

15. It must be borne in mind that the Hon'ble High Court of Delhi in W.P.

(C) 13894/2023 had not dealt with the merits of the case and also had not

expressed any observations touching upon the merits of the matter and indeed

had left all questions 'being left open'.

16. This Tribunal, has heard the Ld. Counsel for the Appellant, as well as

the Ld. Counsel for the Respondent no. 2 & 3, and noticed their contentions.

Tribunal's Power

17. It is pertinently pointed out by this 'Tribunal' 'Inherent Power' of the

'Tribunal' are to be exercised, to meet the end of Justice or render 'Justice'

between the 'parties'. Indeed an 'Inherent Power' of the Tribunal, has its root in

CA (AT) No. 8 of 2024 7

necessity, and its breadth co-extensive, with the necessity as per the decision

of Hon'ble Supreme Court of India 1976/1/SCC/page no. 120.

18. Furthermore, as 'the matter of fact, the 'Inherent Power' of a 'Tribunal' is

in addition or complimentary to the 'power conferred by means of statute Act'.

It is to be remembered as 'act of Court/Tribunal' should not harm to any

litigant (Actus Curiae Neminem Gravabit). 'Inherent Power' is exercisable only

when no remedy is available under the existing Law. No wonder, an 'Inherent

Power' of Court/Tribunal is to do justice and is in addition to 'complimentary

powers' conferred under the Statute, expressly or by an implication.

19. Considering the fact that the Second Respondent as Petitioner in CA No.

370/2023 against the Ascent Air Pvt. Ltd. & Ors., had sought a relief before the

'Tribunal', seeking to allow the CA No. 370/2023 in CP No. 14/2022 to place

on record the 'Additional written submissions', filed as Annexure-1 along with

the instant application or in the alternate to pass an order allowing the CA/

370/2023 in CP No. 14/2022 to 'Rehear the Arguments' in the CA/392/2022,

this Tribunal keeping in mind of the said relief sought for by the Petitioner in

CA/370/2023 is of the considered view, that because of the fact that the

'Registrar of Companies' had effected some changes in the 'official portal' and

the 'present Application' was filed with seeking interim directions, the NCLT/

Tribunal, thought it fit to 'de-Reserve' the order in CA/392/2022 which was

reserved originally on 18.08.2023, and the matter was directed to be listed

before the 'Regular Bench' and this order, passed by the Tribunal on

23.11.2023 in CA/391/2023, in the considered opinion of this 'Tribunal' does

CA (AT) No. 8 of 2024 8

not suffer from any 'material irregularity' or 'patent illegality' in the 'eye of law'

because of the fact that a competent court of Law/Tribunal as the case may be

when it has requisites powers, to 'Hear' a particular matter or a given legal

'proceeding' is undoubtedly 'inherent itself' and also 'inbuilt' to 'hear' a

particular matter also it empowers to reopen the matter /or 'de-reserve' the

matter where the matter was originally 'Reserved for orders' by it as it deems

fit and proper based on the facts and circumstances which are 'float' on the

surface.

20. Subsequent developments or changes, which admittedly are before the

purview and knowledge of the 'Tribunal', and also the Ld. Counsels appearing

for the respective parties and this Tribunal keeping in mind the fact that

CA/395/2023 filed by the Appellant/Petitioner in CA/395/2023 in CP No.

14/2022 is pending before the 'Tribunal' seeking direction to set aside the

Report of the Regional Director dated 25.08.2023 and also sought for

direction being issued to Registrar of Companies, NCT of Delhi not to take on

record the 'DIR-12 Forms' is pending for final adjudication, this Appellate

Tribunal is of the considered view that no fault can be found with the Tribunal

in passing the impugned order dated 23.11.2023 in CA/391/2023 as stated

supra and viewed in that perspective this Tribunal proceeds to point out that

the de-reservation/re-opening of the matter reserved by the 'Tribunal', in

CA/392/2022 was now directed to be Listed, in the 'Regular Bench' along with

remaining IA's 07.12.2023 is free from any legal flaws.

CA (AT) No. 8 of 2024 9

21. In the light of the foregoings, this Tribunal, is in complete agreement

with a view that by the National Company Law Tribunal, New Delhi dated

23.11.2023 in CA/391/2023 and as such the instant appeal is devoid of

merits.

22. In fine the instant Appeal is dismissed. No costs. The impugned order

dated 23.11.2023 in CA/391/2023 in CP No. 14/2022 passed by the National

Company Law Tribunal, New Delhi Bench, Court-VI is affirmed. Of course for

the reason assailed by this Tribunal in this appeal. No costs.

23. Before parting with the case, this Tribunal makes it lucidly quite clear

that it is open to the respective parties through the Ld. Counsels to

raise/agitate/all factual and legal issues before the NCLT, New Delhi and the

Tribunal shall permit the Ld. Counsels in this regard.

24. Before parting, this Tribunal grants liberty to the respective parties to

raise all legal and factual pleas (including the subsequent development taken

place and to bring to the appraisal or knowledge of the Tribunal) who shall

take into account of the subsequent developments/changes and also to

provide 'adequate opportunities to the parties to hear the grievances' and to

pass a just, fair, and speaking reasoned order, in a 'dispassionate manner', of

course 'uninfluenced or untrammeled' with any of the observations, made by

this 'Tribunal' in this 'Appeal'.

25. With aforesaid observations, the 'instant Appeal' stands disposed of.

26. It is also open to the parties, to place on reliance or to fortify the

proposition of 'both factual and legal' pleas by relying upon certain documents

CA (AT) No. 8 of 2024 10

earlier orders passed by this 'Tribunal' dated 20.03.2023 in CP No. 14/241-

242/ND/2022 which they feel to their advantage and if those documents, are

brought to be notice of the Tribunal, the 'Tribunal', can permit the respective

parties, to submit or deal with the same in the 'final reasoned order' by

adverting to the pros and cons of the same after Rehearing of the

CA/370/2023 and to pass appropriate orders, as deemed fit and proper, of

course based on the facts and circumstances of the case, which 'hovers

around subject matter in issue'.

[Justice M. Venugopal] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/md

CA (AT) No. 8 of 2024