Gaurishankar Neelkanth Kalyani & Anr vs Sulochana Neelkanth Kalyani & Ors
- CitationComp. App (AT) No. 194 of 2022
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on a single procedural principle: where an appellant does not press an appeal and the respondent, by interlocutory application, seeks setting aside of the impugned order by consent, the appellate forum will not itself set aside the impugned order at the respondent's request but will permit the respondent to file, before the forum below, a petition to withdraw the main proceedings; upon such withdrawal being permitted, the subsequent orders made in those proceedings stand automatically vacated, including the impugned order, and the appellant may apply for restoration of the appeal if the respondent declines to file the withdrawal petition.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Gaurishankar Neelkanth Kalyani & Anr. ...Appellants Vs. Sulochana Neelkanth Kalyani & Ors. ....Respondents Present: For Appellant: Mr. Abhinav Vashisht, Sr. Advocate with Mr. Rohan Rajadhyaksha, Dr. Abhimanyu Chopra and Ms. Anshika Misra, Mr. Prabhav Shroff, Mr. Aman Chaudhary, Advocates.
For Respondent: Mr. Gopal Sankarnaryanan, Sr. Advocate with Ms. Pooja Dhar, Ms. Deepika, Mr. Pratul Pratap Singh, Ms. Trisha Chandran Advocates for R-1.
With Comp. App (AT) No. 195 of 2022
IN THE MATTER OF: Gaurishankar Neelkanth Kalyani & Anr. ...Appellants Vs. Sulochana Neelkanth Kalyani & Ors. ....Respondents Present: For Appellant: Mr. Krishnendu Dutta, Sr. Advocate with Mr. Rohan Rajadhyaksha, Dr. Abhimanyu Chopra and Ms. Anshika Misra, Mr. Prabhav Shroff, Mr. Aman Chaudhary, Advocates.
For Mr. Gopal Sankarnaryanan, Sr. Advocate with Ms. Respondent: Pooja Dhar, Ms. Deepika, Mr. Pratul Pratap Singh, Ms. Trisha Chandran Advocates for R-1.
ORDER
15.12.2022: Both the aforesaid appeals were earlier taken up on
14.12.2022 and separate orders were passed. In both the appeals, the Appellants
have prayed for quashing the orders dated 21.10.2022. In Company Appeal (AT)
No. 194 of 2022, order dated 21.10.2022 passed by the NCLT, Mumbai Bench
Comp.Appeal(AT) No. 194 of 2022 Comp.Appeal (AT) No.195 of 2022 2
Court-II (hereinafter referred as to NCLT) was assailed. CP No. 21 of 2016 was
primarily filed under Section 241-242 of the Companies Act, 2013 (hereinafter
referred as to 'the Act') by the Respondent No.1 - Sulochna Neelkanth Kalyani.
Similarly, in Company Appeal (AT) No. 195 of 2022 order dated 21.10.2022 is
assailed. This impugned order was passed in CP No. 63 to 68 of 2016. The
Ld.NCLT while passing different orders, had also appointed an 'Administrator',
suspending the 'Board of Directors' of the Company. Of course, with same
contents, two different orders were passed on the same date but in both the
cases mainly certain reliefs were granted as well as 'Administrator' was
appointed. Appellants in both the appeals are primary aggrieved with those
order.
2. On 04.11.2022 in both the appeals, a prayer was made for staying the
impugned order which was declined by this Tribunal. It was informed by Ld.
Counsel for the parties, the said order i.e. order dated 04.11.2022 was assailed
before the 'Hon'ble Supreme Court' vide 'Civil Appeal No. 8367 of 2022'. However,
'Hon'ble Supreme Court' did not interfere with the impugned order and it was
dismissed as withdrawn by its order dated 12.12.2022.
3. By order dated 04.11.2022 while declining to pass interim order, this
Tribunal had directed issuance of notice to non-appearing Respondent whereas
some of the Respondents had entered appearance on advance notice.
4. The Respondent No.1/Sole Contesting Respondent, who is Applicant
before the Ld. NCLT, has appeared and filed an Interlocutory Application in both
the appeals. In CA(AT) No. 194 of 2022, application vide IA No. 4809 of 2022 has
Comp.Appeal(AT) No. 194 of 2022 Comp.Appeal (AT) No.195 of 2022 3
been filed whereas in CA(AT) No. 195 of 2022, application vide IA No. 4810 of
2022 has been filed. On affidavit, IA No.4809 of 2022 in Company Appeal (AT)
No. 194 of 2022, Respondent No.1 has sought the reliefs which are mentioned
in para 7 of the application. It is appropriate to reproduced the same.
"Set aside the impugned order dated 21.10.2022 by
consent of Respondent No. 1;
Permit Respondent No. 1 to unconditionally withdraw
Company Petition No. 21/ MB/ C11/ 2016; and
Such further and other reliefs as this Tribunal may deem
fit in the circumstances of the case."
5. Similarly in IA No. 4810 of 2022 filed in Company Appeal (AT) No. 195 of
2022 in para 7 following reliefs are sought for:
"Set aside the impugned order dated 21.10.2022 in
Company Petition No.63/MB/C-II/2017, Company
Petition No.64/MB/C-II/2017, Company Petition
No.65/MB/C-II/2017, Company Petition No.66/MB/C-
II/2017, Company Petition No.67/MB/C-II/2017 and
Company Petition No.68/MB/C-II/2017 by consent of
Respondent No.1; and
Such further and other reliefs as this Tribunal may
deem fit in the circumstances of the case."
6. In view of the stand taken by Ld. Counsel for the Respondent No.1/Sole
Contesting Respondent in aforesaid interlocutory application, Ld. Counsel for
Comp.Appeal(AT) No. 194 of 2022 Comp.Appeal (AT) No.195 of 2022 4
the Appellants proposed not to press these appeals. However, Ld. Counsel for
Respondent No.1 requested that while permitting not to press this appeal, this
Tribunal may set aside the impugned order and dispose the same.
7. We are of the opinion that since appeal has been preferred by the
Appellant, in such appeal, the Respondent may not make a prayer for setting
aside order impugned. In such situation, it would be appropriate to allow the Ld
counsel for the Respondent No.1/Sole Contesting Respondent to file appropriate
petition before the NCLT for withdrawal of the main Company Petition i.e. CP No.
21/2016 & CP No. 63 to 68 of 2016.
8. It goes without saying that if such petition is filed before the NCLT, the Ld.
NCLT without any delay may examine the same and pass appropriate order in
accordance with law. It goes without saying that if the main petition i.e. CP No.
21/2016 & CP No. 63 to 68 of 2016 are permitted to be withdraw and withdrawn,
all the subsequent orders, after filing of the main petitions i.e. petitions filed
under Section 241 -242 of the Act, shall stand automatically vacated including
impugned order.
9. While permitting to withdraw the appeal, in view of the stand taken by the
Respondent No.1/Sole Contesting Respondent in two aforesaid interlocutory
applications liberty can be granted to the Appellants that in case, the Respondent
No.1/ Sole Contesting Respondent declines to file such petition before the Ld.
NCLT, the Appellant would be at liberty to file restoration application of the
present appeals.
Comp.Appeal(AT) No. 194 of 2022 Comp.Appeal (AT) No.195 of 2022 5
10. We expect that after filing of petition for withdrawal, the Ld. NCLT may
pass final order preferably within a period of one week from the date of filing.
With above observations and directions, the appeal stands disposed of.
[Justice Rakesh Kumar] Member (Judicial)
[Dr. Ashok Kumar Mishra] Member (Technical) Raushan/Gc
Comp.Appeal(AT) No. 194 of 2022 Comp.Appeal (AT) No.195 of 2022
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