Hydraulics & Pneumatics India Llp vs Anirudh Kumar
- CitationCompany Appeal (AT) No.111 of 2025
Ratio decidendi
The rule this decision rests on
The NCLT's earlier order declining waiver of the one-fifth threshold under Section 43 of the LLP Act, 2008, is not directly disturbed here; the present order turns on the following principle. Where this Tribunal, in an earlier appeal, has left open to the Adjudicating Authority the power to act suo motu under Section 43(1)(a) of the LLP Act, 2008 on a fresh petition, the Adjudicating Authority must, before issuing notice on such a petition, examine whether the facts disclosed in it are such as to warrant exercise of that suo motu power; an order issuing notice without indicating that this examination was carried out cannot stand, and is set aside with a direction to undertake the examination expeditiously.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal (AT) No.111 of 2025 In the matter of Hydraulics & Pneumatics (India) LLP Appellant Vs Anirudh Kumar & Ors Respondent For Appellant: Mr. Arun Kathpalia, Sr Advocate, Mr Krishnendu Datta, Sr Advocate, Mr Kunal Vajani, Mr Kunal Mimani, Mr Shubnhang Tandon, Advocates. For Respondent: Mr. Rakesh Tiku, Sr. Advocate, Mr. Abhinav Bajaj, Mr Saksham Ojha, Ms Geetashi Chandra, Advocates. . ORDER
HYBRID MODE 22.05.2025: This appeal is filed by the appellant against an impugned order
dated 16.04.2025 passed by the Ld. NCLT in CP-63/43(A)/ND/2025 wherein a
Company Petition filed under Section 43(A) of the LLP Act, 2008 stood admitted
and the notices were issued vide the impugned order with direction to file reply
within one week.
2. It is the submission of the learned counsel for the appellant that earlier
also a similar petition was filed by the Respondent wherein vide order dated
26.07.2024 in CP No.53/45QA/ND/2022 the Ld NCLT noted as under:-
"10. On perusal of Section 43 of the LLP Act, it is evident that a petition thereunder can be filed only by not less than one fifth of the total number of partners of the LLP. At the outset, it is pertinent to note that as per the Supplementary LLP Agreement dated 23.07.2015 annexed to the Petition (pg 50 pg51), 2
Respondent LLP has 7 (seven) partners/members. Respondent Nos. 2 to 7 are the other 6 (six) members of Respondent LLP. However, the Petition in question has been filed by only 1`(one) out of 7 (seven) members of Respondent LLP.
11. The applicant has filed the application under Rule 11 of the NCLT Rules read with the proviso to Section 241 of the Companies Act. 2013 seeking waiver of the condition prescribed under Section 43 of the LLP Act as there is no specific provision for waiver in the LLP Act.
12. In the absence of any specific provision for waiver in the LLP Act, it is not permissible under law to rely upon Companies Act to seek waiver. We cannot import the provisions of another statue while dealing with a petition under the LLP Act. Any reliance on the provisions of the proviso to Section 241 of the Companies Act would amount to rewriting the statue.
3. The said order was brought in appeal before us in Company Appeal (AT)
No.8/2025 and this Tribunal on 10.02.2025 passed the following order:-
"8.Nevertheless to the limited effect viz eligibility criteria the impugned order does not require any interference but admittedly it does not discuss if the company petition contains such information as to enable the Tribunal to take a suo moto action per section 43(1)(a) of LLP Act. Thus with consent we dispose of this appeal by maintaining the impugned order but in case a petition is filed in future before the Ld. NCLT, the Ld. NCLT may examine as to if the facts exist to exercise its suo moto power by examining its contents thereof and the impugned order shall not come in the way.
4. The order dated 10.02.2025 of this Tribunal was carried in appeal before
the Hon'ble Supreme Court vide SLP No.10989/2025 and it was disposed off
vide order dated 28.04.2025 as under:-
"Upon hearing the counsel the Court made the following ORDER We dispose of this Special Leave Petition by stating that the observations made in the impugned order are not final.
3 Hence, all contentions are left open to be advanced before National Company Law Appellate Tribunal (NCLAT, for short) in case a second application has been filed before the NCLT by the first respondent.
Pending application(s), if any, shall stand disposed."
5. The learned senior counsel for the appellant submits the impugned order
passed now by the Ld. NCLT is in teeth of our earlier order dated 10.02.2025.
6. In our order dated 10.02.2025 we have noted in case a petition is filed
in future before the Ld. NCLT, the Ld. NCLT may examine as to if the facts
exist to exercise its suo moto power by examining its contents thereof and
the impugned order shall not come in the way. The impugned order does not
indicate as to if the such exercise has been carried out by the Ld. NCLT before
issuing notice per impugned order.
7. Thus in view of the above we set aside the impugned order dated
16.04.2025 with a request to Ld. NCLT to examine, as expeditiously as possible,
if facts so exist to exercise such suo moto power.
8. The appeal is disposed off in terms of the above.
9. Pending applications, if any, are also disposed of.
(Justice Yogesh Khanna) Member (Judicial)
(Mr. Ajai Das Mehrotra) Member (Technical) Bm/md
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