Indo Mikasa Green Lighting Private ... vs M/S. Indo Mikasa Green Lighting Private ...

MR. ARUN PRAKASH SIVAGURUNATHAN, S/o. Arunachalam Sivagurunathan, First Director & Chief Executive Officer (up to 10/09/2014) of: M/s.INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: C-5, Nelson Chambers, 115, Nelson Manickam Road, Aminjikari, Chennai-600 029. ...RESPONDENT NO. 2

MR. GIRIDHARAN CHIDAMBARAM, S/o. Mr. Chidambaram, First Director of: M/s. INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: 91-A, Harvey Nagar, 3rd Street, Madurai-625 016. ...RESPONDENT NO. 3

MR. DEVARAJ SIDDIAH PERANAIDU, S/o.Siddiah,

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 1 of 17 Director (from 10/09/2014) of: M/s.INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: 94-A, Sabapathi Street, K.K.Pudur, Coimbatore-641 038. ...RESPONDENT NO. 4

M/S. R. DHARMASHANKARA IYER & CO. Charted Accountants, #188 Main Road, Perumalpuram, Tirunelveli-627 007 ...RESPONDENT NO. 5

WITH Company Appeal (AT) (CH) No. 84/2025 IA No. 807/2025

In the matter of:

MR. G. SENTHIL RAJ S/o.Thiruma Gounder Ganesan, First Director of: M/s. INDO MIKASA GREEN LIGHTING PVT.LTD. No.27, Nathan Nagar, Subramaniapuram, R.S Puram, Coimbatore -641 002 ... APPELLANT V M/s. INDO MIKASA GREEN LIGHTING PVT.LTD., A Company incorporated under The Companies Act, 1956 Having its Registered Office at: 16, R.M.S Apartments, Old No. 23, New No. 12, Gopalakrishnan Street, T.Nagar, Chennai-600 017. ...RESPONDENT NO. 1

MR. ARUN PRAKASH SIVAGURUNATHAN, S/o. Arunachalam Sivagurunathan, First Director & Chief Executive Officer (up to 10/09/2014) of: M/s.INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: C-5, Nelson Chambers, 115, Nelson Manickam Road, Aminjikari, Chennai-600 029. ...RESPONDENT NO. 2

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 2 of 17 MR. GIRIDHARAN CHIDAMBARAM, S/o. Mr. Chidambaram, First Director of: M/s. INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: 91-A, Harvey Nagar, 3rd Street, Madurai-625 016. ...RESPONDENT NO. 3

MR. DEVARAJ SIDDIAH PERANAIDU, S/o.Siddiah, Director (from 10/09/2014) of: M/s.INDO MIKASA GREEN LIGHTING PVT.LTD., Residing at: 94-A, Sabapathi Street, K.K.Pudur, Coimbatore-641 038. ...RESPONDENT NO. 4

M/S. R. DHARMASHANKARA IYER & CO. Charted Accountants, #188 Main Road, Perumalpuram, Tirunelveli-627 007 ...RESPONDENT NO. 5 Present : For Appellant : Mr. P.V Bala Subramaniam, Senior Advocate For Ms. Rohini Ravikumar, Advocate JUDGMENT

(Hybrid Mode) [Per: Justice Sharad Kumar Sharma, Member (Judicial)] Since both these two company appeals are interconnected, are based upon

a common question of fact, hence they are being taken up together, for

consideration.

2. The facts, which would be common in both these company appeals are that

the 1st Respondent company, M/s. Indo Mikasa Green Lighting Private Limited

stood incorporated in the said capacity on 09.08.2011, and since then was

engaged in manufacturing selling, importing and exporting of LED lights, electric

lights, other light fittings and electric appliances. In accordance with the Articles

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 3 of 17 of Association of the 1st Respondent Company at the stage of incorporation of the

company, there were three Directors, namely Mr. G. Senthil Raj, (Appellant), Mr.

Arun Prakash Sivagurunathan (Respondent No. 2), and Mr. Giridharan

Chidambaram, (Respondent No. 3) herein. Subsequently, an Additional Director

was also introduced, namely, Mr. Devaraj Siddiah Peranaidu, i.e., Respondent

No. 4 herein.

3. There are various factual aspects, which are required to be referred to, but

for the purposes of the instant company appeal, as it is limited to consideration of

the aspect of limitation, in IA/1241/2019 and its applicability on the application

in IA/1241/2019 to set aside the order of withdrawal of the company petition

CP/69/2014 and to re-open it we are not intrinsically dealing with the factual

aspects as engaged consideration, in the proceeding, which was held before the

Ld. NCLT, Chennai, by way of CP No. 69/2014 in TCP/151/2016, Mr. G. Senthil

Raj Vs. M/s. Indo Mikasa Green Lighting Private Limited and 4 Others.

4. The backdrop of the company petition CP No. 69/2014 is that on

11.04.2012, Respondent No. 1 Company availed a cash credit loan of Rs. 75

Lakhs from Tamil Nadu Mercantile Bank for which the Appellant herein

mortgaged his ancestral agricultural property at Olaipatti Village, Salem District,

by reporting title deeds other Directors gave personal guarantee. The cash credit

facility, was increased to Rs. 1 crore with effect from 28.03.2014, for which the

mortgage was extended. The Appellant herein was said to have involved in other

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 4 of 17 business activities, and the affairs of Respondent No. 1 being managed by

Respondent No. 2 & 3. In 2014, on receipt of complaints of mismanagement by

Respondent No. 2 & 3, the Appellant got an internal audit of the company done

and when Respondent No. 2 & 3 did not cooperate, he filed a company petition

CP/69/2014 for Oppression and mismanagement against Respondent No. 2 & 3.

5. Later in 2015, intending to settle the matter amicably, he filed CA No.

1/2015 in the said company petition on 12.10.2015, proposing that either he takes

over the company or, Respondent No. 2 & 3 take over the company by buying

out rival shares. Initially, Respondent No. 2 & 3 were not agreeable to the

compromise proposal, extended by the Petitioner/Appellant herein in CA No.

1/2015. During the pendency of the said application, the accounts of the company

was declared NPA by Tamil Nadu Mercantile Bank and proceedings were

initiated under Section 13(2) of SARFAESI Act, 2002, and auction notice was

issued on the property of the Appellant on 15.04.2017. Subsequently, during the

proceedings on 28.09.2017, Respondent No. 2 & 3 intimated their willingness for

a settlement by submitting signed SH 4 Forms & the documentation containing

resignation of Respondent No. 2 & 3 which led to withdrawal of CP/69/2014 and

to passing of the order of Ld. Tribunal dated 28.09.2017 that "the prayer is

allowed and the petition is dismissed as withdrawn".

6. The Appellant contends that, when the proceedings of the company

petition were being carried on 28.09.2017, he could not make himself available

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 5 of 17 personally before the Tribunal even though he used to be present during earlier

hearing dates and accordingly he has instructed his Company Secretary to

participate in the proceedings on his behalf and to carry on the same as his

representing agent, and that he had instructed the Company Secretary not to agree

with the proposal of settlement as it has been submitted in the company petition,

before the Ld. NCLT.

7. The Appellant contends that, despite there being, specific instructions

imparted by him, to the Company Secretary for not to accept the terms of the

compromise which was taken as to be the basis for withdrawal of the company

petition, the Company Secretary acceded to the terms of settlement and misled

the Tribunal, resulting into passing of an order on 28.09.2017, leading to

dismissal of the company petition CP/69/2014. The gist of the said order is

extracted hereunder: -

"Mr. Gopi Narayanan Yadav, Representative for the Petitioner present. Counsel for R2 and R3 present and submitted that Forms No.SH4, in original, which are in blank and having signatures of R2 and R3 and attached the resignation of R3 are kept in the safe custody of the Registry may be handed over to the representative of the Petitioner. Based on this the representative of the Petitioner prayed for withdrawal of the petition. Therefore, he is directed to take the said documents from the Registry against proper receipt and to file the same before the ROC concerned within stipulated time as prescribed. Accordingly, the prayer is allowed and the petition is dismissed as withdrawn."

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 6 of 17

8. The present controversy, emerges from this stage, which is that when the

company petition was dismissed as withdrawn on 28.09.2017, it was much

thereafter, on expiry of 594 days, that an application being IA/1242/2019 was

filed under Rule 11 to be read with Rule 32 of the NCLT Rules of 2016, seeking

recall of the order of dismissal of the company petition as having been dismissed

as withdrawn by an order of 28.09.2017, along with an application being

IA/1241/2019 praying for condonation of delay of 594 days in the filing the said

application.

9. Primarily, the ground which has been taken by the Appellant in the

application thus preferred, by him for seeking recall of the order dated

28.09.2017, was that he did not impart any such instructions for acceding to the

terms of settlement, which has been taken as to be the basis for withdrawing of

the company petition, and further that the withdrawal of the company petition

was as an outcome of a malicious act on part of the Company Secretary as the

dismissal of the company petition as withdrawn on 28.09.2017, was a fact, that

was never informed to the Appellant, nor he was informed as to what was the

outcome of the proceedings, that was held on 28.09.2017. It is contended by the

Appellant that, he did receive the information about the dismissal of the company

petition as withdrawn by virtue of an email communication given by the

Company Secretary on 08.10.2017, which was accompanied by the copy of the

final order. From this, it is clear that the Appellant admits the fact that he did get

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 7 of 17 the knowledge of the order dated 28.09.2017, by the email communication of

08.10.2017, about the company petition being withdrawn, but no immediate

action appears to have been taken by him thereafter at his behest even after the

knowledge on 08.10.2017.

10. He submits that, since there was already standing instructions to the

Company Secretary for not to withdraw the company petition, based upon the

terms of any settlement, when the Appellant received the information of the

company petition being dismissed as withdrawn on 08.10.2017, he asked the

Company Secretary to file an application for recall of the order dated 28.09.2017

and to file an application for reopening of the proceedings of the company

petition. It is contended by the Appellant that, the Company Secretary, who was

then acting as an agent on his behalf, refused to move any such application for

recall of the order dated 28.09.2017, by virtue of his communication, which was

alleged to have been made on 03.05.2019.

11. It is the gap between 08.10.2017 until 03.05.2019, when there was an actual

refusal of the Company Secretary to file a recall application as alleged by the

Appellant, which is sought to be condoned by the Appellant while filing the

application for recall that is, IA No. 1242/2019, which was supported with a

Condone Delay Application that is, IA No. 1241/2019. He submits that, he made

several phone calls to the Company Secretary and issued a letter on 13.06.2018

to him requesting to re-open the company petition, but there was an express

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 8 of 17 reluctance and tacit denial shown on the part of the Company Secretary for filing

of any application for reopening the company petition, that after several follow

up messages and issue of detailed letters on 30.01.2019 and 30.04.2019, the

Company Secretary finally gave in writing on 03.05.2019, his refusal to file an

application for recall supported with Condone Delay Application, and that, this

contributed to the delay in filing the recall application IA/1242/2019.

12. It may be kept in mind that, the Company Secretary who was admittedly

engaged by the Appellant to represent his cause in the proceedings of the

Company Petition No. 69/2014, at that time, he was acting as his agent on behalf

of the Appellant, and in that case, as per settled principles of law the Appellant

herein, would be bound by all acts and actions taken by his agent, the Company

Secretary on his behalf, when he was representing his cause in judicial

proceedings as a professional in the Company Petition No. 69/2014 and at a later

stage it will not be left open for the Appellant to contend that, he would be not

bound by the act of an agent, whom he has engaged, to represent his cause in the

company petition.

13. Besides this, the theory which has been developed and argued by the

Appellant, that after he had received the email communication on 08.10.2017, he

kept on waiting for a positive reaction from the Company Secretary, to accede to

his request to file an application for recall, is absolutely an untenable proposition,

which cannot be accepted by this Tribunal, because it is unbelievable that ever

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 9 of 17 since 08.10.2017 till 03.05.2019, that is, for a period of approximately one and a

half years the Appellant will continue to wait for the response of the Company

Secretary to file a recall application knowing fully well the fact that, the aspect

of limitation will always run against him, if he intended to seek recall of the order

dated 28.09.2017. Thus, knowledge of the order and inaction on his parts is

apparent from the facts on record. The courts / tribunal is not meant for those who

sleep over their rights.

14. The records, which have been placed before this Tribunal, (except for the

application for Condonation of Delay, that is IA No. 1241/2019 and the recall

application that is IA No. 1242/2019), which would have been the relevant

document to be placed on record so as to enable this Tribunal to determine the

reasons, which has been assigned by the appellant in filing of the application. The

Ld. Tribunal, while considering the propriety of the Condone Delay Application

has observed that, though the order of withdrawal of the company petition was of

28.09.2017, and was passed in the presence of the Petitioner/Appellant's

representative, who according to him was admittedly an authorized person as per

Section 432 of the Companies Act to be read with Rule 119 of the NCLT Rules,

2016, the recall application has been filed with 594 days of delay and the only

explanation which has been offered by the Appellant is that he was not informed

by the Company Secretary of the fact of withdrawal the petition, is contrary to

the records.

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 10 of 17

15. In support of his contention, qua the application for recall, the Appellant

has argued it from two perspectives, that is, as follows:

(i) The petition, that has been preferred under Section 241 of the

Companies Act, 2013, cannot be withdrawn except with the leave

of the Tribunal as contemplated under Rule 82 (2) of the NCLT

Rules, 2016, which mandates that the withdrawal application has to

be filed in Form 9.

(ii) Since the proceedings under Section 397 of the Companies Act,

1956, are not private disputes confined to between few individuals

and as they engage consideration of public interest at large, the same

cannot be permitted to be withdrawn without ensuring the

compliance of the provisions contained under Rule 82(2), NCLT

Rules, 2016.

16. In order to meet out the said parameters, as attempted to be argued by the

Appellant, the Ld. Tribunal took into consideration the previous proceedings, in

CP/69/2014 which had been drawn at the behest of the Appellant himself and

observed that, for the purposes of concluding the final hearing of the matter, ever

since 16.12.2016 till 28.09.2017, there were as many as nine hearings that were

held, and during this process, the mode of transfer of shares and release of the

Personal Guarantees was considered where the petitioner/and his Company

Secretary, were present and in that eventuality, it was no more open for the

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 11 of 17 Petitioner, to allege that, the final order was passed without his knowledge, or

without any instructions to his Company Secretary, and that too, without

compliance of the provisions contained under Rule 82 (2) of the NCLT Rules,

2016.

17. There is nothing on record, to show that the authorization, which was

executed in favor of the Company Secretary, as per Section 432 of the Companies

Act, 2013, to be read with Rule 119 of the NCLT Rules, 2016, was ever

withdrawn. Since, the authority, which was being vested with the Company

Secretary, was valid and subsisting, and was to carry out all acts and actions in

the procedures of the company petition at the behest and on behalf of the

Appellant, the Appellant at the stage of passing of the order dated 28.09.2017

cannot submit that, there was non-compliance of Rule 82 of the NCLT Rules,

2016, as argued by the Appellant, owing to the fact that, there was substantial

compliance, because his rights and interests were being protected on the basis of

the instructions, which was imparted by him to the Company Secretary, which

included the instructions to withdraw the petition on his behalf and that too, after

his active participation in nine hearings which was conducted by the Tribunal

prior to the passing of the order dated 28.09.2017.

18. The Tribunal, while considering the Condone Delay Application has

observed that, in fact, the logic, which has been given in the application, IA No.

1241/2019, seeking Condonation of Delay, was not justifiable, because,

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 12 of 17 knowledge of the order 28.09.2017, is a fact which stands admitted, and imparting

of the authority to represent under Section 432 of the Companies Act, 2013, to

the Company Secretary, is yet again a fact admitted. It is not the case of the

Appellant that on the date of passing of the order of withdrawing the company

petition, i.e., on 28.09.2017, the authority of the Company Secretary was

withdrawn. It is also not the case of the Appellant that after passing of the order

dated 28.09.2017, the information of passing of the order was not intimated by

the Company Secretary which is apparent by issuance of the email that was sent

by the Company Secretary on 08.10.2017, that is, within 10 days of the passing

of the order.

19. In these eventualities, the Tribunal has rightly observed in the impugned

order, that when the Appellant got the knowledge, of withdrawal of the company

petition upon issuance of the email communication by the Company Secretary on

08.10.2017, and he kept silent for about two years, prior to filing of the

application for the recall of the said order, the delay was indeed inordinate and

unexplained, and the Tribunal has rightly rejected the Condone Delay

Application. The consequential effect of the rejection of the Condone Delay

Application, would be that the application for recall would automatically stand

dismissed.

20. The controversy could be looked into from yet another perspective, that the

application for Condonation of Delay, and recall is said to have been preferred

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 13 of 17 under Rule 11 and Rule 32 of the NCLT Rules, 2016. If the language of the

aforesaid two provisions are taken into consideration, it does not specifically

contemplate filing of an application for recall of an order which is in the shape of

a review, which has been solicited by the Appellant himself through his

representative, because that will be treated as to be an order that was passed on

merits in the presence of the Appellant, though he might have been represented

by the representative whose authority was still persisting and was not withdrawn

on the date when the order was passed.

21. The Appellant has given a wrongful interpretation to the provisions

contained under Rule 11 of NCLT Rules, 2016, pertaining to the exercise of the

deeming provision, which is vested with the Tribunal, for the exercise of inherent

powers of the Tribunal to make an order, which may be necessary to meet the

ends of justice. The deeming clause for the exercise of inherent powers by the

Tribunal, will not be open to be made applicable in those circumstances, where

the order has been passed on an act conducted by the Company Secretary on

behalf of the Appellant while representing the cause of the Appellant, by

voluntarily seeking to get the company petition dismissed as withdrawn. Inherent

power comes into play when there is a vacuum under law. But under the given

set of circumstances, there did not persist any vacuum as such, for the reason that

it was an admitted action which was solicited and performed by the Appellant

himself by filing an application for seeking the company petition be dismissed as

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 14 of 17 withdrawn. These circumstances are not the circumstances under which a

direction could have been issued for recalling of the order or for condonation of

delay as contemplated under Rule 32 and that too, when the condonation of delay,

in the instant circumstances is an aspect which does not bona fide satisfy the

condition, that the delay was unintentional, because the fact reveals that the

knowledge of the order sought to be recalled was attributed to the Appellant, as

back as on 08.10.2017. And after that, he sat over for about two years, allegedly

awaiting the action to be taken by the Company Secretary for filing the recall

application. If the Appellant was so keen on filing the Recall application, nothing

in law precluded the Appellant himself from filing an application for recall of the

order dated 28.09.2017, in face of alleged inaction on part of his agent, the

Company Secretary subject to the condition that it was tenable in accordance with

law.

22. There could be yet another aspect, which could be taken into consideration,

while testing the impugned order on the parameters, which has been argued by

the Appellant, admittedly from the contents of the order dated 28.09.2017. It

apparently seems to be an order, which has been solicited by the Appellant

himself through his authorised representative and therefore it will amount to be a

consenting order. If the order was a consenting order, it cannot be recalled even

by way of filing of an application under Rule 11 of NCLT Rules, 2016, by

invoking the inherent powers of the Tribunal, because exercise of inherent powers

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 15 of 17 could have been where the order was passed without a positive act or knowledge

being taken from the Appellant for getting the company petition dismissed as

withdrawn. In that eventuality, the recall cannot be utilized as a weapon to

virtually solicit a review of an order dated 28.09.2017, which the Appellant

himself had sought for, that is, to get the company petition dismissed as

withdrawn.

23. Since, the law does not call for any review, which is not statutorily

provided, of an order, which has been an order solicited by consent, invocation

of the provisions contained under Rule 11 for exercise of inherent powers for

filing of a recall application would be absolutely an abuse of process as provisions

contained under Rule 11 cannot be utilized to overcome the embargo created by

law, where a review is not permissible, and to utilize the recall application in the

shape of a review of the order and that too, particularly, when the prior condition

of explaining the delay was not satisfactorily done by the Appellant, and once the

aspect of delay itself was not satisfactorily explained and when it was established

to be based upon a hypothetical anticipation of the Appellant, believing upon the

act of the Company Secretary, in that eventuality, the Appellant has to blame

himself for his inaction, and that cannot be taken as to be a pretext for condonation

of delay. And that too, a long delay of 594 days of filing a recall application,

almost after a lapse of about two years.

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 16 of 17

24. Besides this there is nothing on record nor the case of the Appellant too

that he has drawn any proceedings on disciplinary side for misconduct of the

Company Secretary, to be taken by the registering body of the Company

Secretary, representing him in the company petition.

25. Thus, the Condone Delay Application, which has been rejected by the

Tribunal by the impugned order, does not suffer from any apparent error, which

would call for any interference by this Appellate Tribunal, in the exercise of its

Appellate Jurisdiction under Section 421 of the Companies Act, 2013.

26. Having said so, since the application for Condonation of Delay has been

rejected owing to the reasons which has been assigned in the above paragraphs,

Company Appeal (AT) (CH) No. 84/2025 would stand 'dismissed', its

consequential effect would be, that with the rejection of the Condone Delay

Application, the recall application too would automatically stand dismissed.

Accordingly, the connected company appeal, the Company Appeal (AT) (CH)

No. 50/2025 would too stand 'rejected'.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical)

18/08/2025 SN/MS/RS

Company Appeal (AT) (CH) No. 50 & 84/2025 Page 17 of 17