Internex Poly Pvt. Ltd vs Gangotri Infrastructure Pt. Ltd

INTERNEX POLY PVT. LTD. FORMERLY KNOWN AS SHUBHNIL YARNS PVT. LTD.) ... Appellant

Vs.

GANGOTRI INFRASTRUCTURE PVT. LTD. ... Respondent

PRESENT: For Appellant:- Mr. Saurabh Kalia, Mr. Avik Sarkar, Mr. Satyam S. Israni, Adv. For Respondent:- None

ORDER

Per: Justice Rakesh Kumar Jain:

This appeal is directed against the order dated 08.12.2020, passed by

the National Company Law Tribunal, Ahmadabad Bench, Ahmadabad,

Court 2 (in short 'Tribunal') by which, while allowing the application bearing

I.A. No. 219 of 2020 filed in C.P. 46/NCLT/Ahm/2017 (in short 'main

petition') by the Appellant for deleting the names of Respondent No. 4 to 8

and 13 from the array of the Respondents has been saddled with a cost of

Rs. 5,00,000/- to be distributed to Respondent No. 4 to 8 and 13 equally

towards compensation for having suffered in their business and faced

irreparable loss to their name and fame in the society being prejudiced by

the order of stay which continued to operate against them in the main

petition.

2. In brief, the Appellants herein filed CP No. 46 of 2017 before the

Tribunal against the Company 'Gangotri Infrastructure Pvt. Ltd.'

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(Respondent No. 1) and Respondent No. 2 to 13 under Section 241, 242 and

243 of the Companies Act, 2013 (in short 'Act').

3. The first order in the main petition was passed on 10.04.2017 and the

order of stay was passed on 08.05.2017 against Respondent No. 4 to 8 and

13 which continued from time to time and ultimately vacated on 18.12.2019

with the observation that "under such circumstances, when petitioner is

also not pursuing the matter to get it concluded which is filed under Section

241, 242 and 243 and pending since long and more so when Respondent

No. 5 to 8 nowhere related with such transaction, the recourse of which lie

in the Civil Court, hence, the order so passed on 08.05.2017 is hereby

vacated"

4. The order of stay was thus continued against the Respondents from

08.05.2017 till 18.12.2019. There was dispute about the sale of a plot

owned by Respondent No. 1 (Company) which is alleged to have been sold at

a lesser price. The Appellant raised the said dispute in the main petition

filed under Section 241, 242 and 243 of the Act and also challenged the sale

by way of Civil Suit before the Taluka Court at Vapi, therefore, the

Appellants filed an application bearing 219 of 2020 praying therein that the

names of Respondent No. 4 to 8 and 13 from the main petition be deleted

and further prayed that "Para 25. Reliefs Sought, final reliefs: (b) that this

Tribunal be restrained for transferring of the plot no. 224 to Respondent No.

4 to 8 till disposal of the petition and assigned/transferred of plot of land no.

224 to Respondent No. 4 to 8 to be declared as illegal and void ab-initio.

Para 25 Interim Reliefs: 1 a.) 1.Transferring/assigning of the plot no. 224 to

Company Appeal (AT) No. 97 of 2021 3

Respondents No. 4 to 8 till disposal of the petition. 16b) restraining

Respondents No. 4 to 8 for dealing / assigning/ transferring of the plot no.

224 to any person till disposal of the petition. Further status quo to be

maintained".

5. It is pertinent to mention that the main petition was contested by

Respondent No. 4 to 8 and 13 by filing their reply and after two years the

order of stay granted to the Appellant on 08.05.2017 was vacated on

18.12.2019 and the transaction of sale of the plot which was subject matter

of the main petition was brought to challenge by the Appellant before the

Civil Court by way of Civil Suit and since the Appellant could not have

continued parallel proceedings on the same issue/cause of action in two

Courts i.e. before the Tribunal as well as the Civil Court, therefore, an

application bearing 219 of 2020 was filed to delete the names of

Respondent No. 4 to 8 and 13 from the array of parties in the main

petition and also sought deletion of the prayers made against them as the

final reliefs as well as the interim reliefs.

6. The Application filed by the Appellant was allowed by the Tribunal in

the following manner:-

"1. The petitioner is allowed to delete the names of Respondents 4 to 8 and 13 from the array of the party respondents in CP 46 of 2017.

2. It is further directed that after deleting names of Respondents No. 4 to 8 and 13, the Petitioner has to file amended company petition and issue fresh notice to remaining respondents.

3. The petitioner is not allowed to take benefit of any stay order, which passed by this Bench, before any other court proceedings.

Company Appeal (AT) No. 97 of 2021 4

4. Further the petitioner is directed to pay a token amount of Rs. 5,00,000/- to be distributed to respondents 4 to 8 and 13 equally, as they have suffered not only in their business but name and fame in the society, which amounts to irreparable loss."

6. In the present appeal, the grievance of the appellant, recorded in the

order dated 02.09.2021 by this Court, is only confined to the directions

given in the impugned order to the Appellant to pay a token amount of Rs.

5,00,000/- to be distributed to Respondents No. 4 to 8 and 13 equally as

they have suffered not only in their business but name and fame in the

society which amounts to irreparable loss.

7. Counsel for the Appellant has argued that the Tribunal has committed

an error in awarding the amount as cost to Respondent No. 4 to 8 and 13

as Respondent No. 4 to 8 and 13 has rightly been impleaded as

Respondent in the main petition initially but later on the Appellant

challenged the said transaction by way of civil suit and in order to avoid

objection regarding parallel proceedings, their names have been deleted

which does not attract the imposition of cost of Rs. 5,00,000/-.

8. We have heard Counsel for the Appellant and perused the record. The

very fact that the stay granted against the Respondent No. 4 to 8 and 13

continued for two years and was vacated on 18.12.2019 may be with an

observation that Respondent No. 4 to 8 were nowhere related with such

transaction, the recourse of which lie in the civil court and also the fact

that the said order was not challenged rather the civil suit was filed by

the Appellants and thereafter in order to avoid legal complication of

maintaining the main petition on the same cause of action against

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Respondent No. 4 to 8 and 13 against whom the civil suit has also been

filed on the same cause of action, application for deletion of their name and

the prayer made in the main petition would be enough to show that

Respondent No. 4 to 8 and 13 were unnecessary dragged in the litigation

initiated against them in the main petition in which Respondent No. 4 to 8

and 13 had to file their reply, contested the application and the said

proceedings continued for two years till the stay was vacated and the

application bearing 219 of 2020 was filed in the year 2020 is sufficient to

hold that Respondent No. 4 to 8 and 13 had rightly been awarded the

amount of Rs. 5,00,000/- by the Tribunal on account of being unnecessarily

dragged in the main petition in which stay was also operating against them

in respect of the plot in question which is stated to have been purchased by

them lawfully as alleged.

9. Thus, in our considered opinion, there is no error in the approach of

the Tribunal in so far as direction in Para 8(4) granted in the impugned

order, which does not call for any interference by this Court and hence, the

present appeal is hereby dismissed without any order as to costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical) New Delhi 03rd April, 2024

Sheetal

Company Appeal (AT) No. 97 of 2021