Ivrcl Ltd vs M/S Iot Utkal Energy Services Ltd & ...

(Formerly known as IVRCL Infrastructure & Project Ltd) ... Appellant

Ys

M/s 1OT Uthal Energey Services Ltd & Others » Respondents

Present: S/Shri Sumesh Dhawan, Samiron and Ms Vatsala Kah, Advyoeates for the appellants. Mr. Aditya Dogra, Advocate for the Respondent No.1. Sh Krishnan Venugopal, Senior Advoeate, Mr. Amit Meharia, Advocate and Ms Tannishtha Singh and Ms Ayashi Gupta, Advoeates for the Respondent No.2.

ORDER

29.03.2017- This appeal has been preferred by the appellamt against order dated 20° December, 2016 passed by National Company Law Tribunal, Kolkata Bench

fhereinafter referred as the "Tribunal" for short} in Company Application

No.552/2013 in Company Petition No.4] of 2013 whereby and whereunder the amendment petition filed by the appellant has been partly allowed allowing the appellant to implead Mr. Jatin Jamandas Mavani, nominee director of the LOTL as 10? Respondent to the Comparry Petition.

"

2. The appeal was heard on 16° February, 2017, when this Court passed the

following order:-

st

a

"The Tribunal vide impugned order dated Mi 12.2018 abserved that

the appellantépetitioner fad the knowledge about the Board Meeting held on 31% December, 2012 as also the Extra-ordinary General Meeting (EGAD heid on the same date Le. 31° December, 2082. in view of the fact that the appellant/petitioner had knowledge of the fact but not specifically pleaded the jJacis as ie what transpired in the Meeting on the said date Le. 31.72.2012, refused to allow the appellant to amend the petition though parly allowed the application fo implead Mr. Jatin Jamandas Mavant, the director neaninated by fOTL, as 10° respondent.

According to the appellant what transpired in the Meeting held an 34.42.2012 came te its notice much after the filing of the Company Petition. Immediately an such knowledge. the application for auendment was flled in the vear 20/3. ff is also submitted tat the appellant? wanted to brine the subsequent development and appression and orismanagement to the notice of the Tribunal aut the same was disallowed.

La. Counsel appearing on behalf the P" Respondent refuted the stund taken by the appellant. According to the 2" Respondent, the representative of the appellant, ane Mr. 8. Ramachandran, attended the Roard Meeting held on 32.12.2012 as alsa EGM held on the sane day and consented to the passing of the Resolutions. ff is aise disputed that Mr. 8S. Ramachandran left the Board Meeting due ta confrontation with other members. Accarding to 2 Respondent, such statement was not made in the original petition.

After hearing the Ld. Counsel for the parties when this Court expressed its prima facie view that the proceedings of the Board Meeting held on 31.12.2012 and EGM dated 31.12.2012 should be placed on record, and the Tribunal was required to alicw the appeal to the extent af subsequent development if taken place afer

filling of the Company Petition, Ld Counsel for the parties

requested fo pass an appropriate arder after hearing the parties.

Let natice be issued on the Respondents No.l and 3 to Y by speed poxt, Reguixites with process fee, if not filed, be filed by tomarrow, Notice be also issued through email, if provided. Dasti service ix permitted.

3 Post this matter on 6" March, 2017. The appeal may be disposed of en the next day."

3. Heard Mr. Shri Sumesh Dhawan, Learned Advocate for appellant and Mr. Krishnan Venugopal, Learned Senior Advocate for the Respondants.

4, Having gone through the records and copy of the order, we are of the view that the Tribunal should have allawed the appellant to bring on records the relevant facts related to acts of 'oppression and mismanagement' as was alleged in the company petition.

8. In this regard we may observe that if the facts relate to the peried prior to filing of the company petition, and the appellant had no knowledge af the same and came to know after filing of the company petition then the Tribunal should allow the appellant to bring such facts to the notice of the Tribunal.

b, On the other hand, ifthe act of 'oppression and mismanagement' relates tu earlier period, Including both the Meeting dated 31° December, 2012, and the appellant had knowledge of the same directly or through its representative, the same cannot be allowed to be pleaded.

7. Similarly, if during the pendency of the company petition further acts of 'oppression and mismanagement' taken place and is cammected with the allegations already made, such as consequential action taken by Respondent, , the Tribunal should allow the appellant to bring development to the natice of

the Tribunal.

4,

8. On the other hand, if the subsequent acts of 'oppression and mismanagement' is a fresh cause of action, such plea cannot be raised in the pending company petition, though it is always open to the aggrieved party to move before the NCLT under Section 241 and 242 of the Campanies Act, 2015 by filing a separate petition.

§, The impugned order dated 20.12.2016 stands modified and substituted to the extent above, with liberty to appellant to file additional affidavit in consonance with the observations made above, within 13 days.

10. The Tribunal in fs tarn will take into account the additional facts, Wn is in consonance with the observations made in the preceding paragraphs, otherwise will ignore the other facts by deleting such paragraphs from the additional affidavit.

Ti. We may make it clear, that we have not allowed the appellant to raise any plea with regard to Mr. Ramachandran's presence in the Board's

Meeting/EGM Meeting on 31.12.2016, except to the extent it has already been

pleaded.

12. The parties are directed to cooperate with the Tribunal to enable the

Tribunal to dispose of the company petition expeditiously preferably within one

month, uninfluenced by any observations earlier made by the Tribunal.

iss '

13. The appeal stands disposed off with the aforesaid observations and direction. However, on the facts and ciroumstances of the case, there shall be no

arder as to cost.

(Justice S.J. Mukhopadchaya) Chairperson

(Mr. Balvinder Singh} Member (Technical)

bro