Jak Builders Pvt. Ltd. & Ors vs Na

JAK Builders Pvt. Ltd. & Ors. ...Appellants

Present:

For Appellant : Mr. Sanjeev Kumar Kataria, Advocate

ORDER

24.04.2018 M/s. Jak Builders Private Limited is Transferor Company-1

and M/s. Jaya Infra Private Limited is Transferor Company-2. M/s. Jak Group

Private Limited is the 'Transferee Company'. Both the transferor companies -

M/s. Jak Builders Private Limited and M/s. Jaya Infra Private Limited have its

registered office at Gurgaon (Haryana) on the other hand M/s. Jak Group Private

Limited has its registered office at Nehru Place, New Delhi. As they intended to

get their scheme approved for merger, filed two separate applications both under

Section 230-232 of the Companies Act, 2013, one before the National Company

Law Tribunal, New Delhi Bench (hereinafter referred to as the 'NCLT, New Delhi')

in Case No. CA (CAA)-65(ND)/2017 and another before the National Company

Law Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the

'NCLT, Chandigarh') in Case No. CA(CAA) No. 19/Chd/Hry/2017. Two separate

applications were filed as two of the Transferor Companies have registered office

at Gurgaon, Haryana whereas the Transferee Company has its registered office 2

at New Delhi. The NCLT, New Delhi Bench by impugned order dated

17th November, 2017 dismissed the application as not maintainable in view of

the lack of territorial jurisdiction. Other matter is pending before the NCLT,

Chandigarh.

2. Learned counsel appearing on behalf of the appellants submits that once

the NCLT, New Delhi rejected the application on the ground of lack of territorial

jurisdiction, in such case the other case will also be dismissed by the NCLT,

Chandigarh on the same ground as the 'Transferor' and 'Transferee' Companies

are located in two different places.

3. The appellants have brought to the notice of this Appellate Tribunal the

Notification dated 1st June, 2016 issued by the Central Government in exercise

of the powers conferred under sub-section (1) of Section 419 of the Companies

Act, 2013 whereunder the NCLT, Principal Bench, New Delhi Bench has been

provided with the territorial jurisdiction in regard to State of Haryana, State of

Rajasthan and Union Territory of Delhi. However, by a subsequent Notification

dated 3rd February, 2017, the Notification dated 1st June, 2016 was modified and

territorial jurisdiction of the State of Haryana has now been vested with NCLT,

Chandigarh Bench.

4. The question arises for consideration is as to which Bench of the NCLT,

where an application under Section 230-232 of the Companies Act, 2013 can be

filed if the registered office of two companies are situated within the territorial

jurisdiction of two different NCLT Benches.

5. The Central Government in exercise of the powers conferred by Section

469 of the Companies Act, 2013 frame Rules known as "The National Company

Company Appeal (AT) No. 78 of 2018 3

Law Tribunal Rules, 2016". Rule 16 relates to the power and functions of the

President, NCLT which reads as follows :

"16. Functions of the President.- In addition to the general

powers provided in the Act and in these rules the

President shall exercise the following powers,

namely:-

(a) preside over the consideration of cases by the

Tribunal;

(b) direct the Registry in the performance of its functions;

(c) prepare an annual report on the activities of the

Tribunal;

(d) transfer any case from one Bench to other Bench

when the circumstances so warrant;

(e) to withdraw the work or case from the court of a

member.

(f) perform the functions entrusted to the President under

these rules and such other powers as my be relevant

to carry out his duties as head of the Tribunal while

exercising the general superintendence and control

over the administrative functions of the Members,

Registrar, Secretary and other staff of the Tribunal."

6. From clause (d) of Rule 16, we find that the Hon'ble President of the NCLT

has power to transfer any case from one Bench to other Bench when the

circumstances are so warranted. In view of such provision, we are of the view

Company Appeal (AT) No. 78 of 2018 4

that the cases in hand circumstances warrants that the President exercises his

power under Rule 16(d) to transfer one of the case from one Bench to other Bench

where other matter is pending including the cases where transferor and

transferee companies are at different places of the country.

7. For the reasons aforesaid, we set aside the order dated 17th November, 2017

passed by the NCLT, New Delhi Bench in CA (CAA)-65(ND)/2017 with liberty to

the appellant to file application before the Hon'ble President, NCLT, New Delhi to

transfer one of the case either to Chandigarh Bench or the Bench at New Delhi

for hearing of both the case by one of the Bench. The appeal stands disposed of

with the aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc

Company Appeal (AT) No. 78 of 2018