Lalitkumar Periwal vs Dynamic Microlink Private Limited & Ors
- CitationComp. App. (AT) No. 134 of 2024
Ratio decidendi
The rule this decision rests on
A party impleaded in a company petition who is not sought any relief against, and whose only role is to have prepared a valuation report that the contesting respondents have not denied, is not a necessary or proper party; impleading such a person without any pleaded role against him, and the direction to deposit security for costs as a consequence, do not warrant interference in appeal, the appellate tribunal being satisfied on the pleadings that the impleadment was unnecessary.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Lalitkumar Periwal ....Appellant
Vs.
Dynamic Microlink Pvt. Ltd. & Ors. ....Respondents Present: For Appellant: Mr. Dhiren R Dave, Advocate For Respondents: Ms. Vaibhavi Parikh, Ms. Anushree Kapadia, Mr. M.T. Reddy, Advocates.
ORDER
(Hybrid Mode)
03.05.2024: This appeal is filed against an impugned order dated
22.02.2024 whereby an application of recall of an order dated 11.01.2024 was
dismissed.
2. It is the submission of the Ld. Counsel for the Appellant the Respondent
No. 1 Company was incorporated on 14.12.2005 wherein the Appellant and
Respondent No. 3 were in 50-50 % partnership. It is alleged the Respondent
No. 3 has been continuously doing manipulation of books of account and
siphoning of funds under the guidance and connivance of Respondent No. 6. In
August, 2021 the Respondent No. 3 prepared a Business Separation Agreement
and it was duly executed. It is alleged such agreement was highly loaded in
favour of Respondent No. 3 and it came into effect from 16.08.2021.
CA (AT) No. 134 of 2024 2
3. It is alleged the Respondent No. 7 was a Company Secretary and a
registered valuer who did the valuation of Company's shares but the
Respondent No. 3 and 4 failed to implement not only his report but also failed
on multiple fronts.
4. It is said since the Respondent No. 7 had filed the valuation report; thus
was made a party to the Company Petition before the Ld. NCLT. However vide
order dated 11.01.2024, the Ld. NCLT passed the following order:
CP/29(AHM)2022
It is seen that Respondent No. 7 who is happened to be valuer has given valuation report, has been added one of the Respondent and specifically stated that no relief has been sought. Further, there is nothing on record to suggest that Respondent No. 7 was required to be summoned in this matter for confirmation of the valuation report given as there is nothing on record which reflects that valuation has been denied by contesting Respondents.
At this stage, learned Counsel, Mr. Dhiren Dave interrupt in the order dictation which is not appreciated by this Bench.
It is clear cut abuse of process of law on the part of the petitioner by impleading an unnecessary party in the matter. We direct the petitioner to deposit Rs. 2,00,000/- with the NCLT, Ahmedabad in the shape of FDR and at the time of final adjudication, if it is found that Respondent No. 7 was not necessary party and impleading unnecessarily that FD will be order to be released in favour of the Respondent No. 7".
5. Vide this order the Ld. NCLT had prima facie found the Respondent No. 7
was unnecessarily made a party to the petition, hence directed the petitioner to
deposit an amount of Rs. 2,00,000/- with it in the shape of FDR and at the CA (AT) No. 134 of 2024 3
time of final adjudication if it was to be found that Respondent No.7 was not a
proper and necessary party the said amount shall be released to Respondent
No. 7. Admittedly order dated 11.01.2024 is not challenged before us.
6. In any case, we have asked the Ld. Counsel for the petitioner to show us
as to how the Respondent No. 7 before the Ld. NCLT was a necessary and
proper party to which he has referred to a copy of the Company Petition No. 29
of 2022 wherein in the relief it is noted Respondent No. 3 and 4 therein be
ordered to make payment of consideration of transfer of shares as per the
valuation done by Respondent No. 7 in lieu of the business separation
agreement. In reply of Respondent it was noted the original valuation report
was sent through the WhatsApp clearly show the valuation must be verified by
the statutory auditors, however, the contents of the Company Petition were all
denied. It was alleged in the reply the petitioner had got fabricated such
valuation report.
7. Except the above there is no other pleading qua role of the Respondent
No. 7 except he only had prepared a valuation report. Further admittedly no
relief was claimed against Respondent No. 7 as he was a Proforma Respondent.
Hence, we are of the opinion the Ld. NCLT had rightly observed there was
nothing on record to suggest Respondent No.7 was a necessary and proper
party or was required to be summoned as a Respondent only for confirmation
of his valuation report, when such valuation report in fact was never denied by
the Respondents except it was required to be verified by the Statutory Auditors.
CA (AT) No. 134 of 2024 4
Hence, we are of the considered opinion that orders dated 11.01.2024 and dt.
22.02.2024 does not warrant any interference by this Tribunal. There is no
merit in the appeal and accordingly, it is dismissed. Pending applications are
also disposed of.
[Justice Yogesh Khanna] Member (Judicial)
[Ajai Das Mehrotra] Member (Technical)
sr/md
CA (AT) No. 134 of 2024
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