M/S. Dilawri Motors Pvt. Ltd. And Others vs Shri T.R. Arya

1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) NO.76 OF 2024 (Arising out of judgement and order dated 09.01.2024 passed by the National Company Law Tribunal, Delhi in IA-403/2008 and IA 208/2014 and CP 30/2007) In the matter of: 1. M/s Dilawri Motors Pvt Ltd, C 4/16 5DA, Hauz Khas, South Delhi, New Delhi-110016 Through its Director Mr Ram Dilawari

2. Mr. Ram Dilawri N134A, Panchsheel Park, Presently at 7064 Yonge Street, Thornhill, Ontario, Canada L4J 1V7

3. Mr Swarna Dilawri N134A, Panchsheel Park, New Delhi Presently 7064 Yonge Street Thornhill Ontario, Canada L4J, IV7 Appellants

Vs

Shri T.R. Arya E-76 Greater Kailash Enclave -1 New Delhi 110048 For Appellant:Mr Sunil Fernandes, Sr. Advocate with Mr. Saurabh Balwani, Ms Rajshree Chaudhary, Ms Diksha Dadu, Mr. Manish Aggarwal, Mr Anand Prakash, Mr. Chirag Pathor, Advocates. For Respondent:Mr Vikas Singh, Sr. Advocate with Mrs Nandadevi Deka, Mr. Ritu Raj, Mr. Shashwat Pratyush, Ms J. Talud, Advocates. 2

JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL) The present appeal has been filed by the appellants under Section 421

of the Companies Act, 2013 against the impugned order dated 09.01.2024

passed by the National Company Law Tribunal, New Delhi in Company

Petition No.CP/30/2007 whereby part relief was granted to Respondent No.1

in so far as Form No.32 qua the Respondent was cancelled and the

respondent was reinstated in the position of a Director in appellant company.

2. Vide order dated 7.3.2024 this Tribunal had held "this appeal is against

the impugned order dated 9th January, 2024 whereby the partial relief is

granted to Respondent No.1 in so much so the Form No.32 has been cancelled

and the Respondent No.1 has been reinstated in the position of Director in

appellant Company. It is the submission of the learned senior counsel for the

Appellant the findings recorded in the order are wrong in so much so it had

mentioned the admission on the part of the Appellant to the fact the Respondent

No.1 is a shareholder having 5000 equity shares and/or the appellant has

failed to produce any document or resignation letter of Respondent No.1 to show

he had resigned. The learned Senior counsel for the Appellant refers to Page

No.124 and 126 of the paper book. Page -124 is the transfer of shares and

Page-126 is the resignation letter.

However, the learned counsel for the Respondent No.1, who appears on

advance Notice, refers to the minutes of meeting dated 29.06.2005 mentioned

in para-25 of the impugned order, to say the said minutes does not mention the

fact of resignation of the Respondent No.1. Rather such minutes are on some

other business issues and are duly signed by Respondent No.1 and the 3

Appellant. It is submitted by the Respondent No.1 the documents viz the sale

certificate as well as resignation letter are all forged by the Appellant but

whereas the argument of the Appellant is the minutes of the meeting dated

29.06.2005 as produced by Respondent No.1 are forged. Be that as it may,

the fact as to if the documents showing resignation of Respondent No.1 or the

minutes of the meeting dated 29.06.2005 filed by Respondent No.1 are forged

or not, there is no discussion in the impugned order."

3. Admittedly the appellant had taken a preliminary objection that the

company petition was not maintainable since the Respondent was neither a

director nor a shareholder of the company and had tendered his resignation

from the directorship on 29.06.2005 and that his Form No.32 was filed with

the ROC and factum of his resignation is recorded in the minutes of Meeting

29.06.2005.

4. On these contentions the Ld. NCLT rather noted there is no dispute the

Respondent has 5000 equity shares in his name and in meeting dated

29.06.2005 the Respondent had participated it and signed its minutes book

in the capacity of director of the company and since no document of his

resignation was filed before the Ld. NCLT hence in the absence of such

documents the submissions made by the appellant viz. the petitioner had

resigned from the directorship of the company cannot be adhered to. Further

the Ld. NCLT was of the opinion though the Respondent No.1 had raised

various objections qua the fraudulent acts committed by the appellant but

those cannot be adjudicated by it as it is not empowered to adjudicate such

issues relating to allegations of fraud and forgery. 4

5. Now once the Ld. NCLT had come to a conclusion it could not look into

the allegations of fraud and forgery then how could the Ld. NCLT decides Form

32 and other transfer documents were illegal or were forged by the appellant

herein and how could it direct reinstatement of Respondent No.1 as a

director in the company.

6. Admittedly the issue raised by the appellant viz. the Respondent No.1

had sold his shares on consideration was never looked into by the Ld. NCLT.

The Ld. NCLT rather declared Respondent No.1 to be a director of the

company while holding Form 32 filed with the ROC is illegal but admittedly

there was no discussion upon the documents of sale/purchase of shares

belonging to Respondent No.1 in the impugned order.

7. Though the learned senior counsel for the Respondent No.1 in order to

support the impugned order submitted even otherwise the alleged resignation

tendered by Respondent No.1 was illegal as under Companies Act, 1956 there

existed no provision for resignation of a director under the Act of 1956 and a

director could only be removed by rotation and not otherwise. However, we

find that this argument was never raised before the Ld. NCLT. Further we

find the impugned order is silent upon the legality of resignation tendered by

Respondent No.1 and upon sale/purchase of shares of Respondent No.1.

8. We thus set aside the impugned order as it appears to be incomplete

and hence we remand the matter and direct the Ld. NCLT to decide it afresh

upon giving opportunity to both the sides to file further documents relevant

to the issues involved. The Ld. NCLT is requested to hear arguments 5

expeditiously, preferably within four weeks from filing of such

documents/response thereupon and to decide the same.

9. The appeal is disposed of in above terms.

10. Pending applications are also disposed of.

(Justice Yogesh Khanna) Member (Judicial)

(Mr. Ajai Das Mehrotra) Member (Technical) Dated:25-9-2024

BM