Macquarie Sbi Infrastructure ... vs Soham Renewable Energy India Pvt Ltd & ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 134 of 2020 IN THE MATTER OF: Macquarie SBI Infrastructure Investment Pte Ltd. & Anr. ...Appellants. Versus Soham Renewable Energy India Pvt. Ltd. & Ors. ...Respondents. Present: For Appellant: Mr. Arun Kathpalia and Mr. Krishnendu Dutta, Sr. Advocates with Ms. SaumayKapoor, Mr. Manu Mishra and Ms. Sonam Gupta, Advocates. For Respondent: Mr. Aditya Chatterjee and Mr. NityaKalyani, Advocate for R-1&8 Mr. Udaya Holla, Sr. Advocate with Ms. Neha Mathen, Advocates for R- 2 to 6. Ms. Anuradha Agnihotri, Advocate

With Company Appeal (AT) No. 135 of 2020 IN THE MATTER OF: Macquarie SBI Infrastructure Investment Pte Ltd. & Anr. ...Appellants. Versus K. Sadananda Shetty & Ors. ...Respondents. Present: For Appellant: Mr. ArunKathpalia and Mr. Krishnendu Dutta, Sr. Advocates with Ms. Saumay Kapoor, Mr. Manu Mishra and Ms. Sonam Gupta, Advocates. For Respondent: Mr. Udaya Holla, Sr. Advocate with Ms. Neha Mathen, Advocates for R-1-5. Mr. Aditya Chatterjee and Mr. NityaKalyani, Advocates for R-6-12. Ms. Anuradha Agnihotri, Advocate for R-13.

Company Appeal (AT) Nos. 134 & 135 of 2020 2

ORDER

(12th February, 2021.) Jarat Kumar Jain. J:

The Appellant Macquarie SBI Infrastructure Investment Pvt. Ltd. filed

the Appeal CA(AT) No. 134 of 2020 against the order dated 16.06.2020 passed

by National Company Law Tribunal, (In Brief Tribunal) Bangaluru Bench,

Bangaluru. Whereby seven interim Applications Nos. 179, 180,181, 182, 183,

184 and 189 of 2020 in CP No. 78/BB/2020 filed by the Appellants have been

disposed of summarily. The Appellants have filed another Appeal CA (AT) 135

of 2020 against the order dated 16.06.2020 passed by the Tribunal in CP No.

77/BB/2020 whereby admitted the Petition of K Sadananda Shetty and three

others for final hearing.

2. The Appellants filed Petition under Section 241 & 242 of the Companies

Act, 2013 (in brief 'Act') bearing CP No. 78/BB/2020 inter alia seeking

following reliefs:-

"(i) Challenging the illegal circular resolutions by which the employment agreement of Respondent Nos. 2 to 4 were extended in flagrant violation of affirmative voting rights of the Appellants:

(ii) Seeking directions to nullify any actions taken by Respondent Nos. 2 to 4 pursuant to these illegal appointment/extension of employment agreements:

(iii) Ancillary reliefs seeking appointment of professional management for Respondent No. 1: and

(iv) Interim and ad-interim reliefs."

3. Alongwith the Petition the Appellants also filed the seven Interlocutory

Applications seeking variety of interim reliefs against the Respondents. The

Respondent No. 1 to 5 filed Company Petition No. 77/BB/2020 under Section

241 & 242 of the Act against the Appellants. Both the Petitions were taken up

Company Appeal (AT) Nos. 134 & 135 of 2020 3

for hearing together on 16.06.2020. Learned Tribunal vide impugned order

dated 16.06.2020 disposed of the Appellant's Applications seeking interim

reliefs in CP No. 78/BB/2020. Operating portion of the order is as under:-

"In the normal course, interim applications are maintainable only after question of admission of the main case is over. And separate interim application (s) can be filed later on, if any, new developments takes place in the case and there is any urgency in the matter. Since the case is coming for admission for the first time and the Respondents requested time for filing their Replies to main/interim reliefs sought for, separate applications are not maintainable. Moreover, the pleadings and prayers made in the above applications are more or less covered under the reliefs sought for in the main Company Petition, therefore, we are not inclined to entertain the above IAs separately and thus, to dispose of all the IAs by granting liberty to applicants to seek appropriate interim as asked for in the main petition, on the next date of hearing, after filing Replies by the Respondents"

4. Learned Tribunal vide order dated 16.06.2020 admitted the

Respondent's Petition CP No 77/BB/2020 for final hearing.

5. Being aggrieved with these interim orders, the Appellants have filed

these Appeals.

6. Ld. Senior Counsel for the Appellant submitted that the tribunal has

applied different yardstick while adjudicating the Petitions filed by the parties.

Both the Petitions were listed and taken up together, however, the

Respondent's Petition was admitted for final hearing but the Appellant's

Petition order of admission was deferred when admittedly no plea as to

maintainability was raised by the contesting Respondents. Thus, there is a

discriminatory treatment given to the Appellants. It is also submitted that

there is no provision in the Act, or in the NCLT Rules that interim applications

Company Appeal (AT) Nos. 134 & 135 of 2020 4

are maintainable only after admission of the Petition. It is very strange to

hold that interim applications can be filed only after admission of the Petition.

It is also submitted that the impugned order is self-contradictory and

inconsistent as on one hand the tribunal has disposed of the interlocutory

applications on the ground that separate interim applications can be filed after

question admission of the Petition. At the same time without admitting the

Petition for final hearing, the Tribunal has proceeded to list the matter for

consideration of interim reliefs. The Tribunal has passed the impugned order

without affording the Appellants a reasonable opportunity of being heard and

not appreciating the extraordinary circumstances and urgency for

consideration of the Interlocutory Applications. Thus, the impugned order

passed in CP No. 78/BB/2020 is erroneous and liable to be dismissed and

direction be issued to the Tribunal for considering the applications and to pass

the order on merit.

7. Learned Counsel for the Respondent Nos. 2 to 6 submitted that the

Appellants have failed to make out any prejudice caused to them due to the

impugned order. The prayers set out in the interlocutory applications are

entirely covered by the reliefs sought by the Appellants under the para 44 of

the main petition. The tribunal has listed the matter for consideration of

interim reliefs on 10.07.2020 instead of pursuing their interim prayers before

the Tribunal, the Appellants chose to challenge the impugned order. The

Appellant cannot be permitted to rely on a stray sentence in the impugned

order as a ground for setting aside the impugned order. Thus, the Appeals

are liable to be dismissed.

Company Appeal (AT) Nos. 134 & 135 of 2020 5

8. After hearing Learned Counsel for the parties, we have gone through the

record.

9. There is no procedure prescribed in the Act and Rules that separate

interim applications can be filed only after the question of admission of main

case is over. Ld. Counsel for the Respondents frankly admitted that there is

no provision in the Act or Rules that for interim reliefs separate applications

are not maintainable or such applications can be filed only after admission of

the main Petition. Section 242 (4) of the Act provides that:

"The Tribunal may on the application of any party to the proceedings make any interim order which it thinks fit for regulating the conduct of the company's affairs upon such terms and conditions as appear to it to be just and equitable"

10. In the light of this provision it cannot be said that application for interim

reliefs are not maintainable or such applications can be filed only after

admission of the main Petition or if the interim reliefs claimed in the

interlocutory applications are entirely covered by the reliefs sought in the main

Petition then the applications are not maintainable.

11. It is also an interesting fact that the Respondents have not taken any

objection about the maintainability of the interlocutory applications whereas

they requested time for filing their replies to the main/interim reliefs sought

for.

12. The Tribunal has adopted an unusual procedure and disposed of

interim applications without any legal foundation. It is very strange that on

one hand the Tribunal has disposed of interlocutory applications as not

maintainable before admission of the Petition and on the other hand, without

Company Appeal (AT) Nos. 134 & 135 of 2020 6

admitting the Petition the matter was posted for consideration of interim

reliefs.

13. With the aforesaid, we are of the view that the impugned order is not

inconsonance with the provisions of Act and Rules. Thus, the impugned order

passed in CP No. 78/BB/2020 is set aside and aforesaid IA's are restored to

their original position. The Tribunal is directed to decide the applications after

giving reasonable opportunity to the parties.

14. So far as the impugned order passed by the Tribunal in CP No.

77/BB/2020, we find no flaw in this order. Therefore, no interference is

called for in this order. Thus, the Company Appeal (AT) No. 134 of 2020 is

allowed as aforesaid, whereas, Company Appeal (AT) No. 135 of 2020 is

disposed of.

15. We request the Tribunal to make all endeavour to decide these

applications as early as possible. The Registry is directed to send the copy

of this order forthwith to the concerned Tribunal.

[Justice Jarat Kumar Jain] Member (Judicial)

[Kanthi Narahari] Member (Technical)

New Delhi SC

Company Appeal (AT) Nos. 134 & 135 of 2020