Manohar Lal Sarraf And Sons ... vs Himanshu Shekhar

IN THE MATTER OF: Manohar Lal Sarraf & Sons Pvt. Ltd. & Ors. ...Appellants Versus Himanshu Shekhar ...Respondent Present For Appellants : Mr. Arun Kathpalia, Sr. Advocate with Mr. Rishi Sehgal, Mr. Ravi Prakash, Mr. Hardik Bedi, Mr. Vaibhav Malhotra, Mr. Aditya Dhupar, Mr. Kshitij Wadhwa, Advocates. For Respondent : Mr. P. Nagesh, Sr. Advocate with Mr. Rajeev Ahuja, Mr. Akshay Sharma, Mr. Showyeditya, Advocates.

ORDER

05.09.2023: Heard Mr. Arun Kathpalia, Ld. Sr. Counsel assisted by Mr.

Rishi Sehgal, Ld. Counsel on behalf of the Appellant and Mr. P. Nagesh, Ld. Sr.

Counsel assisted by Mr. Rajeev Ahuja, Ld. Counsel who has entered

appearance on advance notice on behalf of the Respondent.

The present appeal under Section 421 of the Companies Act, 2013 has

been preferred against a short order i.e. order dated 11.07.2023 passed by

National Company Law Tribunal, New Delhi, Court-III (herein after referred to

as NCLT) in CP No. 125(ND)/2023. By the said order, Ld. NCLT on the prayer

of the Ld. Counsel for the Applicant has directed that the outcome of EGM

shall be kept in abeyance till further orders. The Ld. NCLT has also noticed

that EGM had already taken place on the date when order was passed at 11.00

AM and in the EGM decision was taken to appoint Statutory Auditor. -2-

It is better to reproduce the impugned order as follows:

"Heard the submissions made by Mr. P. Nagesh, Ld. Sr. Counsel and Mr. Ravi Prakash, Ld. Counsel for the Respondent. It is submitted by the Ld. Counsel appearing for the parties that the EGM for appointment of statutory auditor has been held today at 11.00 am. To meet the ends of justice, we direct that the outcome of the EGM shall be kept in abeyance till further orders.

In the meantime, Respondent is directed to file reply affidavit within a week.

List the matter for arguments on 24.07.2023".

Mr. Kathpalia, Ld. Sr. Counsel for the Appellant has argued that the

order is contrary to the established principle of passing an interim order. He

submits that order doesn't indicate either of the three grounds for passing

interim order i.e. Prima facie case, Balance of convenience and Irreparable loss.

He further submits that of course order reflects that Ld. Counsel for the

Respondent was also heard but order doesn't indicate any of the submission

raised by Ld. Counsel for the Appellant herein before the NCLT.

Mr. Kathpalia, Ld. Sr. Counsel further submits that the main petition

which has been filed under Section 241-242 of the Companies Act, appears to

be not maintainable. However, without discussing anything interim order was

passed.

Company Appeal (AT) No. 156 of 2023 -3-

Without going into the merit of the case, considering the fact that order

impugned reflects that while passing interim order a direction was issued for

filing reply and matter was directed to be listed for arguments, it would not be

appropriate to interfere with the impugned order. However, at the time of

argument Mr. Kathpalia, Ld. Sr. Counsel submitted that though by the

impugned order next date was fixed to 24.07.2023, but on 24.07.2023, hearing

in the matter has been deferred to 06.11.2023. It was submitted by the Ld.

Counsel for the Appellant that if no order is passed in respect of either

maintainability of the main petition or on the question of appointment of

auditor the appellant may suffer irreparable loss. A request was made to set

aside the impugned order.

We are of the opinion that instead of interfering with the impugned order,

the appeal can be disposed of with an observation that if appellant is interested

to raise either issue of maintainability or issue regarding interim relief, the

appellant may file reply. It is up to the appellant to raise question of

maintainability also but it is made clear that if such reply is filed by tomorrow

i.e. 06.09.2023 it is directed that the Ld. NCLT by way of preponing date of

hearing may fix the present matter at the earliest and after hearing both the

parties pass appropriate order in accordance with law on both issues i.e.

maintainability as well as interim relief.

Company Appeal (AT) No. 156 of 2023 -4-

If reply is filed by tomorrow i.e. 06.09.2023, the Respondent who is

Petitioner before the NCLT would be at liberty to file its response/rejoinder

within three days. Thereafter within one week the Ld. NCLT by way of

preponing the date of hearing in the matter fix hearing in the CP No.

125(ND)/2023 and pass appropriate order in accordance with law not beyond

one week thereafter. The NCLT is required to consider the question of

maintainability as well as interim relief.

It goes without saying that this Tribunal has not recorded any opinion on

the merit of the case.

With above observation, the appeal stands disposed of.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/md

Company Appeal (AT) No. 156 of 2023