Nareshkumar Mangeram Mittal vs Blue Orange Developers Private Limited ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022

IN THE MATTER OF: Nareshkumar Mangeram Mittal ...Appellants Versus

Bllue Orange Developers Pvt. Ltd. & Ors. ...Respondents Present:

For Appellant : Mr. Dhiren Dave, Advocate For Respondents :

ORDER

22.11.2022: Heard Mr. Dhiren Dave, Ld. Counsel for the Appellant.

2. The present appeal has been preferred under Section 421 of the

Companies Act, 2013 (hereinafter referred as to 'Act') against an order dated

05.07.2022 passed by 'National Company Law Tribunal, Ahmadabad Bench

(hereinafter referred as to 'NCLT') in CA/50(AHM) 2021 in TP 99-A/2016 (CA 153

of 2015) whereby the Ld. NCLT has rejected the Application filed by the Appellant

for impleadment.

3. TP 99-A/2016 was filed for allowing the Appellant to implead proposed

Respondent No.5 whereas CA/50(AHM) 2021 was filed for impleading proposed

Respondent No.6. In the present memo of Appeal, the Appellant has sought for

the following reliefs:

a. Admit the present appeal

Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022 1 b. Set aside the impugned order dated 05.07.2022 passed by NCLT in Comp.

Appl/50(AHM)2021 in TP 99-A/2016 (CA153 of 2015) with TP 99 of 2016

and join proposed R-5 and proposed R-6 as parties to the petition etc.

4. Ld. Counsel for the Appellant submits that the Appellant was one of the

'Director' of the Company i.e Respondent no.1. However, he was removed

incorrectly on 03.12.2013, without notice to the Appellant and thereafter, in the

month of November, 2014, intimation of removal was filed with the 'Registrar of

Companies'. Thereafter, the Appellant filed an application under Section 241- 242 of the Act which was numbered as CP 48 of 2015. It has been alleged that

the Company in question in connivance with other Directors, transferred some

of the land to proposed R-5. The said transfer had taken place on 23.05.2015.

At belated stage, proposed R-5 transferred the said land to proposed R-6. It was

argued that in Company Petition, by order dated 16.07.2015, the Company Law

Board had passed an order for maintaining 'status quo'. Despite interim order,

the land in question was got transferred and this was the reason that the

Appellant has filed petition for allowing the appellant to implead both first

transferee and second transferee as Respondents in the company petition.

However, same has been incorrectly rejected by the Ld. NCLT.

5. He further submits that even in para 11 of the impugned order, there is

error of record, since date has incorrectly been mentioned as 2017. On aforesaid

ground, it has been prayed for quashing of the impugned order and passing

Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022 2 interim order in favour of the Appellant. It would be better to reproduce the para

11 of the impugned order as follows:

"11. On this backdrop, it appears to us that the Petitioner, having lost

in Civil Court way back in the year 2017, has come out with this

application. It is seen from the material on record that proposed R-5

had purchased the assets of R-1 company prior to filing of main

company petition. Before purchasing the assets, a notice was

published calling upon the objections. It appears to us that the

proposed R-5 may be a bona fide purchaser of the assets. He cannot

be dragged into this litigation at this stage, more particularly, when

the issue that "whether the proposed Respondent No.5 is a bona fide

purchaser of the assets? Is still pending before the Civil Court"

6. Ld. Counsel for the Appellant has also referred to para 10 of the impugned

order. it would also be appropriate to reproduce the para 10 of the impugned

order, as follows:

"10. It is not in dispute that the sale deed was executed on 22.05.2015

a month prior to the main company petition which was brought before

the then Company Law Board (CLB) for the first time on 10.06.2015.

The Petitioners herein had filed the Special Civil Suit No. 47 of 2016 for

an injunction restraining respondent No.1 to 3 herein from alienating

the assets of the company. That suit was filed on 28.01.2016. The

proposed respondent No.5 was brought on record as party-defendant

Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022 3 in that suit. The prayer in that suit was also amended in the following

words:

"....On date 21.05.2015, the sale deed executed between

defendant no.1 to 4/2 bearing no. SRT/1/ATV no.8949 is

required to be cancelled because, the said sale deed is not

lawful wherein no signature and consent of the plaintiff is

given. This sale deed is done with an only malafide intention

to snatch valuable rights of the plaintiff and for which the

defendants have no legal right to do so and therefore the

same is required to be cancelled..."

In that suit, the petitioner had filed another application for an interim

injunction which was rejected by the learned Civil Court vide order

dated 27.02.2017. In that order, the learned Civil Judge observed that

the plaintiff (petitioner herein) has no prima-facie case. This finding is

obviously relating to the petitioner's claim that he sale deed is void.

That order is carried in appeal. Now, that appeal is pending before the

Hon'ble Gujarat High court. The Hon'ble Gujarat High Court did not

stay above findings of the learned Civil Judge."

7. At the time of hearing, we have minutely perused the impugned order and

after going through the same it is evident that the Appellant for cancellation of

the sale deed, which was firstly executed in favour of proposed Respondent No.5,

the Appellant had filed a 'suit' and prayed for cancellation of the sale deed. In

the said suit, interim relief was sought for which was rejected. Thereafter, the

Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022 4 Appellant filed an appeal before the Hon'ble Gujarat High Court. However, the

Hon'ble Gujarat High Court also did not grant any interim relief and the said

appeal is still pending before the Hon'ble Gujarat High Court. However, at the

time of hearing, ld. Counsel for the Appellate has informed this Tribunal that he

has already withdrawn the said appeal which was pending before the Hon'ble

Gujarat High Court.

8. Considering the fact that regarding cancellation of the sale deed suit is still

pending before the 'Court of Competent Jurisdiction', we do not find any error in

the impugned order.

The appeal stands dismissed. No order as to costs.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Ashok Kumar Mishra] Member (Technical)

Raushan/gc

Comp. App. (AT) No. 190 of 2022 & I.A. No. 3991 of 2022 5