Parth Merchant vs Detox India Private Limited & Ors

Parth Merchant ...Appellant(s)

Versus

Detox India Pvt. Ltd. & Ors. ...Respondent(s)

Present: For Appellant : Mr. Dhiren R. Dave, Advocate. For Respondents : Mr. Krishnendu Datta, Sr. Advocate with Mr. Varun Lamba, Dr. Abhimanyu Chopra, Mr. Aman Chaudhary, Mr. Kushagra Jain, Mr. Akhil Nene, Advocates.

ORDER

(Hybrid Mode)

12.11.2024: This appeal is filed against an impugned order dated

23.11.2023 passed by the Ld. National Company Law Tribunal, Ahmedabad,

Court-1 in CP/39(AHM)/2022. The impugned order is as under:-

"This application has been filed by the Applicant/Parth Merchant under Sections 212 & 213 of Companies Act, 2016 with the following prayers :-

i. Investigation in to the affairs of the R-1 company be ordered along with all other respondents involved in false certification and reports.

ii. ROC to initiate action against the company and all those who have certified false forms filed with MCA. iii. Reference may be made to professional institutes for initiating actions against respondent professionals for certifying false forms filed with MCA.

iv. For costs v. Any other relief Hon'ble Bench may deem fit.

-2- Learned Senior Counsel for the Respondent No. 1 submitted that the present application is not maintainable in the present form. We have gone through the application specially the prayer made in the petition wherein the applicant has sought investigation in the affairs of the Respondent No. 1 company to be ordered along with all respondents involved in the false clarification and reports. With a further direction to RoC to initiate action against the Respondent No. 1 company and others. However, nothing on record to suggest whether the Applicant has made any such request or any representation to the office of the RoC. The prayers are pre-mature as the applicant has never approached the RoC which was confirmed by the counsel appearing for the applicant during the hearing.

In our view, the present application is not maintainable and same is dismissed accordingly."

2. A bare perusal of the impugned order would reveal the application filed

by the Appellant under Section 213 of Companies Act, 2013 was dismissed

only on the ground the prayers of the application are pre-mature as the

applicant has never approached the RoC prior to filing application before the

Ld. NCLT. The appellant has challenged the basis of rejection of such

application on the ground of pre maturity.

3. The Learned Sr. Counsels are present and are not been able to show

any provision which require the appellant to approach the RoC prior to filing

of an application under Section 213 of the Act. Hence the view taken by the

Ld. NCLT that the application needs to go since the appellant failed to

approach the RoC, to our mind, is not sustainable. -3-

4. In any case, the Learned Sr. Counsel for the Respondent has also raised

an issue of locus of the Appellant to file such application under Section 213

and points out to an earlier order dated 09.01.2023 of the Ld. NCLT, wherein

he took leave to make submissions on maintainability. The impugned order

does not suggest if such arguments were raised or considered.

5. In view of the above, we set aside the impugned order dated 23.11.2023

and request the Ld. NCLT to hear the application afresh with liberty to the

Respondent to raise issues qua locus and maintainability which need to be

addressed prior to entering into merits of the application. The appeal stands

disposed of in terms of the above. Pending application(s), if any, are also

disposed of.

[Justice Yogesh Khanna] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical)

R.N./Manu