Prokash Datta Through Special Power Of ... vs Ikramul Majid & Ors

IN THE MATTER OF: 1. Sh. Prokash Datta Through Special Power of Attorney Holder Mr. Rishikesh Datta Ground Floor Harmony Building, House No. 10, Rukmini Nagar Main Raod, Dispur, Guwahati-781006 ......Appellant No. 1

2. Rishikesh Datta Ground Floor Harmony Building, House No. 10, Rukmini Nagar Main Road, Dispur, Guwahati-781006 ...... Appellant No. 2

3. Krisna Datta Through Special Power of Attorney Holder Mr. Rishikesh Datta Ground Floor Harmony Building, House No. 10, Rukmini Nagar Main Road, Dispur, Guwahati-781006 ....... Appellant No. 3

Versus

1. Ikramul Majid 25, Shanti Ram Das Road, -2-

Rehabari, P.S-Paltan Bazar, Guwahati-781008 .....Respondent No. 1 2. Richard Andrew Willian Leitch 1st Floor, Arati Bhawan, House No. 68, Nabapur Mazgaon, Tezpur, District Sonitpur, P.S and P.O. Tezpur,- 784001 .....Respondent No. 2

3. Allahabad Bank Through Authorized Representative SRCB Branch & R.C.B Road Fancy Bazar, Guwahati, Assam-781001 .....Respondent No. 3

4. M/s Cleanopolis Engery System India Pvt. Ltd. Through Authorized Representative 51/314, Rangapara Binduguri Road Borpokhiajhar Village PO Depota, Mouza Halleshwar Tezpur, Sonitpur Assam-784502 .....Respondent No. 4

PRESENT:- FOR APPELLANTS:- MR. NAKUL MOHTA, MR. JOHNSON SUBBA, ADVOCATES FOR APPELLANT. MR. RISHIKESH DATTA, APPELLANT 2 IN PERSON.

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FOR RESPONDNETS:- MR. KRISHNENDU DUTTA, MR. ANKUR JAIN, MR. S. DAS, MR. P. SIL, MR S. ROY, ADVOCATES FOR R1 AND R2. MR. SORABH DAHIYA, ADVOCATE FOR R3

[13th March, 2020]

JARAT KUMAR JAIN, J.

The Appellants Prokash Datta, Rishikesh Datta and Krishna Datta filed

this Appeal against the interim order dated 03.02.2020 passed by NCLT,

Guwahati, Bench in CP No. 15/241/242/GB/2019.

2. Respondent No. 1 & 2 herein, filed Petition against the Appellants here in

alleging that the Appellants have completely shut down the plant and machinery

of the Company and siphoning of funds of the Company for their personal use

and unless the plant and machinery is kept in running condition, it would

become useless. The Respondents also alleged that in the interest of all

stakeholders, the Company shall be managed through the Special Officer or

through the Respondent No. 1 & 2 in a functional condition. On these allegations

Respondent No. 1 & 2 filed the Petition under Section 241, 242 and 244 of the

Companies Act, 2013 against the Appellants in the month of October, 2019

seeking various reliefs including the interim injunction restraining the

Appellants from managing the business of the Company, and dealing with or

alienating assets and properties including plant and machinery of the Company.

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3. After due consideration on 03.02.2020 NCLT has passed the impugned

order by which appointed Mr. Jai Prakash Gupta, Special Officer, and directed

him to take possession of the Company and its record from the Appellants and

to run the company with the help and guidance of the Respondent No. 1 & 2 and

banker Allahabad Bank until further orders. It is also directed that the

Appellants shall not create any hindrance or obstruction to the Special Officer

in discharging his duty and Special Officer shall submit his report within four

weeks

4. Being aggrieved with the interim order the Appellants have filed this

Appeal.

5. Learned Counsel for the Appellants submits that the Appellants together

with other shareholders of the Company hold 66.90% Shares. The Appellants

are the Promotors and full time Executive Directors, of the Company for last

more than seven years. The Appellants have extended unsecured interest free

loan approximately Rs. 2.4 Crores to the Company. Ld. NCLT without Prima facie

case of oppression & mismanagement ousted the Appellants from the

management of the Company and handed over the control of the Company to

Special Officer and the Respondents No. 1, 2 & 3 who have no experience of

running the Company for this Ld. Counsel place reliance on the Judgement in

the case of Rev. C.S. Joseph and Ors. Vs. T.J. Thomas and Ors. (1986 SCC online

Ker. 435). The result of the impugned order is that the management of the

Company has come to standstill.

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6. It is also submitted that the Appellant were busy in the medical treatment

of their father in the months of October, 2019 in TATA Medical Centre, Kolkata.

apart from this due to protest in the State of Assam against the Citizenship

Amendment Bill, 2019 the Advocate engaged by the Appellants was not able to

reach NCLT when the matter was called for hearing. Thus, non-appearance by

the Appellants was not deliberate or willful.

7. In such circumstances, Learned Counsel for the Appellants submits that

at least the impugned order may be modified that Special Officer shall run the

Company with the help and guidance of Appellants.

8. Learned Counsel for the Respondents No. 1 & 2 vehemently opposed the

prayer and drew our attention towards the order sheets of NCLT dated 08.11

2019, 18.11.2019, 03.12.2019, 06.12.2019 and 17.12.2019 and submitted that

after notice the Appellants have deliberately avoided to appear before the NCLT

and when the NCLT has passed ex-parte interim order against the Appellants

then they have filed the Application for setting aside the ex-parte interim order

dated 08.11.2019 and 19.11.2019 when this Application was called on board the

Appellants and their Advocate chosen not to appear on 17.12.2019. Therefore,

the NCLT has dismissed the Application for non-prosecution.

9. Learned Counsel for the Respondents further submits that Ld. NCLT after

elaborate discussion in Para 3 of the impugned order held that the Appellants

are not due diligent in defending the matter and are adopting all legal tactics by

watching the proceedings behind. It is also held that the Appellants are

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conducting the affairs of Respondent Company in a manner which is prejudicial

and oppressive to the Respondent Company and all the stakeholders. In such

circumstances, Ld. NCLT has passed the impugned order in the interest of

Respondent Company and stakeholders.

10. It is also submitted that the control of the Company is assigned to Special

Officer, Mr. Jai Prakash Gupta and there is no allegation in the Appeal against

him. The Petition fixed for 26.03. 2020 before the NCLT for final Hearing. In such

circumstances, it is submitted that the Appeal be dismissed.

11. We have perused the above referred order sheets and the impugned order,

we are of the view that from the order sheets it reflects that the Appellants are

not defending the Petition with due diligence and they are unable to convince us

that the impugned order is prejudicial to the interest of the Company and the

stakeholders. By the impugned order, the NCLT has directed Special Officer, to

run a Company with the help and guidance of Respondents and banker

Allahabad Bank until further orders. This interim order is passed under Section

242(4) which provides that tribunal may, on the application of any party to the

proceeding, 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 be just

and equitable. There is nothing in this order to presume that the NCLT has

handed over the Control of the Company to the Respondents. The impugned

order is well within the jurisdiction of NCLT and passed for regulating the

conduct of the Company's affairs. The order is just and equitable. Therefore, we

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found no ground to interfere in the impugned order particularly, when the

Petition is listed for final hearing before the NCLT on 26.03.2020.

12. we hope and trust that Ld. NCLT shall make all endeavor to decide the

Petition on merit expeditiously.

Thus, the Appeal is dismissed, however, no order as to costs.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

(Dr. Ashok Kumar Mishra) Member (Technical)

NEW DELHI SC

Company Appeal (AT) No. 53 of 2020