Saarabjit Cold Storage Pvt Ltd & Ors vs Gopal Singh & Ors

Sarabjit Cold Storage Pvt. Ltd. & Ors. ...Appellants

Vs

Gopal Singh & Ors. ....Respondents Present: For Appellants: Mr. Arun Kathpalia, Sr. Advocate with Mr. Shailendr Singh, Advocates

For Respondents: Mr. Joy Saha and Mr. Arik Banerjeee, Advocates for Respondent Nos. 1 to 8.

ORDER

(Through: Virtual Mode)

31.08.2020 Heard Mr. Arun Kathpalia, learned Senior Counsel for the

Appellants and Mr. Joy Saha, learned Counsel for the Respondent Nos. 1 to

8. Learned Counsel for the Appellants states that unnumbered Company

Petition was taken up and without giving liberty to file Reply Affidavit or

documents in support of submissions, the impugned order was passed.

Learned Counsel for the Respondents is submitting that the matter was taken

up after giving advance notice. It is stated that the Appellants filed Defence

Note. Learned Counsel for the Appellants submits that the said Defence Note

is at Annexure-A8 at pages 587 to 588. It is stated by the learned Counsel for

Appellant that this Defence note and the List of Dates and Events as given at

page 589 were also not considered by the learned NCLT, Kolkata. Learned

Counsel for the Respondents, however, submits that the Defence Note was

considered in Paragraphs 11, 12 & 14 of impugned order.

Company Appeal (AT) No. 114 of 2020 Page 1 of 7

2. This Appeal has been filed by the Appellants against the Impugned

Order dated 8th July, 2020 passed by the learned Kolkata Bench, Kolkata in

un-numbered Company Petition. It is stated that now the Company Petition

has been numbered as 762/KB/2020. The Appellants claim that the

Appellant Company had taken steps to call Extra Ordinary General Meeting

(in Short EOGM) which was held on 27.06.2020 and all the procedure was

followed to call the EOGM. The Appellants hold 77.8% shares it is stated. In

the EOGM the Respondent Nos. 1 & 2 were removed from the Post of Directors

in a lawful manner after giving sufficient opportunity. It is stated that the

removal of Respondent Nos. 1 & 2 was accepted by ROC Jharkhand on

29.06.2020. Learned Counsel for the Appellants points out that the Impugned

Order itself mentions that it is an un-numbered Company Petition. Learned

Senior Counsel for the Appellants- Mr. Arun Kathpalia submitted that this

Company Petition under Sections 241, 242 and 244 of the Companies Act,

2013 came up for consideration and on the same date, after giving

opportunity only to make oral submission to the Appellants, the order came

to be passed. It is argued that there was denial of Principles of Natural Justice,

as no opportunity was given to file Reply and documents and the Interim

Relief in the Company Petition was directly granted when the petition came

up.

3. Against this learned Senior Counsel for the Respondents Mr. Joy Saha

submits and referred to various pages in the Appeal Paper Book to show that

the requisition of EOGM was not held as per proper procedure and that this

Company Appeal (AT) No. 114 of 2020 Page 2 of 7 is discussed by NCLT. It is denied that no proper opportunity was given to

Respondent Nos. 1 and 2 to defend themselves.

4. Learned Counsel for the Appellants has referred to paragraph 1 to 15

of the Impugned Order to submit that in these paragraphs various

submissions of both sides were noted and in paragraphs -16 & 17 of the NCLT

order read as under:

...

"16. After hearing learned counsel for the parties, we

agree with the arguments of Mr. Joy Saha, that the meeting in

question had been called hurriedly, without following the

relevant provision of the Companies Act, 2013, which would

tantamount to denial of rights of the minority

shareholders/directors. Since no other notice other than these

two notices has been placed on record or highlighted we do

not find anything to supersede the arguments of Mr. Saha.

Prima facie, we find that this is a meeting under Sub Section

(4) of Section 100.

17. We do not find any substance in the submission of

Mr. Banerjee that the meeting dated 27th June, 2020 had been

called under section 100(1). He has not been able to show an

iota of evidence or material, and no reasonable inference could

be drawn from the Defence submitted by the respondents to

prove that this was an EOGM convened exclusively and

Company Appeal (AT) No. 114 of 2020 Page 3 of 7 independently on the strength of the majority decision of the

Board of Directors not on the requisition of an eligible

shareholder(s). As the meeting has clearly been held in

suspicious circumstances and does not appear to be above

board, because there was no proper service of notice to all

concerned, the Resolution passed in the meeting thereby

removing the petitioners 1 and 2 from the directorship prima

facie found not in consistence with the provisions of the

Companies Act, 2013. Balance of convenience also favors the

petitioner. We therefore passing the following interim orders:

(i) The operation of the Resolutions passed in the

meeting dated 27th June, 2020 is stayed until

further orders;

(ii) The Resolution passed in the meeting thereby

removing the petitioners 1 and 2 from the

directorship is directed not be acted upon until

further orders;

(iii) The parties to file reply/rejoinder affidavits, if any

within four weeks or immediately within one week

after lifting of the lock down whichever comes earlier

by serving copy to the petitioners, and the

petitioners are directed to file rejoinder within 2

weeks of receipt of reply affidavit by serving copy to

the respondents.

Company Appeal (AT) No. 114 of 2020 Page 4 of 7

Parties are at the liberty to mention the petition for listing

after the lockdown is lifted. The Registry is directed to send

e-mail copies of the order forthwith to all the parties

inclusive of the Counsel."

...

5. Learned Counsel for Appellant submits that paragraph-16 & 17 of the

Impugned Order itself mentions that the findings are prima facie. However,

the order was passed, which is to operate till further orders and thus will work

during pendency of the petition. The resolution which was passed by the

EOGM has been stayed. Learned Counsel submits that the Company has

various grievances against the actions of Respondent Nos. 1 & 2. Counsel

referred to the grounds raised in the Appeal and facts mentioned and stated

that the Appellants have good case on merits.

6. Para 1 of impugned order reads as under:

"1. This is an unnumbered Company petition filed under Sections 241, 242 and 244 of the Companies Act, 2013 came up for consideration on today which was filed by the Petitioners M/s. Gopal Singh & Ors through e- mail praying, inter alia, restraining the respondent nos. 2 to 12 from taking any step or further steps or giving any effect or further effect to the notice dated 3rd June, 2020 seeking to convene the Extraordinary General Meeting of the company on 27th June, 2020 at 11 a.m. at the earliest. The urgency set out in the application being found satisfactory, listed this application for hearing on today by giving advance notice from the Registry of Kolkata

Company Appeal (AT) No. 114 of 2020 Page 5 of 7 NCLT Bench to the respective parties, i.e. the petitioners and the respondents respectively."

....

7. This makes it clear how the matter was taken up and Orders passed.

We have already mentioned that learned Counsel for the Appellant has

referred to what is stated to be Defence Notice and List of Dates and Events

and added that the learned NCLT did not go into the details put even in the

Defence Note and has not given reasons for not accepting the defence. Learned

Counsel points out that Learned NCLT merely stated that it was in agreement

with the argument of Mr. Joy Saha as recorded in paragraph -16 and in

paragaraph-17 went on to state there was no substance in the submissions

of Mr. Banerjee. Learned Senior Counsel for the Appellants referred to

paragraph -17 of the Impugned Order where the learned NCLT states that the

Appellants have not been able to show an iota of evidence or material and no

inference could be drawn from the Defence submitted by the Respondents to

prove that EOGM was convened on the strength of the majority decision of

the Board of Directors. Learned Counsel submits that without giving any

opportunity of even filing Reply or documents, learned NCLT simply rejected

the defence put up saying there was no evidence. Learned Counsel for

Respondents however, submits that opportunity was given.

8. It appears from the Impugned Order that now Reply and Rejoinder are

directed to be filed in the Company Petition. No opportunity was given before

passing Interim Order to file Reply to oppose Interim Order. The Order does

not say that it will operate till next date or will be reconsidered on receipt of

Reply. The impugned order was passed bypassing the Principles of Natural

Company Appeal (AT) No. 114 of 2020 Page 6 of 7 Justice and thus without going into the merits we set aside the Impugned

order and remit back the matter to NCLT, Kolkata. The Appellants to file their

Reply Affidavits to the Company Petition in which they are at liberty to oppose

the interim relief sought.

9. Learned Counsel for the Appellant submits that they will file Reply

Affidavit within one week from today. Learned Counsel for Respondents states

that they will file Rejoinder in 3 days thereafter. Both sides may act

accordingly. Learned NCLT will then hear both the parties on the specific

issues with regard to Interim Relief sought by the Respondent Nos. 1 & 2 and

decide the same urgently preferably within one month from the receipt of the

Rejoinder. Both the parties agree to cooperate with the learned NCLT, Kolkata.

The learned NCLT will decide the issue afresh without being influenced by the

earlier order.

10. With these directions, the Appeal stands disposed of. No order as to

costs.

[Justice A.I.S. Cheema] Member (Judicial)

[Justice Anant Bijay Singh] Member (Judicial)

(Kanthi Narahari) Member(Technical) Akc/Mn

Company Appeal (AT) No. 114 of 2020 Page 7 of 7