Sanjiv Gupta vs Getit Infoservices Pvt. Ltd. & Ors

Present: Shri Virender Garuds, Serdor Advocate with Shri Vipul Ganda, Shri Tarun Mehta and Ms. Shelly Khanna, Advocates for the Appellant

Stn Abhinav Vashisht, Senior Advocate with Shri Vidur Bhatia, Advocates for Reapondent No. 1

Shri Sudipto Sarkar, Senior Advocate with Shri Suemic Pushker, Shri Abhiicer Swarnop and Shri Aninu Khanecheal, Advocates for Resperent No. 3

ORDER

ANNAN R

issue Notice. The respondents have appesred pursuant to the advance Notice served an them. No further Noties need be issued an the respondents, We do not find any reason to issue any Notices on the Registrar

af Companies for the reasons recorded hereunder.

me

*. This Appeal has been preferred by Appellant Mr. Sanity Gupta aguinst order dated S® September 2016 passed by National Campany Law Tribunal, Principal Bench, New Defhi fhereinafter referred to as "Tribunal' for shord in

C.P.No. T22IND)/2016. By the pmpuened order, the Tebunel refused to clarify its earlier order dated SU Aumist 2015 and also refused to grant any

further Interim: Relief.

3. The Company Petition was fled by the Appellant to declare that the

respondenta are guilty of oppression and mismenagement in ferma of

Seetion 241(1Hb) read with Section 242 of the Companies Act 2019 with prayer to profect the Interest of the employees and creditors of the company and allow the Appellant to proceed with MBO in terme of Section 242(2)(b) of the Cormanies Act and to allow the petitioner to induct a strategic

investor to keep the Respondent No. 1 company as @ going concern.

4, tin Notice, the respondents opposed the maintainability of the Petition under Section 244 of the Act. [ft was contended that the Appellant has G.08% shareholder and thereby not entitled to fle the petition under Section

241. In reply, the Appellant contended that he has Aled C.A.75/PB/2015 seeking waiver of requirement fo enable a member to apply under Section 24,

a The Company Petition was fled an 22"? August 2016 and when the matter was taken up on 24% August 2016, Learned Tribunal observed to

place the C.A. secking waiver for arguments on 2% August 2076.

o. In the meantime, the respondents were allowed to Mle them reply to the CA,

ys

*. 'he matter could not be taken up on 29° August 2016 but was taken upon 30% August 2016. On 30% August 2016, the Appellant requested to pass Interim Relief and te direct the Respondent No. 2 Company to manisin the status quo ante (Pre 16 June 2015) and to restrain the respondents from effecting any change in the Board of Directors or the Respondent No. |

COATPANY,

8. On 30% Aupust 2016, the Tribunal, having notierd fhe rival eontentions advanced on hehalf of the parties oan the question of maintainability of the petition left the matter apen te decide the question on a subsequent date, Having heard the counsel for the parties on the question

of grant of Interim Reef, the Tribunal observed as follows:-

"3. There is a cansensus between the parties that the respondents shall maintain status que as on date with regard fo the

constitution of the Board of Directors and that ne meeting of the

Board of Directors of Respondent No. 1 Company shall be held

without prior permission o the tibunal."

8, Subsequently, the Appellant fled an Application under Rule 11 of the National Company Law Tribunal Rules 2016 in C.A.No. SS(PR) of 2016 for

folowing relieh-

» Declare the abovementioned B-Form DIR 12 aa non est and direct that the same be disregarded;

ug} Issue clarification that the order dated August 38, 2016 in respect of maintaining status que as on the date of Ming of the

petition (Le. August 22, 2016) and not as on date of passing of

z

the Cirder Lc. August 30, 2016 ard accordingly, clarify that the Application contimrues to be the Managing DNrectar of the Respondent Ne, | Carmpary;

i} «TNrect the Respondents not to Indulge (inte any further action of oppression and mismanagement during the pendency of the Company Petition Ne. 122(NDiof 2016; and

ea Pass such other order or orders as may be deemerl fr and

proper by this Hon'ble Tribunal in the facts and cirowmstances

af the care.

10, On Sth September 2016 when the matter was taken up, it was contended on behalf of the Appellant that after Ging of the Company Petition ard before taking up the petition for Interhn Relief, on 39" August 2016, the respondents forwarded an E-FPorm DIR 12 with SRN No. yIOLS8S38 to the Registrar of Cormpanies te be taken on record under Straight through Proceas (STP). Gm 30% August 2015 when the matter was taken up, Rowas not to the knowledges of the Appellant though if was known to the respondent from the act of fling of E-Porm DIR 12. It was contended that the information with regard to Aling of E-Form DIR 12 was withheld from the Learned Tribunal on the SO™ august 2016. Because of suppression of the fact abcaat E-Form DIR 12, the Appellant consented for Interim Relief

of status que as was existing on SO¢ August 2016. Later on, the Appellant

enuld come te know in the evening of 30 August 2016 that by E-Form DIR ig, the Registrar of Companies has been informed of resignation of appellant which he subriitted on I2® August 2010. On behalf of the Appellant, if was contended that the resignation was mot approved by the Board of Directors and, therefore, there was ne ocoasion for the company to forward the intimation of resignation by E-Form DIR 19 on 20% Auguat

2016 at 9 PLM. by Straight through Proceas (email). .

Li. In the said petition, a declaration was also sought for that B-Porm DIR 12 be declared as non est and to direct the respendents, including the Repiatrar of the Cormpanies to disregard the same. Al the aforesaid submiasions were noticed by the Learned Tribunal by impugned order dated S& September 2016. The Tribunal noticed that the Appellant has only 0.06% shareholding and there is a serious preliminary objection raised about maintainability of the Petition under Section S44(1} of the Act. The Pribanal also observed that om 30° August 2016, it has turned down the peayer of Appellant to siay day to day interference of the newly appointed two Additional Directors of the company in the affairs ef the company and thereby refused to grant stahis quo ante as existed before 12" August 2016 or to restore the Appellant as Managing Director of Respondent No. 1

COMPS.

12. The Teibunal also perused the provision of Sectian 168(1} and (2) of the Act. Under sub-section (@} of Section 168 resignation of Director shall have effect from the date on which the notice Is received by the company or

the date, # any, given by the Director in the Notices whichever is ister.

1S. Referring to sub-section (54) of section 2 of the Act, the Appellant submitted that the 'Managing DNreetor' as defined therein cannot be termed

fo be Director for the purpose of sub-section (2) of Section 166 of the Act.

The appellant as Mariaging Director is not covered by Section 168 ©) of the Ant.

14. In this appeal the only relief sought for by Appellant is to allow the

campany appeal and to set aside the impugned order dated S& September

3016 passed by the Tribunal in CA No, 85/PR/S016 and tp declare the E- Porm DIR 12 as non est with further prayer to direct the Resporuents to disregard the E-form DYR 12 and to clarify that the Order dated SO" August 2016 directing the parties te maintain Status quo as on the date af mentioning af the petition Ge. 24% August 2015) and to olarify that the Appellant continues to be the Managing Director of the Respandent No. i

Company.

iS. Having noticed the rival contentions we are not inclined to clardiy or modify the interim order passed by the Tribunal. We make it clear that we

find no merit in this appeal. If is accordingly dismissed.

16. Wowever, the observation made by this Appellate Tribune! shall not come in the wey of Appellant while in deciding the question af

maintainability of the Company Petition on merit.

ifustics S$.) Mukhopadhaya} Chairpersan

(Mr. Balvinder Singh} Member (Technical