Shashank Gupta And Ors vs Pristine Infracon Pvt Ltd And Ors

1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) No.122 of 2023 In the matter of: Shashank Gupta & Ors Appellant Vs Pristine Infracon Pvt Ltd & Ors Respondent For Appellant: Mr.Gaurav Mitra, Mr. Manu Manchanda, Mr Rishi Sood, Mr. Gurjot Singh, Advocates. For Respondent: Mr. Abhijeet Sinha, Advocate for R1. Mr. Manish Jain, Mr. Vivek Sharma, Ms Shiwani Priya, Advocates for R2. ORDER

25.09.2023: Heard Mr. Gaurav Mitra, learned counsel for the

appellant and Mr. Manish Jain, learned counsel for the

Respondent.

Since in the present appeal an order dated 28.04.2023 has

been assailed by the appellant which has been passed without

issuance of notice to Respondents and Company Petition

No.78/241-242/ND/2023 has been rejected only on the ground of

maintainability, we feel that the present appeal can be disposed

of even without issuance of notice to parties. However, Respondent

No.2 has appeared and filed its reply and rejoinder to the reply has

also been filed. On behalf of Respondent No.2 it was submitted 2

that CP was not maintainable and the Learned NCLT has passed

a detailed order which requires no interference.

Mr. Abhijeet Sinha, learned counsel has appeared on behalf

of Respondent No.1. He tried to persuade that since there was

MOU which prescribe for an arbitration in case of certain dispute

the Learned NCLT has committed no error in passing the

impugned order. He further submits that the appellant who was

petitioner before the NCLT has suppressed those fact.

The Company Petition was filed under Section 241-242 of the

Companies Act, 2013 on allegation of oppression and

mismanagement in Respondent No.1/Pristine Infracon Pvt Ltd.

The appellant claim that they were holding 49% shares in the

company in question and since there were serious allegations of

oppression and mismanagement the appellant filed company

petition giving detailed reasons and detail facts of oppression and

mismanagement. Learned counsel for the appellant by way of

referring to impugned order submits that the learned NCLT after

hearing learned counsel for the appellant reserved order on the

point of issuance of notice to respondents, however, without

issuance of notice to the respondents the learned NCLT has

dismissed the company petition by the impugned order. Learned 3

NCLT has concluded that the application filed before the Learned

NCLT was not having material to establish the allegation of

oppression and mismanagement and thereafter relying on a

judgement of Delhi High Court in Chander Krishan Gupta Vs

Pannalal Girdhari Lal Pvt Ltd 1984 55 ComCas 702 Delhi, passed

the impugned order.

Learned counsel for the appellant tried to persuade the Court

that at least learned NCLT was required to issue notice to the

parties and after hearing all the parties and examining facts

disclosed in the petition on the point of oppression and

mismanagement the learned NCLT was within its jurisdiction to

pass order on the point of maintainability. In the present appeal

the appellant has filed rejoinder to the reply filed on behalf of

Respondent No.2 and in rejoinder para 7 running page 4 and

onwards has disclosed the relevant statement made in the main

petition with relevant paras showing oppression and even

syphoning of funds from the company. For better appreciation it

is apt to reproduce para 7 of the Rejoinder filed by the appellant

as follows:

"7. The main grounds taken in the instant Company Petition

before the Learned Tribunal, in addition to the grounds of 4

mismanagement, are summarised hereinunder, for ease of

reference. It is also submitted that a copy of the Company

Petition No.78 of 2023 is annexed at Annexure A-2, pg.73 of

the present Appeal:

Allegation Paragraph No in Relevant

Company Petition documents

No.78 of 2023 annexed in support

of the contention

Diversion of Para 7.5, Para 7.8, Documents

business by Para 7.23, Para evincing that

Respondent Nos 2 7.41, Paras 7.49 sensitive

to 5 to their own to 7.60 information is

group hospital being shared with

(Promotion by Respondent No.2

Respondent Nos 2 company @

to 5 of their own Annexure P/28,

hospital at the cost Annexure P/29,

and expenses of Annexure P/44,

Respondent No.1 Annexure P/45,

company.

5

Annexure P/46

(Colly)

Siphoning off funds Paras 7.17 to Emails evincing

of Respondent No.1 7.22, Paras 7.25 loss of revenue of

company to to 7.27, Paras Respondent No.1

Respondent No.5 7.61 to 7.75, company due to

Paras 7.78 related party

transactions and

siphoning off @

Annexure P/23,

Annexure P/24

(Colly), Annexure

P/25, Annexure

P/26, P:/27, P/31,

P/32, P/33, P/47

Fabrication of Para 7.12 Annexure P/19,

Board resolution Annexure P/20

(Colly)

Interference and Para 7.6, para Whatsapp group

disruption in the 7.31, Paras 7.35 screenshot @

operations of Annexure P/14, 6

Respondent No.1 to 7.38, Para 7.40, Emails evincing

Company by the Para 7.49 said interference @

acts of employees Annexure P/36

of Respondent No.2 (Colly), Annexure

P/40 (Colly),

annexure P/41

(Colly), annexure

P/42, Annexure

P/43

Undue exclusive Para 7.9, Para Annexure P/16

control over the 7.23, Para 7.50 Annexure P/28,

data and IT servers Annexure P/29

of Respondent No.1 (Colly)

to gain control over

sensitive data of

the patients

Non-disclosure and Para 3.12, Para MCA record @

non-compliance of 7.18, Paras 7.76 Annexure P/7

Rules for related to 7.85 Agreements dated

party transactions 15.04.2021 and

01.04.2022 @ 7

in 2021-22 and Annexure P/24

2022-23 (Colly)

Agreement dated

01.04.2021 @

Annexure P/30

Director's Reports,

Financial

Statements and

Independent

Auditor Reports @

Annexures P/49 to

P/51

Involvement of Para 7.10, Para Board Meeting

Respondent No.1 7.11 minutes of

company into Respondent No.2

frivolous litigations company dated

21.10.2022 and

FIR dated

03.03.2022 @

Annexure P/18

(Colly) 8

Modification of Para 7.3, Para 7.6 Emails evincing

company said misutilisation

Infrastructure @ Annexure P/11

(Colly)

Learned counsel for the appellant submits that certain

documents were also brought to the notice of the Learned NCLT

which reflects oppression, however, none of such documents were

noticed by Learned NCLT and impugned order has been passed.

In view of aforesaid facts and circumstances we are of the

opinion that the NCLT was required to hear all the parties. It is

also evident from the order impugned that none of such

submission particularly facts as stated in paragraph 7 of the

rejoinder, which is based on statement made in the Company

Petition was noticed by the learned NCLT. Accordingly on this

ground alone the impugned order can be set aside and it is set

aside and the matter is remitted back to the NCLT with a request

to issue notice to the Respondents and after hearing all the parties

if learned NCLT is satisfied that company petition was not

maintainable, then sufficient reasons may be assigned while

passing the order afresh. It is clarified that since the impugned 9

order was passed by the NCLT without issuance of notice to other

side we also proposed to proceed without issuance of notice.

However, Mr. Abhijeet Sinha, learned counsel for R1 and Mr.

Manish Jain, learned counsel for R2 appeared and made their

submissions.

With the above observations after setting aside the impugned

order the matter is remitted back to the NCLT for considering the

point of maintainability of the company petition and passing order

afresh expeditiously.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) Bm/md