Shri Ashok Mittal vs Uniworth Resorts Ltd

2. Smt. Neeru Ashok Mittal, 107, Doctor Center, 135, August Kranti Marg, Kemp's Corner, Mumbai - 400036. (Through : his Power of Attorney Holder) ... Appellants - Versus -

1. Uniworth Resorts Ltd., 11, Pollock Street, Kolkata - 700001.

Also at : 70/a, Shakespeare Sarani, Kolkata - 700017.

2. Shri Shyam Sunder Gindoria, 11, Pollock Street, Kolkata - 700001.

3. Shri Nimish Mahindra Kumbhani, R/o 5, Camac Street, Kolkata - 700016.

4. Shri Sujit Sarkar, R/o Subhash Nagar, Talpukur Road, Sarsuna, Kolkata - 700061.

5. Touchstone Housing Projects Private Ltd., 11, Pollock Street, Kolkata - 700001.

Also at : 70/a, Shakespeare Sarani, Kolkata - 700017.

Company Appeal (AT) No. 268 of 2017 2

6. Uniworth Securities Limited, B-4, Station Road, Bajaj Wadi, Santacruz (West) Mumbai - 400054. Also at : 70/a, Shakespeare Sarani, Kolkata - 700017.

7. Shri Ajay Prakash Lohia, R/o Lohia Bhawan, 14a, Loudon Street, Kolkata - 700017.

8. Shoreline Infrastructure Developers Limited, 20, Om Chambers, 123, August Kranti Marg, Mumbai - 400036.

9. Mr. Prashant Cehinappa Suvarna, Residing at Vasant Vihar, Flat No. 2, A-Wing, Bibvewadi, Kondwa Road, Opposite to Kumar Park, Pune - 411037. ... Respondents

Present: Shri Jayant Mehta, Shri Sourabh Kalia, Ms. Shuchi Sejwar and Shri Sajal Jain, Advocates for the Appellants.

Shri Narendra M. Sharma and Shri Abhishek Sharma, Advocates for Respondent No. 7.

ORDER

23.11.2017 Heard learned counsel for the appellants and learned

counsel for Respondent No. 7. None is present on behalf of other

respondents.

2. Perused the impugned order dated 5th May, 2017. It appears from

the record that Company Petition No. 46 of 2006 is pending before the

National Company Law Tribunal, Bench at Kolkata (hereinafter referred

to as 'NCLT'). In the company petition, when it was earlier pending

Company Appeal (AT) No. 268 of 2017 3

before the erstwhile Company Law Board ('CLB' for brief), C.A. No. 122 of

2007 was filed by the Appellants/Petitioners for amendment so as to

implead parties mentioned in Paragraph '3-G' of the application. It

appears that the petitioners had also filed another C.A. No. 131 of 2007

(Page 190) for amendment to bring on record what were referred to as

subsequent events and developments. The CLB passed orders dated

17th April, 2008 and referred to the claims made by the appellants

seeking amendment so as to bring on record subsequent facts and

directed that the petitioners should file amended petition only referring

to the events which took place subsequent to the company petition in

terms of the order dated 9th May, 2008.

3. Learned Counsel for Appellant submits that earlier on 27th July,

2007, CLB allowed the application and on challenge to the High Court of

Calcutta, the matter was remanded back by an order dated 5th

September, 2007. By an order dated 17th April, 2008 as above, the

application was partly allowed. There was again challenge to this order

before the High Court of Calcutta on 12th April, 2012 (Page 214). The

High Court allowed the amendments, in full.

4. It appears from the record that when the C.A. No. 122 of 2007 was

taken up with the learned NCLT, it passed the following order :

"O R D E R

The Ld. Lawyer on behalf of the petitioner is present

who filed the track report with regard to service of

Company Appeal (AT) No. 268 of 2017 4

notice upon the respondent(s) as well as the public

notification in the newspaper publication.

One CA Application 122/2007 is pending since long

with a prayer to allow the instant application and

direct impleadment of the following person as

Respondents :

i) Mr. Mahesh Sharma, 3/0. Late Dhan Raj Sharma, Azad Hind Arya Kr. Road, Patna - 800 004 ;

ii) Mr.Piyush Lavjibhai Patel, S/o. Lavji Bhai Mitha Bhai Patel, 1, Adarsh Building, 94. Walkeshwar Road, Mumbai - 400 006;

iii ) Mr. Rajesh Patel, S/o. Lavji Bhai Mitha Bhai Patel, Surya Kiran Apptt. Ghoddod Road, Opp. St. Xavier School, Surat. Gujarat :

iv) M/S. Indoworth India Ltd., B-130, MIDC, Butibori, Nagpur, Maharastra

Heard the petitioner at length; who submitted that he

came to know through internet that at the instructions

of Respondent No.7 and of Mr. Piyush Lavjibhai Patel,

Company Appeal (AT) No. 268 of 2017 5

certain changes were made in the constitution of the

Board of Respondent No. 1, Company.

I have gone through the application filed by the

applicant/petitioner.

The subsequent event is of 2006 and thereafter in the

year 2007, on 26-03-2007, the instant Company

Application No. 122/2007 is filed for impleading the

name of the aforesaid persons.

Also perused the order sheet from 2007. It reflects

that although the CA was filed by the applicant/

petitioner in 2007, but only on 16-05-2013 the

application was first taken up and it continued on

different dates up to 10th March. 2014.

It also transpires from the record that since 30-04-

2014, the applicant/petitioner has not made any

endeavor to get the instant application disposed of by

way of impleading the above named person. Rather,

the petitioner preferred to file another Company

applications being CA No-272/2014, which was

disposed of subsequently. But the petitioner did not

press to dispose of the instant application, which was

filed in 2007, which show that the petitioner(s)

Company Appeal (AT) No. 268 of 2017 6

himself/themselves is/are not interested to pursue the

instant application so as to implead the above named

person and to expedite the Company Petition.

Under such circumstances and at such belated stage, I

found no reason that their names are required to be

impleaded.

Had the party taken the step appropriately, the main

Company Petition Could have been disposed of long

back. It shows lack lustre on the part of the applicant

which is grave abuse of process of law.

Hence the instant Company Application CA 122/2007

is rejected.

Fix the matter on 10-07-201 7."

5. Learned Counsel for the Appellants referring to various disputes

which have arisen between the parties and what is referred as

subsequent developments, it is claimed that there was certain facts,

which came to the knowledge subsequently and thus the amendments

were required to be made. It is argued that the appellants twice argued

the company petition but for some reason or the other, the main matter

remained pending.

Company Appeal (AT) No. 268 of 2017 7

6. Learned Counsel for Respondent No. 7 is vehemently opposing the

appeal stating what was allowed earlier was with reference to the only

subsequent events and what was being claimed in the amendment

application in C.A. No. 122 of 2007 were only events which were prior to

the filing of the company petition. Learned counsel for the appellants is

disputing the claim made by the learned counsel for Respondent No. 7,

claiming that High Court had allowed the amendments in full.

7. Learned Counsel for Respondent No. 7 is further submitting that

the appellants are unaware that in further subsequent events, which are

5-6 years old from now M/s. Indoworth (India) Ltd., they seek to be

impleaded as party, is no more a shareholder.

8. Having gone through the matter, we are distressed that a petition

of 2006 is pending even after a decade. It appears that there were some

other applications of these appellants which had come up on an earlier

date for amendments which have been rejected by this Tribunal.

Learned Counsel for the Appellants states that those applications were

rejected primarily because the applications for amendment involved in

those Appeals were moved in 2017.

9. In the present matter, it is apparent that when C.A. No. 131 of

2007 was filed seeking amendment to bring on record certain events and

Company Appeal (AT) No. 268 of 2017 8

C.A. No. 122 of 2007 was also filed, the CLB and its successor, NCLT,

did not take up the applications which were pending and then a blame

has been put on the appellants that you did not take up the applications

earlier and so you were not interested. The Impugned Order shows

referring to Order Sheets that Petitioners had indeed taken up the

application and it was under consideration between 16th May, 2013 and

10th March, 2014. The Order then says Petitioner did not make

endeavour since 30th April, 2014 to take up the application. Putting

blame on Petitioner, the application is rejected. According to us, when

the application or petition is filed, it is the responsibility of the Tribunal

also to take up whatever application(s) are pending in the matter for

adjudication. In fact, the older applications should be first taken up for

decision. Here the impugned order itself shows that subsequent C.A.

No. 272 of 2014 came to be disposed of while the earlier C.A. No. 122 of

2007 lay pending.

10. Whatever applications are pending need to be taken up seriatim

and disposed. If parties do not co-operate, the defaulting party may

suffer, but Tribunal cannot afford to simply keep the applications

pending expecting parties or leaving it to them as to in which order they

would like to take up the applications. Of course, it is also for the

parties to move the Tribunal for disposal of their applications but the

Tribunal cannot squarely put blame on the parties that you did not

Company Appeal (AT) No. 268 of 2017 9

move the Tribunal after filing the applications and so I will not look into

it.

11. The impugned order does not appear to have gone into the merits

of the C.As. and thus we are not sitting down to settle those aspects. We

would have looked into the merits to save time but for the subsequent

event pointed out by the learned counsel for Respondent No.7 stating

M/s. Indoworth (India) Ltd. is by now no more a shareholder also. It

would be appropriate that NCLT decides the C.A. No. 122 of 2007 on its

own merits. We are not expressing any opinion on the merits of the

dispute between the parties.

12. For the above reasons, the appeal is allowed. The impugned order

dated 5th May, 2017 passed in C.P. No. 46/2006 - C.A. No. 122/2007 is

quashed and set aside and the matter is remanded back to the learned

NCLT, Kolkata Bench, for deciding C.A. No. 122/2007 on its own merits

at the earliest.

13. It would be appropriate for the appellant to recheck the present

status of the parties sought to be joined before the NCLT before C.A. No.

122/2007 is taken up. Further the parties are reminded of Section 422

of the Companies Act, 2013 which has now been introduced in the law

for time-bound disposals. Such petition should not have remained

pending for long.

Company Appeal (AT) No. 268 of 2017 10

14. It is stated that next date in the Company Petition before the

NCLT, Kolkata Bench, is 8th December, 2017. The parties present before

us to appear on that date before the Tribunal for early disposal of the

C.A. and Company Petition. No orders as to costs.

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

[Balvinder Singh] Member (Technical)

/ng/nn

Company Appeal (AT) No. 268 of 2017