Shri Ganpati Fertilizers Limited & Anr vs Raj Kumar Joshi S/O Lt Shri Govind Ram ...

IN THE MATTER OF: Ganapati Fertilizers Ltd. & Anr. ...Appellants Versus Raj Kumar Joshi & Ors. ...Respondents Present: For Appellants : Mr. Nilanjan Chatterjee, Mr. Niladree Chatterjee, Advocates. For Respondents :

ORDER

24.01.2023: Heard Mr. Nilanjan Chatterjee, Ld. Counsel for the

Appellant. The present appeal has been filed under Section 421 of the

Companies Act, 2013 against an order dated 26.09.2022 passed by the

National Company Law Tribunal, Jaipur Bench (hereinafter referred to as

'NCLT') in CP No. 222/241-242/JPR/2020.

2. Despite the fact that impugned order was passed on 26.09.2022, the

present appeal was filed after delay of about 39 days and as such the

Interlocutory application vide I.A. No. 304 of 2022 has been filed for

condonation of delay. Normally, in absence of other side we are not passing any

order on petition for condonation of delay. But since we are proposing to

dispose of this appeal without any specific direction, it would not be

appropriate to delay disposal of this appeal on the point of limitation. However,

in the I.A. sufficient reason has been assigned for condonation of delay.

Accordingly, we are of the view that delay can be condoned. I.A. No. 304 of

2022 stands allowed and delay of 39 days in filing the appeal stands condoned. -2-

3. On perusal of the Impugned order i.e. order dated 26.09.2022, it appears that no specific direction has been issued, rather the Ld. NCLT by its order dated 26.09.2022 directed Ld. Counsel for the petitioner to file written submissions with regard to dates & events along with the share percentage in the company before the next date and next date was fixed on 22.11.2022. Though the present appeal was filed in the month of December, 2022 i.e. after the next date fixed before the NCLT, the Appellant has not brought on record any subsequent orders of NCLT before this Tribunal through its present appeal.

4. Ld. Counsel for the Appellant tried to persuade the court that the appellants had filed an application under Section 244 of the Companies Act, raising maintainability of the main Petition i.e. CP No. 222/241- 242/JPR/2020. However, the Ld. NCLT without deciding maintainability issue has directed to file Reply to the main CP. It is true that one can file an objection raising maintainability but at the same time the NCLT was not divested with jurisdiction to ask the parties to complete pleading in the main application. Moreover, from the impugned order it is not clear that the Ld. NCLT had made any observation on the point of maintainability. It is appropriate to reproduce the impugned order as follows:

"Heard Mr. V.L. Mathur, Adv. appearing on behalf of the Petitioner. Mr. Nilanjan Chatterjee, Adv. and Mr. Abhijeet Bhatnagar, Adv. for the Respondents. Ld. Counsels for the Respondents are directed to file reply to the main CP within 4 weeks with advance copy to the opposite Counsel. Ld. Counsel for the Petitioner is directed to file two pages written submission with regard to the dates and events along with his share percentage in the company well before the next date of hearing. List the matter on 22.11.2022".

Company Appeal (AT) No. 15 of 2023 -3-

5. In view of the facts and circumstances, we are of the opinion that instead

of passing of any order on merit of the appeal it can be disposed of granting

liberty to the appellant to approach the NCLT and may request for passing

order on his maintainability application. If such prayer is made we expect that

Ld. NCLT may examine the same and pass appropriate order in accordance

with law as expeditiously as possible.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/gc

Company Appeal (AT) No. 15 of 2023