Shridhar Vasudeo Bedekar & Ors vs M/S. V P Bedekar And Sons Private Limited ...
- CitationCOMPANY APPEAL (AT) NO. 103 of 2021
Ratio decidendi
The rule this decision rests on
The 15 February 2016 order, read as a whole, imposed only a status quo restraint on the company's fixed assets, qualified by a proviso allowing alienation, encumbrance or creation of third-party rights with the prior permission of the Board; it imposed no bar on the company raising loans. An order that does not restrain borrowing cannot be reviewed or recalled by a later order permitting borrowing, so the impugned order does not amount to a modification of the earlier order. Where the Bombay High Court's orders, passed with the consent of the parties, recognised the company's business needs and permitted it to deal with its assets and raise interim finance, the tribunal's later permission to avail facilities within the approved borrowing limits and security is consistent with those orders and does not contravene them. An interim order permitting the company to avail facilities from a bank, made subject to the final orders of the tribunal and the condition that no further liability be created while availing them, which has not been challenged, stands as an unappealed determination; a plea that the later order is unsustainable on the same ground as that earlier order cannot be sustained in appeal where the earlier order was not challenged.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order dated 26th March, 2021 passed by the National Company Law Tribunal, Mumbai Bench, Special Bench, Court - II, in C.A. No. 1004/2020 in C.P. No.-26/241/MB/2018)
IN THE MATTER OF:
1. Shridhar Vasudeo Bedekar (since deceased) Through its Legal Heir Mr. Suhas Shridhar Bedekar Having his residence at A6/11, ...Appellant No. 1. Sarita Mangalaya Co-op Housing Society, Sarita Nagari, Phase I, Ganeshmala, Pune - 411 030.
2. Suhas Shridhar Bedekar Having his residence at A6/11, Sarita Mangalaya Co-op Housing Society, Sarita Nagari, Phase I Ganeshmala, Pune - 411 030. ...Appellant No. 2.
3. Sanjay Shridhar Bedekar Through its Authorised Representative Mr. Suhas Shridhar Bedekar Having his residence at A6/11, Sarita Mangalaya Co-op Housing Society, Sarita Nagari, Phase I, Ganeshmala, Pune - 411 030. ...Appellant No. 3.
Versus
1. M/s. V.P. Bedekar and Sons Pvt. Ltd. A Private Company incorporated under the provisions of Companies Act 1913, Having its registered office at 56, Gharpure Path, Girguam, Mumbai 400 004. ...Respondent No. 1.
2. Mr. Vasant Vasudeo Bedekar Residing at Bedekar Sadan No. 5, Tatya Gharpure Path, Girgaum, Mumbai - 400 004. ...Respondent No. 2.
3. Mr. Atul Vasnat Bedekar Residing at Bedekar Sadan No. 5, Tatya Gharpure Path, -2- Comp. App. (AT) No. 103 of 2021
Girgaum, Mumbai - 400 004. ...Respondent No. 3.
4. Mr. Ajit Vasant Bedekar Residing at Bedekar Sadan No. 5, Tatya Gharpure Path, Girgaum, Mumbai - 400 004. ...Respondent No. 4.
5. Mr. Mandar Trimbak Bedekar Residing at Bedekar Sadan No. 5, Tatya Gharpure Path, Girgaum, Mumbai - 400 004. ...Respondent No. 5.
Present
For Appellants: CS Anagha Anasingaraju, Advocate. For Respondents: Mr. Nakul Dewan, Sr. Advocate with Mr. Pranaya Goyal, Mr. Chiranjivi Sharma, Ms. Neetika Sharma & Mr. Rohan Naik, Advocates for R-1 to R-5. JUDGEMENT
[Per; Shreesha Merla, Member (T)]
1. Challenge in this Appeal is to the Impugned Order dated 26.03.2021,
passed by the National Company Law Tribunal ('NCLT'), Mumbai Bench,
Special Bench, Court - II, in CA No. 1004/2020 in CP No. 26/241/MB/2018
by which Order, NCLT has permitted the Applicant Company namely M/s.
V.P. Bedekar & Sons Private Limited to avail Secured and Unsecured Loans
to further their business interest as per the borrowing limits and security
approved by the majority of the Board, including Security Facilities offered by
Janata Sahakari Bank ('JS Bank') Pune.
2. Ms. C.S. Anagha Anasingaraju representing the Appellant vehemently
argued that the NCLT while passing the Impugned Order, has gone one step
further giving the Respondent Company blanket permission to borrow
Secured and Unsecured Loans and create further liabilities, despite the fact
that the Respondent Company is in final distress and there are several
outstanding amounts of Sundry Creditors and the Company was in default of
payments to these Creditors even as on 31.03.2020. It is further submitted -3- Comp. App. (AT) No. 103 of 2021
that the Respondents have suppressed material facts in their Application in
MA 1004/2020. It is also submitted by Ms. Anagha Anasingaraju that the
Order dated 26.03.2021 amounts to modification of the Order dated
15.02.2016 of the Company Law Board ('CLB') which was not interfered with
by the Hon'ble High Court.
3. Learned Sr. Counsel Mr. Nakul Dewan appearing for the Respondent
submitted that the Appeal is infructuous as JS Bank issued a fresh
sanctioned Letter dated 06.07.2021 and Bank of Baroda ('BOB') issued a No
Due Certificate with respect to the Credit Facilities sanctioned by BOB.
Further, Interim Order passed by NCLT on 14.07.2020 allowing the Company
to avail the facilities from JS Bank, subject to final Orders of the NCLT and
that the Company shall not create any further liability while availing facility,
has not been challenged. By the said Order, NCLT disposed of MA4114/2019
as infructuous. It is submitted that the Impugned Order does not amount to
review or recall of the 15th February Order as that Order did not impose any
restriction on the Company from raising loans.
4. A brief perusal of the 15th February Order shows that the Order only
directed the Respondent to maintain Status Quo with regard to Fixed Assets
with a rider that if any necessity is felt to alienate, encumber or dispose of or
create any third party rights and/or interests in any Immovable Property
including plant and machinery, it may be done only after obtaining prior
permission of the Board. The Orders dated 22.04.2016 and 13.10.2016
passed by the Hon'ble Bombay High Court recognize the business needs of
the Company and permitted the Company to deal and raise Interim Finance
from time to time. It is significant to mention that the Orders passed by
Hon'ble Bombay High Court have been passed with consent of both the
parties. A perusal of the Applications 3/2017 & 52/2018 in TCP No.26/2014 -4- Comp. App. (AT) No. 103 of 2021
show that the Company's Capital Requirements have been recognized and
permission granted to deal with its Assets on a lease cum license basis.
Therefore, we are of the considered view that the Impugned Order does not
amount to review/recall of any of the Orders passed by the Hon'ble High Court
of Bombay. The Company is in the business of manufacturing Pickles and
Spices and has taken a financial toll during the pandemic and under the
sanctioned Letter dated 06.07.2021, the Company had offered the Assets
which were already encumbered in favour of JS Bank as security cover for
additional facilities.
5. Regard being had to the fact that MA 4114/2019 was dismissed as
infructuous and NCLT had permitted the Respondent Company to avail the
Facility from JS Bank and this Order was not challenged, we do not find any
substantial grounds in the submissions made by the Appellants.
6. Furthermore, the main Company Petition is still pending before the
NCLT. Having regard to the facts and circumstances of the attendant case,
this Appeal is dismissed with a request to the NCLT to decide the main
Company Petition 26/241/MB/2018 as expeditiously as practicable,
preferably within 6 months from the date of the receipt of this Order.
[Justice Rakesh Kumar] Member (Judicial)
[Ms. Shreesha Merla] Member (Technical)
Principal Bench, New Delhi 25th January, 2023
himanshu
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