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Soumitra Banerjee & Anr vs Asher Ebrahim Melamed & Anr

National Company Law Appellate Tribunal13 January 2021

Ratio decidendi

The rule this decision rests on

The interim order of the Tribunal restraining withdrawal, spending or diversion of company funds pending appeal merges into the Tribunal's final order once the appeal is disposed of on merits, so that after such disposal the interim order no longer subsists as an independent basis for contempt proceedings. Where the matter has, after the final disposal of the appeal, been remitted to the Adjudicating Authority for liquidation, the Tribunal will not entertain a contempt petition founded on the interim order; the applicant's proper remedy lies in an application before the Adjudicating Authority, which will decide the grievance in accordance with law.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHIContempt Case (AT) No. 05 of 2020inCompany Appeal (AT) No. 100 of 2018

IN THE MATTER OF: Asher Ebrahim Melamed ...Applicant. Versus Mr. Soumitra Banerjee & Anr. ...Contemnors. Present: For Appellant: Mr. Deepak Kapoor, Advocate. For Respondent: None. ORDER

(Virtual Mode)

13.01.2021 The Applicant has filed this Contempt Case against the Respondent Mr. Soumitra Banerjee and Ms. Shampa Banerjee as Contemnors. The Applicant claims that the Respondents had filed Company Appeal (AT) No. 100 of 2018 in which the Order dated 25th April 2018 was passed which reads as under:

"Mr. Deepak Kapoor, learned counsel appearing on behalf of 1st Respondent prays for and allowed 10 days' time to file reply. Rejoinder, if any, may be filed by the Appellant within 4 days thereof.

Post the matter on 11th May, 2018.

Until further order, the Interim Order passed on 9th April, 2018 shall continue. During the pendency of the appeal, the respondent will not withdraw or spend or divert any amount of the Company except for day-to-day functioning of the company and not for any other purpose."

2 2. The Learned Counsel submits that in the operative part where direction is

that 'Respondent' will not withdraw it was actually meant for the Appellants Mr.

Soumitra Banerjee and Ms. Shampa Banerjeee who were in the management of

the Company.

3. The Learned Counsel submits that in spite of such orders, the

Respondents Mr. Soumitra Banerjee and Ms. Shampa Banerjee caused losses to

the Company and kept the concerned property vacant causing loss to the

company and thereafter have leased out the property to a person who is of

doubtful standing and have caused loss to the company. This contempt is

alleged.

4. It is noticed that the Company Appeal (AT) No. 100 of 2018 itself has been

disposed on merits. The copy of the Judgment shows that the present Applicant

Asher Ebrahim Melamed had filed Application for oppression and

mismanagement and the Ld. NCLT had after considering the matter allowed the

Company to liquidate its assets. This order has been upheld in the order dated

12th March, 2020 while disposing the Company Appeal (AT) No. 100 of 2018.

5. Considering the fact that the Interim Impugned Order would merge in the

final order of this Tribunal, and the fact that now the matter is before the Ld.

NCLT for the purposes of liquidation, we do not find any reason to entertain the

present Contempt Case before this Tribunal. The Applicant may, if so desired,

move an Application before the Ld. NCLT which will decide the same one way or

the other as per provisions of law.

Contempt Case (AT) No. 05 of 2020 in Company Appeal (AT) No. 100 of 2018 3

With these observations, the Application stands disposed of.

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

[Mr. V.P. Singh] Member (Technical)

Basant B./md.

Contempt Case (AT) No. 05 of 2020 in Company Appeal (AT) No. 100 of 2018

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