Suvas Reality Private Limited & Ors vs Kailashchandra Ramgopal Lohiya & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH: NEW DELHI Company Appeal (AT) No. 29 of 2022 [Arising out of Order dated 17th January, 2022 passed by the National Company Law Tribunal, Ahmedabad, Division Bench, Coudrt-1 in Company Application No. 43(AHM)2021 in C.P. No. 100 of 2018]

IN THE MATTER OF: 1. Suvas Reality Private Limited Having address Shop No. 226, Shopping Centre Turning Point Ghod Dod Road, Bhatar Road Junction Surat GJ 390002 IN ...Appellant No.1 2. Vinod Kumar S/o Mr. Anokhilal Jain Shop No. 226, Shopping Centre Turning Point, Ghod Dod Road, Bhatar Road Junction Surat GJ 390002 IN ...Appellant No.2 3. Vijay Shah S/o Sobhalal Shah O-430, Aashirvad Palace, Near Mangalamchowlk, Bhatar Road Surat - 395007 ...Appellant No.3 Versus 1. Kailashchandra Ramgopal Lohiya E-5, 601, Capital Greens Besides Poddar Residency Vesu, Bharthana, Surat - 395007 ...Respondent No.1 2. Manoj Sardasingh Kavadia R-1110, Rajtilak Apartment, Opp. Vaishali Bunglows, City Light, Surat - 395017 ...Respondent No.2 3. Ramesh Kumar Moolchand Bohra A-4, Ravi Raj Apartment, Near GIDC S.T. Depo, Valiachokdi, GIDC, Bharuch, Ankleshwar - 393002 ...Respondent No.3 4. Jayesh S. Shah O-430, Aashirwad Palace Near Mangalamchowk, Bhatar Road Surat - 395007 ...Respondent No.4

Company Appeal (AT) No. 29 of 2022 1 of 7 5. Narendra D. Garg B-304 Green Avenue Opp. Jogers Park, Ghod Dog Surat - 395007 ...Respondent No.5 6. Santosh N. Garg B-304 Green Avenue Opp. Jogers Park, Ghod Dog Surat - 395007 ...Respondent No.6 7. Raju Shah 229-230, Turning Point Complex Ghoddog Road, Surat - 395007 ...Respondent No.7 8. Ranu B. Chandak 407, 21st Century Ring Road, Near Udhna Darwaja Surat - 395002 ...Respondent No.8 9. B.K. Chandak 407, 21st Century Ring Road, Near Udhna Darwaja Surat - 395002 ...Respondent No.9 10. B.K. Chandak - HUF 407, 21st Century Ring Road, Near Udhna Darwaja Surat - 395002 ...Respondent No.10 11. Agarwal Roadlines Shop No. SB 7-8, Galaxy Complex Genda Circle, Alkapuri Vadodara - 390007 ...Respondent No.11 Present: For Appellant : Mr. Arvind Kumar Gupta, Ms. Heena George, Ms. Shivani Sharma, Advocates For Respondent : Mr. Pulkit Deora, Mr. Harsh Gurbani, Ms. Aphune K. Kezo, Advocates.

(17th March, 2023)

KANTHI NARAHARI, MEMBER (TECHNICAL) Preamble:

The Present Appeal is filed by invoking provisions of Section 421 of the

Companies Act, 2013 against the order dated 17th January, 2022 passed by

Company Appeal (AT) No. 29 of 2022 2 of 7 the National Company Law Tribunal, Ahmedabad, Division Bench, Court-1 in

Company Application No. 43(AHM)2021 in CP No. 100 of 2018 whereby the

National Company Law Tribunal (in short 'NCLT') passed an interim direction

to maintain the status-quo in respect of the immovable property of the

Respondent Company.

Brief Facts:

Appellant's Submissions:

2. The Learned Counsel for the Appellant submitted that aggrieved by the

aforesaid order, the Appellant preferred the present Appeal and narrated the

brief facts.

3. It is submitted that the 1st Respondent filed C.P. No. 100 of 2018 before

the Ahmedabad, Bench alleging acts of Oppression and Mismanagement in

the Affairs of the Company. The Respondent claimed to be 50% shareholder

of the Company at the time of filing the C.P. On the other hand, the Appellants

claimed to be owners of 45% shareholding in the company. While so, the

Appellants also filed Company Petition being No. 07 of 2020 alleging acts of

Oppression and Mismanagement in the affairs of the Company by the

Respondents. The Appellants also lodged FIR against the 1st Respondent and

the 1st Respondent was arrested on 13.01.2021.

4. During the pendency of litigation, a Settlement Agreement dated

23.01.2021 was signed between the parties. After signing the Settlement

Agreement, the Appellants did not contest bail being granted to the

Respondent. Having to abide by the Settlement Agreement, the Appellant

Company Appeal (AT) No. 29 of 2022 3 of 7 group had filed withdrawal pursis to withdraw their C.P. No. 07 of 2020 and

the C.P. stood withdrawn vide order dated 28.06.2021.

5. The Respondent also filed withdrawal pursis to withdraw their C.P. No.

100 of 2018. But in a mala fide manner they refused to withdraw C.P. No. 100

of 2018 and orally sought withdrawal of withdrawal pursis during the hearing

held on 03.03.2021. The NCLT allowed withdrawal of withdrawal pursis vide

impugned order dated 03.03.2021 in C.P. No. 100 of 2018.

6. The Learned Counsel for the Appellant submitted that the order passed

by the NCLT is a non-speaking order and passed without appreciating the

facts of the case. The Learned NCLT could not have been permitted to

withdrawal the withdrawal pursis. By virtue of the said impugned order dated

03.03.2021 the Respondent No.1 herein obtained interim orders in C.P. No.

100 of 2018 on 17.01.2022 in a mala fide manner. It is submitted that the

impugned order dated 17.01.2022 is bad in law.

7. The Learned Counsel for the Appellant submitted that the aforesaid

interim order passed on 17.01.2022 is in violation of maintaining judicial

propriety due to pending appeal being CA (AT) No. 99 of 2021 in which the

Appellants have challenged the very withdrawal of withdrawal pursis in C.P.

No. 100 of 2018 and the Hon'ble Appellate Tribunal seized of the matter.

8. The Learned Counsel submitted that in view of the facts and

circumstances as stated above, he prayed this Bench to allow the Appeal by

setting aside the impugned order dated 17.01.2022.

Company Appeal (AT) No. 29 of 2022 4 of 7 Respondent's Submissions:

9. The Counsel appearing for the Respondents submitted that the present

Appeal is a misguided attempt to scuttle proceedings brought by the

Respondent before the NCLT. It is submitted that the withdrawal of the

withdrawal pursis was bona-fide because the withdrawal pursis was moved

under duress. It is also submitted that the 3rd Appellant who is in control of

the affairs of the company filed a false criminal complaint on 13.01.2021 with

allegations contrary to the Settlement Agreement entered between the parties

dated 11.08.2017 wherein it was acknowledged the Respondent No.1 herein

holds 50% shares and agreed to transfer 40% to Respondent No.5 upon

certain terms. The Respondent No.1 herein under duress and coercion

executed the Settlement Agreement dated 23.01.2021 to transfer 10,000

shares to Appellant No.3 and affixed his signatures on a withdrawal

application prepared by the Appellants. It is submitted that on 27.01.2021

the 3rd Appellant reported settlement before the Sessions Court and the

Respondent No.1 was released from judicial custody.

10. It is submitted that the Learned NCLT passed the interim order dated

17.01.2022 in C.A. No. 43 of 2021 in C.P. No. 100 of 2018 since the 1st

Respondent withdrawn the withdrawal pursis in C.P. No. 100 of 2018 and the

NCLT allowed such withdrawal of withdrawal pursis vide order dated

03.03.2021 and in the eye of law the C.P. No. 100 of 2018 filed by the 1st

Respondent herein is in continuum. Hence the Learned NCLT passed the

status-quo order and there is no illegality in passing such order.

Company Appeal (AT) No. 29 of 2022 5 of 7

11. In view of the reasons as stated above, the Learned Counsel for the

Respondent prayed this Bench to dismiss the Appeal.

Analysis / Appraisal:

12. Heard the Learned Counsel appeared for the respective parties, perused

the pleadings and documents. The NCLT vide its order dated 17.01.2022 passed

the following order:

"Order I. The Petitioner and Respondents in C.P. No. 100 of 2018 are directed to maintain the status quo in respect of the immovable property/fixed assets of the Respondent company (as that order is still in existence and not varied or set aside).

II. Above order to maintain status quo is subject to the decision in appeal bearing Company Appeal (AT) No. 99/2021 by Hon'ble NCLAT.

16. With these directions, Comp. App/43(AHM)2021 in C.P. No. 100 of 2018 stands disposed of."

13. Since this Tribunal in Company Appeal (AT) No. 99 of 2021 sets aside the

impugned order dated 03.03.2021 passed by the NCLT, Ahmedabad Bench in

C.P. No. 100 of 2018 whereby the NCLT allowed withdrawal of withdrawal pursis

made in C.P. No. 100 of 2018, consequently, the C.P. No. 100 of 2018 and the

withdrawal of withdrawal pursis has to be heard and decided by the NCLT afresh.

Thereby this Tribunal is of the view that the C.P. No. 100 of 2018 and its

continuum was suspended until the issue of withdrawal of withdrawal pursis is

decided. That being so, the passing of interim order in such a situation may not

be appropriate. Further, the NCLT in its impugned order dated 17.01.2022 in

Company Appeal (AT) No. 29 of 2022 6 of 7 para-II made it clear that the order to maintain status-quo is subject to the

decision in Company Appeal (AT) No. 99 of 2021 by this Appellate Tribunal.

Conclusion:

14. For the aforesaid reasons the order of NCLT dated 17.01.2022 is hereby

set aside.

15. Resultantly, the Company Appeal (AT) No. 29 of 2022 is allowed. No order

as to costs.

[Justice Anant Bijay Singh] Member (Judicial)

[Kanthi Narahari] Member (Technical) pks

Company Appeal (AT) No. 29 of 2022 7 of 7