Twenty First Century Wire Rod Ltd vs Nijinoy Trading Pvt. Ltd. & Ors

Twenty First Century Wire Rod Ltd. .Appellant

Versus

Nijinoy Trading Pvt. Ltd. & Ors. Respondents

Present:

For Appellant: Ms. Ranjana Roy Gawai, Ms. Vasudha Sen and Ms. Rishika Raha, Advocates

ORDER

21.08.2017 The appellant has challenged the order dated 4th July, 2017

passed by the National Company Law Tribunal, Ahmedabad Bench, Ahmedabad

(hereinafter referred to as the 'Tribunal') whereby and whereunder the petition

preferred by the appellant in a company petition which was already disposed of

in the year 2011, has been dismissed with the following observations:

"This application is filed by M/s Twenty First Century Wire Rods

Put. Ltd., Mumbai to enforce the order dated 09.11.2011 passed

by Hon'ble CLB in Company Petition no. 44/2009 nw Deed of

settlement dated 08.11.2011.

Learned Counsel appearing for the Applicant contended as per the

terms of settlement deed dated 08.11.2011 Respondent have to

pay outstanding amounts and transfer the land and the same can

be enforced by this Tribunal since the CP was -2-

withdrawn in view of the terms of settlement deed dated

08.11.20 11. 9/634- He further contended that CA 791634-

A/LB/MB/201 Al CLBIMB12015 now TP no.112/2016 filed by N K Vasu for

enforcement of order of CLB was withdrawn against the interest of

the present applicant company.

2nd Respondent appeared in person and opposed the admission of

the application. None present for other Respondent.

Following is the order passed by the CLB on 09.11.2011 in CP

44/2009:

"The parties have filed an application stating that the disputes and differences have been amicably settled between them and accordingly executed the Deed of Settlement dated 8th November, 2011 and sought permission to withdraw the petition in, terms of Deed of Settlement. Permission is accorded and CP no.44 of 2009 is dismissed as withdrawn. No order as to costs. All the interim orders stand vacated."

In view of the above said order it is clear that CP 4412009 is

dismissed as withdrawn. It is not stated in the order of çLB that

CP 4412009 is disposed of in terms of settlement deed dated

08.11.2011. Unless and until the Deed of settlement is merged

into the order of the CLB this Tribunal cannot enforce the terms of

settlement deed dated 08.11.2011, in this enforcement

application. Moreover, CA 79/2015 (Old) now TP 112/2016 (New)

filed or enforcement or order was dismissed as withdrawn. 3

If there is any violation of terms of settlement deed dated

08.11.2 011 it amounts to violation of contractual terms for which

the remedy is elsewhere and in a different forum but not in the

form of enforcement or order dated 09.11.2011 passed by CLB in

CP No. 44/2009, before this Tribunal.

In view of the above discussion, there are no grounds to admit the

application. Application is dismissed at admission stage. No order

as to costs."

2. Learned counsel for the appellant submits that the case was withdrawn in

view of the amicable settlement reached between the parties and the Deed of

Settlement was executed on 8th November, 2011. The respondent having violated

the terms of settlement, it was open to the appellant to bring the fact to the notice

of the Tribunal.

Reliance has been placed on the judgment of the Hon'ble Supreme Court

in Salkia Businessmen's Association and others vs. Howrah Municipal

Corporation and others, 1(2001) 6 SCC 688J.

3. From the impugned order, it is clear that the Company Law Board on 9th

• November, 2011 noticed the application preferred by the parties stating that they

have amicably settled the matter and executed the Deed of Settlement dated 8th

November, 2011 and the parties sought permission to withdraw the petition in

terms of Deed of Settlement. The Company Law Board accorded permission to

withdraw the company petition whereby the petition was disposed of as -4-

withdrawn. From the said order, it is clear that no direction was issued by the

Company Law Board nor the case was decided on merits.

4. Insofar as the case of Salkia Businessmen's Association and others

(Supra) as referred by the learned counsel for the appellant, the said filed in

different context. In the said case, the parties reached compromise

memorandum and the Hon'ble High Court disposed of the petition in terms of

the compromise reached between the parties. Thereby the order passed by the

Hon'ble High Court for all purpose amount to direction of the Hon'ble High Court

in terms of settlement. The case of the appellant being different, in absence of

any direction by Company Law Board, the appellant cannot derive the advantage

of the aforesaid decision.

We find no merit in the appeal. It is accordingly dismissed. However, in

the facts and circumstances of the case, there shall be no order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Balvinder Singh] Member (Technical)