Umesh Aggarwal vs Ricoh India Ltd

[ arising out of Order dated 14th May, 2018 by NCLT, Mumbai Bench, in Company Petition No. (IB) - 156/MB/2018 ]

IN THE MATTER OF:

Mr. Umesh Aggarwal, 1966, Outram Line, GTB Nagar, Delhi - 110 009. ... Appellant

Versus

RICOH India Ltd., 801, 8th Floor, Ackurti Star, MIDC, Central Road, Near Marol Telephone Exchange, Andheri East, Mumbai - 400 093. ... Respondent

Present : For Appellant : Mr. Sachin Datta, Senior Advocate assisted by Ms. Prity Sharma and Mr. Sidhartha, Advocates

For 1st Respondent: Mr. Krishnendu Datta, Mr. Vikram Sobti, Ms. Apartna Trivedi, Ms. Pooja Mahajan and Ms. Mahima Singh, Advocates

For 2nd, 10th and Ms. Vaishnavi Rao and Ms. Ragima R., Advocates 11th Respondent :

For 3rd Respondent: Mr. Arun Kathpalia, Senior Advocate assisted by Mr. Diwakar Maheshwari and Ms. Pratiksha Mishra, Advocates

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

'Ricoh India Limited' (Corporate Applicant) filed an application under

Section 10 of the Insolvency and Bankruptcy Code, 2016 (for short, the 'I&B 2

Code') before the Adjudicating Authority (National Company Law Tribunal),

Mumbai Bench without impleading any lender as party. By ex parte

impugned order dated 14th May, 2018 the Adjudicating Authority having

admitted application under Section 10 of the I&B Code, the present appeal

has been preferred by shareholder. The learned counsel appearing on behalf

of the Appellant submitted that the application in Form 6 under Section 10 of

the I&B Code was filed without the decision of the shareholders. No Annual

General Meeting (AGM) nor any Extra-ordinary General Meeting (EoGM) was

conducted for taking decision to file an application under Section 10 of the

I&B Code for declaring insolvent of the 'corporate applicant'.

2. It was alleged that the 'Board of Directors' in its meeting only decided

to file an application under Section 10 of the I&B Code though it was not

required.

3. Reliance has been placed on decision of this Appellate Tribunal in 'Gaja

Trustee Company Private Limited & Ors. vs. Haldia Coke and Chemicals Private

Limited' - 2018 SCC OnLine NCLAT 331' wherein this Appellate Tribunal held

that in absence of any decision taken in the Annual General Meeting or Extra-

ordinary Meeting in terms of the 'Articles of Association', the application under

Section 10 was not maintainable.

4. It has been brought to our notice that Insolvency and Bankruptcy Code

has also been amended since 6th June, 2018 wherein it is laid down that

without any decision of the AGM of the shareholder, no application u/s 10 of

the I&B Code is maintainable. However, it is accepted that the amendment

was made on 6th June, 2018, which is subsequent to the admission of the

Company Appeal (AT) (Insolvency) No. 621 of 2018 3

application under Section 10 of the I&B Code which was admitted on 14th

May, 2018.

5. Learned counsel appearing on behalf of the Appellant relied on Article

164 of the 'Articles of Association of 'Ricoh India Ltd (Corporate Debtor), which

reads as under :

"164. If the Company shall be wound up, the Liquidator may

with the sanction of a Special Resolution of the

Company and any other sanction required by the Act,

divide amongst the members in specie or in kind, the

whole or any part of the assets of the Company

whether they shall consist of the property of the same

kind or not."

6. Learned counsel for the Respondent has referred to Article 127, which

relates to cover all the decisions to be taken in the meeting, which reads as

under:

"127. Questions arising at any meeting shall be decided by a majority of votes, provided however that no resolution shall be passed or decision taken by the Board either at a meeting of the Board or any committee thereof or by circulation in respect of any of the following significant matters unless and until one of the Directors representing RICOH or his alternate shall have voted in favour of such resolution or decision:-

xxx xxx xxx

xiii) Pass any resolution for winding up and/or presenting a petition for winding up of the Company."

Company Appeal (AT) (Insolvency) No. 621 of 2018 4

7. We have heard the learned counsel appearing on behalf of the Appellant

and learned counsel for the Respondent and perused the record.

8. In the case of 'Gaja Trustee Company Private Limited' (Supra), the

Articles of Association (Article 1.1.3; 9.1 and 9.2) specifically provided for an

'affirmative vote' which by any meeting of the shareholders for liquidation. As

per Article 179 of the said case, the Board of Directors was not authorised to

move an application for 'Liquidation' without 'affirmative vote' of the

shareholders.

9. In the present case under Article 127 (xii) the Board of Directors have

been empowered to pass any order for winding up and/or presenting a

petition for winding up of the Company.

10. Like the case of 'Gaja Trustee Company Private limited' (Supra) no

specific provision has been made to obtain 'affirmative vote' in the AGM of the

shareholders. Article 164 of 'Ricoh India Ltd.' (Corporate Debtor) specifies

when the 'liquidator' requires sanction of a 'Special Resolution' of the

company at the time of winding up. Therefore, the said Article 164 is not

applicable and cannot be relied upon to hold that the decision of the

shareholders in the AGM is maintainable for moving the application u/s 10

of the I&B Code.

11. We have already noticed that the prior approval of the shareholders in

the AGM has been substituted by the amendment made on 6th June, 2018,

which is not applicable in the present case as it was admitted earlier in May,

Company Appeal (AT) (Insolvency) No. 621 of 2018 5

2018. This apart, we find that subsequently the matter was placed before the

AGM in August, 2018 which also approved the decision for filing the

application under Section 10 of the I&B Code.

12. In view of the aforesaid position, no interference is called for. In absence

of any merit, the appeal is dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

New Delhi

14th May, 2019

/ns/

Company Appeal (AT) (Insolvency) No. 621 of 2018