Vrg Healthcare Pvt Ltd & Ors vs Ganesh Ramchandra Chakkarwar

3. Sonali Paltewar, 502, Le Prestige, Besides Bisne Hospital, Ramdaspeth, Nagpur 440011 Appellantss

Vs

Ganesh Ramchandra Chakkarwar, Chakkarwar Court, Sitabuldi,Soni Lane Nagpur 440012 Respondent

For Appellant:- Mr J.K.Gilda, Mr. Rishabh Sancheti, Ms Padma Priya and Mr. Anchit Bhandari, Advocates.

For Respondents: - Mr. P.K. Mittal, Mr. Gagan Sanghi, Ms Tanya Goel, Advocates.

JUDGEMENT

(11th December, 2019)

JUSTICE JARAT KUMAR JAIN, MEMBER (JUDICIAL)

The appellants have preferred this appeal against the interim order

dated 09.07.2019 passed by National Company Law Tribunal, Mumbai in

the petition under Section 241 and 242 of the Companies Act, 2013. The

Company Appeal (AT) No.260 of 2019 2

Respondent, (petitioner before NCLT), filed Company Petition before NCLT,

Mumbai on 19.09.2018 making grievance of oppression and

mismanagement against the appellants (Respondent before NCLT). During

pendency of this petition NCLT on 26.9.2018 at 4.30 PM passed the Ad-

Interim Order. The operative portion is as under:-

"We have considered the contentions, statements made by the petitioner and we are convinced that there is a prima facie case in favour of the petitioner and balance of convenience is also in favour of the petitioner and if interim orders are not passed, the petitioner will suffer irreparable loss which cannot be compensated in terms of money for the reason that in the event the company which runs the hospital suffers bad name, being the director and substantial shareholder of the company, the petitioner has to bear the negative image apart from losing valuable investments made in to the company. Therefore, in 'A' this background of the matter, we hereby direct the respondent not to alter the shareholding pattern of the company and also not to give effect to resolution, if any, removing the petitioner as director of the company until further orders. In the event, the respondent had uploaded the resolution removing the petitioner as a director of the company, respondents are directed to immediately remove/ delete the said resolution from the MCA 'B' postal, the DIR-12 must be cancelled and take appropriate steps to restore the name of the petitioner as a director of the company. The respondents are directed to file their counter within four weeks by duly serving the copies to the petitioner and get ready to argue the matter on 15th November, 2018 Hence this order"

2. Aggrieved by the above order the appellants have filed appeal Company

Appeal (AT) No.385/2018 before this Appellate Tribunal. This Tribunal vide

order dated 14.02.2019 modified the order. Operative portion is as under:-

"12. We are not setting aside the Impugned Order as a whole as, going through the rival cases, it appears to us that both sides would require explaining to be done as interest of Company as a whole is to be protected. We pass the following Orders:-

ORDER

Company Appeal (AT) No.260 of 2019 3

A) For the above reasons, we set aside the portions of Impugned Order (highlighted and marked 'B' in para 5 - supra) where it is directed that if the (original) Respondents have uploaded the Resolution, they should remove/delete the same from MCA portal and that DIR 12 must be cancelled.

B) As regards the other directions (highlighted and marked 'A' in para 5 - supra) where NCLT has directed the (original) Respondents not to alter the shareholding pattern of the Company and also not to give effect to the Resolution, if any, removing the original Petitioner as Director of the Company, we set aside the words suffixed "until further orders". We direct that rest of this direction of NCLT (highlighted and marked 'A' in para 5 - supra) shall be treated as Ad-Interim Orders which shall remain in force till Appellants - original Respondents are heard giving opportunity as to why the Ad-Interim Order should not be confirmed pending decision of the Company Petition.

14. The Impugned Order is modified accordingly and the Order passed by NCLT shall be treated as Ad-Interim Order. The parties before us are directed to appear before NCLT on 05.03.2019. The Appellants shall file Reply to the Company Petition and Reply to the Ad-Interim Relief claimed by the Respondent - Petitioner to be filed within time NCLT may specify. NCLT is directed to hear both the parties and decide regarding the Interim Relief expeditiously. If any party protracts, NCLT may take any further suitable decisions and pass appropriate orders."

3. Against this order the appellants have filed Civil Appeal No.2366/2019

before the Hon'ble Supreme Court. The appeal was disposed off on 03.05.2019

as under:-

"Heard the learned Senior counsel appearing for the appellants and the learned Senior counsel appearing for the respondent.

It is brought to the notice of this court by both the learned senior counsel appearing for the parties that the matter is listed before National Company Law Tribunal on Monday, the 6 th May, 2019 and in view of that, we are not inclined to pass any order except requesting the said Tribunal to pass appropriate order on the Company Petition in accordance with law, without being influenced by any observation made by the National Company Law Tribunal and National Company Law Appellate Tribunal.

The Appeal is disposed of in the afore-stated terms."

Thereafter NCLT passed the impugned order.

Company Appeal (AT) No.260 of 2019 4

4. Learned counsel for the appellants submitted that NCLT on 26.9.2018

without first appreciating the issue of maintainability of the petition passed

an ad interim order restraining the appellant company from giving effect to

the Resolution dated 21.9.2018 for removal of Respondent from the

directorship of the appellant company. Learned counsel for the appellant

further submits that NCLT erred in declining the prayer of vacation of ad

interim order and allowed the application of respondent and directed for

Forensic Audit report. It is further submitted that the impugned order is in

clear violation of the Supreme Court's order dated 03.05.2019.

5. Learned counsel for the Respondents submits that so far as the

forensic audit report by independent CA is concerned this decision was taken

in a Board Meeting dated 21.6.2018 in which the appellants were present. In

this regard the Respondent has filed the application IA No.216/2019 and the

appellants in their reply to the application have not disputed this prayer.

Hence the NCLT by the impugned order has directed for forensic audit report.

Thus this is a consent order and as per Section 421(2) of the Companies Act,

2013 against the consent order no appeal lie to the Appellate Tribunal. Hence,

the appeal is not maintainable. It is further submitted that the impugned

order is a well reasoned order. Forensic audit report would help to take

appropriate decision whether the allegations of oppression and

mismanagement are correct or not. If interim order is vacated then the

respondent will be removed from the director of the company. Therefore, the

appeal is liable to be dismissed.

Company Appeal (AT) No.260 of 2019 5

6. Having heard learned counsel for the parties we have considered the

submissions.

7. The bone of contention of the appellants counsel is that Hon'ble

Supreme Court has not interfered in the interim order passed in favour of

respondent because the company petition was listed before NCLT for final

hearing and now NCLT instead of deciding company petition on merit passed

the impugned order which is against the spirit of Hon'ble Supreme Court's

order. Specially when ad interim order is in favour of Respondent.

8. In this light we have examined the impugned order.

9. Undisputedly the Respondent has moved the application (IA

No.216/2019) after the passing of the ad interim order dated 26.09.2018. In

reply of the application appellants have not opposed the forensic audit report

by independent CA. NCLT in the impugned order held that "At this point of

time it would be appropriate for this Bench to finally adjudicate the matter once

for all, after obtaining the forensic audit report by an independent Chartered

Accountant. Only an independent Chartered Accountant not connected with the

affairs of the company, after going through the books of accounts can submit

an impartial report as regards the financial irregularities, if any, on the part of

the directors of the company whether it is the Petitioners or the Respondents".

It is not argued before us by the Learned counsel for the appellants that

forensic audit report will not be helpful to adjudicate the allegations of

oppression and mismanagement.

10. Whether the NCLT has violated the order of Hon'ble Supreme Court.

Company Appeal (AT) No.260 of 2019 6

Hon'ble Supreme Court in order dated 03.05.2019 directed the NCLT

"to pass appropriate order on the Company Petition in accordance with law,

without being influenced by any observation made by the National Company

Law Tribunal and National Company Law Appellate Tribunal."

11. With the above it is apparent that the impugned order is not in violation

of Hon'ble Supreme Court order.

12. Whether NCLT is unnecessary prolonging the matter.

NCLT in the impugned order observed that "we are also conscious that

the matter be heard at the earliest point of time and final orders are required to

be passed on priority basis"

13. We, with the above discussion, find no ground to interfere in the

impugned order. Hence the appeal is dismissed. No order as to costs.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

(Dr. Ashok Kumar Mishra) Member (Technical) New Delhi

Bm

Company Appeal (AT) No.260 of 2019