Reference to third Member under company law is not an appealable order until final adjudication is completed.

The formulation of points of difference for reference to a third Member under Section 419(5) of the Companies Act, 2013 was only a ministerial step in the Tribunal's reference mechanism and did not determine any substantive right or liability. It did not finally decide the dispute, conclude the maintainability question, or amount to an adjudicatory order attracting Section 421(1). An appeal lies only after the reference is decided and the matter is finally disposed of by the Tribunal in accordance with the majority opinion. The challenge was therefore not maintainable, as the impugned communication was not an appealable order.

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Issues: Whether the order whereby the National Company Law Tribunal formulated the point of difference for reference to a third Member under Section 419(5) of the Companies Act, 2013, was an appealable order.

Analysis: Section 419(5) contemplates that, where Members of a Bench are equally divided, they shall state the point or points on which they differ and the case shall be referred for decision by another Member. The formulation of the point of difference was held to be only a ministerial step in aid of the statutory reference mechanism and not an adjudication determining the rights or liabilities of the parties. The order did not finally decide the lis, did not conclude the maintainability question, and did not amount to an order passed under the adjudicatory power of the Tribunal so as to attract Section 421(1). The appealable order would arise only after the reference is decided and the matter is finally disposed of by the Tribunal in accordance with the opinion of the majority of Members who heard the case.

Conclusion: The formulation of the point of difference was not an appealable order and the appeals were not maintainable.

Final Conclusion: The appellate challenge failed at the threshold because the impugned communication was treated as an internal reference step rather than a final adjudicatory order.

Ratio Decidendi: A statutory step that merely formulates the point of difference for reference to a third Member, without determining any substantive right or liability, is not an appealable order.

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