2022 (9) TMI 394 - Tri - Insolvency and Bankruptcy

Tribunal Orders Cooperation, Record Provision, and Advocate Oversight for Gagan Aerospace Limited

Rachakonda Siva Kumar Versus Gagan Aerospace Limited and Ors.

The Tribunal directed full cooperation from all parties to the Chairperson and Auditor, mandated the provision of relevant records to the Applicant, and ... Seeking execution of order dated 27.02.2017 against Respondent No. 2 & 3, in terms of Clause (3) of Section 424 of the Companies Act - non-extension of cooperation to the 2nd Respondent/Chairperson and to the Auditor appointed by this Tribunal - failure to take the relevant records under his custody and make available those records to the Applicant - copies of the record as requested by the Applicant were not provided - HELD THAT:- Admittedly, the order of this Tribunal dated 27.02.2017 being a consent order, both sides shall ensure compliance of the terms without any deviation what so ever. While it is the case of the Applicant that the Respondents 2 & 3 viz. the Chairman appointed by this Tribunal for the 1st Respondent Company and the 3rd Respondent who is the promoter/Director of the 1st Respondent have breached the directions (iv), (v), (viii), (ix) and (x) of the consent order dated 27.02.2017, given under clauses, the Respondents 2 & 3 strongly refuted the same and further contended that earlier applicants claiming similar reliefs and alleging contempt of the order of this Tribunal dated 27.02.2017, besides non-cooperation were filed under CA 51, 52 & 53 of 2018 and the said IAs after enquiry were dismissed by this Tribunal vide order dated 22.04.2019. However, the appeals preferred against the said order before Hon'ble NCLAT are pending. The Tribunal passed order dated 27.02.2017 giving various directions in the interest of 1st Respondent, which is now under the management of the Chairperson appointed by this Tribunal. Therefore, it is imperative that the directions supra, shall invariably be followed/complied with by the parties in the interest of the 1st Respondent, lest the affairs and the management of the 1st Respondent will be in jeopardy. The Petitioner as well as Respondents No. 2 & 3 are directed to extend full co-operation to the Chairperson of the 1st Respondent and to the Auditor enabling them to discharge their duties/functions - Application disposed off. Issues Involved:1. Execution of the order dated 27.02.2017.2. Alleged non-cooperation by Respondents 2 & 3.3. Compliance with the Tribunal's directions.4. Access to company records and data.5. Appointment and role of an Advocate Commissioner.Issue-wise Detailed Analysis:1. Execution of the Order Dated 27.02.2017:The Applicant sought the execution of the order dated 27.02.2017 against Respondents 2 and 3 under Clause (3) of Section 424 of the Companies Act. The consent order included several directions aimed at resolving issues within Gagan Aerospace Limited. The Tribunal appointed a Chairperson and an Auditor to oversee the company's Board Meetings and Annual General Meetings and directed all parties to cooperate fully.2. Alleged Non-Cooperation by Respondents 2 & 3:The Applicant alleged that Respondents 2 and 3 failed to comply with the Tribunal's directions, particularly those related to cooperation with the Chairperson and Auditor, providing relevant records, and allowing access to company documents. The Applicant accused the Chairperson of withholding records and preventing inspection, thus failing to implement the Tribunal's order.3. Compliance with the Tribunal's Directions:Respondent 3 countered that the Applicant had been provided access to the company records and that the Auditor resigned due to personal reasons. The Respondent also mentioned that similar applications filed by the Applicant had been dismissed by the Tribunal, and appeals were pending before the Hon'ble NCLAT. The Tribunal emphasized the necessity for all parties to comply with the consent order to avoid jeopardizing the company's management.4. Access to Company Records and Data:Respondent 3 argued that certain sensitive and confidential data could not be provided to the Applicant due to security concerns. However, the Tribunal referred to precedents indicating that parties entitled to inspection could obtain copies of inspected documents. The Tribunal directed Respondents to make the relevant records available for the Applicant's perusal.5. Appointment and Role of an Advocate Commissioner:To ensure compliance and oversee the process of providing access to the records, the Tribunal appointed Ms. Sarvani Desiraju as Advocate Commissioner. The Advocate Commissioner was tasked with supervising the provision of records to the Applicant and filing a report on the next hearing date. The fee for the Advocate Commissioner was set at Rs. 60,000, to be shared equally by the Applicant and Respondent 3.Conclusion:The Tribunal directed full cooperation from all parties to the Chairperson and Auditor, mandated the provision of relevant records to the Applicant, and appointed an Advocate Commissioner to oversee the process. The directions were to be complied with within three weeks, ensuring the interests of Gagan Aerospace Limited were safeguarded.