2023 (3) TMI 75 - AT - Companies Law

Appellant's Appeal Dismissed for Failing to Disclose Pending Civil Disputes

Gloster Limited (formerly known as Ketttlewell Bullen & Company Limited) Versus Bowreah Jute Mills Private Limited, The Regional Director, Eastern Region, The Registrar of Companies

The Tribunal upheld the NCLT's order, finding that the Appellant failed to disclose pending civil disputes regarding the North Mill property, as required ... Scheme of amalgamation - suit for specific performance - Direction to amend the schedule of property attached to the Approved scheme removing New Mill Factory Estate from property scheduled - HELD THAT:- From the facts it appears that the HMCL filed Civil Suit for Specific Performance of Contract on the basis of agreement against FGIL. The said suit being CS No. 168 of 2009 is still pending before the High Court of Calcutta wherein the Respondent was substituted as plaintiff on the basis of agreement dated 12.02.2009 (on record). The civil dispute with regard to North Mill Estate is pending for consideration before the Hon’ble High Court of Calcutta. On the other hand, the FGIL has also filed title suit No. 987 of 2015 before the Learned Civil Judge (Junior Division, First Court, Uluberia) for possession of that property against the Respondent. From the record, it is evident that a Civil Suit No. 168/2009 is pending before the Hon’ble High Court of Calcutta with regard to the dispute passing of title of the suit property i.e. North Mill estate. Further, it is also on record that prior to filing of reply affidavit by the Appellant, the Appellant on or about 16.08.2019 filed a Suit bearing No. 192/2019 in Uluberia Court for ejectment of the Respondent No.1 from the North Mill property. It reveals that certain proceedings / suits are pending with regard to claim of title to the North Mill Estate property. The contention of the Respondent that the Appellant did not disclose with regard to the pendency of civil disputes and it is mandatorily to make a disclosure under Section 230(2) of the Companies Act, 2013. Since the Appellant included the North Mill property as the property in the scheme of amalgamation, therefore, all the details with regard to the said property ought to have been disclosed in the scheme. However, the Appellant failed to do so. Appeal dismissed. Issues Involved:1. Validity of the NCLT order dated 27th February 2020.2. Ownership and inclusion of North Mill property in the schedule of assets.3. Alleged non-disclosure of material facts by the Appellant.4. Maintainability of the Appeal due to limitation and unchallenged amended order.Issue-wise Detailed Analysis:1. Validity of the NCLT order dated 27th February 2020:The Appellant challenged the NCLT order directing the amendment of the schedule of property attached to the approved amalgamation scheme by removing New Mill Factory Estate and imposing a penalty of Rs. 50,000/-. The NCLT found that the Appellant did not disclose material facts about the dispute relating to the title of New Mill estate, which was subject to litigation in CS No. 168 of 2009 pending before the Calcutta High Court.2. Ownership and inclusion of North Mill property in the schedule of assets:The Appellant included North Mill in the schedule of assets transferred from Gloster Jute Mills Limited (GJML) to the Appellant. The Respondent contended that North Mill was owned by Bowreah Jute Mills Private Limited since 2009 and was wrongly included in the schedule of assets. The Respondent argued that North Mill was originally owned by Fort Gloster Industries Limited (FGIL) and was sold to Hooghly Mills Company Limited (HMCL) in 1988. A civil suit for specific performance of the sale agreement was pending before the Calcutta High Court.3. Alleged non-disclosure of material facts by the Appellant:The Respondent argued that the Appellant failed to disclose the ongoing litigation regarding the title of North Mill property, which is a mandatory requirement under Section 230(2) of the Companies Act, 2013. The NCLT found that the Appellant did not disclose the civil dispute and included North Mill property in the amalgamation scheme without proper disclosure, leading to the impugned order.4. Maintainability of the Appeal due to limitation and unchallenged amended order:The Respondent argued that the Appeal was barred by limitation and that the amended order dated 12th March 2020 passed by the NCLT had not been challenged, thus attaining finality. Consequently, the Respondent contended that the Appeal should be dismissed without delving into the merits of the case.Conclusion:The Tribunal upheld the NCLT's order, stating that the Appellant failed to disclose the pending civil disputes regarding the North Mill property, which was a material fact under Section 230(2) of the Companies Act, 2013. The Tribunal found no reason to interfere with the NCLT's order and dismissed the Appeal, with no order as to costs. All applications and interim orders, if any, were disposed of and vacated.