TaxTMI 
TaxTMI 
2017 (2) TMI 657
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.... Mr. Shuva Mandal, Mr. Dhruv Dewan, Mr. Nitesh Jain, Mr. Sajak Monty, Mr. Sidharth Sharma, Mr. Arjun Sharma, Mr. Rohan Batra, Mr. Arjun Pall, Ms. Reena Chaudhary, Advocates, Mr. Sandeep Sethi, Mr. VT Gopalan, Sr. Advocates with Ms. Neeha Nagpal, Mr. Vijay, Mr. K. Ravindranath, Advocates, Mr. Mohan Parasaran, Mr. Sudipto Sarkar, Sr. Advocates with Mr. Saswat Patnaik, Mr. Aditya Panda, Mr. D.L. Chidanaada, Mr. Ashuda Kumar, Ms. Aditi Dani, Advocates. SUDHANSU JYOTI MUKHOPADHAYA, J. The joint appeals have been preferred by appellants against Orders dated 22nd December 2016, 18th January 2017 and 31st January 2017 passed by the National Company Law Tribunal, Mumbai (hereinafter referred to as Tribunal') in C.P. No. 82/2016/Contempt Application No. 03/2017. 2. In these appeals the grievance of the appellants is that the Tribunal by impugned orders summarily refused to pass interim order and failed to decide the following prayer:- (a) Appellants' prayer for an interim relief seeking to restrain the respondents from removing 11th respondent as director of 1st respondent company at an Extraordinary General Meeting (hereinafter referred to as 'EGM') scheduled to ....
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....umption that by order dated 18th January 2017 had already rejected the request for stay on the proposed removal of 11th respondent. Though, the very order dated 18th January 2017 had in fact sought parties to file their pleadings in the form of affidavits in relation to proposed removal of 11th respondent. 7. Learned counsel for the appellants submitted that the order dated 18th January 2017 had been well understood by the parties and they filed their affidavits pleadings the grounds as to why stay must be granted or as the case may be, must not be granted. 8. Pursuant to the first order dated 22nd December 2016, the Registry listed the case on 31st January 2017 for final hearing. According to appellants, it was nobodies understanding that the application to stay the proposed removal of the 11th respondent had been disposed of. However, vide impugned order dated 31st January 2017, the Tribunal ruled that the stay application has been rejected on 18th January 2017 which is not based on record. 9. Mr. Sundram, learned senior counsel for the appellants contended that if EGM convened for 6th February 2017 is not stayed they will perpetuate the 'oppression and mismanagement....
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....he answering Respondents to raise maintainability point as first issue in the reply they file to this Company Petition. The parties are hereby directed to file written submission in brief, preferably in 10pages, within 2 days before the next date of hearing after exchange of the same between the parties. List this matter on 31.1.2017 for hearing the petitioners' side submissions and Rll side submissions and on 1.2.2017 for hearing the respondents side submissions and rejoining submissions if any." 11. Section 421 of the Companies Act, 2013 deals with 'Appeal from orders of Tribunal'. As per sub- section (2) of Section 421, no appeal shall lie to the Appellate Tribunal from an order made by Tribunal with the consent of the parties. The relevant portion of Section 421 is quoted hereunder:- "421. Appeal from orders of Tribunal. - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of the parties. xxxx xxxx xxxx 12. In view of sub-section (2) of Section 421, as the appeal is not maintainable a....
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....he material placed to support such allegations? Then this Bench, though the answering Respondents already expressed that this petition should be dismissed at the threshold on the ground of maintainability, put it to the Petitioners counsel whether this Bench was to pass orders on merits or to give directions for completion of the pleadings, such as filing reply, rejoinder and hear the main company petition at the earliest, to which, the petitioner counsel agreed for directions for completion of the pleadings. Having the answering Respondents, withholding themselves arguing over the maintainability, agreed for directions for completion of pleadings, accordingly this Bench recorded the consent of both of them. The order also bears out the fact that this Bench suggested for completion of the pleadings instead of pressing on interim reliefs. 10. We believe that this Bench can remain cognitive to the things happening before it and accordingly records them if required. We strongly believe that privilege is inbuilt in the majesty of adjudicating authority. For courts will remain impersonal to the parties and remain cognitive to the deliberations and proceedings taking place before it, ....
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....o stated and no one can contradict such statement by an affidavit or other evidence. If a party thinks that the happening in court have been wrongly recorded in a judgment, it is incumbent upon the party, when the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record." 20. In view of the decision of Hon'ble Supreme Court, we are of the opinion that the observation of the Tribunal as to what transpired and situation warranted to pass such order on 22nd December 2016 is well within the domain of the Hon'ble Members who passed the order. This Appellate Tribunal cannot sit in appeal nor can substitute its opinion and cannot presume the situation which warranted on 22nd December 2016 to pass the order. As the Appellate Tribunal had no jurisdiction to entertain the appeal against the consent order dated 22nd December 2016, it is also not open to this court to make any observation with regard to the order dated 22nd December 2016. 21. The Tribunal, in impugned order dated 18th January 2017 has explained the situation in which the earlier order was passed on 22nd December 2016. We find no ground to differ with the ....
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....e Tribunal refused to pass any interim relief. From the order it appears that the Tribunal was not happy in the manner the appellants were pursuing the matters. The same is clear from the observations, as quoted below:- "3. Looking at the arguments of the petitioner counsel, this Bench has put it to the Counsel of the Petitioners that he had already argued over this interim relief on 16.1.2017 while arguing the Contempt Petition basing on the relief the petitioners sought in the same Contempt Petition, in view of it, this bench has made it clear to the petitioners counsel that this Bench would take a call over holding meeting on 6.2.2017 if the Petitioners side completes their submissions over the main Company Petition as directed in the Order dated 22.12.2016 and on the Affidavits as directed in the order dated 18.1.2017. 4. To which, the Petitioner Counsel has stated that this Bench must decide the waiver plea sought by him in their Affidavit, before hearing main Company Petition. On hearing such submission from the Petitioner Counsel, this Bench again made it clear to the Counsel that this Bench has not prevented the Petitioner side to argue the main Company Petition becau....
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....ission made in respect to holding EGM on 6.2.2017. 17. With these observations in pursuance of the order dated 22.12.2016 and 18.1.2017, the Petitioner Counsel is again directed to argue today at 2.30 p.m. on the main company petition and the affidavits subsequently come on record as directed earlier. 19. After lunch hour, the Petitioner Counsel has again said he cannot argue on main petition unless orders are passed on the point of waiver and stay over the EGM to be held on 6.2.2017. The petitioner counsel, while this Bench dictating order, said "he cannot argue", "he is not saying he will not argue." 21. It is not that this Bench has asked the Petitioner counsel to take up this gauntlet all if a sudden, the road map is already laid out on 22.2.2016, thereafter on 18.1.2017, there was time in between 22.12.2016 and today and also there was time in between 18.1.2017 and today, but the Petitioner side has not appealed on any of these orders. 23. Therefore, the arguments of the Petitioner Counsel and Rll Counsel saying that this issue has not been dealt with is unmeritorious. If at all any issue has already been dealt with in the previous order, it is not open to the part....
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....ts is that the 11th respondent is a member of the Board of Directors of 1st respondent company since the year 2006 and is the owner of the appellants' company. The said respondent (no.-11) is nominee of the appellants in the Board of Directors of 1st respondent company. 32. In the Company Petition different facts have been highlighted in support of allegation of 'oppression and mismanagement' but parties have not argued on the same on merit as the case is pending before the Tribunal. 33. According to appellants they jointly have 18.37% of shareholding of the 1st respondent company. On the other hand, according to the respondents the appellants have only 2.2% of the equity and preferential share capital. This ground has been taken by respondents before the Tribunal while they raised the question of maintainability of the petition under Section 241 of the Act 2013 filed by the appellants. 34. To be on the safe side, the appellants filed Waiver Petition under proviso to sub-section (1) of Section 244 of Act 2013, which empowers the Tribunal to waive any of the requirement specified under clause (a) or clause (b) of Section 244 to enable the member(s) to apply unde....
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....analogy of constitutional law a little further, Gower describes "the members in general meeting" and the directorate as the two primary organs of a company and compares them with legislative sovereignty rests with Parliament, while administration is left to the Executive Government subject to a measure of control by Parliament through its power to force a change of government. Like the government, the Directors will be answerable to the 'Parliament' constituted by the general meeting. But in practice (again like the government), they will exercise as much control over the parliament as that exercises over them. Although it would be constitutionally possible for the company in general meeting to exercise all the powers of the company, it clearly would not be practicable (except in the case of one or two-man companies) for day-to-day administration to be undertaken by such a cumbersome piece of machinery. So the modern practice is to confer on the Directors the right to exercise all the company's powers except such as the general law expressly provides must be exercised in general meeting. Of course, powers which are strictly legislative are not affected by the conferment....