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TMI Blog2018 (8) TMI 1960X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred as "Appellant"). The Appellant group has 30.60% shareholding in the Respondent No.1 Company - D B Engineering Private Limited which was incorporated on 31.12.1986. Respondent No.2 - Atul Beri, who is brother of the Appellant, has 30.60 % shareholding. Respondent No.3 - S.K. Beri is (the father of Appellant and Respondent No.2) having 33.22% shareholding while Respondent No.4 - Ms. Ramesh is wife of S.K. Beri and has 5.50% shareholding. It appears that Respondent Nos. 2 and 4 have been Directors of Respondent No.1 Company (hereafter referred as "Company") since 1986 and the Appellant became Director in 2002 while his father - Respondent No.3 - S.K. Beri became Director on 21.02.2015. 2. It appears that Respondent No.5 - Banaras Marbles and Granites Limited, incorporated in 1992 was acquired in September, 2014 and the Appellant and Respondents 2 and 3 became Directors in the said Company. 3. The Appellant claims that he set up "D B Engineering Private Limited" and "Atlas Knives" as Limited Liabilities Partnership (LLP). 4. According to the Appellants, somewhere in 2014 disputes arose between the Appellant and Respondent No.2 with regard to business, business assets and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has sought further reliefs as appearing in the prayer clauses. 7. It appears from record that the Respondent Nos.3 and 4 then filed OMP 382 of 2016 under Section 34 of the Arbitration Act and Respondent No.2 filed 396 of 2016 under Section 34 of the Arbitration Act raising grievances leading to the Hon'ble High Court of Delhi at New Delhi passing Orders on 19th August, 2016 copy of which has been filed at Annexure A-7 (Page 129). According to the Appellant by such Order dated 19th August, 2016, the Hon'ble High Court recorded statement of Respondent No.3 that the parties were bound by the MOU and Deed of Arrangement. According to the Appellants, Respondent No.2 instead of abiding by the terms of the Award, filed OMP 396 of 2016, a petition under Section 34 of the Arbitration Act, 2016. The OMP 382 of 2016 field by the Respondent Nos.3 and 4 was also filed subsequently. According to the Appellant, there was breach of Order dated 19th August, 2016 passed by the High Court as Respondent No.2 opened another bank account having CBCA/1/209 in the name of Respondent Company on 05.11.2016 with Corporation Bank, Village Kasna Pergana, Dankor, Greater Noida without any authority or Board Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal has been filed by the Appellants being aggrieved by the NCLT not passing any Interim Orders. 10. We have heard counsel for both sides. 11. Counsel for the Appellants has submitted that the as per the Impugned Order, NCLT admitted the Company Petition and issued Notice and, that part, of the Order has become final. It is argued that the present appeal is limited to the issue of NCLT refusing to grant Interim Orders of Protection to the Appellants. The argument is that the Interim Orders which were pressed by the Appellants but denied by the NCLT were as follows:- 1) Interim Protection seeking directions for grant of status quo in relation to assets, management and shareholding, and 2) Inspection of books of accounts and statutory records of the Company. The argument of the Counsel is that the NCLT wrongly refused Interim Orders observing that the affairs of the Company were custodia legis of the Hon'ble High Court and that if NCLT would pass any orders in relation to the assets and books of account, the same may lead to a conflict of orders. It has been argued that NCLT was not right in refusing Interim Orders only because Section 9 and Section 34 proceedings under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the ones which are made before the Tribunal. The Hon'ble High Court in the OMP 326 of 2016 filed by the Appellant is already seeking compliances from parties and the High Court was looking into the disputes raised with regard to the Respondent Company and other businesses which are part of the Award. The argument is that the present Company Petition has been filed on the basis of what has been found by the Court Commissioners in their Reports dated 15th May, 2017 and those Reports are yet to be dealt with and accepted by the Hon'ble High Court. It has been argued by the learned counsel that as per the Arbitration Agreement (Annexure A-2), it was necessary to seek views of Respondent No.3 but according to the counsel, this was not done and the dispute on this count was already raised in OMP 382 of 2016 filed by these Respondents. 14. It has been argued on behalf of the Respondents 1, 2 and 5 that the NCLT has recorded reasons why it was not passing Interim Orders. The reasons are not perverse and so interference in appeal is not called for. It has been argued that the OMP 382 of 2016 and 396 of 2016 filed by the Respondents under Section 34 were already heard by the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of Hon'ble High Court that the Respondents were not acting as per the MOU (Annexure A-3). 16. Before discussing the arguments, it would be appropriate to make reference to the prayers made in this Appeal as well as to look into the prayers made and disputes which have been raised before the Hon'ble High Court and keep in view, the directions and orders already passed. We juxtapose these aspects for a better appreciation. 16A. Prayers (i) to (v) in this Appeal read as under: "(i) Set aside a part of the Impugned Order dated 01.12.2017 to the extent it denies interim orders to the Appellants (para 14 & 15 of the Impugned Order); (ii) Pass appropriate order and/or directions restraining the Respondents from appointing any Director(s) on the Board of Directors of the Respondent No.1 Company; (iii) Pass appropriate order and/or directions restraining Respondents from altering/changing the shareholding pattern of the Respondent No.1 Company; (iv) Pass appropriate order and/or directions directing status quo to be maintained with respect to fixed assets and other properties, both movable and immovable, of the Company; (v) Pass appropriate order and/or directions directin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th August, 2016, Hon'ble High Court directed:- "7. ....................As agreed, Mr. M.N. Dudeja, Advocate (Mobile No.9811321220) is appointed as Court Commissioner for the purpose of releasing the wages of employees and other statutory liabilities as well as to overview the entire situation. The Court Commissioner would see that none of the parties will misuse any term of the settlement and divert any amount to third entity owned by any party. As agreed, Mr. Surinder Kumar Beri and Mr. Deepak Beri or Mr. Atul Beri will sign all the requisite cheques with regard to the charges of the employees and other statutory liabilities due. Parties shall also file the full details about the issuance of cheques along with list of documents before the next date." It was then directed in concluding part of para - 7:- "As desired by both parties, an order for appointment of an Observer/Mediator would also be passed on the next date for remaining compliance of division of assets of the Companies/Firms as per settlement." 16C. The Appellant appears to have then filed IA 13 of 2017 in OMP 326 of 2016 (Page - 177), inter alia, making prayers (Page - 188) that the Hon'ble High Court should a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , CBCA/1/209, in the name of DBEPL was opened by Mr. Atul Beri with the Corporation Bank, Village Kasna Pergana Dankor, Greater Noida. The statement of the said bank account has been enclosed as Annexure A-2. The address of DBEPL as given therein is at B-1, Sector - 68, Noida Gautam Buddh Nagar, Uttar Pradesh which happens to be address of one of the units of DBEPL which is under the control of Mr. Atul Beri. The first entry in the statement of account is on 7th November, 2016 and the last entry is 30th December, 2016. It reveals a credit balance of Rs. 12,41,076." Referring to the account opened, the Hon'ble High Court observed in para - 16 as under:- "16. The Court is surprised that such a step has been taken when the Court is still seized of the matters and several orders have been passed, as noticed hereinbefore, towards effectuating the division of the units among the parties. It is indeed disconcerting that a separate bank account could have been opened in the name of DBEPL without the participation and consent of Mr. Deepak Beri. At this stage, the Court is not aware if Mr. Surinder Kumar Beri and Mrs. Ramesh Beri consented to the opening of such an account of DBEPL by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took note of some of the salient directions which are given by the Arbitrator. In Para - 32, the Judgement records:- "Hence, the award to the extent that it gives directions de hors the agreement between the parties, namely, Annexure A, B and C to the Award are illegal and being severable, is set aside." 16H. In para 34, the Hon'ble High Court has recorded that "The Award to the extent it is passed based on Annexure A, B and C is upheld." 17. Perusal of above para - 16 and the documents referred, makes it clear that the Hon'ble High Court, in the context of the Award is dealing with not merely the present Respondent Company but also other entities of the parties and is, inter alia, seized with questions of division of assets, movable and immovable. The Appellant himself has in the IA 13/2017 in OMP 326/2016 sought appointment of Receiver to take charge of the assets including factory premises, books of accounts, operations of the Bank Accounts, plant and machinery, etc. He has also sought forensic audit of the books of accounts of Respondent Company and other companies to identify siphoning of funds. It can be seen from the observations of the Orders of the Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters which are required to be exclusively dealt with and decided by the NCLT. Section 242 which deals with powers of the Tribunal in the matters of applications under Section 241 relating to oppression and mismanagement, provides in Sub-Section (4) as follows:- "The Tribunal may, on the application of any party to the proceeding, make any interim order which it thinks fit for regulating the conduct of the company's affairs upon such terms and conditions as appear to it to be just and equitable." 19. For Interim Orders, it would be necessary in the application to spell out a prima facie case which requires interference of the Tribunal without which interference, it has to be shown that the Applicant/Petitioner would suffer irreparable injury and that balance of convenience lies in the fact that Interim Orders should be passed. If the present matter is perused and the reliefs as sought by the Appellants - Petitioners are seen, when it appears from the record that on the basis of documents executed between the parties an Arbitration Award has been passed and the Hon'ble High Court has while dealing with the OMPs filed by the parties passed different orders, it does not appear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and present facts are seen, there is no comparison. In the present matter apart from the present Company Respondent, the other entities of the parties (who are a family) are also under consideration of the Hon'ble High Court for the purpose of the Award passed under the Arbitration Act. The Hon'ble High Court has already passed several Orders in the matter, as noted above. In the circumstances, the counts on which the Appellants were seeking Interim Orders, if the NCLT did not find it appropriate to pass Orders which may go in conflict with the steps Hon'ble High Court is taking, we do not think that the NCLT was wrong. 22. Similarly, the other Judgement relied on by the Appellant is in the matter of "M.S.D. Chandrasekar Raja vs. M/s. Jayabharath Textiles Pvt. Ltd. and M.S.D.C. Radha Ramanan" reported as MANU/TN/2357/2013. That Judgement and observations of the Hon'ble High Court itself in para - 75 shows that there, the issues directly and substantially arising for consideration before the two separate Forums of Company Law Board and Civil Court could not be said to be the same. We do not find so in the present matter. 23. The Appellant claimed that the Hon'ble High Court of B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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