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TMI Blog2021 (3) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... "NCLT") in CP No.81/241-242/ND/2020. The Appellant MBev Spirits Pvt. Ltd. is a private limited company registered under the provisions of the Companies Act, 2013 and is engaged in the business of distillation, brewery, bottling, manufacturing etc. Mam Chand Goyal and M/s. Windsor Buildwell Pvt. Ltd, are arrayed as Respondents No. 1 & 2 in this appeal, and M/s Uttar Development Pvt. Ltd., Anil Kejriwal, Ritwik Kejriwal, Harshvardhan Parwal, Ms. Rama Yadav and M/s. PDA International Private Limited have also been included as respondents in the appeal. 2. The operative part of Impugned Order which is the bone of contention reads as under:- " 48. But the manner in which the respondent no. 2 to 7 acted and got the lease deed executed and registered for 29 years whereas the unregistered lease deed was for five years that compelled us to form an opinion that act of respondents no. 2 to 7 are prejudicial to the interest of R-1 company and in order to protect the interest of R-1 Company, it is necessary to pass the following order that on the basis of the unregistered lease deed dt 03/12/2019 and Registered lease deed dt 29/06/2020 no construction work shall be done and no new thing sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given the Respondent No.3 Company a sum of Rs. 3 crores as Interest Free Security Deposit as consideration for the said lease deed. Consequent to the first lease agreement dated 03.12.2019, the Appellant and Respondent No.3 Company executed a second lease deed on 25.6.2020 (which was registered on 29.06.2020) for a lease period of 29 years. He has claimed that Appellant made preparations by procuring raw material, machinery etc. for the said project and also obtained in-principle approval from the Uttarakhand State Government for the project and all this was in the interest of the Appellant company. He has pleaded that while the NCLT, Delhi, Bench-V, in the Impugned Order arrived at a finding that no prima-face case for relief was made out, it still went ahead to give a restraining order for any construction work or installation of machinery on the leased land and kept the possession with Respondent No. 3 Company during the pendency of Company Petition No.81 of 2020 in the NCLT. The Appellant's Learned Counsel has argued that the lease deed in question was executed on 03.12.2019 whereas the Company Petition was filed on 23.06.2020 and therefore the Company Petition is barred u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased property as included in pages 42-43 of Appeal and page 15 of Appeal. He has argued that the Appellant had stated that the payment of Rs. 3 crores to Respondent-3 Company as Interest Free Security Deposit as consideration for the lease deed dated 25.6.2020 (even though the lease deed dated 25.6.2020 does not show any such contemplated payment) is an eyewash in reality, as the said amounts were received in an unauthorized bank account of Respondent-3. These amounts have been siphoned off through cheque payments to M/s PDA International Pvt. Ltd. (Respondent no. 8), which is clearly discernible from the bank statements attached at Annex-4 (pg 60-63 of the Appeal). The Account No. 251141087889 in IndusInd Bank was opened behind the back of Respondents No. 1 and 2 to carry out such fraudulent transactions by keeping them in the dark, as no such bank account was maintained by Respondent-3 Company with IndusInd Bank prior to the present dispute. He has reiterated that Respondent-4, in his capacity of Director of Respondent-3 Company, in collusion with Respondent no. 5 to Respondent no-8, acted fraudulently and passed Board Resolution dated 03.12.2019 for executing lease deed when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments have been presented by the Appellant to show that such notice was served upon the Respondent No. 1. The issue is thus open for decision in the petition pending. The Ld. Counsel for Respondents no. 1 & 2 have cited the judgment in Parmeshwari Prasad Gupta v. Union of India AIR 1973 SC 2389 wherein the of Hon'ble Supreme Court held the following: "notice to all the directors of a meeting of the board of directors is essential for the validity of any resolution passed at the meeting. Where no notice is given to one of the directors of the company, the resolution passed at the meeting of the board was invalid". 8. The other issue is whether leasing and alleged transfer of possession of the land in question was done by following the applicable laws and regulations. Anil Kejriwal is a director in both the companies - Uttar Development Pvt. Ltd. and MBev Spirits Pvt. Ltd. Hence he is a related party. Moreover, he and his son Ritwik Kejriwal (Respondent no. 5) are the only two shareholders in Appellant Company, each holding 50% of total shares. Compliance of Section 188(1)(d) of the Companies Act, 2013 is seriously in dispute. The net gainer from such an act of Respondent No. 4 An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty) the lease deed executed (after filing of Company Petition dated 23.06.2020) on 25.06.2020 (see pp 64-95 of the Appeal) shows the leased land area as 5.659 hectares and the period of lease as 29 years. These changes could have held good had there been a fresh Board Resolution to that effect. On this point no document has been put forward by the Appellant to show any such action by Respondent No. 3 Company, and hence these discrepancies further reinforce question about the legitimacy of the lease deed. It is surprising to see that the Applicant is relying on one Board Resolution which claims even the draft of lease deed to be approved, two lease deeds were created with so much disparity, especially regarding term. 12. Another point raised by the Appellant relates to the debarment that would operate under Section 242(2)(g) of the Companies Act, 2013 since the issue of the legality of the lease deed was raised after a lapse of more than three months after the execution of the lease deed on 03.12.2019. The ratios in K. Santhakumari vs. K.J. Trading Co. Pvt. Ltd. [R.F.A. No 160 of 2004 (D)] and other related judgments which have been cited, reiterate the legal position enumerated i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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