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TMI Blog2022 (4) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... Sameer Sagar, Advocate for R-1 to 3. For Caveator: Mr. Suman Jyoti Khaitan, Advocate for Caveator. JUDGEMENT [ Per; Shreesha Merla, Member (T) ] 1. Challenge in these Company Appeals (AT) No. 106 of 2021 & Company Appeal (AT) No. 113 of 2021 filed under Section 421 of the Companies Act, 2013 (hereinafter referred to as 'the Act') is to the Impugned Orders dated 12/08/2021 & 02/09/2021 respectively passed by the NCLT (National Company Law Tribunal, New Delhi, Principal Bench), in CP No. 108/241-242/PB/2021 and CP No. 135/241-242/PB/2021 filed under the provisions of Sections 241 and 242 of the Act. Company Appeal (AT) No. 106 of 2021 is being treated as the lead case. Since both these Appeals deal with common facts & circumstances, they are being disposed of by this Common Order. 2. By the Impugned Order dated 12/08/2021, NCLT has appointed a Commissioner to submit a comprehensive report regarding the functioning of the Company namely 'Asian Hotels (West) Limited & Anr.' (hereinafter referred to as the 'AHWL') and observed as follows: "Now, the point that falls for consideration is whether this Bench is vested with the power to appoint an independent Commissioner with the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby appoint Mr. M. V. Ravindran, who formerly was the Acting President of Customs, Excise & Service Tax Appellate Tribunal and presently practicing in the Bar, be and is hereby appointed as a commissioner with the power and responsibility to submit a comprehensive report as follows:- 1. Financial position including total loan and defaults committed by the company. 2. Measures taken by the company to service the debt. 3. Who conducted the Board Meetings? Whether the Chairman/ Managing Director of the company Mr. Shushil Gupta was really in a position to manage the affairs of the company or was it left in the hands of the some other persons, when he was incapacitated due to some neurological problem. 4. Numbers of workers and payments dues and any other information relating to and connected with managerial affairs of the company. We are making it very clear that the commissioner has no power or authority to interfere with the internal affairs of the company or make any suggestion, but only vested with the power and responsibility to interact with both the parties and if necessary also with third parties and others to get the necessary information. We hereby direct both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shareholding in Respondent No. 1 1. Appellant No. 1 8.16% 2. Appellant No. 2 9.19% 3. Total 17.35% 6. The second Respondent has a shareholding of 1.84% Equity Shares in 'AHWL'. 7. It is averred that the second Respondent is conspiring with a competitor of 'AHWL' and few so called Independent Directors to oust Mr. Sushil Gupta Group from 'AHWL' and take over the Company. 'AHWL' owns Hotel Hyatt Regency, Mumbai and its subsidiary also owns Hotel JW Marriott in Aerocity, New Delhi. It is averred that Mr. Sushil Kumar Gupta was suffering from a rare disease and had left the day-to-day management to the second Respondent who has mismanaged the operations. 8. 'AHWL' was incorporated on 13/11/1980 by three Promoter Groups namely (a) the Gupta Group, (b) the Jatia Group & (c) the Saraf Group at the beginning of 2003, 'AHWL' owned three undertakings namely (a) Hotel Hyatt Regency at New Delhi, (b) Hotel Hyatt Regency at Kolkata & (c) Hotel Hyatt Regency at Mumbai and all the three aforenoted Promoter Groups owed shares in 'AHWL'. After the demerger, pursuant to an Inter se Agreement dated 26/10/2009, the shareholding of Saraf and Jatia Group in 'AHWL' was transferred to the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was maintainable as the waiver Application filed along with CP 118 of 2021, filed by the second Respondent was yet to be decided by the NCLT. It is argued that NCLT went beyond the Company Petition and appointed a Fact Finding Committee headed by a Commissioner without the Pleadings having been completed and without hearing at length the parties concerned. 11. It is the case of the Appellant that the appointment of this Fact Finding Commissioner was premature and ought not to have been done at the threshold. As against this argument, Learned Counsel for the Respondent submitted that 'a short Reply' has been filed and therefore it cannot be said that the pleadings were not complete. 12. This Tribunal vide Order dated 13/09/2021 directed Status Quo to be maintained by the parties as directed by NCLT vide Order dated 12/08/2021. Vide Order dated 29/09/2021, this Tribunal directed as follows: "11. Be that as it may and after hearing the parties, we are of the view that during the pendency of this Appeal, the following order is required to be passed: i) The Ld. NCLT, New Delhi is directed that none of the parties to whom the report of the Independent Commissioner has been served ..... X X X X Extracts X X X X X X X X Extracts X X X X
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