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TMI Blog2023 (8) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. order dated 11.11.2022 this Tribunal noticed that if an authorisation is given to a counsel and on authorisation such submission is made by the counsel, the integrity of the counsel may not be questioned that too without apprising the concerned Court. Such submission was not permissible to be raised before Appellate Court. It is evident that Ms Malika Joshi, learned counsel who had given consent before the Tribunal had not signed this communication - the submission of the learned counsel for the Respondent agreed upon that in the aforesaid communication it has not even been indicated as if the signatory of the said praecipe has received any instructions or information from Ms Malika Joshi, learned counsel for the appellant. If the appellant was of the view that without any authorisation such consent was given by his counsel then in that event he would have taken immediate steps for filing a rectification application, instead of preferring an appeal before this Tribunal. Admittedly the rectification application was filed for rectification of order dated 30.09.2022 against which the appellant had preferred appeal and the same was rejected by this Tribunal in [ 2022 (11) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent be granted three weeks to deposit the aforesaid amount. Considering the request made by learned counsel we allow and direct the Respondent to deposit the amount within three weeks from the of order. However, the NCLT dismissed the rectification application i.e. CA No.19/2023 by the impugned order dated 19.05.2023. 3. Mr. K.D. Chatterjee, learned senior counsel appearing on behalf of the appellant at the very outset has argued that the learned counsel on behalf of the appellant before NCLT without any authorization or permission had given consent on behalf of the appellant. He submits that the said consent order was passed on 30.09.2022 and thereafter on 03.10.2022 the order was uploaded. According to learned senior counsel no such consent was given by learned counsel appearing on behalf of the appellant before the NCLT and immediately after coming to know about the said order only on 04.10.2022 the same counsel sent an email to the Registrar of the NCLT disputing her consent. Mr. Chatterjee, learned senior counsel has taken us to running page 95 of the Memo of Appeal which is reproduced hereinbelow- We are concerned for Mr. Hemeridra Aran the abovenamed Respondent/ or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext he has also referred to para 5 of the rectification application which is at running page 67 of the Memo of Appeal. It is better to reproduce same as follows:- 5. That on 30th September, 2022 at around 9.42 am before the Tribunal working hours, applicant had instructed Adv. Mallika Joshi in writing that he will file appeal if an adverse order is passed in Company Application No.231 of 2022. A printout of the written instructions dated 30th September, 2022 communicated by Applicant to Adv. Mallika Joshi via WhatsApp is annexed hereto as Exhibit B. 5. He has further drawn our attention to running page 40 para 25 of the impugned order to show that the learned NCLT without application of mind and discussing about on either WhatsApp message or praecipe dated 04.10.2022, assigning no reason dismissed the rectification application i.e. CA No.19/2023. Mr. Chatterjee, learned senior counsel has also placed reliance on a judgement of Hon ble Supreme Court reported in (2002) 3 SCC 39 Swami Krishnanand Govindanand Vs M.D. Oswal Hosiery (Regd). He has specifically placed para 4 of the said judgement which is reproduced hereinbelow:- 4. The learned counsel next contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme court. However, only with a view to delay compliance of the order of the NCLT by way of not depositing Rs.3,94,99,355/-, the appellant instead of preferring the appeal before the Hon ble Supreme Court, filed the rectification application which was number as CA No.19/2023. The order passed by this Tribunal in Company Appeal (AT) No.198/2022 is at running page 97 to 103. He has further referred to para 42 of the order dated 30.09.2022 which is at running page 89. The same is reproduced as follows:- 42. Consider the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355/- with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Pvt Ltd. The ld. Counsel Ms Malliaka Joshi appearing for the Respondent has on instructions requested that the Respondent be granted three (3) weeks to deposit the aforesaid amount. Considering the request made by the Ld. Counsel we allow and direct the Respondent to deposit the amount within three weeks from the date of the order. 10. By way of referring to aforesaid observation/direction of the NCLT it was argued that the direction to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally dismissed on 11.11.2022 which is at running page 92-93. In the present Memo of Appeal nothing has been disclosed regarding the dismissal of the appeal by this Tribunal. 13. Mr. N. Ganapathy, learned senior counsel by way of referring to proviso to Section 420 (2) of the Companies Act, 2013 has argued that after the rejection of the appeal by this Tribunal rectification petition was itself not maintainable. However, rectification petition was entertained and same was rejected by learned NCLT. He has further drawn our attention to para 10 of the order dated 11.11.2022 passed by this Tribunal in Company Appeal (AT) No.198/2022 which is at running page 101, the same is reproduced hereinbelow: 10. We are of the opinion that if an authorisation is given to a counsel and on authorisation such submission is made by the counsel, the integrity of the counsel may not be questioned that too without apprising the concerned court. Such submission is not permissible to be raised before the Appellate Court. 14. Taking clue from the aforesaid observation it was argued that once the counsel representing the appellant who was authorized to represent his case gives a consent it wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the said order was uploaded on 03rd October, 2022 that s when Applicant became aware of the erroneous statement of Adv Mallika Joshi. He enquired with Adv. Mallika Joshi as to what transpired on 30th September, 2022 for such a statement to be recorded. Adv. Mallika Joshi informed Applicant as under: At this hearing, the Hon ble Bench pronounced its judgement that it had allowed the said Company Application and directed the Respondent, i.e. you, to deposit a sum of INR 3,94,99,355/- with Registry of NCLT Mumbai Bench within 15 days. On learning that the order was passed against you, we immediately requested for a stay on the operation of the order to enable you to pursue your remedy of appeal. However, the Hon ble Tribunal rejected our request for stay. Hence, as of a necessity, and so that you have some time to consider the order and your position, we requested the Hon ble Bench for more time. The said request was intended to be made without prejudice to your rights to exercise your right of appeal, and so that you would have enough time to pursue your stattuory right of appeal given that the NCLAT was closed for vacations from 3rd October, 2022 to 8th October, 2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves any relief from this Tribunal due to the reason that the appellant has not approached this Tribunal with clean hands. 17. Mr. Dhruba Mukherjee, learned senior counsel assisted by Mr Anmol Chandan, learned counsel has appeared on behalf of Respondent No.5. He submits that the Respondent No.5 is major shareholder of the company in question i.e. Respondent No.1 and on his prayer the order dated 30.09.2022 was passed by learned NCLT. The order dated 30.09.2022 passed by learned NCLT was assailed by the appellant by way of filing appeal vide Company Appeal (AT) No.198 of 2022. However, this Appellate Tribunal by detailed judgement declined to interfere with the impugned order and appeal was dismissed on 11.11.2022. He submits that once the original order i.e. order dated 30.09.2022 after rejection of the appeal by this Tribunal had attained its finality the appellant was not permitted to move before the NCLT in the garb of rectification of the order. Moreover, it has been argued by Mr. Mukherjee, learned senior counsel that once consent was given on behalf of the appellant and thereafter an order was passed by the learned NCLT on 30.09.2022 the appellant was not permitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in CP No.755/2017 which has already been assailed by filing an appeal and dismissed by this Tribunal. According to Mr Mukherjee the present appeal is fit to be rejected on the ground that the appellant has made concealment of fact. 20. Mr Krishnendu Dutta, learned counsel assisted by Mr. Shivam Sharma, learned counsel has appeared on behalf of Respondent No.2, one of the shareholder of Respondent No.1. He has also referred to email dated 24.11.2022 which is at running page 92 sent by Ms Malika Joshi, learned counsel to the appellant. He emphasised that in this whole communication there is no whisper regarding filing of appeal and its rejection by this Tribunal vide its order dated 11.11.2022 which was filed against the order dated 30.09.2022. He further submits that it appears that email dated 24.11.2022 was brought on record for justification of filing rectification petition, which was filed on 29.11.2022 before the NCLT. According to him the conduct of the appellant is itself enough for rejection of the present appeal. 21. In rejoinder also Mr. K.D. Chatterjee, learned senior counsel for the appellant advanced his arguments and tried to assail the impugned order. 22. Bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking to initiate for Insolvency Resolution Process for Aranca (Mumbai) Pvt. Ltd. The Petition was stated to be heard at length and an order was reserved on March 2022. However, due to reconstitution of the Benches, the petition will now to be heard afresh. 27. In view of the above, the Applicant herein, has filed the present application seeking directions against the Respondent to make payment of the amount claimed by Mr. Vikram Kumar in C.P.(IB) No. 143 of 2020 on the ground that the respondent issued the Corporate Guarantee without any authorisation from Aranca (Mumbai) Pvt. Ltd. amongst other grounds as detailed in the present Application. 28. The Respondent filed an affidavit in reply on 01.08.2022 denying allegations made by the Applicant. 29. The Applicant has at the outset clarified the it is not pressing for Prayer A of the application, at the moment only seeking interim relief in the nature of Prayer Clause B. Wherein the Applicant is seeking direction to the Respondent to make payment of the amount claimed by Mr. Vikram Kumar and secure Aranca (Mumbai) Private Ltd. (Limited) from going into insolvency. 30. The Applicant contends that the respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antee by the Respondent contrary to Section 185 of the Companies Act, 2013 that is all liabilities arising out of the purported transactions with M/s Sourya Containers leasing Company ought to be borne solely by the Respondent. 37. The Respondent has opposed the present application, on the ground that Aranca (Mumbai) Private Ltd. and its directors on the board were at all times aware about the transactions with Sourya Containers Leasing Company. They had taken responsibility of signing purported authorisation. Furthermore, the Respondent has contended that the loan was in fact taken for Celebrity Football Match organised by Aranca (Mumbai) Private Ltd. The Respondent has also alleged delay in filing the present application and contended that Aranca (Mumbai) Private Ltd. was aware of the Corporate Guarantee since 2020, however, no steps were taken by them till 2022, and therefore, no urgent ad-interim relief ought to be granted in favour of the applicant on the ground of their acquiescence. Although, the Respondent has made several allegations in respect of Corporate Guarantee and the loan transactions in a signed document of record has been placed in support of his contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the Appellant and Mr. Dhruba Mukherjee, Ld. Sr. Counsel assisted by Mr. Vaibhav Gaggar, Ld. Counsel for the R1. 2. The present appeal has been preferred under Section 421 of the Companies Act, 2013 (hereinafter referred as to Act ) against an order dated 30.09.2022 passed by National Company Law Tribunal, Mumbai Bench (hereinafter referred as to NCLT ) in CA No. 231/2022 in Company Petition No. 755/MB/C-I/2017. 3. By the said order, the Ld. NCLT, considering the facts and circumstances of the case, directed the Appellant herein to deposit an amount of Rs. 3,94,99,355/- with the registry of the NCLT within 15 days from the order to secure interest of Aranca (Mumbai) Pvt. Ltd. In paragraph 42 of the impugned order, it has been recorded that Ms.Malliaka Joshi Ld. counsel appearing for the Respondent, who is Appellant herein, on instruction requested that the Respondent be granted three weeks time to deposit the aforesaid amount. Thereafter, the Ld. NCLT considering the request made by Ld. counsel, allowed the said prayer and direct the Respondent to deposit the amount within three weeks from the date of the order. 4. Short facts of the case is that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it was shown, in the joint name of the Appellant and the Company. It is also not in dispute that till date whatever error was committed in the loan account of the Bajaj Finance, the error has not been got removed from the Bajaj Finance. 8. However, without going into the merit of the case, we are considering the appeal only on the point of maintainability. Before proceedings, it would be appropriate to reproduce the para 42 of the impugned order as follows: 42. Considering the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355.00/- with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Private Limited. The Ld. Counsel Ms. Malliaka Joshi appearing for the Respondent has on instructions requested that the Respondent be granted three (3) weeks to deposit the aforesaid amount. Considering the request made by the Ld. Counsel we allow and direct the Respondent to deposit the amount within three weeks from the date of the order. 9. On examination of the aforesaid direction, it is apparently clear that Ld. Counsel for the Appellant before the Ld. NCLT, stated in specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal shall send a copy of every order made by it to the Tribunal and the parties to appeal. 12. On examination of the aforesaid section, it is very much clear that only a person aggrieved with an order, can file appeal. Further consent order cannot be assailed in appeal. In this case, on perusal of para 42 of the impugned order which is quoted herein above, there is no dispute that the Appellant can be said to be aggrieved by the said order. Further the order impugned is a consent order. If the Appellant is of the view that his counsel had made incorrect statement before the NCLT, he would be at liberty to approach the NCLT, but he may not be permitted to raise such issue before this Tribunal. So far as the Judgments relied upon by the Ld. Counsel for the Appellant is concerned, facts remain that the said judgment was passed by the Hon ble Apex Court while exercising power under Article 136 of the Constitution of the India. Here, we are exercising statutory jurisdiction under the Act. It goes without saying that law is settled on the point that if statute, states to do a thing in particular manner, the same is to be done in the same manner and not in other manner. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced hereinbelow:- We are concerned for Mr. Hemeridra Aran the abovenamed Respondent/ original Petitioner. Vide Order dated 30th September 2022 ( said order ), the captioned Company Application was disposed of as allowed in terms of the said order by the Hon'ble Court-1, NCLT and the Respondent/original Petitioner was directed to deposit an amount of Rs.3,94,99,355.00/-. During the course of the pronouncement of the said order, we had prayed for the stay of the said Order and an extension of time by 3 (three) weeks for the Respondent to deposit the said amount of INR 3,94,99,355/- as directed by the Hon'ble Tribunal. While the Hon'ble Tribunal was pleased to reject the stay, the Hon'ble Tribunal was pleased to allow the request for extension and recorded the following statement in the said Order- 42. Considering the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355.00/- with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Private Ltd. The Ld. Counsel Ms. Malliaka Joshi appearing for the Respondent has on instructions requested that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench for more time. The said request was intended to be made without prejudice to your rights to exercise your right of appeal, and so that you would have enough time to pursue your statutory right of appeal given that the NCLAT was closed for vacations from 3rd October 2022 to 8th October 2022. While the order was passed on 30th September, 2022, the same was uploaded and made available to us only on 3rd October 2022 and upon perusing the same in detail, we noted that the order recorded our request for time as follows- 42. Considering the above circumstances, this Bench direct the respondent herein, to deposit an amount of Rs.3,94,99,355.00/- with Registry of NCLT Mumbai Bench within 15 days from this order to secure interest of Aranca (Mumbai) Private Ltd. The Ld. Counsel Ms. Malliaka Joshi appearing for the Respondent has on instructions requested that the Respondent be granted three (3) weeks to deposit the aforesaid amount. Considering the request made by the Ld. Counsel we allow and direct the Respondent to deposit the amount within three weeks from the date of the Order. Since our submissions requesting for a stay was not recorded, hence, as and by way of abunda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not hesitate to contact us. Best regards. Mallika Joshi | Associate signature 1233334122 signature 508678466 26. It is difficult to perceive as to why even after rejection of the appeal against order dated 30.09.2022 by this Tribunal in Company Appeal (AT) No.198/2022 on 11.11.2022 this fact was not disclosed which was obviously sent on 24.11.2022. The aforesaid fact reflects that the appellant one way or the other was taking steps to frustrate order dated 30.09.2022 by way of not depositing Rs.3,94,99,355/- as directed by the NCLT. The order was passed in the month of September, 2022 and we are in the month of August, 2023 still the Respondent has been deprived to enjoy the fruit of the order passed by the NCLT. Obviously besides the actual amount i.e. Rs.3,94,99,355/- the Respondent is suffering loss of interest also on the said amount. 27. We are in agreement with the submission of the learned counsel for the Respondent that the appellant has suppressed/concealed the fact regarding dismissal of his appeal in the present Memo of Appeal. In para 13 of the Memo of Appeal at Page 22 the appellant has made false statement and on this ground alone the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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