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TMI Blog2022 (8) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court in INDUS BIOTECH PRIVATE LIMITED VERSUS KOTAK INDIA VENTURE (OFFSHORE) FUND (EARLIER KNOWN AS KOTAK INDIA VENTURE LIMITED) OTHERS [ 2021 (3) TMI 1178 - SUPREME COURT] . In the above case, an Appeal was filed against the Order dated 26th March, 2021 passed by the NCLT allowing an Application under Section 8 of the Arbitration and Conciliation Act, 1996. While considering challenge to said order, the Hon ble Supreme Court has observed that against the Order passed by NCLT, Appellant ought to have availed remedy before NCLAT as provided under Section 61 of the Code. The above judgment is clearly applicable with regard to the Appeal provided under Section 421 of the Companies Act, 2013 against an Order of NCLT. The above Judgement clears all doubts with regard to the maintainability of the Appeal against the Order under Section 421 of the Companies Act, 2013 - appeal filed against the Order is maintainable and hence had to be decided on merits. Whether the Application CA 533 of 2020 in C.P. No. 144 of 2016 filed under Section 241/242 of the Companies Act, by the Respondent No.1 could have been allowed by the NCLT? - HELD THAT:- Company Petition No. 144 of 2016 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority shall decide the Company Petition No. 144 of 2016 on the basis of materials already on record. Contempt petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 13th August, 2007 before the Company Law Board, New Delhi which was numbered as CP No. 114 of 2007. An Application under Section 8 of the Arbitration and Conciliation Act, 1996 was filed by the Vikram Bakshi. During the pendency of the Company Petition before the Company Law Board, Ms. Sonia Khosla called a Board Meeting on 11.12.2007 and inducted Mr. Vineet Khosla, his son, as Additional Director. The Board Meeting was again held on 18.12.2007 wherein Mr. Deepak Khosla and Mr. R.K. Garg were inducted as the Additional Directors and allotment of 6.58 lakh equity shares to the Khosla Group. An Application was filed in Company Petition No. 114 of 2007 by Bakshi Group in which an Order dated 31st January, 2008 was passed by the Company Law Board directing for maintaining "Status-Quo" with regard to the composition of the board and the shareholding as existed on the day of filing of the Petition and directed the Registrar of Companies not to take on record any documents filed by the Company on or after 01.12.2007. The shares issued on 18.12.2007 were cancelled as well as the Additional Directors appointed on 11.12.2007 and 18.12.2007 were ceased to be Additional Directors with im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not necessary to either enforce orders dated 31.1.2008 passed by the CLB or orders dated 11.4.2008 passed by the High Court. Fact remains that there has been a complete deadlock, as far as affairs of the Company are concerned. The project has not taken off. It is almost dead at present. Unless the parties re-concile, there is no chance for a joint venture i.e. to develop the resort, as per the MOU dated 21.12.2005. It is only after the decision of CLB, whereby the respective rights of the parties are crystallised, it would be possible to know about the future of this project. Even the Company in question is also defunct at present as it has no other business activity or venture. In a situation like this, we are of the opinion that more appropriate orders would be to direct the parties to maintain status quo in the meantime, during the pendency of the aforesaid company petition before the CLB. However, we make it clear that if any exigency arises necessitating some interim orders, it would be open to the parties to approach the CLB for appropriate directions. 24. Both these petitions are disposed of in the aforesaid terms. All other pending I.As including criminal cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2016. NCLT vide Order dated 28th March, 2019 issued notice in CP No. 144 of 2016. The Appellant filed an Application before the NCLT praying that CP No. 114 of 2007 and CP No. 144 of 2016 be heard together. On 18.09.2019, an Order was passed by the Principal Bench of the NCLT, New Delhi directing that matter be heard by the Division Bench headed by Dr. Deepti Mukesh. Subsequent to the Order dated 18.09.2019, the matter was heard by Division Bench in Court No. IV consisting of Dr. Deepti Mukesh and Shri Hemant Kumar Sarangi. Appellant-Khosla Group by an Order dated 07.02.2020 passed by the Adjudicating Authority were permitted to withdraw CP No. 114 of 2007 and to revive the same after carrying out correction within a period of three days. Several other Company Applications were filed by the Appellant in CP No. 144 of 2016 which were heard since September, 2020 by the Bench consisting of Dr. Deepti Mukesh and Mr. Hemant Kumar Sarangi. One Company Application No. 731 of 2020 was filed by the Khosla Group for impleadment of Vineet Khosla which was rejected on 11.02.2021. TP No. 03 of 2021 and TP No. 07 of 2021 were also filed by the Appellant which was decided on 31st May, 2021 by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for by the Appellant. The Appellant had filed Company Appeal (AT) No. 74 of 2020 complaining lack of disposal of Company Petition and for non-passing of appropriate orders on Company Applications pending. This Appellate Tribunal vide Order dated 16th March, 2020 disposed of the Company Appeal by following Order: "16.03.2020 Having regard to the facts and circumstances of the case, we request the National Company Law Tribunal, Court No. IV, New Delhi, to dispose of the matte with utmost expedition keeping in view the orders passed by the Higher Forums. The Tribunal shall make all endeavors to dispose of the matter preferably within two weeks." 10. In the Application, the Applicant has also referred to an Order dated 21st May, 2018 of Delhi High Court in Co. A (SB) 26/2008. In the Transfer Petition, details of various other proceedings undertaken by the Adjudicating Authority has been noticed. Reference to earlier Transfer Petition No. 03 of 2021 has also been made in paragraph 18 of the Application. In the Transfer Petition No. 07 of 2021, the Applicant had pleaded delay in disposal of the various applications. In view of the facts stated in the Company Petition, the prayers wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non-applicant-Mr. Jai Savla for Respondent No. 2 to 4. After hearing we are of the considered view that the order dated 02.07.2019 passed by the Hon'ble Appellate Tribunal must be respected and matter be accordingly heard by Bench No. 4 headed by Dr. Deepti Mukesh, Hon'ble Member (Judicial). Let the matter be posted before the aforesaid Bench on 23.09.2019. CA-1838(PB)/2019 stands disposed of. 15. One of the grounds which have been taken by the Appellant is that the Order was to hear the Company Petition by Bench No. IV headed by Dr. Deepti Mukesh, Hon'ble Member (Judicial) hence the Bench consisting of Dr. Deepti Mukesh and Mr. Hemant Kumar Sarangi ought not to have heard the matter. 16. We have noticed the prayer made in TP No. 07 of 2021. The prayers made in the Company Petition has been also quoted in the Impugned Order and the Learned Acting President has observed in paragraph 4 that there is no relief in prayer portion asking for transfer of entire Company Petition from Court No. IV to some other Bench. It is useful to extract the observations made by Learned Acting President in the Impugned Order: "4. Looking at the relief sought in this application, it is evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 144 of 2016. The above order indicates that the Bench consisting of aforesaid members heard several applications in Company Petition No. 144 of 2016 and certain Company Applications were "heard in part" also by the Bench. It is useful to notice the order dated 06.11.2020 in C.P. No. 144 of 2016 in which the Court in Company Application No. 533 of 2020 observed "C.A. No. 553/2020: For further arguments on 23.11.2020". Further Order sheet dated 23.11.2020 also indicate that matter was heard. When the Bench consisting of above two members was continuously hearing various Applications in Company Petition No. 144 of 2016, we are of the view that filing of Transfer Petition by Appellant for the prayers as noted above was wholly uncalled for. The Appellant in his Application for Transfer, on one hand is complaining of non-disposal of the various applications including applications for Interim Reliefs and on the other hand is filing transfer petition No. 03 of 2021 and 07 of 2021, without their being any justified grounds. The Order passed by the Acting President in this Appeal is an Order passed in exercise of power under Rule 16(d) of NCLT, Rules, 2016. Rule 16(d) of NCLT Rules, 2016 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Order passed by the Acting President refusing to re-assign the Company Application No. 18 of 2019 and Company Petition. The Acting President has rightly observed that Bench which has been hearing the Company Petition and Company Application has reserved the Orders on some applications and was fully competent to decide the Company Petition. Order dated 31st May, 2021 passed by the Acting President does not require any interference in exercise of our Appellate Jurisdiction. 19. Company Appeal (AT) No. 32 of 2022 This Company Appeal has been filed by Mr. R.P. Khosla challenging the Order dated 31st May, 2021 passed by Court No. IV, Special Bench, NCLT, New Delhi in Company Application No. 553 of 2020 in C.P. No. 144 of 2016 by which Order the Adjudicating Authority has allowed the Application 553 of 2020 filed by Respondent Mr. Vikram Bakshi under Section 8 of the Arbitration and Conciliation Act, 1996. Company Application No. 553 of 2020 was filed by Mr. Vikram Bakshi (Respondent No. 2 to the Company Petition No. 144 of 2016) under Section 8 of the Arbitration and Conciliation Act, 1996 read with rule 11 of the NCLT Rules, 2016 praying to refer the parties to Arbitration in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Arbitral Tribunal in accordance with the Indian Arbitration and Conciliation Act, 1996." 21. The Appellant filed a counter affidavit to Section 8 Application as well as the written submissions opposing the Section 8 Application. Respondent No. 1-Vikram Bakshi filed Rejoinder to Section 8 Application, written submissions and additional written-submissions were also filed by the parties. On 26.11.2020 arguments were heard on Section 8 Application and Orders were reserved. On 31st May, 2021 memo of parties was filed by the Respondent Vikram Banshi in relation to his Company Application 553 of 2020 at 02:38 PM on 31st May, 2021, the Order was passed at 03:00 PM allowing Company Application No. 553 of 2020 and referring the parties to Arbitration under Section 8 as prayed in Section 8 Application. Aggrieved by the Order dated 31st May, 2021, this Appeal has been filed by Mr. R.P. Khosla. In the Appeal, 40 Respondents have been impleaded, by an Order on a prayer made by Learned Counsel for the Appellant, Respondent No. 8 to 40 (in Company Appeal (AT) No. 32 of 2022) were deleted from the array of parties. The Appellant proposed not to serve the said Respondents. 22. Mr. Deep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal No. 31 of 2022 questioning the jurisdiction of bench consisting of Dr. Deepti Mukesh and Shree Hemant Kumar Sarangi has been repeated and it is submitted that the Bench deciding Company Application No. 553 of 2020 is sans-jurisdiction bench. Learned Counsel for the Appellant has also made various submissions with regard to the minutes of the meetings of the Board of Directors of the Company. Allegation of fraud regarding the minutes have also been canvassed. It is submitted that Hon'ble Supreme Court as well as this Appellate Tribunal has directed for deciding the Company Petition 114 of 2007 and 144 of 2016, there was no occasion to entertain or allow Section 8 Application by the Adjudicating Authority. Mr. Deepak Khosla has submitted that the memo of parties of Company Application No. 553 of 2020 was received by the Court at 02:38 PM and the Order in C.A. No. 553 of 2020 was delivered at 03:00 PM which clearly indicates that there was nexus between the Respondent and the Members of the Bench since Order was pronounced at 03:00 PM after receiving the mail at 02:38 PM. It is submitted that memo of parties which was filed by Respondent at 02:38 PM contains the same mistakes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Judgment dated 07th July, 2022. 24. We have considered the submissions of Learned Counsel for the parties and have perused the record. 25. From the submissions of Learned Counsel for the parties and materials on record, following two questions arise for consideration in this Appeal: (i) Whether, against the Order dated 31st May, 2021 passed by NCLT in Company Application No. 553 of 2020 under Section 8 of the Arbitration and Conciliation Act, 1996 in C.P. No. 144 of 2016 under Section 241 and 242 of the Companies Act, this Appeal is maintainable under Section 421 of the Companies Act, 2013? (ii) Whether the Impugned Order dated 31st May, 2021 allowing the Section 8 Application in C.P. No. 144 of 2016 filed under Section 241 and 242 of the Companies Act is a valid order passed in accordance with the law ? 26. We may first notice provisions of Arbitration and Conciliation Act, 1996 which are relevant in the present case. Section 8 of the Arbitration and Conciliation Act provides for the power to refer the parties to Arbitration where there is an Arbitration Agreement. Section 8(1) is as follows: "8(1). A judicial authority before which an action is brought in a matter whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 is as follows: "Section 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 form an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty five days from the date on which a copy of the order of the tribunal is made available to the person aggrieved and shall be in such form, and accompanies by such fees, as may be prescribed; Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of 45 days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellant Tribunal shall send a copy of every ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made above, the order dated 09.06.2020 passed by the NCLT is while taking note of petition under Section 7 of IB Code, in the backdrop of Indus Biotech seeking for the resolution of dispute through arbitration and the Arbitration Petition to that effect was already pending before this Court as on the date the order was passed by the NCLT. It is only in this special circumstance we have proceeded to entertain the petition and examine the matter on merits." 32. The above judgment is clearly applicable with regard to the Appeal provided under Section 421 of the Companies Act, 2013 against an Order of NCLT. The above Judgement clears all doubts with regard to the maintainability of the Appeal against the Order dated 31st May, 2021 under Section 421 of the Companies Act, 2013. We thus hold that present Company Appeal No. 32 of 2022 filed against the Order dated 31st May, 2021 is maintainable and hence had to be decided on merits. 33. We now proceed to examine as to whether the Application CA 533 of 2020 in C.P. No. 144 of 2016 filed under Section 241/242 of the Companies Act, by the Respondent No.1 could have been allowed by the NCLT. 34. We may first notice Section 241 and 242 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Without prejudice to the generality of the powers under sub-section (1), an order under that sub-section may provide for-- (a) the regulation of conduct of affairs of the company in future; (b) the purchase of shares or interests of any members of the company by other members thereof or by the company; (c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share capital; (d) restrictions on the transfer or allotment of the shares of the company; (e) the termination, setting aside or modification, of any agreement, howsoever arrived at, between the company and the managing director, any other director or manager, upon such terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the circumstances of the case; (f) the termination, setting aside or modification of any agreement between the company and any person other than those referred to in clause (e): Provided that no such agreement shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned; (g) the setting aside of any transfer, delivery of goods, payment, execution or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 and 36: "35. The Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals 18 which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by a public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. 36. The well recognized examples of non-arbitrable disputes are : ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters of administration and succession certificates; and vi) Eviction or tenancy matters governed by special statutes where a tenant enjoys special protection against eviction and specific courts are conferred with the exclusive jurisdiction to deal with the dispute. This Court held that this class of actions operates in rem, which is a right exercisable against the world at large as contrasted with a right in personam which is an interest protected against specified individuals. All disputes relating to rights in personam are considered to be amenable to arbitration while rights in rem are required to be adjudicated by courts and public tribunals. The enforcement of a mortgage has been held to be a right in rem for which proceedings in arbitration would not be maintainable. In Vimal Kishore Shah v. Jayesh Dinesh Shah[14], this Court added a seventh category of cases to the six non-arbitrable categories set out in Booz Allen, namely, disputes relating to trusts, trustees and beneficiaries arising out of a trust deed and the Trust Act. 36. In Natraj Studios (P) Ltd. v. Navrang Studios [15], a Bench of three judges of this Court dealt with the issue as to whether a dispute betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "A. Ayyasami" (supra) in paragraph 40 of the Judgment. Court laid down as under: "40. D.Y. Chandrachud, J. in A. Ayyasamy v. A. Paramasivam and Others,18 referring to the dictum in Booz Allen & Hamilton Inc., has made two important comments: "35...This Court held that this class of actions operates in rem, which is a right exercisable against the world at large as contrasted with a right in personam which is an interest protected against specified individuals. All disputes relating to rights in personam are considered to be amenable to arbitration while rights in rem are required to be adjudicated by courts and public tribunals... xx xx xx 38. Hence, in addition to various classes of disputes which are generally considered by the courts as appropriate for decision by public fora, there are classes of disputes which fall within the exclusive domain of special fora under legislation which confers exclusive jurisdiction to the exclusion of an ordinarily civil court. That such disputes are not arbitrable dovetails with the general principle that a dispute which is capable of adjudication by an ordinary civil court is also capable of being resolved by arbitration. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified court or the public forum so constituted, and whether the remedies beyond the ordinary domain of the civil courts are prescribed. When the answer is affirmative, arbitration in the absence of special reason is contraindicated. The dispute is non- arbitrable." 58………..However, non-arbitrability may arise in case the implicit prohibition in the statute, conferring and creating special rights to be adjudicated by the courts/public fora, which right including enforcement of order/provisions cannot be enforced and applied in case of arbitration. To hold that the claims of banks and financial institutions covered under the DRT Act are arbitrable would deprive and deny these institutions of the specific rights including the modes of recovery specified in the DRT Act. Therefore, the claims covered by the DRT Act are non-arbitrable as there is a prohibition against waiver of jurisdiction of the DRT by necessary implication. The legislation has overwritten the contractual right to arbitration." 42. When we look into the statutory scheme of the Companies Act in light of the ratio of the above Judgements of Hon'ble Supreme Court it is clear that specific remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody and guardianship matters, which pertain to the status of a person; testamentary matters which pertain to disputes relating to the validity of a Will, grant of probate, letters of administration, succession, which pertain to the status of a person, and are adjudicated by civil courts. 43. Certain categories of disputes such as consumer disputes41; insolvency and bankruptcy proceedings; oppression and mismanagement, or winding up of a company; disputes relating to trusts, trustees and beneficiaries of a trust42 are governed by special enactments." 44. From the above discussion, it is clear that the remedy provided under the Companies Act, 241 and 242 is a specific statutory remedy which has to be decided by the Tribunal in accordance with law. The issues which has been raised in Application under Section 241 and 242 are issues which are not arbitrable and the Adjudicating Authority committed error in allowing Section 8 Application filed by the Respondent No. 1. We thus find the Order dated 31st May, 2021 unsustainable due to this reason. Learned Counsel for the Appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the claim of Mr. Vineet Khosla as Shareholder as of today is reflected from various materials on record. He was appointed as Director on 11.12.2007 and allotted share on 18.12.2007. Mr. Khosla submits that Company Petition No. 114 of 2007 having been withdrawn with effect from 07.02.2020 it is clear that orders passed by a Judicial Forum including the Hon'ble Supreme Court stand vacated which also includes the Order dated 31st January, 2008. Mr. Vinnet Khosla has right to seek impleadment as co-petitioner and Impleadment Application was not filed to delay the proceedings. 48. By noticing the background facts, we have noticed that Appellant-Vineet Khosla was inducted as a Director on the strength of the Board Meeting dated 18.12.2007. Respondents have challenged the Board Meeting dated 18.12.2007 alleging the meeting illegal and not in accordance with law. The Company Law Board had passed an Order on 31st January, 2008 directing for maintaining status quo on the date of filing Application as on 13th August, 2007. The status of directors and shareholding was thus directed to be maintained as on 13th August, 2007 which order was unsuccessfully challenged by Ms. Sonia Khosla and Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 241-242 filed by any person qualifying under Section 244 not only decide the rights of the members (even though they are not party to proceedings) but also it decides the rights of parties in rem. v. Present petition is filed by the company along with members/directors or petitioner no. 1-company, which generally is not the case. Thus the interest of all members will be taken care of, albeit without being joined in the proceedings. If the arguments of the applicant are accepted that he has qualified to be impleaded as a party in proceedings under Section 241-242 of the Companies Act, 2013, merely because he is a member of the company as described under Section 2(55) of the Companies Act, 2013, then every member may need or file such application, at any stage of the proceedings and the main petition may not see the light of the day ever. vi. There is no even a whisper about any instance/incident/any document to show that non-joinder of the present applicant will prejudice the rights of the proposed petitioner or will prejudice the adjudication of the petition. The petition is filed in the year 2016 whereas the impleadment is filed in 2020 (though not barred) specially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r initiation of proceedings under Sub-section (2) of Section 340 of CRPC for perjury and for initiation of Criminal Contempt under Section 425 of the Companies Act. 53. There is checkered history of dispute between the two warring groups, Khosla Group and Bakshi Group as noticed above. The original applicant - Ms. Sonia Khosla has filed Company Petition No.114 of 2007 of oppression and mismanagement against the Bakshi Group in which various applications were filed and matter travelled to Delhi High Court and then to Hon'ble Supreme Court. The prayers for initiating proceedings under Section 340(1) and (2) of CRPC are being made for in the application on following basis:- i. For perjury in terms of the falsehoods set out in CA No. 01 of 2008 filed on 01.01.2008 before the NCLT; ii. For perjury in terms of the falsehoods set out in the affidavit dated 20.02.2017 filed before this Appellate Tribunal. 54. The proceedings for initiating criminal contempt under Section 425 of the Companies Act is prayed for on the basis of: i. The falsehoods set out in the affidavit dated 20.02.2017 filed before this Appellate Tribunal, reiterated in the Written Submissions dated 01.10.2018; ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Company Law Board where Company Petition No. 114 of 2007 was pending will decide application under Section 340 of CRPC filed by Ms. Sonia Khosla. Hon'ble Supreme Court directed for considering the Company Petition No. 114 of 2007 by the Company Law Board and all applications under Section 340 of the CRPC were also directed to be considered by the Company Law Board. The Supreme Court clearly mentioned that it is Company Law Board which will decide application under Section 340 of the CRPC and the Delhi High Court may not proceed with Criminal Misc. (Co.) No. 3 of 2008. Para 21 of the judgment of Hon'ble Supreme Court notices submissions of the parties, various proceedings between the parties and observations of the Courts, which is to the following effect:- "21. In fact, though the learned Senior Counsel for the parties had argued the matters before us at length on the previous occasions, at the stage of conclusions of the arguments, the learned Senior Counsel Mr. Cama appearing for Khosla Group suggested for an early decision of the Company Petition before the CLB as a better alternative so that at least main dispute between the parties is adjudicated upon at an early da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant is claiming initiation of proceedings under Section 340 of CRPC against the Respondent are essentially the case of the Respondent which was taken before the Company Law Board by the Respondent. The Respondents have claimed in Para 7 that they were validly appointed as directors of the company, which was confirmed in the Annual General Meeting held on 30.09.2006. The Appellants' case in its various affidavits and pleadings is to challenge the holding of Annual General Meeting dated 30.09.2006. It is strenuously contended by the Appellant that Ms. Sonia Khosla was not present in the meeting and her presence was wrongly shown. Whether the case of the Respondent as taken in CA No. 01 of 2008 is correct or the allegations of the Appellant regarding the Annual General Meeting dated 30.09.2006 are correct are the issues which have to be finally adjudicated in the Petition under Section 397-399 of the Companies Act, 1956/ Section 241-242 of the Companies Act, 2013. The applicant by this application wants the Court to initiate criminal proceedings on the case of Respondent set up in its pleadings and the affidavit which are yet to be tested and decided on the merits. 59. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e direct deletion of names of Respondent No. 4 and 5 from the array of parties of the Contempt Application. Contempt Case (AT) No. 12 of 2019 63. This Contempt application has been filed by Mr. R. P. Khosla praying for initiation of proceedings under Section 340 Sub-section (1) of CRPC in terms of falsehoods set out in the affidavit dated 20.02.2017 filed before this Appellate Tribunal and the Written Submissions filed by the Respondent. Further, prayer has been made to initiate criminal proceedings under Section 425 of the Companies Act, 2013 on allegations of falsehoods set out in the affidavit dated 20.02.2017 filed before this Appellate Tribunal. 64. We have already noticed the averments of the affidavit dated 20.02.2017 while deciding Contempt Case (AT) No. 05 of 2019. The averments in the affidavit are in support to case set up by the Bakshi Group which averments/pleadings are yet to receive adjudication by the NCLT. The Hon'ble Supreme Court in its order dated 08.05.2014 had observed that application under Section 340 of the CRPC be considered by the Company Law Board while deciding the Company Petition No. 114 of 2007. For the reasons as given in Contempt Case (AT) No. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2007 has become infructuous and it is not necessary for the Tribunal to pass an order under Section 8 of the Arbitration and Conciliation Act. In Para 19 of the order following has been stated: "19. From the aforesaid fact what we find is that though the petition under Section 8 of Arbitration and Conciliation, 1996 Act is pending since 2007, but in the meantime parties moved before the Hon'ble Delhi High Court under Section 11 of the Arbitration and Conciliation Act, 1996 and pursuant to Order dated 28th February, 2008, the arbitrators were appointed and Tribunal started functioning. In view of such appointment of arbitrators already made under section 11, the petition under Section 8 which was filed in the year 2007 prior to filing of petition under Section 11 of the Arbitration and Conciliation Act, 1996 has become infructuous. For the reasons aforesaid, it is not necessary for the Tribunal to pass an order under section 8 of the Arbitration and Conciliation Act, 1996." 69. Now, we come to the averments made in the present Contempt Application. It is stated in the Contempt Application that orders passed on 22.12.2016 and 12.04.2017 were in reference to Company Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt application is wholly misconceived and deserves to be rejected. We further notice that Applicant has impleaded Respondent No. 2 and 3 as alleged contemnors who were the counsel appearing for the Respondent before the NCLT. We are of the view that impleadment of Advocates of the Respondent as Contemnors was wholly inappropriate and uncalled for. The Contempt Case No. 08 of 2021 is rejected. 72. From the facts and discussion as above it is clear that Hon'ble Supreme Court in its order dated 08.05.2014 has directed for disposal of Company Petition No. 114 of 2007 which decision would have decided all the disputes between the parties relating to application filed for oppression and mismanagement. In spite of the direction issued by the Hon'ble Supreme Court, the Company Petition could not be decided for one or other reason. One of the main reason which is reflected from the materials on the record is filing of several CAs and IAs especially by the Khosla Group which prevented the Company Law Board / Adjudicating Authority from deciding the Company Petition on merits. As observed above, the Khosla Group have been filing various application under Section 340 of the CRPC, Contempt Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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