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2017 DIGILAW 228 (GAU)

Sashi Kr. Tea Company Pvt. Ltd. v. Basudev Bagchi

2017-02-22

KALYAN RAI SURANA

body2017
JUDGMENT & ORDER : 1. By filing this application under Article 227 of the Constitution of India, the petitioners have prayed for setting aside and quashing the order dated 09.02.2017 passed by the National Company Law Tribunal, Guwahati Bench in M.A. No. 1/2017 arising out of TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14 and with further prayer to direct the said learned Tribunal to hear the petitioners on the said M.A. No. 1/2017 [mentioned in the prayer as petition dated 07.02.2017 (Annexure-9)]. In the interim, the petitioners have prayed for staying the operation of the impugned order as well as the proceeding of TP No. 19/397/398/GB/ 2016 corresponding to CP No. 182/14. 2. I have heard Mr. S.P. Roy, learned counsel for the petitioners assisted by Mr. K. Rajbongshi, learned counsel at the stage of motion hearing. In view of the nature of order, which I propose to pass in the present application, no notice is deemed to be required to be issued on the respondents. 3. The case as projected by the learned counsel for the petitioners is that the proceedings of TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14 was filed under section 210 of the Companies Act, 2013 (hereinafter referred to as ‘2013 Act’ for short) and under sections 397, 398, 399, 402 and 406 of the Companies Act, 1956 (hereinafter referred to as ‘1956 Act’ for short). It is argued, amongst others, that by section 210 of the 2013 Act, jurisdiction has been bestowed upon the Central Govt. to carry out investigation and even by the reference to the word ‘court’ in sub-section (2) of section 210 of 2013 Act, the National Company Law Tribunal does not get jurisdiction to decide any issue requiring investigation as envisaged in section 2010 of the 2013 Act, for which the entire proceeding before the said learned Tribunal is without jurisdiction. 4. It is further projected that on 07.02.2017, the petitioners had raised various points by way of preliminary issues of maintainability and prayed for dismissal of the proceedings of the said TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14. The said application was registered and numbered as M.A. No. 1/2017. 4. It is further projected that on 07.02.2017, the petitioners had raised various points by way of preliminary issues of maintainability and prayed for dismissal of the proceedings of the said TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14. The said application was registered and numbered as M.A. No. 1/2017. However, by order dated 09.02.2017, the said M.A. No. 1/2017 was dismissed by the said learned National Company Law Tribunal, Guwahati Bench (hereinafter referred to as the ‘learned Tribunal’ without fixing a date of hearing by holding that the said petition was not maintainable at the said stage and after delivering the judgment the aggrieved party may prefer appeal before appropriate forum. The said order dated 09.02.2017 is in challenge in this present application. 5. It is projected that on 16.02.2017, the proceeding before the said learned Tribunal was fixed for argument on law point and the petitioners, who were in the Tribunal at 10.30 am informed the learned Tribunal that their counsel will arrive by 11.15 am due to traffic jam. However, the learned Tribunal did not deem fit inclined to wait and verbally allowed the petitioners to file affidavit regarding the resolution of Extra-ordinary General Meeting of Petitioner No.1 herein held on 13.09.2014, but declined to consider the application of the petitioners dated 07.02.2017. It is stated that the petitioners herein had, on the basis of alleged verbal order dated 16.02.2017, filed the said affidavit-before the leaned Tribunal on 17.02.2017.As copy of order-sheet in the proceedings of TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14 after 31.01.2017 has not been filed along with this present application, this court has no materials to refer to the proceedings of the case on 16.02.2017 or on 17.02.2017 and, as such, is not persuaded to even take any cognizance of the alleged affidavit purportedly filed before the learned Tribunal on 17.02.2017, allegedly on the basis of oral direction on 16.02.2017. 6. It would be relevant to extract the order dated 09.02.2017: “ORDER This application has been registered on receipt of the same filed by one Shri S. Dowrah, who is respondent No.2 in T.P. No. 19/2016 (corresponding to C.P.No. 182/2014). 2. By this application, the applicant has urged this court to dismiss T.P. No.19/2016 (corresponding to C.P.No.182/2014) as being not maintainable on two counts, viz. 2. By this application, the applicant has urged this court to dismiss T.P. No.19/2016 (corresponding to C.P.No.182/2014) as being not maintainable on two counts, viz. (a) for want of special resolution of the Board of Directors of petitioner No.3 Company, namely, Prayag Infotech Hi-Rise Limited as required under Section 179 of the Companies Act, 2013 & (b) for absence of ingredients mentioned in Section 210 of the Companies Act, 2013. 3. The Registry, on receipt of the application registered the same as M.A. No. 01/2017 and rendered the following note: “This application has been filed by one Sri Santanu Dowrah, who is the respondent No.2 in T.P. No.19/2016. The application has been filed on 7/2/2017. On scrutiny, it is found that nothing has been mentioned in the cause-title as to whether this is an interlocutory application or company application or written argument. Further, the hearing of the T.P. No.19/2016 has been completed and an order dated 31/1//2017 was passed by the Bench to the effect that- “Learned counsel for the respondents has completed his arguments on behalf of the respondents. Reply on law points has been made by the learned counsel for the petitioners. Hearing concluded. Judgment reserved.” “In view of the above, the present application field by the respondent No.2 may, perhaps not tenable at this stage. After delivery of judgment the aggrieved party may prefer appeal before the appropriate forum as per prescription of law for Redressal of their grievance.” 4. I have perused the note. It is evident from the note and from connected record that T.P. No. 19/2016 is reserved for final order after hearing extensive arguments advanced by the learned counsel for the parties. It may be stated that in the said proceeding, the applicant/respondent has contested the claim made in the petition having filed affidavit in opposition. 5. In view of the above, I am of the opinion that present proceeding is not maintainable and the same is accordingly dismissed. 6. Inform all concerned. Sd/- Judicial Member, National Company Law Tribunal, Guwahati Bench, Guwahati” 7. Thus, from the above, this court finds that the case i.e. TP No. 19/397/ 398/GB/2016 corresponding to CP No. 182/14 was extensively heard and the hearing had concluded and by order dated 31.01.2017, the case was reserved for judgment. 6. Inform all concerned. Sd/- Judicial Member, National Company Law Tribunal, Guwahati Bench, Guwahati” 7. Thus, from the above, this court finds that the case i.e. TP No. 19/397/ 398/GB/2016 corresponding to CP No. 182/14 was extensively heard and the hearing had concluded and by order dated 31.01.2017, the case was reserved for judgment. Moreover, in the present case in hand, from the numbering of the case before the learned Tribunal, i.e. TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14, the same is prima facie indicative of the fact that notwithstanding that the petition was filed under section 210 of 213 Act and sections 397, 398, 399, 402, 406 and 407 of 1956 Act, but the proceedings was registered before the Guwahati Bench only under section 397 and 398 of 1956 Act and not under section 210 of 2013 Act, the registration of the case as TP No. 19/397/398/GB/ 2016 is assumed to be full form of “Transferred Petition No. 19/2016 under section 397/398 before Guwahati Bench” in an abbreviated manner. However, the above is merely a passing remark and does not constitute a definite finding or an opinion on the provisions under which the said company petition was registered or heard before the National Company Law Tribunal, Guwahati Bench. 8. As recorded in the order dated 31.01.2017 passed by the learned Tribunal, which is contained in the order dated 09.02.2017, there can be no two opinion that the hearing in the proceedings of TP No. 19/397/ 398/GB/2016 corresponding to CP No. 182/14 was concluded on 31.01.2017. Hence, it is expected that the petitioners herein had been heard on the issue of maintainability as well. The learned counsel of the petitioners has urged that a question of law as regards maintainability can be raised at any sage of trial or even after conclusion of hearing because if the court or a tribunal has no jurisdiction, it goes to the root of the matter and the resultant judgment of a court having no jurisdiction would be a nullity. In this regard, this court is of the view that is a trite law that the issue of maintainability is generally required to be raised at the preliminary stage and not after conclusion of the hearing. In this regard, this court is of the view that is a trite law that the issue of maintainability is generally required to be raised at the preliminary stage and not after conclusion of the hearing. If the said issue of maintainability was left out from the scope of hearing at the conclusion of the trial i.e. till 31.01.2017, the same cannot be allowed to be raised by filing Misc. Application on 07.02.2017, after hearing in the main case is concluded. The court is afraid that if such applications are allowed to be entertained after conclusion of trial, when the case is reserved for judgment, the hearing will be prolonged and endless as it would give any party to a trial/ proceeding, a handle to argue the issue of law on piecemeal basis even after conclusion of the hearing, but in this regard, no straight jacket formula can be prescribed and it would be open for the respective court to apply its mind whether nor not to entertain such a plea at a belated stage. However, in the present case in hand, the learned Tribunal had held that the proceeding was not maintainable, as such, this court exercising power under Article 227 of the Constitution of India is not inclined to unsettle the said decision when the case is awaiting verdict. It is further seen that it is only a note by the Registry in M.A. No. 1/2017, as recorded in order dated 09.02.2017 that if any party is aggrieved, they may prefer an appeal before the appropriate forum as per prescription of law for redressal of their grievance. A court or a Tribunal is not obliged to fix each and every petition for hearing as projected by the learned counsel for the petitioner and the court and the tribunals have the authority to pass such orders as it may deem fit if the application has been brought/ listed on board as a business for the day and called out, without waiting for the party or the learned counsel to address it when found not present on call. By the impugned order dated 09.02.2017, the learned Tribunal has rightly concluded that the said proceeding was not maintainable and, as such, this court does not find any infirmity in the impugned order dated 09.02.2017. By the impugned order dated 09.02.2017, the learned Tribunal has rightly concluded that the said proceeding was not maintainable and, as such, this court does not find any infirmity in the impugned order dated 09.02.2017. Moreover, having concluded the hearing on 31.01.2017 in the main case and having already dismissed the M.A. No. 1/2017, there is no infirmity by the learned Tribunal in not waiting for the learned counsel for the petitioners herein on 16.02.2017 as sought to be projected in this case. 9. Needless to say that if the petitioners have argued on the issue of maintainability, it would be premature to doubt that the learned tribunal would not address the same, but if the said issue as not raised at the conclusion of hearing, the learned Tribunal will not be obliged to re-open the issue, which will invariably lead to commencement a de-novo hearing. In the opinion of this court, no case is made out either to interfere with the order impugned herein or to stay the proceedings of TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14, as it would amount to prevent the said learned Tribunal from passing the judgment, which was reserved. Hence, the petitioner is not found entitled any further chance of hearing as there is no challenge to the order dated 31.01.2017 passed in TP No. 19/397/398/GB/2016 corresponding to CP No. 182/14, reserving the case for passing judgment. 10. Thus, this is not a case to invoke the extraordinary superintending jurisdiction of this Court under Article 227 of the Constitution of India. Hence, this application stands dismissed. 11. It is made clear that the learned National Company Law Tribunal, Guwahati Bench shall not be influenced with any observations made herein as this court has not adjudicated the subject matter before it on merit, as such any observation made herein, is purely in connection with the present case.