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2021 DIGILAW 3296 (MAD)

Anuragha Poultries & Breeders Private Limited v. Padmavathi

2021-11-25

R.SUBRAMANIAN

body2021
ORDER : R. Subramanian, J. 1. These three revisions are by the defendants in O.S. Nos. 338, 339 and 340 of 2016, challenging the dismissal of their applications under order VII Rule 11(d) of the CPC seeking rejection of the plaints on the ground that the suits have barred by law. 2. The prayer in the Suits is for a declaration that certain Sale deeds, dated 05.09.2013, 07.10.2013 and 14.02.2014 under which the properties of the Company were sold to third parties are invalid and not binding on the plaintiffs. The Companies, the majority Directors of the Companies and the alienees are the defendants in the Suits. Parallel proceedings were also launched before the Company Law Board complaining the oppression and mismanagement in C.P. No. 171 of 2016. 3. Upon constitution of the National Company Law Tribunal, the proceedings were transferred to the National Company Law Tribunal. The National Company Law Tribunal went into the question of oppression and mismanagement and by order dated 04.06.2021 granted certain reliefs. It also directed the forensic audit of the Companies Accounts. The Tribunal arrived at a prima facie conclusion that there was oppression and mismanagement. 4. The petitioners herein came up with these applications in I.A. Nos. 436 of 2017, 496 of 2017 and 491 of 2017 under order VII rule 11 as aforesaid. The main contention of the petitioners in the applications is that the Suits are barred in view of Section 430 of the Companies Act, 2013, since the reliefs sought for in these suits could be granted by the National Company Law Tribunal in the proceedings for oppression and mismanagement that were pending. Sections 241 and 242 of the Companies Act, 2013 deal with the questions of oppression and mismanagement and the powers of the Tribunal in such proceedings. Section 242(2) enumerates the powers of the Tribunal under 242(1) of the Companies Act which provides for winding up of the company. Sections 241 and 242 of the Companies Act, 2013 deal with the questions of oppression and mismanagement and the powers of the Tribunal in such proceedings. Section 242(2) enumerates the powers of the Tribunal under 242(1) of the Companies Act which provides for winding up of the company. Section 242(2) reads as follows: (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 other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference; (h) removal of the managing director, manager or any of the directors of the company; (i) recovery of undue gains made by any managing director, manager or director during the period of his appointment as such and the manner of utilisation of the recovery including transfer to Investor Education and Protection Fund or repayment to identifiable victims; (j) the manner in which the managing director or manager of the company may be appointed subsequent to an order removing the existing managing director or manager of the company made under clause (h); (k) appointment of such number of persons as directors, who may be required by the Tribunal to report to the Tribunal on such matters as the Tribunal may direct; (l) imposition of costs as may be deemed fit by the Tribunal; (m) any other matter for which, in the opinion of the Tribunal, it is just and equitable that provision should be made. 5. According to Mr. A. Sivaji, the learned counsel appearing for the petitioners, the National Company Law Tribunal which is seized of the proceedings under Sections 241 and 242, is empowered to set aside the alienations made in favour of third parties and when such proceedings have been launched by the respondents, the respondents cannot resort to a Civil Suit which is barred by under Section 430 of the Companies Act, 2013. Section 430 of the Companies Act reads as follows; "430. Civil Court not to have jurisdiction- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal." 6. A very reading of the provision shows that the bar enacted therein would apply only when the Tribunal or the Appellate Tribunal under the Act i.e., the Companies Act is empowered to determine any matter which is also the subject matter of a Civil Suit and in such event, the proceedings before the Civil Court would be barred. The Scope of the bar enacted under law was considered by a full bench by this Court in Periathambi Goundan Vs. District Revenue Officer reported in (1980) 93 LW 169 wherein the full bench explained the scope of the bar and concluded that the bar would be only to the extent of matters that are provided to be under the exclusive jurisdiction of the authorities/Tribunals under the enactment and not otherwise. The language of Section 430 of the Companies Act is in pari materia with that of Section 16(A) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 which was considered by the full bench of this Court in Periathambi Goundan referred to supra. 7. The language of Section 430 of the Companies Act is in pari materia with that of Section 16(A) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 which was considered by the full bench of this Court in Periathambi Goundan referred to supra. 7. Therefore, in order to invoke bar under Section 430 of the companies Act, it is incumbent on the petitioners to show that the National Company Law Tribunal or the National Company Law Appellate Tribunal as the case may be, had the exclusive power to set aside the sale deeds executed by the Companies in favour of third parties. I have already extracted the provisions of Section 242(2) of the Companies Act. There are two clauses which would be very relevant, in my opinion. Clause (f) provides for termination, setting aside or modification of any agreement between the Company and any person other than those referred to in Clauses (e). The proviso to clause (f) would impose a condition that the National Company Law Tribunal or the National Company Law Appellate Tribunal will have to obtain a consent of the party before cancelling the agreement or transaction is entered into. Therefore, setting aside the transaction without consent of the parties is not possible. Clause (g) which provides for setting aside of transfers, imposes a limitation of three months. If the sale of the property of the company has taken place three months prior to the date of the application under Section 242 of the Companies Act, then the same cannot be set aside by the Company Law Tribunal. The two pre conditions laid down in Clause (g) are that the sale must have taken place within three months before filing of the petitions or during the pendency of the petitions. 8. In the case on hand, the sales had taken place in the years 2013 and 2014 where the applications for oppression and mismanagement before the Company Law Board came to be filed in September 2016 which is well beyond three months period. 8. In the case on hand, the sales had taken place in the years 2013 and 2014 where the applications for oppression and mismanagement before the Company Law Board came to be filed in September 2016 which is well beyond three months period. Therefore, it is quite clear that the even though the sales made in the years 2013 and 2014 were the subject matter of the proceedings before the National Company Law Tribunal filed under Section 241 and 242 of the Companies Act, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal would have power to set aside the sales. In the absence of such power, the bar under section 430 of the Companies Act, would not apply. In T. Vinayaga Perumal Vs. T. Balan reported in (2012) 22 tax mann.com 261, this Court has noted the limitation on the power of the Company Law Board to set aside sales under Section 402 of the Companies Act. Sections 398 to 402 of the Companies Act, 1956, governs oppression and mismanagement. This Court had held that if the sale had happened three months prior to the presentation of the petition, the Company law Board will not have a power to set aside the same. In my opinion, the said Judgment would apply to the case on hand also, which is under Sections 241 and 242 of the Companies Act, 2013 which provide for oppression and mismanagement. 9. Similar view was emphasised by this Court in N. Ramji Vs. Ashwath Narayan Ramji reported in (2017) 83 taxmann.com 146. I am therefore of the considered opinion that the bar enacted under Section 430 of the Companies Act would not extend to the suits that are now pending before the Civil Court. Since the Tribunals under the Companies Act, 2013 are not empowered to decide on the validity of the Sale Deeds in question. 10. The other contentions taken is on the question of valuation. It is settled principle of Law that a person who is not a party to the sale deed need not seek to set aside the sale. He can only seek declaration that the sale is not binding on him. This Court had held so in L.P. Alaghappa Chettiar and another Vs. V. Janardhanan and another reported in 2013 (5) CTC 12 . 11. He can only seek declaration that the sale is not binding on him. This Court had held so in L.P. Alaghappa Chettiar and another Vs. V. Janardhanan and another reported in 2013 (5) CTC 12 . 11. In view of the above, I find that both contentions raised in support of the plea of rejection of plaint have no merits and they have to fail. I, therefore find no material irregularity or illegality in the order of the trial Court, dismissing the applications. The Revisions therefore fail and they are accordingly dismissed. 12. It is also stated that the appeal filed by the petitioners against the orders of the National Company Law Tribunal are pending before the National Company Law Appellate Tribunal. I am sure that the National Company law Appellate Tribunal will decide appeals without being influenced by any of the observations made in this order. No costs. Consequently, connected Miscellaneous Petitions are closed.