- (1.) This is an Application filed by the 2nd Respondent Company in the main Company Petition, namely, M/s EMTA Coal Ltd. holding as contended by the Applicant along with its partners 51% of the paid up equity capital of the 1st Respondent Company in PANEM Coal Mines Ltd. The application prays for intervention of this Tribunal in relation to the appointment of a counsel before the Arbitral Tribunal between M/s EMTA Coal Limited the 2nd Respondent on the one hand it being the claimant there. The non-Applicant/Petitioner and the First Respondent herein named as the Respondent therein even though the First Respondent Company has been named before the Arbitral Tribunal only as Proforma Respondent. Ld. Counsel for the Applicant during the course of arguments pointed out that this Tribunal based 01 Application filed by the Petitioner/ non-Applicant had intervene in the affairs of 1st Respondent Company vide order date 03,05.2016 which was to the following effect: "A copy of the petition has already been furnished to the counsel for the respondent No.2 and 3 to 6. I have heard learned counsel for the parties at some length. Ld. Counsel for the petitioner has, inter alia, argued that on account of various terms and conditions in the Joint Venture Agreement (JVA) dated 21.03.2001, the resolution proposed for the EOGM slated for 09.05.2016 cannot be passed because these resolutions would contravene the stipulations and no such resolution should be passed in view of stipulations of JVA mentioned at pages 138(Clause-B), 139, 145,146,148, 149,155,156,157,158 and 165(4A) etc. Learned counsel has, in nutshell, submitted that no special resolution could be passed by the Board of Directors as the petitioners have been deliberately given 26% of shareholding and for special resolution 75% voting is required whereas respondents have obviously 74%. This is sought to be defeated by calling EOGM on 09.05.2016. It has also been argued that in pursuance of Coal Mines (Special Provisions) Act 2015 the petitioners are not liable to pay the amount of penalty imposed by Hon'ble Supreme Court vide its judgement titled Manohar Lai Sharma v. Union of India, 2014 9 SCC 516. The petitioners had leased coal block for mining purpose to respondent No.l company and according to Expl. Appended to s.3(l)n of the Coal Mines Act the lease holder has to be regarded as a prior allottee. It is the lease holder who is thus liable to pay. In any case the petitioner has already deposited its share of 26% amounting to Rs.391 crores. On the contrary Id, Counsel for the respondent has, inter alia, argued that according to para 38 of the Supreme Court judgment it is the allottee who is liable to pay the penalty in toto and the lease-holder like Respondent No.l (Panem Coal Mines Limited) would not be liable to pay. Ld.counsel has placed reliance on the judgment of the Supreme Court wherein the petitioner has requested for waiving the penalty in case of Public Sector Undertakings. In that regard a reference has been made to the order of the Supreme Court dated 08.12.2014 wherein the application Cr.M.P. No.24058 filed by the petitioner was dismissed in which prayer for exemption to pay penalty was made. The respondents have also raised various other issues and has placed reliance on the judgment of the Supreme Court LLC. v. Escorts Ltd, 1986 1 SCC 264 and argued that there cannot be any stay against convening of EOGM. Having heard Id. Counsel and pursuing various averments made in the petition I believe that filing of the written statement in such like cases is extremely necessary as we are dealing with a comprehensive JVA, huge litigation and statutes following the judgment of the Supreme Court. Accordingly Ld. Counsel for the respondents states that written statement shall be filed within four weeks with a copy in advance to the counsel for the petitioner. Rejoinder, if any, shall be filed within three weeks thereafter with a copy in advance to the counsel opposite. Ld. Counsel for the respondent further states that the meeting on 09.05.2016 shall be held but no effect would be given to the resolution, if any passed, till the next date of hearing subject to just exceptions. List for further consideration on 07.07.2016 at 2.00 PM."
(2.) The above said order dated 03.05.2016, was modified on 06.12.2016, at the instance of the Applicant and the modified order is as follows: "CA 174/PB/2016 in CP 61fNDV2016 1. This is an application with a prayer for staying operation of, and for setting aside the board resolution dated 18.10.2016 passed in board meeting held by respondent 1.In item No.6 engineer Surender Kumar Bagga, Nominee Director PSPCL circulated the following resolution: "RESOLVED THAT the Company should participate in the proceedings commenced against it by PSPCL Ltd. under Section 241 read with Section 242 of the Companies Act, 2013 in the matter of PANEM Coal Mines Ltd. before the National Company Law Tribunal, Principal Bench at New Delhi as well as in various courts, quasi-judicial authority/Tribunals etc. wherein the interest of the Company may be required to be protected. Further that Er. Sunil Kumar Puri, is hereby authorized by the Company to appear and represent the Company and to provide information on/elaborate stand of the Company (personally or through Advocate) and to sign, execute and make necessary statements and give necessary declarations and undertakings in the pending proceedings and all proceedings related thereto to consultants(s)/ advance/ protect the company's interests, and for the purpose, to authorize the making of necessary claims and putting forward necessary defenses, and execute deeds, writings, papers, vakalatnamas, etc. on behalf of the Company and to appoint advocate(s)/advisor(s) as may be necessary in best interest of the Company, and to do such other acts and deeds as are incident to or otherwise connected therewith." 2. The Board is in the hands of the non-applicant petitioners and appointment of a counsel at the hands of Board of respondent 1 to represent Respondent 1 company would result in apparent conflict of interest. 3. Despite objection raised by the two directors highlighting the conflict of interest between the respondent 1 and the petitioner on the one hand and applicant-respondent 2 and the petitioner on the other hand, the resolution has been passed by the Board of Respondent 1 Company. Consequently the argument has been raised in this application that passing of such a a resolution amounts to authorizing the petitioner to appoint the counsel for respondent 1 company which is apparently reflects conflict of interest which would be against the fundamental principles of administration of justice. 4. Notice of the application. 5. Learned counsel for the non-applicant-petitioner accepts notice and states that no reply would be necessary as the application can be disposed of at this stage. 6. Mr.Chaddha, learned counsel for the petitioner-non-applicants after obtaining instructions states that the resolution passed under item 6 on 18.10.2016 shall not be given effect. Learned counsel has further stated that the undertaking would be confined only to those cases where there is apparent conflict of interest between the petitioner and respondent No.l or between respondent No.l and respondent No.2. 7. Likewise Mr. Bhandari states that the order dated 03.05.2016/04.05.2016 has recorded a similar undertaking of respondent 2 which is to the effect that resolution dated 09.05.2016 was not to be given effect. According to the learned counsel that undertaking may also be clarified to mean that the undertaking would apply to cases where there is conflict of interest between petitioner and respondent 1 & 2 and that the resolution dated 09.05.2016 passed by EOGM would not be given effect only in such cases. 8. We have considered the submissions of Mr. Bhandari and feel that the principles of mutuality would require modification of order dated 03.05.2016/04.05.2016. Accordingly to the undertaking given by the respondent 2 would apply only to those cases where there is apparent conflict of interests between the petitioner, respondent 1 and respondent 2 interse. 9. However, respondent 1 company cannot go unrepresented before this Tribunal. Accordingly with the consensus of the parties we appoint Mr.Saurav Kalia as an Advocate on record as an amicus and Mr. U.K.Choudhry as the Senior counsel to represent the Respondent 1 Company. The Company must depute its Secretary and / or the Chartered Accountant to meet the learned amicus by fixing appointment with them. 10. Learned counsel for the petitioner undertakes to supply complete paper book to the advocate on record and learned senior counsel within one week so that arguments in this matter be finally heard. 11.List the matter on 18.01.2017,"
(3.) The above said order was subsequently corrected vide order ted 18.1.2017 to the following effect: "Learned Counsel for the parties are ad item that paras 6,7 and 8 which have now been numbered in the order dated 06.12.2016 are required to be corrected and shall be read as under:- 6.Mr.Chaddha, learned counsel for the petitioner-non-applicants after obtaining instructions states that the resolution passed under item 6 on 18.10,2016 shall not be given effect. Learned counsel has further stated that the undertaking would be confined only to those cases where there is apparent conflict of interest between the petitioner and respondent No.l. 7.Likewise Mr. Bhandari states that the order dated 03.05.2016/04.05.2016 has recorded a similar undertaking of respondent 2 which is to the effect that resolution dated 09.05.2016 was not to be given effect. According to the learned counsel that undertaking may also be clarified to mean that the undertaking would apply to cases where there is conflict of interest between respondent 1 & 2 and that the resolution dated 09.05.2016 passed by EOGM would not be given effect only in such cases. 8.We have considered the submissions of Mr. Bhandari and feel that the principles of mutuality would require modification of order dated 03.05.2016/04.05.2016. According to the undertaking given by the respondent 2 would apply only to those cases where there is apparent conflict of interests between respondent 1 and respondent 2 interse. List for arguments on 09.03.2017.;