Bikki Raveendra Babu, Member - (1.) This application is filed by the original petitioner with a prayer to set aside/recall ex-parte order dated November 22, 2016 passed in I.A. No. 31/NCLT/AHM/2016 on the ground that it was obtained by perpetrating fraud, deceit and suppressing material facts from the Tribunal. The facts in brief that are necessary for the disposal of this application are as follows: (i) The parties herein are referred to as the "original petitioner" and the "original respondents" as they are arrayed in original petition for the sake of convenience. (ii) Company Petition No. T.P. 100/397-398/NCLT/AHM/2016 (C.P. No. 51 of 2015) is filed by the applicant herein against the respondents herein alleging acts of oppression and mismanagement in the conduct of affairs of the first respondent-company. (iii) During the pendency of the said petition on November 22, 2016, I.A. No. 31 of 2016 was filed by the original second respondent seeking the following reliefs: "(1) That the hon'ble Company Law Board may please quash this petition so as to maintain the corporate status of the company or else it would affect the going-on status of the company. (2) That the applicant being the promoter director, hereby by this interlocutory application request the hon'ble Tribunal to direct respondents Nos. 2, 3, 4, and 5 to comply with statutory requirements under various enactments. (3) That a scheduled board meeting shall be called by the Tribunal, whereby respondent No. 2 should be directed to be present and duly approve the accounts so that proper audit of the same shall be conducted and accordingly proper statutory returns shall be filed under the Income-tax Act, 1961, Commercial Tax and the Companies Act. (4) That respondents Nos. 3, 4 and 5 shall be instructed to allow transaction in the accounts of the company so that the company shall be in a position to make payments of outstanding against office rent, staff salaries and also to clear off tax dues of the company. (5) That the rights of respondent No. 2 as director should be restored in case of non-corporation of respondent No. 1, in order to look after the day-to-day happenings in the company. (6) That the hon'ble Tribunal shall in order to safeguard the interest of the company and the applicant, regulate the conduct of affairs of the company in future. (7) That the hon'ble Tribunal shall grant appropriate relief in accordance with section 402 of the Companies Act, 1956 and for such further or other order(s) and/or direction(s) as the hon'ble Tribunal may deem fit and proper." (iv) The said application was taken on board by the Bench on November 22, 2016 itself, on which date the main company petition T.P. No. 100 of 2016 was listed. (v) The learned Member (Judicial) passed the order on November 22, 2016. The operative portion of the order dated November 22, 2016 passed by the hon'ble Member Judicial in I.A. No. 31 of 2016 is as follows: "(a) That certain banks in which the account of company (respondent No. 1) are maintained namely, HDFC Bank, Canara Bank and ICICI Bank are hereby directed to let the account be operated by respondents Nos. 2 and 3 jointly after obtaining the authorised signatures and also after completing the complete formalities as per the banking rules. The withdrawals from the bank shall be allowed for meeting the tax liabilities, the day-to-day necessary expenditure such as office rent, staff salary, as well as the other statutory compliances. For that purpose, the bank authorities are hereby authorised to place on record a letter from respondents Nos. 2 and 3 jointly explaining the purpose for which withdrawal is required. This interregnum arrangement for operation of the bank account is for a limited period ending on December 30, 2016. (b) The petitioner and respondents Nos. 2 and 3 are hereby directed to hold annual general meeting of respondent No. 1 to complete the legal formalities pending so that the statutory compliances under several statutes such as the Companies Act, Income-tax Act, etc. can be finalised. The parties are directed to formulate a proper agenda for the annual general meeting directed to be convened on or before December 15, 2016 for which the notice as required under the Companies Act should immediately be served to the concerned parties. (c) That the parties are directed to maintain harmony among themselves and participate in the annual general meeting in the amicable manner. The resolutions passed in the annual general meeting shall be immediately conveyed to the Registrar of Companies having jurisdiction and a copy to the National Company Law Tribunal, Ahmedabad Bench. (d) The legal representative of respondent No. 2, being present, is hereby directed to communicate this order to the bank authorities and also to the petitioner, the registry is directed to supply a certified copy as per rules." (vi) Thereupon the original petitioners filed this application to set aside the said order dated November 22, 2016 passed in I.A. No. 31 of 2016. (vii) It is stated in this application that original respondent No. 2 obtained the order dated November 22, 2016 by perpetrating fraud, deceit and misrepresentation. It is further stated that the Company Law Board, New Delhi Bench passed the following order on July 9, 2015 in C.P. No. 51 of 2015, now numbered as T.P. No. 100 of 2016 with the consent of both the parties: "2. This Bench hereby directs the respondents to maintain status quo over the shareholding and assets of the company, to maintain the board with the petitioner and the second respondent as directors, suspension of respondent No. 3 as director in the company until further orders. 3. The respondents shall take the consent of the petitioner in relation to banking operations until further orders. The respondents are directed to file reply within 15 days hereof rejoinder, if any, within 15 days thereof." It is further stated that the second respondent who filed I.A. No. 31 of 2016 has not served the copy of the said application on the original petitioner and obtained order dated November 22, 2016 from the hon'ble Tribunal. It is also stated that original respondent No. 2 never approached the petitioner for operation of bank accounts relating to the first respondent-company. It is also stated that respondent No. 2 opened the bank account with the Canara Bank and HDFC Bank by filing forged KYC documents of the petitioner and in that connection the original petitioner filed FIR with M.P. Nagar Police, Bhopal. It is also stated that the Canara Bank vide its letter dated May 19, 2015 informed the original petitioner that the bank had already stopped operation of the account and the said account will be made operational only after direction from the competent court of law. (viii) On this application, respondent No. 2 filed reply stating that I.A. No. 31 of 2016 was filed on November 22, 2016 on which date the original petition was listed and the hon'ble Tribunal had taken up the application and observed that no one is present from the side of the petitioner as it happened in the past as well and accordingly passed the order on November 22, 2016. It is further stated that the order dated November 22, 2016 is passed only for complying statutory compliances and to pay the tax, interest, penalty and other dues. It is further stated in the reply that respondent No. 2 has maintained sanctity of the order of the erstwhile hon'ble Company Law Tribunal and maintained status quo over the shareholding and assets of the company. In the said reply, respondent No. 2 denied the averment mat he never approached the petitioner for operation of the bank accounts of the first respondent-company. It is also stated that respondent No. 2 has called upon the board meeting on October 19, 2015 but the petitioner did not attend. On the other hand, the petitioner by letter dated October 29, 2015 warned the second respondent with contempt. It is further stated that the order of the hon'ble Company Law Board was an interim relief which was quashed by this Tribunal vide its order dated November 22, 2016. It is further stated that the order dated November 22, 2016 is an interim order for a specific purpose and for a limited period. The second respondent requested the Tribunal to dismiss the application and also sought for other reliefs stated in the reply. (ix) During the hearing of this application, the learned practising company secretary appearing for original respondent No. 2 gave an undertaking that they are not holding the annual general body meeting till this application is decided and the said undertaking is recorded. The second respondent also filed a letter stating the amounts withdrawn from the Canara Bank in pursuance of the order dated November 22, 2016 along with vouchers.
(2.) The point for consideration is whether the order dated November 22, 2016 passed by the then Judicial Member of this Tribunal in I.A. No. 31 of 2016 is an ex-parte order or not and if so what is the relief to be granted.
(3.) It is apparent on the record that the application I.A. No. 31 of 2016 was filed, registered and taken on the Board by this Tribunal on November 22, 2016 itself. It is also a fact that T.P. No. 100 of 2016 (old C.P. No. 51 of 2015) was listed on November 22, 2016. There is no dispute about the fact that none were present on behalf of the original petitioner before the Tribunal on November 22, 2016. It is not even the case of original respondent No. 2 who filed I.A. No. 31 of 2016 that he served a copy of the application in I.A. No. 31 of 2016 on the original petitioner and other respondents.;