JUDGEMENT

JUSTICE YOGESH KHANNA, MEMBER (JUDICIAL)

This appeal is filed against an interim order dated 23.11.2023 passed by the National Company Law Tribunal, Division Bench, Court II, Kolkata in Company Petition No.278/KB/2023 stating interalia the said order was passed without proper consideration of the facts and non-application of mind. The Learned counsel for the appellant submitted the Respondent No.1 has breached the shareholders’ agreement and exclusivity agreement and had engaged itself in rival competitive business against the interest of the Joint Venture and though the Respondent No.1 was always given access to the appellant’s books of accounts despite that an interim order was passed without recording proper reasons. It is argued the impugned order of directing an independent forensic audit into the affairs of the Appellant company would rather harm the reputation of the appellant company.

2. It is submitted the Respondent No.1 and Respondent No.2 are the shareholders in Appellant company i.e. LAS Goldair Handling (Bagdogra) Pvt Ltd, a Special Purpose Vehicle created to bid for a tender floated by Airport Authority of India (AAI) to carry out ground handling service at Bagdogra airport and for participating in the bidding process of concession for ground handling services at AAI owned airports.

3. A letter of intent to award was awarded to the Appellant herein for a concession for ground handling services at the Airport and on 8th November, 2021 a Concession Agreement was entered into between AAI being the Authority and the Appellant, SPV being the concessionaire, with right to provide ground handling services for a period of 10 years.

4. The company petition was filed for Oppression and Mismanagement by Respondent No.1 alleging the appellant had denied to the Respondent No.1 the inspection of the books of accounts; had not called for an EOGM; had purchased loan without its consent and had failed to comply with statutory compliances.

5. The learned counsel for the Appellant has referred to the Rejoinder Affidavit filed in support of this appeal to say there have been a dispute between the Appellant and Respondents qua the exclusivity agreement as well as insufficient investment made by Respondent No.1 and for this reason two letters viz letters dated 13.7.2023 and 12.08.2023 were sent by the appellant to Respondent No.1. Further the appellant refers to a letter dated 12.12.2023 wherein it noted the Respondent No.1 had violated the ‘Exclusivity Clauses’ and had rather given an independent bid for ground handling service at Nagpur Airport and has been awarded such contract.

6. Be that as it may, the crux of the argument made by the Learned Counsel for the appellant is the impugned order is devoid of reasoning. It is alleged no reason is mentioned by the Ld. NCLT to direct an independent forensic audit into the affairs of the appellant since its inception in 2021, despite the fact the accounts till 31.03.2022 were settled as per the minutes filed and one Mukesh Choksi & Company has been appointed as an Auditor. Qua the necessity of reasoning to an order the Learned counsel for the appellant has referred to Secretary and Curator, Victoria Memorial Hall Vs Howrah Ganatantrik Nagrik Samity and others (2010)3 Supreme Court Cases

732 which read as under:-

“40. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an ess