The Tribunal held that the sale of an asset does not require a special resolution under the Companies Act if the asset is not classified as an 'undertaking'.

Per: Ms. Lakshmi Gurung, Member (Judicial)

Brief Background Facts

1. M/s MPTA Limited (hereinafter referred to as ‘MPTA’) is a company incorporated under the Companies Act, 1956 and was the owner of two assets being (i) Office Space of MPTA with office furniture at Kunal Plaza, 2^nd Floor, Chinchwad Station, Pune, Maharashtra – 411019 and (ii) Land bearing Final Plot No. 887A/21, (TPS-1, Bhamburda, Pune), corresponding to City S. No. 1206A/118 as per Index II i.e. City S. No. 1206/18A as per property register card admeasuring 446.16 sq. mts. carved out of S. No. 19 A/6, and S. No. 192/2, together with an old two- story residential building constructed thereon admeasuring 366.02 sq. mts. built up (inclusive of garage), situated at village Bhamburda (Shivaji Nagar) of City of Pune titled as ‘Sakar Bungalow’ (hereinafter referred to as the ‘Sakar Bungalow Property’/ ‘the said Property’).

2. One group of directors who are also shareholders of MPTA holding 49.90% share capital, who are the Applicants in CA 129/2024, (herein after referred to as the Petitioners) had filed Company Petition No. 64/2022 (the Petition) on 22.12.2021 under section 130, 210-213 read with 241-242 of the Companies Act, 2013 against MPTA, other directors and other persons connected thereto.

3. Vide order dated 28.03.2022, this Tribunal, directed to maintain Status Quo with respect to the assets and shareholding of MPTA.

4. In the meantime, Axis Bank, a secured financial creditor, having security interest in the properties of MPTA, issued notice dated 04.05.2023 to MPTA under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Pursuant thereto, MPTA decided to sell the property for repaying the loan of Axis Bank and therefore filed IA/110/2023 for vacation of the status quo order and to permit MPTA to sell its assets.

5. The matter was briefly heard on 30.06.2023 but no relief was granted as opportunity was given to the other side to file reply. Thereafter on 18.08.2023, the status-quo qua the properties of MPTA was vacated. Aggrieved by the said order, the Petitioners filed appeal bearing Company Appeal (AT) No. 196 of 2023 before Hon’ble National Company Law Appellate Tribunal (Appellate Tribunal) on 29.09.2023.

6. Proceedings before Hon’ble NCLAT

i. During the pendency of the proceedings before the Hon’ble Appellate Tribunal, Sakar Bungalow Property was sold to Buttepatil Properties (Buttepatil), which is a registered partnership firm, vide Sale Deed dated 09.11.2023 for sale consideration of Rs. 9.5 crores after obtaining “No Objection Certificate” from Axis Bank and it is undisputed that the entire sale consideration has been paid to Axis Bank.

ii. When the Petitioners became aware of the sale of the Sakar Bungalow Property, they filed two Applications before Hon’ble Appellate Tribunal being