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KOCHI I.A.Nos.32/KOB/2019& 54/KOB/2023 In C.P.No.69/KOB/2019 &
I.A. Nos. 33 /KOB/2019& 55/KOB/2023 In C.P.No.71/KOB/ 2019.
&
I.A. Nos. 34/KOB/2019& 53 /KOB/2023 In C.P.No.72/KOB/2019 (Under Rule 11 32, 23A of NCLT Rules, 2016)
IA/32/KOB/2019 IN CP/69/KOB/2019 In the matter of:
M/s. Yamuna Roller Flour Mills Pvt. Ltd., represented by its Director, Ms. Danesa Raghulal, 22A, Development Plot, Peringandoor P.O., Thrissur 680 581;
…Applicant/1st Respondent -Versus-
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
3. Mrs. Latha Venugopal, W/o. T.R. Venugopal, A-224, Tower A, DLF New Town Heights, Opp. Doordarshan Kendra, Seaport-Airport Road, Kakkanad, Ernakulam- 682 037;
4.Mrs. Asha Vijayakumar W/o. T.R. Vijayakumar, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
…Respondents/Petitioners I.A. Nos. 33/KOB/2019 & 55/KOB/2023 In C.P.No.71/KOB/ 2019.
&
I.A. Nos. 34/KOB/2019 & 53 /KOB/2023 In C.P.No.72/KOB/2019 -And-
IA(C/Act)/54/KOB/2023 IN CP/69/KOB/2019 In the matter of:
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
3. Mrs. Latha Venugopal, W/o. T.R. Venugopal, A-224, Tower A, DLF New Town Heights, Opp. Doordarshan Kendra, Seaport-Airport Road, Kakkanad, Ernakulam- 682 037;
4.Mrs. Asha Vijayakumar W/o. T.R. Vijayakumar, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
… Petitioners -Versus-
M/s. Yamuna Roller Flour Mills Pvt. Ltd. and 14 Others;
…Respondents -And-
IA/33/KOB/2019 IN CP/71/KOB/2019 In the matter of:
M/s. Elite Foods Pvt. Ltd., represented by its Director, Ms. Danesa Raghulal, 60 Major Industrial Estates, South Kalamassery, Ernakulam, Kerala- 683 109;
… Applicant/1st Respondent -Versus-
I.A. Nos. 33/KOB/2019 & 55/KOB/2023 In C.P.No.71/KOB/ 2019.
&
I.A. Nos. 34/KOB/2019 & 53 /KOB/2023 In C.P.No.72/KOB/2019
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
3. Mrs. Latha Venugopal, W/o. T.R. Venugopal, A-224, Tower A, DLF New Town Heights, Opp. Doordarshan Kendra, Seaport-Airport Road, Kakkanad, Ernakulam- 682 037;
4.Mrs. Asha Vijayakumar W/o. T.R. Vijayakumar, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
…Respondents/Petitioners -And-
IA(C/Act)/55/KOB/2023 IN CP/71/KOB/2019 In the matter of:
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
3. Mrs. Latha Venugopal, W/o. T.R. Venugopal, A-224, Tower A, DLF New Town Heights, Opp. Doordarshan Kendra, Seaport-Airport Road, Kakkanad, Ernakulam- 682 037;
4.Mrs. Asha Vijayakumar W/o. T.R. Vijayakumar, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
… Petitioners -Versus-
I.A. Nos. 33/KOB/2019 & 55/KOB/2023 In C.P.No.71/KOB/ 2019.
&
I.A. Nos. 34/KOB/2019 & 53 /KOB/2023 In C.P.No.72/KOB/2019 M/s. Elite Foods Private Limited and 16 Others .
… Respondents -And-
IA/34/KOB/2019 IN CP/72/KOB/2019 In the matter of:
M/s. Elite Tasty Toast Pvt. Ltd., represented by its Director, Ms. Danesa Raghulal, Medical College P.O., Athani, Thrissur, Kerala- 680 58;
… Applicant/1st Respondent -Versus-
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala.
…Respondents/Petitioner -And-
IA(C/Act)/53/KOB/2023 IN CP/72/KOB/2019 In the matter of;
1. Mr. T.R. Venugopal, S/o late T.R. Raghavan, Udyog Nagar Estate, Swami Vivekananda Road, Goregaon West Mumbai- 400 062, Maharashtra;
2. Mr. T.R. Vijayakumar S/o. late T.R. Raghavan, Thandassery House, Gandhi Nagar, 3rd Street, Peringavu, Thrissur- 680 008, Kerala;
…Petitioners -Versus-
M/s. Elite Tasty Toast Private Limited and 14 Others;
… Respondent I.A. Nos. 33/KOB/2019 & 55/KOB/2023 In C.P.No.71/KOB/ 2019.
&
I.A. Nos. 34/KOB/2019 & 53 /KOB/2023 In C.P.No.72/KOB/2019 Coram:
Shri. P. Mohan Raj : Member (Judicial)
Shri. Satya Ranjan Prasad : Member (Technical)
Parties/Counsel present (through video conference):
For Applicants in IA No.32, 33,34/KOB/2019 Mr. Om Prakash Sr.Adv.
For Respondents in IA No. 54,55,53/KOB/2023 Mr. Anil D. Nair &
Associates.
For Applicants in IA No.54,55,53/KOB/2023 M/s. Ninan and Mathe Mr. Santosh Mathew, Adv.
For Respondents in IA No.32, 33,34/KOB/2019 Mr. Vijay V. Paul, Adv.
Mrs. Sheryl Elizabath Sebastain, Adv.
Mrs. Uttara P.V.Adv. Mr. Gokul.K.R, Adv.
Order reserved on: 07.07.2023 Order pronounced on:20.07.2023
ORDER
1. The applications I.A.No.32,33 and 34 of 2019 are filed by the respondents in main petitions under Rule of NCLT Rules 2016 with prayer to dismiss the main petitions C.P.No.69,71 72 of 2019 for non-obtaining of prior permission under Rule 23A of NCLT Rules 2016. I.A.No.54,55, 53 of 2023 are filed by the petitioners in main petitions under Rules 11,32 and 23A of NCLT Rules 2016 to grant post facto permission to file Joint petitions of C.P.No.69,71 72 of 2019 under Rule 23A of NCLT Rules 2016.
2. Brief contents of averment in Applications I.A.No.32,33, 34 of 2019 are as follows: The company petitions are filed under sections 213.241 242 of I.A. Nos. 33/KOB/2019 55/KOB/2023 In C.P.No.71/KOB/ 2019. I.A. Nos. 34/KOB/2019 53 /KOB/2023 In C.P.No.72/KOB/2019 the Companies Act 2013. The reliefs under section 213 and 241 of the companies Act 2013 cannot go together, since relief under section 213 is an investigative nature and reliefs under section 241 is curative in nature. The company petitions are also not maintainable since unconnected multiple prayers are joint together. The petitions are also barred by limitation. As per Rule 23A of the National Company Law Tribunal Rules 2016 permission from this Tribunal is required to present a joint petition by more than one person but no such permission has been obtained hence the company petitions are liable to be dismissed.
3. Brief contents of averment in Reply of I.A.No.32,33, 34 of 2019 are as follows: The main petitions are filed under section 213,241 and 242 of the companies Act 2013 Section 244 (1) (a) of Companies Act, 2013 permits the petitioners to join in a single company petition. The objection raised in this regard is technical in nature.
4. On the applicant side restricted the argument, only to the applicability of Rule 23A of NCLT Rules 2016 to obtain leave of the Tribunal to file a joint petition under sections 241 242 of the Companies Act 2016. On the basis of both side submission the following points are framed for consideration:
The point for consideration is as follows:
(i) Whether the prior permission of Tribunal under Rule 23A of NCLT Rules 2016 is necessary to file petition by more than one person under section 241 of the companies Act 2013?
5. Brief contents of averment in Applications I.A.No.54,55, 53 of 2023 are as follows:
The applicants are holding total share capitals of 37.64% in M/s. Elite Tasty Toast Private Limited, 36.5% in M/s Yamuna Roller Flour Private Limited and 33.35% in M/s Elite Foods Private Limited. Thus, the applicants are holding not less than 0ne-Tenth of issued share capital of the companies as the pre-condition mentioned in section 244(1) of the Companies Act 2013 and shall have the right to file application under section 241 of the Companies Act 2013. Rule 23A of NCLT Rules 2016 states that for the presentation of a joint petition prior permission shall be obtained. Where the joining of the petitioners by a single petition is specifically permitted by the Act. Section 244 of the companies Act 2013 specifically provides for such permission, this Tribunal is bound to provide such permission in accordance with Rule 23A(2) of the NCLT Rules 2016.
6. Brief contents of averment in Reply of I.A.No.54,55, 53 of 2023 are as follows:
The permission to jointly file a petition under Rule 23A to be obtained prior to filing of the petition. Post facto permission cannot be granted since it is not contemplated in law. The contention of implied permission was granted is misnomer. The respondent already filed the applications I.A.No.32,33, 34 of 2019 at the very first instance to decide the maintainability of company petitions for non-compliance of Rule 23A of NCLT Rules 2016. The company petitions are liable to be dismissed and the supra defects cannot be permitted to be cured by a belated petition.
The point for consideration is as follows:
(i) Whether the post facto permission can be granted?
7. For the sake of convenience, the parties are referred as mentioned
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