w w w . L a w y e r S e r v i c e s . i n



Safedabad Cold Storage & Allied Industries Pvt. Ltd. & Others v/s Shabbir Ahmed & Others


Company & Directors' Information:- V G ALLIED INDUSTRIES PRIVATE LIMITED [Active] CIN = U27100MH2012PTC227359

Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- ALLIED INDUSTRIES LIMITED [Active] CIN = U00000PB1998PLC022063

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- S B COLD STORAGE INDUSTRIES PVT LTD [Active] CIN = U63022WB1970PTC027823

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- SAFEDABAD COLD STORAGE & ALLIED INDUSTRIES PVT LTD [Active] CIN = U63022UP1981PTC076955

Company & Directors' Information:- ALLIED COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022OR1997PTC004980

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- B S COLD STORAGE AND ALLIED INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U63022UP1981PTC005329

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- A K STORAGE PRIVATE LIMITED [Strike Off] CIN = U99999MH1978PTC020884

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

    Company Appeal (AT) No. 143 of 2017

    Decided On, 21 July 2017

    At, National Company Law Appellate Tribunal

    By, THE HONOURABLE MR. JUSTICE S.J. MUKHOPADHAYA
    By, CHAIRPERSON & THE HONOURABLE MR. BALVINDER SINGH
    By, TECHNICAL MEMBER

    For the Appellants: Saurabh Kalia, Samridhi Gogia, Advocates. For the Respondents: Ratnanko Banerji, Senior Advocate, Pankaj Bhatia, Shaunak Mitra, Debjani, Dhruv Surana, Nipun Goel, Advocates.



Judgment Text

Sudhansu Jyoti Mukhopadhaya, Chairperson

1. This appeal has been preferred by appellants against order dated 16th February 2017,passed by National Company Law Tribunal (hereinafter referred to as "Tribunal"), Kolkata Bench, Kolkata and I.A. No. 20/2016 in C.P. No. 38/2016 whereby and where under the Tribunal rejected the Interlocutory Application preferred by appellants and held that Company Petition was maintainable at Kolkata Bench.

2. The brief facts of the case are as follows: -

The Company Petition No. 38/2016 was filed by respondents/petitioners, namely Shabbir Ahmed and others on 12th April 2016 before erstwhile Company Law Board at Kolkata under Section 235, 397, 398, 402, 403 and 406 of the Companies Act 1956. After constitution of the National Company Law Tribunal w.e.f. 1st June 2016, the Interlocutory Application No. 20/2016 was preferred by appellants for transfer of the case from Kolkata Bench to Allahabad Bench on the ground that Registered Office of the Appellant No. 1 Company is situated at Safedabad, Barabanki, U.P.

3. In support of prayer for transfer, the following facts were brought to the notice of the Tribunal by the appellants which were also not disputed by the respondents: -

(i) On 17th February 2015, the Extra Ordinary General Meeting of the Company was convened for taking decision to shift the Registered office from Kolkata to Barabanki, U.P.

(ii) The application for shifting of Registered Office was filed on 5th August 2015 before Ld. Regional Director, Eastern Region Kolkata.

(iii) The application for shifting of Registered Office from Kolkata to Barabanki, U.P. was allowed by Ld. Regional Director Eastern Region, Kolkata by its order dated 11th February 2016.

(iv) Form No. INC-22 i.e. Notice for situation of change of place of Registered Office and INC-28, a notice of order of the Court or Tribunal or any other competent authority was filed by appellant company on 17th February 2016 in the Ministry of Corporate Affairs Portal.

(v) The Certificate of shifting of Registered Office at Kolkata to U.P. was issued by Registrar of Companies, Kanpur on 18th March 2016.

(vi) It was only thereafter the Company Petition was filed on 19th April 2016 by the respondent inter alia challenging the various action including the shifting of Registered Office from Kolkata to U.P. before erstwhile Company Law Board.

4. Learned counsel for the appellants submitted that the Company Petition should have been preferred before a Bench of the Company Law Board/Tribunal where the Registered Office of the Company is situated as on the date of filing, which is at Barabanki, U.P. Thereby, the Company Law Board, at New Delhi had the jurisdiction and not the Kolkata bench. Further according to appellants, after constitution of the Tribunal since 1st June 2016, it was required to be transferred and heard by Bench of Tribunal at Allahabad.

5. Further, according to Learned counsel for the appellants, any territorial jurisdiction of any Bench cannot be decided based upon cause of action. In this regard, learned counsel for the appellants relied on decision of the Appellate Tribunal dated 9th March 2017 in "63 Moons Technologies Ltd. v. Union of India & Others" Company Appeal (AT) No. 03/2017.

6. It was also contended by Learned counsel for the appellants that the matter ought to have been dismissed by Kolkata Bench for want of jurisdiction as the original matter itself was filed before the Bench which had no jurisdiction to entertain the said petition. Reliance was placed on Hon'ble Supreme Court decision in "Stridewell Leathers (P) Ltd. v. Bhankerpur Shimbhaoli Beverages (P) Ltd." (1994) 1-SCC 34.

7. Per contra, according to Learned counsel for the respondents as the respondents has challenged the acts of illegal shifting of Registered Office on the basis of alleged Extra Ordinary General Meeting held on 17th February 2017 without notice to the respondents/petitioners, such act of illegal shifting being illegal, null and void the Registered Office deemed to be continuing at Kolkata and thereby the petition is maintainable at Tribunal Kolkata Bench.

8. Learned counsel for the respondent relied on the decision of this Appellate Tribunal dated 24th January 2017 in "Crystal Thermotech Ltd" Company Appeal (AT) No. 17 of 2016 to suggest that where an applicant alleges that Registered office has been illegally shifted by oppression and mismanagement without notice and knowledge then the petition is maintainable at the place where original Registered office was situated.

9. We have heard Learned counsel for the parties and perused the impugned order.

10. It is not in dispute that wrongly or rightly the Registered Office of the 1st appellant company was transferred from Kolkata to Barabanki, U.P., which was also approved by the competent authority and appropriate orders were passed much prior to filing of Company Petition. The appellants have challenged the jurisdiction of the Kolkata Bench, as the Principal Bench of Company Law Board, New Delhi had jurisdiction in respect of State of U.P.

11. Once the question of jurisdiction of the Kolkata Bench was challenged by the appellants/respondents, though it was open to the Tribunal, Kolkata Bench to decide the question of its jurisdiction and maintainability of the Company Petition before erstwhile Company Law Board, it was not open to the Tribunal to decide the main issue as to whether the transfer of the Registered Office from Kolkata to Barabanki, U.P. was illegal or not and whether there is any act of "Oppression and Mismanagement" on the part of any one or other member including the appellants as has been observed by Tribunal.

12. It is not in dispute that with regard to the companies having its Registered office in the State of U.P., Principal Bench of erstwhile Company Law Board, New Delhi had the jurisdiction and not with the Kolkata Bench.

13. Once the respondents challenged the transfer of the Registered Office from Kolkata Bench to Barabanki, U.P., it was well within the domain of Principal Bench of erstwhile Company Law Board to decide the case on merit i.e. legality and propriety of transfer of Registered Office from one State to another. The judgement of this Appellate Tribunal in "Crystal Thermotech Ltd.", as referred by respondents is not applicable in the present case.

14. In the case of "63 Moons Technologies Limited", Appellate Tribunal held as follows: -

"24. Sub-section (1) of Section 434 mandates transfer of proceedings pending before the Company Law Board to respective Tribunal having territorial jurisdiction. The circular issued under Regulation 4 of 1991 Regulation cannot be given effect in view of the aforesaid mandate under the Act.

25. Section 434(a) read with sub-section (1) of section 419 of Companies Act, 2013 and Notification dated 1st June 2016 issued by Central Government under subsection (1) of Section 419 and the Rule 64 of NCLT Rule it is clear the Benches, including Principal Bench have territorial jurisdiction on the Companies exclusively on the basis of location of the registered office of such company. In fact, this law is also being followed by the Principal Bench of NCLT, New Delhi for placing all the petitioners before one or other Bench and that Section 488-B of Act 1956, cannot be exception of the same."

15. In view of the aforesaid discussion and of decision in "63 Moons Technologies Limited", we hold that the petition preferred by respondents/petitioners before erstwhile Compa

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ny Law Board, Kolkata Bench was not maintainable and the Tribunal, Kolkata Bench has no jurisdiction to decide the Company Petition on merit We, accordingly, set aside the impugned order dated 16th February 2017 passed by the Tribunal, Kolkata Bench and dismiss the Company Petition preferred by Respondents/Petitioners as not maintainable before Kolkata Bench with liberty to respondents/petitioners to file a fresh petition before the Bench of Tribunal at Allahabad under relevant provisions with same and similar allegations, as has been made in the Company Petition. If such petition is filed within one month from the date of this order, the Tribunal will decide the case on merit and will not dismiss the petition on the ground of limitation or delay. The appeal is allowed with the aforesaid observations. However, there shall be no order as to cost.
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