Bikki Raveendra Babu, Judicial Member:— Original Respondent No. 3 filed this application under Rule 11 of the NCLT Rules seeking amendment as contained in Annexure “A” which includes counter claim of Rs. 58.93 crores with interest @ 12% p.a interest thereon i.e Rs. 33.93 crores total amount being Rs. 99.92 crores and for further counter claim in the nature of direction to the petitioner to unconditionally surrender 40% of the shareholding of Jagran Publications P. Ltd.
2. The facts in brief that are necessary for the disposal of this application at the admission stage are as follows: -
3. Jagran Prakashan Limited, a company incorporated under the provisions of Companies Act, 1956 having its registered office in Uttar Pradesh filed company petition No. 198 of 2007 before the Company Law Board, Principal Bench, New Delhi against Jagran Publications P. Ltd. a company incorporated under the provisions of the Companies Act, 1956 and having its registered office in Bopal, Madhya Pradesh and against its Managing Director and three other Directors and Mr. Rajiv Mohan Gupta, respondent No. 6 who is the ‘De-facto’ Managing Director of the Company alleging several acts of oppression and mismanagement and praying for several reliefs including appointment of an Independent Director to operate management of Jagran Publications P. Ltd.
4. In the said petition, respondents No. 2, 3 and 4 who are Directors of Jagran Publications P. Ltd. filed their reply on 14.03.2008 The detailed reply is running into 55 pages. Respondents No. 5 & 6 filed separate reply running into 96 pages.
5. Hon'ble Principal Bench, NCLT, New Delhi entrusted CP No. 198 of 2007 to Ahmedabad bench on the point of jurisdiction and it is renumbered as TP no. 199/2016 and that is how the matter came up before this bench. This bench listed the matter on 17.04.2017 for final hearing.
6. It is relevant to mention here that when the matter listed before Hon'ble Principal Bench, New Delhi, respondents No. 3, 5 and 6 filed application seeking the amendments as contained in Annexure ‘A’ of the said application. While CA No. 112 of 2013 is pending before Hon'ble Company Law Board, New Delhi the following order is passed in CA No. 112 of 2013 on 17.02.2014
“As to CA 112/2013 for having the petitioner side not filed any reply in this and this bench has asked them about filing reply, Mr. Dhruv Diwan, appearing on behalf of petitioner, categorically stated that petitioner side does not need to file any reply to this application because the issues raised in this amendment application have already become part of the records. Therefore, respondent side is at liberty to argue this CA alongwith main CP.
The petitioner side has further stated he may be given liberty to respond to the same while making submissions on this CA. since the Counsel for R-3, 5, 6 already started his submissions in the CP, they will continue their submissions on the dates as fixed earlier.”
7. In view of the said order two things are clear that the original petitioners have no reply to file in CA No. 112 of 2013 on the ground the issues raised in the amendment application have already become part of the record and another is that company application No. 113 of 2013 shall be heard along with main Company Petition No. 198 of 2017.
8. The Company Application No. 112 of 2013 is renumbered as TP 199 A of 2017 before this Tribunal. In fact, during pendency of the matter, Principal Bench, Company Law Board, New Delhi arguments of the petitioner side was heard and the matter was pending for the arguments of the respondents' side. At that stage, CA 112 of 2003 was filed. After the matter is received by this Tribunal, with the consent of both the parties, the matter was kept for hearing on 17.04.2017
9. On 17.04.2017 the following order was passed by this Tribunal.
“The learned counsels appearing for petitioners and respondents No. 3 and 6 stated that the interim applications filed by them became infructuous and they are ready to argue the main petition. The counsels on record agreed to file written arguments before 03.07.2017 Learned counsel appearing for respondent No. 5 also stated that he will also file written arguments before 03.07.2017
Written arguments shall be exchanged among the counsels on record before 03.07.2017 For oral submissions by all the counsels on 10.07.2017 and 11.07.2017”
10. From the aforesaid order it is clear that both the sides have agreed to argue the main matter and file written arguments and make oral, arguments on 10 and 11 July, 2017. On 10.07.2017 arguments of the counsel appearing for the petitioner were heard in part. On that day it was brought to the notice that CA No. 117 of 2013 is pending and, therefore, this Tribunal instructed registry to renumber CA 117/2013 and accordingly TP No. 199-A of 2017 was registered. In the main CP written arguments were filed by respondents No. 3, 5 & 6 but respondents No. 2, 4 and 7 not filed written arguments. Learned counsel for the petitioner submitted arguments on 28.07.2017 On 28.07.2017, on the request of the counsel for the respondents the matter was foxed for their arguments. On 28.08.2017, on the request of respondent No. 2 two dates were specifically fixed for the arguments of respondents No. 2 to 4 i.e 12.09.2017 and 13.09.2017 This application is filed on 06.09.2017
11. Learned counsel appearing for the applicant original respondent No. 3 contended that there are certain new material facts that needs to be brought on record in the form of pleadings by amending the reply. He further submitted that there is also a counter claim by respondent No. 3 against petitioners and that plea has to be taken in the reply of respondent No. 3.
12. According to the learned counsel for the applicant/respondent No. 3, new facts that are sought to be brought on record in the reply are in para Z-14 and Z-15 which reads as follows: -
“Z-14 Because the respondent has recently collected an information that the petitioner has surreptitiously filed a CS (OS) No. 121 of 2015 against the M.P group seeking a declaration under the Trade Mark Act that Jagran Prakashan Ltd. is the owner of the Trade Marks Jagran & Dainik Jagran. It is necessary to inform that the petitioner has suppressed the fact in the aforesaid suit proceedings/pleadings that the M.P group had already filed a CS(OS) No. 1552 of 2007 for the declaration of the ownership as against Jagran Prakashan Ltd., is that of M.P Group over the Trade Mark Dainik Jagran.
Z-15 Because the petitioner is as of now illegally withholding a sum of Rs. 58.93 crores towards the share of national advertising beginning from November 2007 to March 2014. The petitioner is liable to pay back the above said amount to the respondent with an interest of 12% on it. True copy of the statement of account is enclosed herewith as annexure R-27”
13. Learned counsel appearing for the original petitioners opposed the admission of the application on three grounds. First ground is that respondents No. 2, 3, 4 have common reply whereas respondents No. 5 & 6 have filed one common reply. Thereafter, respondents No. 3, 5 & 6 filed an application to carry out amendments in the reply filed by respondents No. 3, 5 & 6. Here it is pertinent to mention that respondent No. 3 along with respondents No. 2 and 4 filed one reply whereas respondent Nos. 5 and 6 filed common reply. Now, respondent No. 3 joined respondent No. 5 and 6 and he wants to amend the reply of respondent No. 5 and respondent No. 6. The said application is pending. The order of Hon'ble Company Law Board is to hear the said application No. CA 112 of 2013 in TP 199A along with main CP.
14. Now, again the same respondent No. 3 has filed another amendment petition to amend the reply of respondent No. 5 and respondent No. 6. It is not known how respondent No. 3 will ask to amend the reply filed by respondent No. 5 and respondent No. 6 more so when similar request is pending in CA No. 112 of 2013.
15. Therefore, the objection raised by learned counsel for the Original petitioner on the maintainability of the petition is justified.
16. The next objection raised by learned counsel for the Original petitioner is that what is stated in para Z-14 and Z-15 of the proposed amendment has nothing to do with the merits or otherwise of this petition.
17. Learned counsel for the petitioner further contended that respondent No. 3 cannot now make a counter claim in an application filed under Section 397 and 398 of the Companies Act, 1956.
18. In this context, even assuming that CPC is applicable it is necessary to refer order 8 Rule 6A which says that defendant can file a counter claim against the claim of the plaintiff in respect of cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.
19. In the case on hand even assuming that respondent No. 3 is entitled to file counter claim in a petition filed under Section 397 and 398 it should be filed before respondent No. 3 filed his written statement. Moreover, counter claim in a petition under section 397and 398 at a belated stage cannot be allowed to plead by way of amendment of Reply.
20. Applicant respondent No. 3 did not seek leave of this Tribunal to file counter claim after he filed his reply. Moreover, the counter claim is not at all maintainable in a petition under Section 397 and 398and that too for a decree for money.
21. What is contended in para Z-14 is that the suit filed in the year 2015 by petitioner against M.P Group seeking declaration in the Trade Market Act. According to the applicant, petitioner has suppressed the information about the suit and it is suppression of material facts. This kind of facts can certainly be brought to the notice of this Tribunal by way of additional affidavit by applicant and respondent No. 3. There is no need to include it in the reply filed in the year 2008 when the suit is filed by the petitioner in the year 2015.
22. Further, this application is filed under Rule 11 of the NCLT Rules which deals with inherent powers. In fact, amendment of the pleadings is permissible under Rule 155 of NCLT Rules. Rule 155 of NCLT Rules say that all amendments shall be filed within a period of 30 days from the date of completion of pleadings and the amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. In the case on hand, the pleadings have been completed in the year 2008 itself. Another application of almost similar nature No. CA 112 of 2013 is pending and it should be heard along with this main petition by virtue of order of the Hon'ble Company Law Board dated 17.02.2014 Under Rule 11 of NCLT Rules, 2016 enables this Tribunal to examine inherent power to meet the ends of justice or to prevent abuse of process of Tribunal, but not to allow belated amendments by way of counter claim.
23. In view of the above discussion, the application dismissed at admission stage with an observation that the original respondent No. 3.applicant is at liberty to file additional affidavit stating the new facts, if any that are material for adjudication of the real issues involved in TP no. 199/2016 in which case the original petitioner and other contesting respondents are entitled to file reply Affidavits.
24. This application is disposed of accordingly.