Appeal before NCLT not maintainable as appellant is not member of the company

Rajneesh Ghei Vs Registrar of Companies (NCLAT Delhi)

NCLAT Delhi held that an appeal under the Companies Act, 2013 would be available to a ‘person’ who is either a ‘Member’ of the Company or a ‘Creditor’ or a ‘Director’. Since, appellant is none of these, appeal before NCLT is not maintainable.

Facts- Respondent No.3 (“Indo Nucleoment Pvt. Ltd.”) was incorporated and registered with Registrar of Companies under the Companies Act, 1956 and Shri Raghu Nath Ghei, father of the Appellant and Respondent No.2 was a director and shareholder of the Respondent No.3 Company holding 3,680 shares out of total 8,003 shares issued in respect of the company. The Appellant has further stated that Shri Raghu Nath Ghei passed away on 10.200 1, whereafter his wife Smt. Raj Ghei and Respondent No.2-Mr. Sanjeev Ghei remained the two directors of the Respondent No.3 Company. He has further stated that the last Balance Sheet and Annual Return of Respondent No.3 were filed in the year FY 2004-05, and thereafter no statutory compliance was done by the Respondent No.3 Company. He has further stated that Respondent No.2- Mr. Sanjeev Ghei siphoned off a huge amount from the Company’s account between the years 2006- 2009 and in the year 2009 Smt. Raj Ghei Director and Shareholder, passed away intestate. He has further stated that Respondent No.2 continued to close bank accounts of the company and siphoned off the amounts therein to newly opened bank accounts, and on 19.08.20 10 Respondent No.2 filed an application with Respondent No.1 – Registrar of Companies, New Delhi for removing the name of the Respondent No.3 Company from the Register of Companies taking advantage of the Easy Exit Scheme, 2010, and the application under the scheme was approved on 27.12.2010, and thereafter order was issued for striking off the name of the Respondent No.3 Company from the Register of Companies.

The Appellant has further stated that the Respondent No.2 Mr. Sanjeev Ghei filed a suit of partition in the Court of Civil Judge, Gurgaon with regard to the assets of the parents. He has further stated that in response to the order dated 27.12.2010 whereby the Respondent No.3 Company’s name was struck off from the Register of Companies, a Company Petition was filed before the Hon’ble Delhi High Court for setting aside of order dated 27.12.20 10 and Gazette Notification dated 19.03.2011 among other reliefs. He has further stated that the Company Petition filed before the Hon’ble High Court of Delhi, was transferred to NCLT after its constitution and was assigned as Company Petition bearing CP No. 325 of 2014, which was dismissed by the impugned order dated 12.12.2018.

Conclusion- Held that the Appellant is not a member of the R-3 company. Further we have not been shown any evidence by the Appellant that he made any sincere and diligent effort to get a succession certificate in his favour with regard to the shares held by his deceased parents and therefore, he is not entitled to the privileges and other facilities that are available to the member of a company under Companies Act. In this connection we note that an appeal under the Companies Act, 2013 would be available to a ‘person’ who is either a ‘Member’ of the Company or a ‘Creditor’ or a ‘Director’ and quite clearly the Appellant is none of these. On this basis we hold that the Appellant is not entitled to maintain an appeal before the NCLT.

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