Ghanshyam Tayal vs Cemcon Engineering Company Private Limited & Ors.
- Court
- National Company Law Appellate Tribunal
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) No.05 of 2026
(Arising out of Order dated 14.10.2025 passed by the Adjudicating Authority
(National Company Law Tribunal, New Delhi) in Contempt Petition No.12/2024
in Company Petition No.213 of 2023)
IN THE MATTER OF
Ghanshyam Tayal
S/o. Shri Radhe Shyam Tayal
R/o. 272/4, Vikas Nagar, Sonepat,
Haryana-131301 …Appellant
Versus
1. Cemcon Engineering Company India Pvt. Ltd.
Having it’s registered office at: -
B-60, Pushpanjali Enclave, Pitampura,
Delhi-110034
2. Ankit Tayal
S/o. Sh. Romesh C. Tayal
R/o. House no.612, Sector 21A,
Faridabad, Haryana-121001
3. Romesh Tayal
R/o. House no.612, Sector 21A,
Faridabad, Haryana-121001
4. Savi Tayal
W/o. Sh. Romesh C. Tayal
R/o. House No.612, Sector 21A, Faridabad,
Haryana-121001
5. Sajjan Jindal
M/s Sajjan Jindal & Co., Chartered Accountants
3/8, 3rd Floor, SAB House, Asaf Ali Road,
New Delhi-110002
6. Abhay Mihit
Bank Manager, Punjab & Sind Bank
GT Road, Panipat, Haryana-132103
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7. Registrar of Companies, Delhi & Haryana
th
4 Floor, IFCI Tower, 61, Nehru Place,
New Delhi-110019
….Respondents
Present:
For Appellant : Mr. Anshul Gupta, AOR a/w Mr. Rishabh Darira,
Advocates
For Respondent : Mr. Mayank Goel, Advocates for R2 to R3
JUDGEMENT
Per Justice Sharad Kumar Sharma, Member (Judicial)
Brief facts, in the instant company appeal, are, that the appellant is an applicant
to the Contempt Petition No.12 of 2024, as it was preferred in CP No.213 of 2023.
The appellant has sought to draw a contempt proceeding as against respondent
Nos.2, 3 and 6, on the ground that they had deliberately violated the order that
was passed by the Tribunal, as in spite of their being a restraint, still they had
proceeded to issue cheques in contravention to the order that was rendered by
the Tribunal on 05.01.2024.
2. The appellant in the contempt petition has submitted that they have been
victimized despite order dated 05.01.2024, because of the fact, that the
respondent continued to operate the bank accounts by issuance of cheques,
which was on the face of it in contravention to the Order passed by the Tribunal
on 05.01.2024, which imposed a restraint on the respondent from operating the
bank accounts. It was contended that, because of the fact, that they persisted to
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issue cheques as referred in the proceedings of the contempt, they were liable to
be punished under Section 12 read with Section 14 of the Contempt of Courts
Act.
3. In order to better appreciate the argument extended by the Counsel for the
appellant, reference to the Order passed by NCLT on 05.01.2024, becomes
relevant at this juncture, as to what were the scope of restrictions, that has been
imposed by the learned Tribunal, on the respondents against whom contempt is
alleged. Para – 16 of the Order of 05.01.2024 reads as under: -
“However, keeping in view the developments that have taken
place subsequent to the EOGM and the fact that the Respondent
No. 3, whose appointment has been challenged in the present
Company Petition, is operating the bank account along with the
Respondent No.2, we deem it appropriate to direct that the
Bank Accounts of the Company will continue to be operated by
the Applicant and Respondent No.2 as was done before the
EOGM dated 29.11.2023 in order to ensure smooth functioning
of the Company.”
4. There was a specific direction issued, that the respondent No.3, whose
appointment has been put to challenge in the company petition and when the
issue was pending consideration before the Tribunal, he was restrained from
operating the bank account along with respondent No.2. Further, a direction was
issued that the bank accounts of the company will be continued to be operated
by the applicant and respondent No.2, as was done prior to the decision taken
in the EOGM of 29.11.2023. In the Contempt Petition, that was preferred before
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the learned Tribunal invoking the provisions contained under Section 425 of the
Companies Act, the appellant had submitted, that the respondents have made
certain transactions in spite of the restraint order of 05.01.2024, as the cheque
dated 08.04.2024 was issued in favour of ‘yourself’ for an amount of
Rs.10,74,308/-. There had been other cheques also i.e. cheques dated
20.05.2024, 27.05.2024 and 08.06.2024, which were alleged to have been signed
by respondent No.3, which are said to have been transacted in violation of the
Order of 05.01.2024. Thus, the Appellant submitted that there happens to be
deliberate and intentional contempt, as despite knowing the effect of Order dated
05.01.2024, respondent No.3 has continued to issue cheques, particularly when
they were restrained from issuing cheques, and therefore they were liable to be
punished for drawing the contempt proceedings under the Contempt of Courts
Act.
5. In order to further substantiate his contention, he submitted that as of
now when the contempt petition was filed during the pendency of the Company
Petition bearing No.213 of 2023 before the Hon’ble Tribunal and respective rights
were yet to be determined and because of there being a specific restraint, and
also because of the fact, that respondent Nos.2 and 3 have illegally, without
following due process of law, have transferred 4,55,000 equity shares to
respondent No.3 and such other transfers, those were referred in the application
preferred under Section 425, the appellants in the Contempt Petition that was
preferred on 14.05.2024, prayed for summoning the respondent in person and
to punish them for willful disobeying the order of 05.01.2024.
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6. Under the Companies Act, the powers to draw contempt proceedings has
been contemplated under Section 425 of the Companies Act, which prescribes
that, for the purposes of drawing the proceedings under Section 425, provisions
of the Contempt of Courts Act, 1971 would be attracted to be made applicable.
In that eventuality, the contempt petition preferred by the appellant would have
to be read to be under Section 425 along with Section 12 and 14 of the Contempt
of Courts Act of 1971.
7. It is the settled law that for the purposes of drawing a contempt
proceedings, as against the alleged contemnor, it has had to be made out, that
there was an intentional and deliberate contempt, prior to passing of an order of
punishment under Section 12 of the Act of 1971, as against the alleged
contemnor. In accordance with the facts that have been brought on record, the
petitioner Ghanshyam Tayal, who was an applicant to the contempt petition, as
well as, to the company petition too, is closely related with respondent Nos.2, 3
and 4 namely Ankit Tayal, Romesh Tayal and Savi Tayal, who are the members
of the same family and out of whom Mr. Romesh Tayal is the father of Mr. Ankit
Tayal and husband of Mrs. Savi Tayal. The proceedings was drawn by the
appellant under Section 241 to be read with Section 242 by filing of a Company
Petition on 24.11.2023, as regards to the issue of conduct of the EOGM, that
was held on 29.11.2023, without following the due process resulting into
appointment of respondent No.3 – Mr. Romesh Tayal as the director of the
company.
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8. It was alleged by the appellant in the contempt proceedings, that
respondent No.3 after being appointed as a director under the EOGM of
29.11.2023, had approached respondent No.6 i.e. Punjab and Sind Bank, to alter
the online banking system and other banking facilities, those were being
currently availed by the company. It was the case of the appellant, that the
appellant was informed about the said directions issued by respondent No.3, by
bank i.e. respondent No.6 in Company Petition itself, vide its letter of
05.12.2023. Owing to the restrictions those have been solicited to be imposed by
filing of an application by respondent No.3 to the bank and the response received
by the appellant from the Bank, they were constrained to file CA 417/2023 before
the learned NCLT seeking for stay of the agenda as passed in the EOGM of
29.11.2023. However, the learned Tribunal in order to carve out an exception,
owing to the aforesaid contingency and besides also considering the fact that the
dispute happens to be amongst the family members, had passed an order on
05.01.2024 restraining respondent No.3 from operating bank accounts with the
son-respondent No.2.
9. In order to sustain the contempt, the appellant’s case has been that the
respondent No.3 had issued self-drawn cheques on 08.04.2024 bearing Cheques
No.001320 and 001321 amounting to Rs.10,74,308/- and also two other
cheques were signed by respondent No.3, in the capacity of being the authorised
representative of the company. In spite of the intimation having been imparted
to the bank with regards to the passing of an Order dated 05.01.2024, the bank
still proceeded to honour the cheques submitted by the respondents and the
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cash was permitted to be withdrawn under the garb of said cheques, which were
issued by respondent No.3 after passing of the Order dated 05.01.2024.
10. The contempt proceeding was contested. The respondent No.3 filed its
reply on 25.07.2024 and contended that the entire allegation of illegal siphoning
of money on the basis of the aforesaid cheques, was absolutely not made out as
no money has moved out of account as alleged to have been siphoned by
respondent No.3, nor was it ever attempted by the alleged contemnor. Hence,
they prayed that as the respondent No.3 has not signed any cheque, after
passing of the order dated 05.01.2024, no contempt could be made out against
him. In further clarification to his argument, it was submitted that since the
cheques had a reference to ‘yourself’, such type of cheques are issued for the
RTGS transfers and not for transfer to self. Under these backdrops, when the
contempt petition came up for consideration before the learned Tribunal, the
same has been rejected by the impugned order. Hence the instant company
appeal.
11. Owing to the provisions contained under section 425 of the Companies
Act, which attracts the provisions of the Contempt of Courts Act, 1971, for the
purposes of dealing with the contempt proceedings while having reference to
Section 425 of the Companies Act, it will be basically governed by the provisions
of Contempt of Courts Act. The Contempt of Courts Act of 1971, provides for an
appeal against an order, which has been passed in the contempt proceedings,
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the appropriate appellate provision is contained under Section 19 of the
Contempt of Courts Act of 1971. The same is extracted hereunder: -
“ 19. Appeals. —
(1) An appeal shall lie as of right from any order or decision
of High Court in the exercise of its jurisdiction to punish for
contempt—
(a) where the order or decision is that of a single
Judge, to a Bench of not less than two Judges of
the Court;
(b) where the order or decision is that of a Bench, to
the Supreme Court:
Provided that where the order or decision is that of the
Court of the Judicial Commissioner in any Union territory,
such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate Court may order
that—
(a) the execution of the punishment or order appealed
against be suspended;
(b) if the appellant is in confinement, he be released
on bail; and
(c) the appeal be heard notwithstanding that the
appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which
an appeal may be filed satisfies the High Court that he intends
to prefer an appeal, the High Court may also exercise all or any
of the powers conferred by sub-section (2).
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(4) An appeal under sub-section (1) shall be filed—
(a) in the case of an appeal to a Bench of the High
Court, within thirty days;
(b) in the case of an appeal to the Supreme Court,
within sixty days, from the date of the order
appealed against.”
12. On a simpliciter language used under Section 19, the contempt appeal was
only maintainable as against the order of punishment under Section 12 of the
Act of 1971, and not against an order of dropping of the contempt proceedings,
observing thereof that no contempt was made out. So is the situation here in the
instant contempt appeal. Because of the fact that the Tribunal in its conclusion
of the order has observed that, in the light of the observation made in para –
17(5) of the impugned order, that, the details of the transaction that has been
made by respondent No.3 after the order of 05.01.2024, as mentioned in the
Order; it was contended by the respondent, that all these statements of
transactions which have been detailed therein were by virtue of post-dated
cheques, which were in possession of the petitioner. It was rather the petitioner
himself, who had deposited those cheques in the bank after the passing of the
interim Order of 05.01.2024. Further, there had been no material on record in
the contempt proceedings, that the petitioner or the respondent had placed any
such material to show any such cheques were ever issued after passing of the
interim order by this Tribunal, nor the same has been proved otherwise.
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13. The learned Tribunal based upon the rival contentions has come to the
conclusion, that the bank statements those have been placed on record in
support of the Contempt Petition, there were no entries in the records with
regards to any encashment being made of the alleged cheques, moreover, the
cheques were dated 08.04.2024 which were drawn in favour of ‘yourself’ and that
has not been encashed as stated by respondent No.3. Besides, the bank
statement filed by the petitioner does not reflect, that the said amount was ever
encashed or ever withdrawn. In these eventualities, where there was no
withdrawal of any amount from the restricted accounts standing with the bank,
after passing of the interim Order of 05.01.2024, there would not have been any
deliberate contempt, that could have been said to be made out, which could have
been alleged to be a deliberate or intentional contempt of the Order of
05.01.2024.
14. For the purposes to punish an alleged contemnor, there has had to be an
establishment of the fact beyond doubt that the act complained of, to bring it
within the ambit of Section 12 of the Contempt of Courts Act, was a deliberate
act. No such element was satisfied or even attempted to be satisfied by the
applicant in pursuing the contempt petition. Accordingly, the contempt petition
was dismissed by the learned Tribunal by the impugned order of 14.10.2025
holding thereof that, since there was no deliberate or intentional contempt,
rather it’s the appellant who has acted maliciously by presenting post-dated
cheques and that particularly when there was no withdrawal of amount of any
cash after 05.01.2024, the contempt proceedings were declined to be initiated.
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We do not see any reason to not to accept the finding of facts recorded by the Ld.
Tribunal, that no contempt is apparently made out of the order of 05.01.2024,
because there had been no issuance of cheques or any encashment after
05.01.2024 nor there was any withdrawal, which was substantiated by the
appellant who wanted to draw contempt proceedings as against respondent No.3,
hence dropping of a contempt is not vitiated, under facts of case and also as per
law.
15. There could be yet an another aspect, which has to be taken into
consideration, that when under the provisions of Section 425 of the Companies
Act, the provisions of contempt is attracted by borrowing the provisions of the
Contempt of Courts Act, 1971. In that eventuality, the appeal would be preferred
and would lie under Section 19 of the Contempt of Courts Act. Section 19 of the
Contempt of Courts Act, which is extracted above.
16. On a simpliciter reading of the language of Section 19 of the Contempt of
Courts Act, it only prescribes for maintainability of an appeal as against the order
of punishment of the contemnor. If that be the intention of legislature, dismissal
of the contempt, no appeal would be maintainable and that too, more
particularly, when under settled principles of law of contempt, the applicant
only acts as an informer to the Tribunal about the act of contempt of its order,
as against the alleged contemnor and as soon as the applicant informs the
Tribunal or the Court about the alleged act of commission of contempt of its
order, his role to pursue the contempt petition immediately ceases, because
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thereafter, it is exclusively an issue which would be falling within the domain of
the Tribunal or the Court, to continue with the contempt proceedings or to drop
it. Thus, what is a prerogative of the Court or Tribunal to continue the contempt
proceedings upon being intimated and being satisfied about alleged flouting of
its order, the dismissal of the contempt will not be taken as to be the prejudice
that is caused to the applicant to sustain an appeal under Section 19 of the
Contempt of Courts Act.
17. Hence, the company appeal lacks merit and the same is accordingly
dismissed. First of all, as no contempt is made out and secondly, because no
appeal would be maintainable as under Section 19 of the Contempt of Courts
Act as against the dismissal of the contempt petition.
[Justice Sharad Kumar Sharma]
Member (Judicial)
[Arun Baroka]
Member (Technical)
[Indevar Pandey]
Member (Technical)
29.10.2026
rs