Vijayagopal M. Menon & Others v BRD Securities Ltd; BRD Finance Limited; BRD Motors Limited (W.P.C. Nos. 31603/2023, 31641/2023, 31714/2023)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2023-09-29
Court Decision / Holding: This writ petition is thus dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Vijayagopal M.
Rathinath K Menon
Ouseph K P
Babu Ahmad Kabir

Respondents

BRD Securities Ltd
BRD Finance Limited
BRD Motors Limited

Legal Representation & Advocates

Counsels for Petitioners

• Srikant Mohan
• Sreeraj M.

Counsels for Respondents

• Gopikrishnan Nambiar
• M E.K. Nandakumar (Sr.)
• K. John Mathai
• Joson Manavalán
• Kuryan Thomas
• Paulose C. Abraham
• Raja Kannan
• Pranoy Harilal

Case Synopsis & Summary

The petitioners, four individuals—Vijayagopal M., Rathinath K. Menon, Ouseph K. P., and Babu Ahmad Kabir—filed connected writ petitions challenging notices for general meetings and proposed special resolutions by BRD entities, which contemplate the sale or transfer of assets. They seek interim and protective relief, including restraining the respondent companies from acting on resolutions such as those for sale of assets (Exhibit P‑1 notices for 30th/28th AGMs), directing the National Company Law Appellate Tribunal (NCLAT) to consider interim stay applications at the earliest, and mandamus-like directions to ensure such consideration. They also request that the court dispense with translations of vernacular documents and seek costs. The respondents, represented by a team of senior and junior advocates, contest maintainability under Article 226, arguing that private entities are not within the Article 12 sweep and that the associated appeals before the NCLAT have not been numbered, let alone decided. The court observes that the petitions target private entities and notes the absence of any condonation order or pending numbered appeals before the NCLAT. It concludes that the writ petitions are not maintainable under Article 226 and cannot direct the NCLAT to adjudicate pending interlocutory applications. Accordingly, the petitions are dismissed, with emphasis on procedural prerequisites for private-party challenges under writ jurisdiction.

Provisions of Law Cited

Constitution of India, Article 226Constitution of India, Article 12

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners seek urgent relief to prevent the respondent companies from taking or implementing proposed AGM resolutions (sale/transfer of assets) and to direct NCLAT to consider their interim-stay applications at the earliest. They also request mandamus, and waivers of translations, asserting the need to safeguard minority interests and corporate actions that could irreversibly affect assets.

Contentions of Respondents

The respondents contend that the petitions are not maintainable under Article 226 as they target private entities; the relevant appeals before NCLAT have not been numbered or decided; therefore, directing NCLAT to adjudicate pending interim applications is improper and unsupported by procedural law.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 WP(C) NO. 31603 OF 2023** ## **PETITIONERS:** 1 VIJAYAGOPAL M AGED 67 YEARS, S/O GOVINDA GOPALAKRISHNA MENON, ASWATHY, KOTTAPPURAM ROAD, PUNKUNNAM P.O THRISSUR, KERALA - 680002 2 RATHINATH K MENON AGED 45 YEARS, S/O T GOPINATHAMENON, THATTAT HOUSE, MANNUTHY, MADAKKATHARA, THRISSUR, KERALA., PIN - 680651 3 OUSEPH K P AGED 65 YEARS, S/O K U PATHROSE, KAVANAKUDIYIL HOUSE, OLIVE GARDEN ROAD, PATTIKKAD P.O PEECHI, THRISSUR, KERALA, PIN - 680652 4 BABU AHMAD KABIR AGED 80 YEARS, S/O ABDULLA, 12A, ALDEBARAN KOTTAPPURAM ROAD, PUNKUNNU, THRISSUR, KERALA, PIN - 680002 BY ADVS. SRIKANT MOHAN SREERAJ M. ## **RESPONDENTS:** BRD SECURITIES LTD DOOR NO XIII/436 A2 I FLOOR BETHANY CXOMPLEX, KUNNAMKULAM, THRISSUR DISTRICT, PIN – 680503 REPRESENTED BY ITS DIRECTOR BY ADVS. GOPIKRISHNAN NAMBIAR M E.K.NANDAKUMAR (SR.)(N-23) K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) PRANOY HARILAL(K/931/2018) W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 2 : THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2023, ALONG WITH WP(C).31641/2023, 31714/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 WP(C) NO. 31641 OF 2023** ## **PETITIONERS:** 1 VIJAYAGOPAL M AGED 67 YEARS, S/O GOVINDA GOPALAKRISHNA MENON, ASWATHY, KOTTAPPURAM ROAD, PUNKUNNAM P.O THRISSUR, KERALA - 680002 2 RATHINATH K MENON AGED 45 YEARS, S/O T GOPINATHAMENON, THATTAT HOUSE, MANNUTHY, MADAKKATHARA, THRISSUR, KERALA, PIN - 680651 3 OUSEPH K P AGED 65 YEARS, S/O K U PATHROSE, KAVANAKUDIYIL HOUSE, OLIVE GARDEN ROAD, PATTIKKAD P.O PEECHI, THRISSUR, KERALA, PIN - 680652 4 BABU AHMAD KABIR AGED 80 YEARS, S/O ABDULLA, 12A, ALDEBARAN KOTTAPPURAM ROAD, PUNKUNNU, THRISSUR, KERALA, PIN - 680002 BY ADVS. SRIKANT MOHAN SREERAJ M. ## **RESPONDENTS:** B R D FINANCE LIMITED XIII/436 A3 IST FLOOR BETHANY COMPLEX THRISSUR ROAD, KUNNAMKULAM, THRISSUR, KERALA – 680503 REPRESENTED BY ITS MANAGING DIRECTOR BY ADVS. GOPIKRISHNAN NAMBIAR M E.K.NANDAKUMAR (SR.)(N-23) K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) PRANOY HARILAL(K/931/2018) W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 4 : THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2023, ALONG WITH WP(C).31603/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 5 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 WP(C) NO. 31714 OF 2023** ## **PETITIONERS:** 1 VIJAYAGOPAL M AGED 67 YEARS, S/O GOVINDA GOPALAKRISHNA MENON, ASWATHY, KOTTAPPURAM ROAD, PUNKUNNAM P.O THRISSUR, KERALA - 680002 2 RATHINATH K MENON AGED 45 YEARS, S/O T GOPINATHAMENON, THATTAT HOUSE, MANNUTHY, MADAKKATHARA, THRISSUR, KERALA, PIN - 680651 3 OUSEPH K P AGED 65 YEARS, S/O K U PATHROSE, KAVANAKUDIYIL HOUSE, OLIVE GARDEN ROAD, PATTIKKAD P.O PEECHI, THRISSUR, KERALA, PIN - 680652 4 BABU AHMAD KABIR AGED 80 YEARS, S/O ABDULLA, 12A, ALDEBARAN KOTTAPPURAM ROAD, PUNKUNNU, THRISSUR, KERALA., PIN - 680002 BY ADVS. SRIKANT MOHAN SREERAJ M. ## **RESPONDENTS:** B R D MOTORS LIMITED T K M COMPLEX, KOKKALLAI, THRISSUR, KERALA, PIN – 680021 REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. GOPIKRISHNAN NAMBIAR M E.K.NANDAKUMAR (SR.)(N-23) K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) PRANOY HARILAL(K/931/2018) W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 6 : THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2023, ALONG WITH WP(C).31603/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 7 : # **DEVAN RAMACHANDRAN, J.** **========================= W.P.(C).No. 31603/2023, 31641/2023** **& 31714/2023** **========================== Dated this the 29[th] day of September, 2023** ## **JUDGMENT** The petitioners have filed these writ petitions, seeking the following prayers: ## **W.P.(C).No.31603/2023** i. Issue order or direction to the Respondent company not to take, consider the resolution number 7 ie., _"Sale of Assets of the Company"_ , as proposed in Exhibit P-1 (Notice of the 30[th] AGM). ii. Issue order or direction, restraining the Respondent Company from adopting and implementing the special resolution under item no. 7 of Exhibit P-1 until the Interlocutory Application filed for interim stay is considered by the Hon'ble NCLAT. iii. Issue order or direction, restraining the Respondent Company from selling/transferring whole or part of its movable and immovable assets/ properties, without prior permission of the Hon'ble NCLAT. iv. Issue a writ of mandamus, or any other appropriate writ, order, or direction to the Hon'ble NCLAT to consider the Interlocutory Application for interim stay at the earliest. v. To pass such other appropriate writ, order or direction to the respondent company, which this Hon'ble Court may deem fit and proper on the facts of the case, including the costs of the petitioner in this proceeding and vi. Dispense with the translation of the documents produced in the vernacular language. ## **W.P.(C).No.31641/2023** i. Issue order or direction to the Respondent company not to take, consider the resolution number 8 i.e.. to _"sell, lease, transfer, assign or otherwise dispose off the Assets of the Company"_ , as proposed in Exhibit P-1 W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 8 : (Notice of the 28[th] AGM). ii. Issue order or direction, restraining the Respondent Company from adopting and implementing the special resolution under item no. 8 of Exhibit P-1 until the Interlocutory Application filed for interim stay is considered by the Hon'ble NCLAT. iii. Issue order or direction, restraining the Respondent Company from selling/transferring whole or part of its movable and immovable assets/properties, without prior permission of the Hon'ble NCLAT iv. Issue a writ of mandamus, or any other appropriate writ, order or direction, to the Hon'ble NCLAT to consider the Interlocutory Application for interim stay at the earliest. v. To pass such other appropriate writ, order or direction to the respondent company, which this Hon'ble Court may deem fit and proper on the facts of the case, including the costs of the petitioner in this proceeding and vi. Dispense with the translation of the documents produced in the vernacular language. ## **W.P.(C).No.31714/2023** i. Issue order or direction to the Respondent company not to take, consider the resolution number 5 i.e., to _"sell, lease or otherwise disposal of the whole, or substantially the whole, of the undertaking"_ as proposed in Exhibit P-1 (Notice of the 28[th] AGM), ii. Issue order or direction, restraining the Respondent Company from adopting and implementing the special resolution under item no.5 of Exhibit P-1 until the Interlocutory Application filed for interim stay is considered by the Hon'ble NCLAT. iii. Issue order or direction, restraining the Respondent Company from selling/transferring whole or part of its movable and immovable assets/properties, without prior permission of the Hon'ble NCLAT. iv. Issue a writ of mandamus, or any other appropriate writ, order or direction to the Hon'ble NCLAT to consider the Interlocutory Application for interim stay at the earliest. v. To pass such other appropriate writ, order, or direction to the respondent company, which this Hon'ble Court may deem fit and proper on the facts of the case, W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 9 : including the costs of the petitioner in this proceeding and vi. Dispense with the translation of the documents produced in the vernacular language. 2. Normally, this Court does not start a judgment by listing out the prayers; but I deem it necessary in these cases because, it is apparent that, apart from prayer No.4, others cannot be considered or granted by this Court against the respondents – which are private entities, under Article 226 of the Constitution of India. 3. As far as prayer No.4 is concerned, the petitioners seek a direction to the National Company Law Appellate Tribunal (NCLAT), to consider an interim application they have filed praying for injunction against the respondents from passing special resolutions, namely item No.7 of Ext.P1 in W.P.(C).No.31603/2023, item No.8 of Ext.P1 in W.P.(C).No.31641/2023 and item No.5 of Ext.P1 in W.P.(C).No.31714/2023. 4. However, it is conceded before me by the learned counsel for the petitioners – Sri.Srikant Mohan, that the Appeals before the NCLAT have not been even numbered, much less, now ready for consideration. 5. Therefore, one fails to understand how the petitioners could have sought that Interlocutory Applications in such Appeals be directed to be decided by the NCLAT by this Court. W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 10 : 6. In fact, Sri.E.K.Nandakumar – learned Senior Counsel, instructed by Sri.Gopikrishnan Nambiar M., appearing for the respondents, vehemently argued that these writ petitions are not maintainable, particularly because his clients are not functionaries coming within the sweep of Article 12 of the Constitution of India; further explaining that same prayers, as made in the aforementioned Interlocutory Applications, had been denied by the NCLT, against which Appeals, with great amount of delay, have now been presented before the NCLAT. 5. As I have already said above, even this Court cannot find these writ petitions to be maintainable under Article 226 of the Constitution of India, especially when the delay, in filing the statutory Appeals before the NCLAT, have not been condoned as of now. In the absence of any such order being issued by the NCLAT, I cannot direct the said Authority to consider the pending Interlocutory Applications in the Appeals. This writ petition is thus dismissed. ## **Sd/DEVAN RAMACHANDRAN JUDGE** anm W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 11 : ## **APPENDIX OF WP(C) 31603/2023** ## PETITIONERS' EXHIBITS |Exhibit-P1|A TRUE COPY OF THE NOTICE OF 30TH ANNUAL| |---|---| ||GENERAL MEETING (AGM) DATED 26.08.2023| ||ISSUED BY THE RESPONDENT COMPANY.| |Exhibit-P2|A TRUE COPY OF INTERLOCUTORY APPLICATION| ||DATED 22.09.2023 FILED BY THE PETITIONERS| ||BEFORE THE HON'BLE NCLAT UNDER FILING NO| ||9805117/02068/2023 WITH HON'BLE NCLAT| ||(NATIONAL COMPANY LAW APPELLATE| ||TRIBUNAL).| |Exhibit-P3|TRUE COPY OF THE LETTER OF CONSENT DATED| ||21.07.2022 EXECUTED BY 159 MINORITY| ||SHAREHOLDERS.| W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 12 : ## **APPENDIX OF WP(C) 31641/2023** ## PETITIONERS' EXHIBITS Exhibit-P1 A TRUE COPY OF THE NOTICE OF 28TH AGM DATED 26.08.2023 ISSUED BY THE RESPONDENT COMPANY. Exhibit-P2 A TRUE COPY OF INTERLOCUTORY APPLICATION DATED 22.09.2023 FILED BY THE PETITIONERS BEFORE THE HON'BLE NCLAT UNDER FILING NO 9805117/02067/2023 WITH HON'BLE NCLAT. Exhibit-P3 A TRUE COPY OF THE LETTER OF CONSENT DATED 21.07.2022 EXECUTED BY 139 MINORITY SHAREHOLDERS. W.P.(C).Nos. 31603/2023, 31641/2023, 31714/2023 : 13 : ## **APPENDIX OF WP(C) 31714/2023** PETITIONERS' EXHIBITS Exhibit-P1 THE TRUE COPY OF THE NOTICE OF 24TH AGM DATED 26.08.2023 ISSUED BY THE RESPONDENT COMPANY. Exhibit-P2 A TRUE COPY OF INTERLOCUTORY APPLICATION DATED 22.09.2023 FILED BY THE PETITIONERS BEFORE THE HON'BLE NCLAT UNDER FILING NO 9805117/02069/2023 WITH HON'BLE NCLAT. Exhibit-P3 A TRUE COPY OF THE LETTER OF CONSENT DATED 21.07.2022 EXECUTED BY 158 MINORITY SHAREHOLDERS.