Sudhir Thackersey VS CAPRICON REALTY PRIVATE LIMITED on 30 October 2026

O R D E R

(Hybrid Mode) [Per: Justice Sharad Kumar Sharma, Member (Judicial)] This Company Appeal, which challenges the order dated 23.09.2026, that has been passed by Ld. NCLT in C.P. No. 95/MB/2026, is circumscribed by its own peculiar facts and circumstances.

2. But before we travel to it, we feel it apt to pass an order on the pending I.A. No. 7373 of 2026, wherein the Applicant has sought condonation of two days delay, i.e., the delay in refiling of the Appeal. After having heard the Ld. Counsel for the Appellant and after going through the grounds statement taken in Para 2&4 of the application, since the delay of two days has been reasonably explained the same would stand allowed accordingly I.A. No. 7373 of 2026 would stand disposed of.

3. What could be summarized in relation to the controversy at hand is, that the Appellant, who happens to be the petitioner in the Company Petition, being C.P. No. 95/MB/2026, had drawn the proceedings under

Section 241(1), 242(4) to be read with Section 244 of the Companies Act, 2013, seeking the waiver for the purposes to sustain the proceedings under Section 241 and 242 of the Companies Act. The waiver application thus preferred by the Appellant has been numbered as I.A. No. 127/2026. There had been a parallel application preferred by the Appellant, being I.A. No. 202/2026, where the Appellant sought the relief for grant of interim protection, during the pendency of the Company Petition. Primarily, the grievance of the Appellant is that despite the fact that there had been pressing exigency, which necessitated consideration of the application I.A. No. 202/2026, the Ld. Tribunal, by virtue of the impugned order dated 23.09.2026, heard the Ld. Counsel for the parties and passed an order only reserving the order on I.A. No. 127/2026 (i.e. waiver), that is the application preferred under Section 244 of the Companies Act, 2013. But the main grievance of the Appellant has been that the Tribunal ought to have also passed an order I.A. No. 202/2026, where the Appellant has sought the interim prayer, on which no order has been passed and rather the same has been directed to be fixed for orders on 25.11.2026.

4. An order of deferment in passing of any order on an application for grant of interim relief. The issue would be, that whether such nature of order which is simpliciter of fixing a date for consideration of an application could at all be made as subject matter of an Appeal, is a question to be ventured into. Because the nature of the order, which has been passed, in

fact, it is not deciding the rights of any of the parties, nor the lis itself, the part of order is extracted hereunder:

“IA/127/2026- This matter was listed and considered before us on 23.07.2026. Thereafter, on 12.08.2026, Ld. Counsel for the Applicant concluded his arguments, and Ld. Counsel for Respondent No. 1 advanced his arguments at some length on 02.09.2026. Today, Ld. Sr. Counsel for Respondent No. 1 concluded his arguments. Ld. Counsel for Respondent Nos. 2, 3 and 4 have been heard. It is stated that Respondent No. 5 has been dropped from the array of parties, as no relief has been sought against Respondent No. 5. Accordingly, the matter is reserved for orders. IA/202/2026- List this IA for further consideration on 25.11.2026.”

5. Because the first part of the order, it had only expressed reservation of order on I.A. No. 127/2026 and the second part of the order was deferring in passing of any order on I.A. No. 202/2026 for grant of an interim relief. It’s the deferment of order on I.A. No. 202 of 2026, which is under challenge.

6. On the contrary, the Ld. Counsel for the Respondent had vehemently opposed the Appeal, as regards the bonafide of the Appellant and the manner in, which he has preferred the Appeal. He submits, that the Appeal was filed on 24.09.2026, as against the impugned order dated 23.09.2026, but he submits that if we go through the records of the Appeal, which have been placed by the Appellant along with the Appeal, surprisingly vide Annexure-16 and Annexure-18, he had made part of the order that has been passed later by the Tribunal on 25.09.2026, as to be the part of the proceedings in the instant Company Appeal and similarly, he refers to the

email communication dated 30.09.2026, raising a question pertaining to filing of an objection in the conduct of 30th Annual General Meeting(AGM). What he argue is, that if the Appeal has been preferred against the impugned order dated 23.09.2026, if the Appeal is filed before the Registry on 24.09.2026, there could not be any occasion for the Appellant to place on record and order which has been passed subsequent in time, i.e., 25.09.2026 or even the email, which is subsequent, i.e., 30.09.2026 and from that prospective itself, the Ld. Counsel for the Respondent submits that the bonafides of the Appellant are not clear, and that he has not come up with clean hands.

7. After hearing the Ld. Counsel, we are of the view, that the Appeal has to be considered, as against the impugned Order which is subject matter of challenge, and has had to be confined to be read only in relation to the order, which is the subject matter consideration, that is an application for grant of waiver under Section 244 of the Companies Act, 2013 and more importantly the aspect of not passing orders on I.A. No. 202/2026.

8. Hearing the application and reserving the orders on the same cannot be said to be such an aspect that it could be subjected to an appellate judicial scrutiny, because no right or liability of any of the parties to the proceedings has been decided under law as of now, because the entire issue on the subject involved is yet to be considered and more particularly at the behest of the Appellant who happens to be the Petitioner, whose rights to sustain proceedings under Section 241 and 242 of Companies Act, only

germinate, when any order is passed on an application preferred under Section 244 and not before it. Hence, we are of the view that looking to the order that has been passed does not give a cause of action to the Appellant to file an Appeal. Because we are of the view, that for grant of an interim order in any judicial proceedings, prime test is of a prima facie case, which has been made out by Petitioner/Appellant. So far, the Appellant herein concerned there is doubt about as to whether at all the proceedings at his behest could be carried, which has to be first decided by deciding application under Section 244. Its only when the Appellant is able to hold his stand in the proceedings, the interim relief could be considered, because application under Section 244 will decide fate of prime facie case.

9. The Ld. Counsel for the Appellant had submitted, that the Respondent has been proceeding in haste to hold the AGM, which according to the notices on record, has already been shown to have been held on 29.09.2025 and hence sought to press upon the stay application. In I.A. No. 202/2026, preferred by the Appellant before the Ld. Tribunal, wherein the Appellant had prayed for grant of an interim relief to the effect that the 30th AGM as laid down to be held 30.09.2026 may not be given effect to and the Appellant may be restored as a Director of the Company and may be permitted to continue. So, as he was discharging the functions prior to 29.09.2026.

10. Ld. Counsel for the Respondent opposed it and submitted that because of the fact that the Appellant itself is not a ‘member’, the question

that is first to be considered is as to whether at all at his behest the Company Petition would be maintainable or not and it is only upon the said question, if the sustainability of the Company Petition is held to be maintainable at his behest, then only the question arises of considering the application for grant of interim relief, i.e., I.A. No. 202/2026, would fall for consideration.

11. In these peculiar circumstances, because of the fact that the more concerns expressed by the Appellant is non-consideration of the application, i.e., I.A. No. 202/2026, as against the nature of the order, which is under challenge, would not be maintainable and while dismissing the same, we request the Ld. Adjudicating Authority to positively consider I.A. No. 202/2026, by the next date fixed, i.e., 25.11.2026, even if for any reason the Judgment on I.A. No. 127/2026, could not delivered by the said date. Subject to the above, the Company Appeal would stand dismissed.

[Justice Sharad Kumar Sharma] Member (Judicial)

New Delhi. 30, Oct 2026. Abhishek Pandey [Indevar Pandey] Member (Technical)