Kerala High Court
Hiran Valiyakkal Lal (Dpin: 07589561) vs National Company Law Tribunal Kochi … on 7 March, 2025
O.P.(C).No.913 of 2024 1
2025:KER:19976
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
OP(C) NO. 913 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.36 OF 2022
OF NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH, KAKKANAD
PETITIONERS:
1 HIRAN VALIYAKKAL LAL (DPIN: 07589561),
AGED 39 YEARS
S/O. HEERALAL BALAKRISHNAN, RESIDING AT
VALIYAKKIL HOUSE, BRAHMAKULAM P.O, THAIKKAD,
THRISSUR, KERALA -, PIN - 680104
2 APARNA HIRAN,
AGED 34 YEARS
D/O. PRASEETH KUMAR UK HOUSE, DUTT COMPOUND,
MANAKAVU, VALAYANADU, KOZHIKODE, KERALA -, PIN -
673007
3 SALIJA
AGED 58 YEARS
D/O. APPU RESIDING AT UK HOUSE, DUTT COMPOUND,
MANAKAVU, VALAYANADU, KOZHIKODE, KERALA -, PIN -
673007
4 V G SANDHYA
AGED 40 YEARS
W/O. AJITH P ARAVIND, PANDARAN HOUSE, BRAHMAKULAM
P.O, THAIKKAD, THRISSUR -, PIN - 680104
BY ADVS.
VIJAY V. PAUL
SHILPA SOMAN
SAMAH ABDUL MAJID
ANGELA ELSA JOHN
O.P.(C).No.913 of 2024 2
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RESPONDENTS:
1 NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH
COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKARA,
KAKKANAD, KOCHI-, REPRESENTED BY ITS DEPUTY
REGISTRAR, PIN - 682021
2 KV SREEJA
D/O GOPALAN, RESIDING AT KALYANIKA, JYOTHI NAGAR,
PUTHIYANGADI, WESTHILL, KOZHIKODE, KERALA -, PIN
- 673005
3 HARDOLL ENTERPRISES LLP
REGISTERED OFFICE: 7/124A, MUNDUR-KOTTEKKAD ROAD,
PERAMANGALAM PO, THRISSUR- REPRESENTED BY ITS
DESIGNATED PARTNER, PIN - 680545
4 VINEETH M V
(DIN:08053057), MANATHIL HOUSE, KANDANASSERY P.O,
THRISSUR, KERALA -, PIN - 680102
5 PRAKASAN,
S/O. NAYARKANDI KUNHIKANNAN, RESIDING AT
KALYANIKA, JYOTHI NAGAR, PUTHIYANGADI, WESTHILL
KOZHIKODE - , KERALA, PIN - 673005
6 ATELIERZ 3D INDIA LLP
(AAT-8354), HAVING ITS REGISTERED OFFICE AT
26/408(2), PM TOWER, NEAR SUB STATION, THAIKKAAD
JUNCTION, CHOWALLOORPADI, GURUVAYOOR, THRISSUR,
KERALA - REPRESENTED BY IT'S AUTHORIZED OFFICER,
PIN - 680140
7 THE BRANCH MANAGER,
HDFC BANK LTD ((BRANCH CODE: 1233), EAST NADA,
GURUVAYUR, THRISSUR, KERALA -, PIN - 680101
8 THE BRANCH MANAGER
CANARA BANK, THAIKKAD BRANCH CHOWALLURPADI,
THRISSUR, KERALA-, PIN - 680104
9 THE BRANCH MANAGER
ICICI BANK, MARAR ROAD BRANCH, THRISSUR, KERALA
-, PIN - 680001
O.P.(C).No.913 of 2024 3
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BY ADVS.
P.R.SHAJI
VINAY MATHEW JOSEPH
R.S.KALKURA
M.N.UMARANI
LAL K JOSEPH
P.MURALEEDHARAN (THURAVOOR)(K/1651/2000)
T.A.LUXY(L-78)
SURESH SUKUMAR(K/634/1997)
ANZIL SALIM(K/000447/2018)
SANJAY SELLEN(K/885/2021)
HARISH GOPINATH(K/232/1999)
M.S.KALESH(K/109/1997)
H.KIRAN(K/961/2012)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
20.12.2024, THE COURT ON 07.03.2025 DELIVERED THE
FOLLOWING:
O.P.(C).No.913 of 2024 1
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VIJU ABRAHAM,J
------------------
O.P.(C).No.913 of 2024
------------------------------
Dated this the 7th day of March, 2025
JUDGMENT
The above original petition challenges Ext.P6
order dated 4.4.2024, passed by the National
Company Law Tribunal, Cochin (hereinafter referred
to a NCLT).
2. The brief facts necessary for the
disposal of the original petition are as follows:
The 3rd respondent is a Limited Liability
Partnership firm (LLP), which has 6 partners. The
petitioners 1 to 3 are designated partners of the
3rd respondent firm and the 4th petitioner is a
partner of the 3rd respondent firm. Based on the
Capital contribution of petitioners they
cumulatively hold 90.2% of the voting share in the
3rd respondent firm, they constitute the majority of
the partners of the 3rd respondent firm. The 2nd
respondent, who is a partner of the 3rd respondent
O.P.(C).No.913 of 2024 22025:KER:19976
firm filed Ext P2 company petition before the 1st
respondent NCLT seeking the Winding up of the 3rd
respondent herein. The petitioners filed Ext P3
interlocutory application dated 14.01.2023 before
the 1st respondent challenging the maintainability
of Ext.P2 petition mainly contending that Ext.P2
petition could not be adjudicated as a resolution
of three fourth of the total number of partners of
the 3rd respondent firm and a statement of affairs
of the 3rd respondent firm is not produced along
with Ext.P2 petition as provided under Rule 26(4)
of the Limited Liability Partnership (Winding Up
and Dissolution) Rules, 2012 (hereinafter referred
to as Rules 2012). However, by Ext.P2 order, the
1st respondent NCLT though upheld that the
requirement of Rule 26(4) of the Rules 2012 needed
to be followed, rejected the application holding
that the same could be looked into at a later
stage. Challenging Ext.P2 order, OP(C) No.1859 of
2023 was filed before this Court and this Court by
Ext.P5 order set aside Ext.P4 and directed the
O.P.(C).No.913 of 2024 32025:KER:19976
Tribunal to reconsider Ext.P3 application.
Consequently, Ext.P3 application was remitted back
and reconsidered afresh by the Tribunal as per
Ext.P6, whereby the request made by the petitioners
herein regarding the issue of maintainability was
rejected. It is aggrieved by the same, that the
present original petition has been filed.
3. It is contended that the finding of the
NCLT that the requirement of compliance under Rule
26(4) is unnecessary as it is not a case of
voluntary winding up, but only a winding up sought
in view of the disputes alleging oppression and
mismanagement. It is further contended that a bare
perusal of Rule 26(4), Rule 101 and Form 28 of the
Rules, 2012 makes it clear that a resolution vide
three-fourths members of LLP and a statement of
affairs of the LLP is a pre-condition for filing a
petition for winding up of LLP under Sections 63
and 64 of the Limited Liability Partnership Act,
2008(hereinafter referred to LLP Act 2008).
4. The learned Senior Counsel appearing for the
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petitioners relying on the judgment of the Apex
Court in Srisht Dawan (SMT) v. M/S.Shaw Brohers
(1992 (1) SCC 534) submitted that the error of
jurisdictional facts renders the order ultra vires
and bad. The learned Senior Counsel relying on the
judgment in Shalini Shetty and Another v. Rajendra
Shankar Patil (2010) 8 SCC 329) and the judgment of
the Division Bench of this Court Sulochana Gupta
and Others v. RGB Enterprises Pvt.Ltd and Others
(MANU/KE/2569/2020) submitted that the High Court
can interfere with orders of the tribunal under
Article 227, if the tribunal has improperly
exercised its jurisdiction. On the basis of the
same, it is the contention of the learned Senior
Counsel appearing for the petitioners that the 1 st
respondent NCLT clearly acted beyond its
jurisdiction in Ext.P6 order by directing the 3 rd
respondent to produce Statement of Affairs of the
LLP which in fact should have been filed by the 2 nd
respondent at the time of filing of Ext.P2
petition. In short, the contention of the
O.P.(C).No.913 of 2024 5
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petitioners is that while the statute mandates
certain pre-conditions for filing a petition, the
NCLT shall have no jurisdiction to entertain such a
petition if such mandatory conditions are not been
complied with. In support of the contention, the
petitioners rely on the judgment in Tharakan Web
Innovations Pvt.Ltd Vs. National Company Law
Tribunal and Others and Cyriac Njavally vs. Union
of India and Others (MANU/KE/0330/2022).
5. It is also contended that the Company Law
Tribunal in the first round of litigation as per
Ext.P4 order has clearly entered a finding that as
per Rule 26(4), a petition for winding up by the
partner/partners or the LLP shall be admitted only
upon the production of the statement of affairs and
the three-fourth resolution. It is further held
that in effect the Act provides that even though a
partner can present an application for winding up,
it is LLP through its special majority decides
whether LLP be wound up. The learned Counsel also
relies on the judgment in Manish Kumar v. Union of
O.P.(C).No.913 of 2024 6
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India and Another (2021) 5 SCC (1) in support of
his contentions.
6. Per contra, the learned counsels appearing
for the respondents contended that the Rules if
interpreted as stated by the learned senior counsel
appearing for the petitioners, the same would
result in absurdity and contended that when statute
provides that an application for winding up could
be filed by a partner, the insistence of production
of resolution of the three fourth of the total
number of partners as well as a statement of
affairs in the LLP will result in a situation where
a single partner will not be able to file a winding
up petition. The learned counsel for the
petitioners would further contend that while
interpreting the statute the court should adopt
literal construction if it does not lead to an
absurdity and if the literal construction leads to
an absurdity external aids of construction should
be resorted to by the court. The counsel also
relies on the judgment in State of Mysore and
O.P.(C).No.913 of 2024 7
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others v. T.V.Sundaram Iyengar and Sons (P)Ltd 1980
(1) SCC 66. U.P.Bhoodan Yagna Samiti, U.P Vs. Braj
Kishore & Others (1988 (4) SCC
274),MANU/SC/0294/1960, Mahadeolal Kanodia Vs. The
Administrator-general of West Bengal
(MANU/SC/0294/1960) and Lt.Col. Prithi Pal Singh
Bedi v. Union of India and Others (1982) 3 SCC 140
in support of his contentions.
7. I have heard the rival contentions on
both sides.
8. Before considering the rival contentions,
it is profitable to scan through the relevant
provisions involved. Relevant portion of Rule 26
and Rule 101 of Rules, 2012 as well as Form 28 is
extracted below:
“Rule 26 – Petition for winding up
…………
(4) A petition filed by the LLP or any of
its partner or partners for winding up before
the Tribunal shall be admitted only if
accompanied by a statement of affairs of the
LLP on the date of petition and a resolution of
three-fourths of total number of partners in
the form and manner specified in Part VI.”
Rule 101 – Petition for winding-up
(1) A petition for winding up an LLP shall
be in Form No.26, or 27 or 28, as the case may
be, with such variations as the circumstances
O.P.(C).No.913 of 2024 8
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may require, and shall be presented in
duplicate: Provided that where the petition is
by the LLP it should be accompanied with the
statement of affairs of the LLP on the date of
petition.
—–”
“Form No.28
[See rule 101]
[Heading as in form no.16]
LLP Petition No…………………….of 20…….
Petition by LLP or partner(s) of LLP
The petition of …………..(name of the
LLP/Partner(s) of LLP), the petitioner herein, showeth as
follows:
X
X
X
X
6. By a resolution of three fourth majority of
partners of the LLP, at a meeting thereof, held on
the ………..day of ……20……….. it was
resolved unanimously or by a three fourth majority
of …………..votes against ………..votes, as
follows:
[here set out the resolution]
[Here set out in paragraph the facts relating to
the financial position of the LLP and the
circumstances that have led to the passing of the
resolution for winding up of LLP]
X
X
X”
9. The essential contention raised by the
petitioners is regarding the jurisdiction of the
NCLT to entertain Ext.P2 complaint as the same was
submitted in violation of Rule 26(4), Rule 101 and
Form No.28 of Rules, 2012 which makes it mandatory
O.P.(C).No.913 of 2024 9
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that a resolution by 3/4th members of the LLP and a
statement of affairs of LLP is a pre-condition for
filing a petition for winding up of an LLP under
Sections 63 and 64(f) of the LLP Act. Since an
objection was raised by the respondents stating
that the original petition is not maintainable
challenging an order of NCLT and further that an
observation has been made in Ext.P6 order, impugned
herein, that the petitioners have earlier
approached this Court by filing an “otherwise
unusual petition” instead of preferring an appeal
before the NCLT, I am of the view that the said
issue regarding the maintainability of the original
petition has to be considered first. This Court in
Tharakan Web Innovations‘s case cited supra,
considered a similar circumstance wherein a
contention was raised that there is an effective
alternate remedy of an appeal against the order
impugned, the court has held that when questions
that have been raised relates to the inherent bar
of jurisdiction and total absence of jurisdictional
O.P.(C).No.913 of 2024 10
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facts required for the exercise of power by the
Tribunal, the writ petition is maintainable. This
Court in WP(C) No.22623 of 2024 relying on the
judgment in Ghanashyam Mishra & Sons (P) Ltd. v.
Edelweiss Asset Reconstruction Co. Ltd (2021) 9 SCC
657) held that the existence of alternate remedy
would not operate as a bar for enforcement of any
of the fundamental rights or where there has been a
violation of the principles of natural justice or
where the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged.
Further, this Court in Sulochana Gupta and Others
vs. RBG Enterprises Private Ltd., and Others
MANU/KE/2569/2020 has also considered the scope of
interference by this Court when an alternate remedy
is provided and held that the High Court exercising
overall superintendence over Tribunals can
interfere with any order of the Tribunal under
Article 227 of the Constitution of India. In view
of the above, I am of the opinion that the above
original petition which is challenging an order
O.P.(C).No.913 of 2024 11
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wherein the maintainability of Ext.P3 petition was
in question could be challenged in this
proceedings. It is to be seen that earlier order
passed by the Tribunal as per Ext.P4 was interfered
by this Court as per Ext.P5 and set aside and the
matter was remitted back for reconsideration.
After this Court has interfered with the earlier
order passed by the Tribunal as per Ext.P5 and
remitted the matter back for reconsideration, the
finding in Ext.P6 order by the Tribunal that the
earlier proceedings filed before this Court as
OP(C) No.1859 of 2023 is an “otherwise unusual
petition” ought to have been avoided by the
Tribunal as the Tribunal is bound by the orders
passed by this Court.
10. The question now remains to be decided
is regarding the maintainability of Ext.P3. The
main thrust of the argument of the learned senior
counsel appearing for the petitioners is on Rules
26 and 101 of the Rules, 2012. Going by Rule 26,
an application to the Tribunal for winding-up of an
O.P.(C).No.913 of 2024 12
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LLP shall be by a petition presented by the LLP or
any of its partner or partners. The Rules also
provide various other persons/authorities, who
could file a petition for winding up. But we are
only concerned with Rule 26(1)(a) which provides
filing an application for winding up by an LLP or
any of its partner or partners. Rule 26(4) provides
that when a petition is filed by the LLP or any of
its partner or partners for winding up before the
Tribunal, the same shall be admitted only if it is
accompanied by a statement of affairs of the LLP on
the date of the petition and a resolution of three-
fourths of total number of partners in the form and
manner specified in Part VI. Rule 101(1) provides
that a petition for winding up an LLP shall be in
Form No.26, 27 or 28, as the case may be. Form
No.28 is specifically for a petition to be filed
by LLP or partner/partners of LLP. So the form
which we are concerned in the facts of the present
case is Form No.28. In Form No.28, a specific
statement is to be made in paragraph 6 that by a
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resolution of three-fourths majority of partners of
the LLP, at a meeting thereof, held on the date to
be mentioned it was resolved unanimously by three-
fourth majority for winding-up of the partnership.
The Tribunal while considering earlier, the
petition filed by the petitioners questioning the
maintainability of the winding up petition, entered
a finding to the effect that from a reading of Rule
26(4) it could be seen that a petition for winding-
up by a partner/partners or LLP shall be admitted
only upon production of statement of affairs and
three-fourth resolution of partners and further
held that the effect of the provision is that the
Act provides that even though a partner can present
an application for winding-up it is the LLP through
its special majority decides whether LLP be wound
up. Even though such observation was made by the
Tribunal as evident from Ext.P4, the Tribunal found
that the application is maintainable. This Court
considered the said stand taken by the Tribunal in
Ext.P4 and set aside the order and directed the
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Tribunal to reconsider the application of the
petitioners regarding the maintainability of the
petition after hearing both sides, granting
necessary opportunity as per law. All the findings
in Ext.P4 have been given a go-bye and the Tribunal
interpreted Rule 26 and held that a petition
presented by a partner without LLP’s support need
not be accompanied with the statement of affairs
and three-fourth resolution because it is not a
case of voluntary winding up but only a winding up
sought in the view of the disputes alleging
oppression and mismanagement. I am afraid the said
finding by the Tribunal was without considering the
objection raised by the petitioners specifically
relying on Rule 26, Rule 101 and Form No.28 in this
regard which specifically mandates that an
application for winding-up if presented by an LLP
or its partner/partners shall be admitted only if
accompanied by statement of affairs of the LLP and
the resolution of three-fourth of total number of
partners in the form and the manner specified
O.P.(C).No.913 of 2024 15
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therein. The petitioners would contend that winding
up of the partnership is a serious matter affecting
the existence of the partnership itself and taking
into consideration the above said fact that the
statute itself provided for various conditions to
be satisfied before admitting the petition itself
even if it is filed by a partner/partners or by the
LLP itself. The learned Senior Counsel appearing
for the petitioners relying on the judgment in
Pratap Technocrats Private Limited vs. Monitoring
Committee of Reliance Infratel Limited & Another
(2021) 10 SCC 623 contended that the adjudicating
authority like the Tribunal as a body owing its
existence to the statute must abide by the nature
and extent of its jurisdiction as defined in
statute itself. Paragraph 29 of the said judgment
reads as follows:
“The jurisdiction which has been conferred
upon the adjudicating authority in regard to the
approval of a resolution plan is statutorily
structured by sub-section(1) of Section 31. The
jurisdiction is limited to determining whether the
requirements which are specified in sub-section(2)
of Section 30 have been fulfilled. This is a
O.P.(C).No.913 of 2024 162025:KER:19976
jurisdiction which is statutorily-defined,
recognised and conferred, and hence cannot be
equated with a jurisdiction in equity, that operates
independently of the provisions of the statute. The
adjudicating authority as a body owing its existence
to the statute, must abide by the nature and extent
of its jurisdiction as defined in the statute
itself.”
The learned Senior Counsel appearing for the
petitioners also relies on an un-reported judgment
of the High Court of Gujarat in Special Civil
Application No.6185 of 2002, wherein the Court has
held that it is cardinal rule of interpretation
that if a statute explicitly mentions a particular
process or method, the same has to be stringently
and mandatorily followed, and the Courts cannot
interpret the same in any other manner when the
words of the statute are precise and unambiguous.
This Court in Tharakan Web Innovations‘ case cited
supra, has also considered the said aspect and held
that as regards the jurisdiction of the NCLT, the
said Tribunal being made an adjudicating authority
as per the provisions of the statute and since the
adjudicating authority being a creature of the
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Statute, its jurisdiction is only that which has
been statutorily defined, recognised and conferred
and the adjudicating authority as a body owing its
existence to the Statute must abide by the nature
and extent of its jurisdiction as defined in the
Statute itself. The learned Senior counsel also
would submit that the golden Rule is that the words
of a statute must prima facie be given their
ordinary meaning and the Judges are not called upon
to apply their opinions of sound policy so as to
modify the plain meaning of statutory words.
11. Learned Senior Counsel also submitted
relying on the judgment in Pioneer Urban Land and
Infrastructure Ltd and another v. Union of India
and Others, (2019)8 SCC 416, V.C. Shukla v. State,
Delhi Administration, 1980 Supp. SCC 249 and Mardia
Chemicals Ltd. v. Union of India, (2004) 4 SCC 509,
that the intention of the Parliament cannot be
thwarted even if the classification made is not
scientifically perfect or logically complete, even
if it operates a bit harshly on a smaller section
O.P.(C).No.913 of 2024 18
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of the public if otherwise made in the larger
public interest. Further reliance was placed on
Manish Kumar‘s case cited supra. In the said case,
the Apex Court was considering among other things
amendment made to Section 7 of the Insolvency and
Bankruptcy Code, 2016. Prior to the amendment, a
financial creditor either by itself or jointly with
other financial creditors could file an application
for initiating a corporate insolvency resolution
process, but after the amendment, an application
for initiating a corporate insolvency resolution
process can be filed only jointly by not less than
100 of such creditors in the same class or not less
than 10% of the total number of such creditors and
in cases where applications have already been filed
and the same has not been admitted by the
adjudicating authority, the requirements brought
out by the amendment has to be satisfied within 30
days of the commencement of the Amendment Act,
2020. It was contended that the amendment imposing
a threshold restriction is afflicted with the vice
O.P.(C).No.913 of 2024 19
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of palpable and hostile discrimination qua
operational creditors and violation of the
constitutionally protected freedom under Article
19(1)(g)of the Constitution of India. The Apex
Court after considering various contentions raised,
held that if the legislature felt that having
regard to the consequences of an application under
the Code, an additional threshold is erected for
exercising the right under Section 7, it cannot
suffer a constitutional veto at the hands of the
Court exercising judicial review and thereupon
upheld the impugned amendments.
12. The learned counsel appearing for the
respondents based on the judgments referred to
above, submitted that the statute should be
interpreted to the effect as to ascertain the real
intention of the parliament.
13. Considering the above facts and
circumstances and after going through the order
impugned, I am of the view that none of these
aspects were taken into consideration by the
O.P.(C).No.913 of 2024 20
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Tribunal, especially Rule 26 of the Rules 2012,
which specifically mandates that a petition filed
by LLP or any of its partner/partners for winding
up before the Tribunal shall be admitted only if
accompanied by a statement of affairs of the LLP on
the date of petition and resolution of three-
fourths of total number of partners in the form and
manner specified. In view of the above, the matter
requires reconsideration by the Tribunal.
Therefore, Ext.P6 is set aside directing the 1 st
respondent Tribunal to reconsider Ext.P3
application seeking to consider the issue of
maintainability after affording an opportunity of
being heard to the petitioners as well as the
respondents.
With the above said direction, the original
petition is disposed of.
sd/-
VIJU ABRAHAM,
JUDGE
pm
O.P.(C).No.913 of 2024 21
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APPENDIX OF OP(C) 913/2024
PETITIONERS’ EXHIBITS
Exhibit :P1 TRUE COPY OF THE PARTNER ADMISSION
AGREEMENT OF THE PETITIONERS HEREIN
DATED 07.05.2022 EVIDENCING THE CAPITAL
CONTRIBUTION OF THE PETITIONERS
Exhibit:P 2 TRUE COPY OF THE COMPANY PETITION DATED
NOVEMBER 2021 FILED BY THE 2ND
RESPONDENT BEFORE THE 1ST RESPONDENT
Exhibit :P3 TRUE COPY OF THE PETITION DATED
16.01.2023 IN IA(C/ACT)/16/KOB/2023 OF
THE HONOURABLE NCLT, KOCHI
Exhibit :P4 TRUE COPY OF THE ORDER DATED 09.08.2023
IN CP(C/ACT)/38/KOB/2022 OF THE
HONOURABLE NCLT, KOCHI
Exhibit :P5 TRUE COPY OF THE JUDGMENT DATED
11.10.2023 IN OP(C) 1859/2023 PASSED BY
THE HON’BLE HIGH COURT OF KERALA AT
ERNAKULAM
Exhibit :P6 TRUE COPY OF THE ORDER DATED 04.04.2024
IA (C/ACT)/16/KOB/2023 IN
CP(C/ACT)/38/KOB/2022 OF THE IN THE
NATIONAL COMPANY LAW TRIBUNAL KOCHI
BENCH
Exhibit -P7 TRUE COPY OF THE FORM 28 IN THE LLP
(WINDING UP AND DISSOLUTION) RULES, 2012
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