Home Case Index All Cases Companies Law Companies Law + AT Companies Law - 2018 (4) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (4) TMI 683 - AT - Companies LawOppression and Mismanagement - Petitioner-Appellant submitted that the affairs which “have been” or “are being” conducted in a prejudicial or oppressive manner both can be looked into and thus past affairs can also be considered - Held that:- We find that “have been” relates to present perfect tense. It relates to action that began some time in the past and is still in progress. Wording “are being” relates to present continuous tense. There is a difference between “have been” and “had been”. “Had been” would be past perfect tense indicating acts which were committed in the past and which came to an end in the past. Apart from this, in view of our earlier finding that since 2005 itself the petitioner has had Board of Directors constituted of its own selected Chairpersons and also its own nominee and nominees of other lenders, except one promoter, as well as the management of the Company itself has had been with Petitioner and other lenders, such Petitioner can clearly not be heard putting blames on others. Thus, the petition would require to be dismissed even on this count. With R.O.C. after Petitioner and Promoters with enquiry under Section 206 of the New Act, the Appellant’s object in filing Petition appears to be to stop and delay action being taken against the Petitioner, its employees and other lenders for the acts committed with regard to Respondent No. 1 Company which in turn had an impact on the Project which the Respondent No. 1 had taken up. No doubt, a person lending money may put conditions to protect its interest but there has to be a limit and it is unthinkable that the lenders took over the Company itself and committed acts attracting actions under the Companies Act and other Acts from which now protection was sought. The NCLT rightly held that the Petitioner had not approached the NCLT with bonafide intention. Looking to the facts of the present matter and above discussions, we order that the affairs of this Company ought to be investigated under Section 210 of the New Act in public interest. The Central Government should take steps accordingly. Whoever from the promoters, shareholders as well as the Petitioner-Appellant or other lenders, is found to be responsible for acting against Public Interest, needs to be made accountable. Central Government may also as part of investigation direct, at the cost of Company, forensic audit of the Company preferably under supervision of officials of Comptroller and Auditor General of India at least since 2005 if not earlier. In our view, the Government of Madhya Pradesh and Central Government both need to urgently consider the way forward in public interest to get project completed. We direct accordingly and decline to set aside the dismissal of the Company Petition. We however maintain the dismissal of the Company Petition but for the reasons discussed by us. The appeal is dismissed.
|