2025 (6) TMI 863 - AT - Companies Law

Oppression and mismanagement - unilateral appointment of Auditor without there being prior consent of the Petitioner/Respondent No.2 - Petitioner was denied the access to the records of Respondent No.1 company - HELD THAT - In the proceeding which was held on 26.03.2025 i.e. the proceedings in Mrs. Rekha Prabhahar Vs. M/s. ELV Supply Chain Solutions Services Private Limited Anr. which has been filed by the Appellant herein which are also being held under Sections 241 242 of the Companies Act 2013 a specific finding has been recorded that a forensic auditor has already been appointed and he has submitted his report to which the petitioner of the Company Petition (CP)(CA)/23(CHE)/2025 i.e. the Appellant herein had sought time to file reply/objection to the forensic auditors report. Conclusion - Owing to the fact that as of now the forensic auditor has already been appointed and upon conduct of Audit he has already submitted his report to which the petitioner i.e. the Appellant herein has sought time to file an objection to the forensic audit report under these circumstances for all practical purposes owing to the observations made in the order dated 26.03.2025 no cause of action as of now survives for the Appellant as of now as against the Impugned Order of appointing the forensic auditor. The Company Appeal for all practical purpose for the cause agitated has become infructuous and the same is accordingly dismissed as having been rendered infructuous - Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Appellate Tribunal were:

• Whether the learned Adjudicating Authority (NCLT) was justified in appointing a forensic auditor under Sections 241, 242, and 59 of the Companies Act, 2013, in light of the allegations of oppression and mismanagement in the company.
• Whether the directions restraining the respondents from alienating or encumbering company property and from convening board or general meetings until the forensic audit report is submitted were legally sustainable.
• Whether the appellant's failure to file objections and pay costs as ordered by the NCLT affected their right to contest the petition and the forensic audit process.
• Whether the appeal challenging the appointment of the forensic auditor and the related directions had any subsisting cause of action, given subsequent developments including submission of the forensic audit report and the appellant's request to file objections to it.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Legitimacy of Appointment of Forensic Auditor under Sections 241, 242 & 59 of the Companies Act, 2013

Relevant legal framework and precedents: Sections 241 and 242 of the Companies Act, 2013 empower the NCLT to intervene in cases of oppression and mismanagement by providing appropriate relief, including appointment of auditors or administrators to protect company and shareholder interests. Section 59 relates to rectification of registers and records. The law permits the Tribunal to take such measures as necessary to safeguard the company's affairs and prevent abuse of power by controlling shareholders or management.

Court's interpretation and reasoning: The Tribunal found that there was an intricate dispute regarding shareholding and management control, with allegations that the appellant controlled the company's activities unilaterally, including appointment of auditors without the petitioner's consent and denial of access to company records. The absence of board meetings since 2017-18 further indicated mismanagement. The Tribunal held that these facts disclosed elements of oppression and mismanagement warranting intervention.

Key evidence and findings: The petitioner's allegations of unilateral auditor appointment, denial of access to books of accounts, and failure to convene board meetings were undisputed, particularly since the appellant did not file any reply or objection despite multiple opportunities and cost orders. The Tribunal's satisfaction that neither party would be prejudiced by appointment of a forensic auditor was based on these factual findings.

Application of law to facts: Applying the statutory framework, the Tribunal exercised its powers to appoint a forensic auditor to conduct a thorough audit of the company's books, records, and assets to ascertain the veracity of accounts and detect any irregularities. This was deemed necessary to protect the company and shareholders from alleged oppressive conduct.

Treatment of competing arguments: The appellant's challenge was that the order was unjustified and that the appeal should be kept pending until the respondents filed a counter. The Tribunal rejected this, observing that the directions were not detrimental but rather facilitative of a definitive resolution of disputes under the relevant sections.

Conclusion: The Tribunal upheld the appointment of the forensic auditor as a valid and necessary measure within its powers under the Companies Act to address oppression and mismanagement.

Issue 2: Validity of Restraining Directions Pending Forensic Audit Completion

Relevant legal framework: The Tribunal's power to issue interim directions restraining alienation or encumbrance of company property and prohibiting board or general meetings pending investigation is consistent with its mandate to preserve the status quo and prevent further prejudice during dispute resolution under Sections 241 and 242.

Court's interpretation and reasoning: The Tribunal reasoned that such restraining orders were necessary to prevent dissipation or manipulation of assets and corporate governance processes while the forensic audit was underway. This ensured that the forensic auditor's work would not be undermined and that the company's interests were protected.

Application of law to facts: Given the allegations of unilateral control and mismanagement, the restraining directions were proportionate and justified to maintain the integrity of the company's assets and records during the audit period.

Treatment of competing arguments: The appellant's apprehension that these directions were an obstacle to their rights was dismissed as baseless and contrary to the objective of fair investigation and resolution.

Conclusion: The restraining directions were legally sustainable interim reliefs aimed at preserving company interests pending forensic audit.

Issue 3: Effect of Appellant's Non-Compliance with Tribunal Orders and Closure of Opportunity to File Reply

Relevant legal framework: Procedural fairness requires parties to comply with Tribunal orders, including filing objections and paying costs. Failure to do so may result in closure of opportunity to file replies or objections, as per Tribunal's discretion.

Court's interpretation and reasoning: The Tribunal noted that despite repeated opportunities and cost imposition, the appellant did not file any objection or pay costs, resulting in closure of their right to file reply by order dated 17.01.2024, which attained finality.

Application of law to facts: The appellant's non-compliance weakened their position and barred them from contesting the petition at the initial stage, justifying the Tribunal's procedural orders.

Treatment of competing arguments: The appellant's plea to keep the appeal pending until respondents filed counter was rejected, emphasizing that procedural non-compliance cannot be condoned to delay proceedings.

Conclusion: The closure of the appellant's right to file reply was valid and contributed to the Tribunal's decision to proceed with forensic audit appointment.

Issue 4: Existence of Substantive Cause of Action in Appeal After Completion of Forensic Audit and Submission of Report

Relevant legal framework: An appeal becomes infructuous if the relief sought has already been granted or rendered ineffective by subsequent developments.

Court's interpretation and reasoning: The Tribunal observed that the forensic auditor had already been appointed and submitted the audit report. The appellant had sought time to file objections to the forensic audit report, indicating acceptance of the audit process. Further, the Tribunal declined to appoint another forensic auditor in related proceedings involving the same company, underscoring finality.

Key evidence and findings: Orders dated 19.03.2025 and 26.03.2025 confirmed compliance with the forensic audit order and the appellant's intention to file objections to the report.

Application of law to facts: Since the forensic audit had been completed and the appellant's remedy lay in filing objections to the report rather than challenging the appointment order, the appeal against the appointment order was rendered infructuous.

Treatment of competing arguments: The appellant's attempt to keep the appeal alive was dismissed as lacking cause of action.

Conclusion: The appeal challenging the appointment of the forensic auditor was dismissed as infructuous due to subsequent compliance and audit report submission.

3. SIGNIFICANT HOLDINGS

The Tribunal held that:

"In the light of above discussions, we appoint Mr. Ramesh Kumar Mallela ... as Forensic Auditor, who is directed to conduct the forensic audit of the books / records / documents and assets of the Company who will submit his report within a period of two months. Till then the Respondents are restrained from alienating, mortgaging, encumbering or otherwise transferring the title or interest in any immovable properties of the Company including entering into any agreement with Respondent No. 3 and from convening / holding Board meetings / General Body meetings. We also direct Respondent No. 1 and 2 to render all assistance and provide the books and accounts of the Company to the Forensic Auditor to conduct the forensic audit."

This principle established that the Tribunal has the power under Sections 241, 242, and 59 of the Companies Act, 2013, to appoint a forensic auditor and issue interim restraining orders to protect the company and shareholder interests in cases of alleged oppression and mismanagement.

Further, the Tribunal emphasized that procedural non-compliance by a party, including failure to file objections and pay costs, may result in closure of the right to contest, thereby justifying the Tribunal's orders and expediting resolution.

Finally, the Tribunal clarified that once a forensic audit has been conducted and the report submitted, an appeal challenging the appointment of the forensic auditor becomes infructuous, and the appropriate remedy is to file objections to the audit report rather than delay proceedings through appeals.