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TMI Blog2017 (11) TMI 1890X X X X Extracts X X X X X X X X Extracts X X X X ..... tory Auditors- Respondent Nos. 5 & 6 were added. The said Respondents filed I.A. No. 07/2017 to delete them from the array of parties claiming themselves to be only Statutory Auditors and that they have already resigned and they are not necessary parties in the petition. The learned Tribunal has, after hearing the parties, deleted the original Respondent Nos. 5 & 6 from the array of parties. Hence this Appeal by Original Petitioners. 2. The learned Senior Counsel for the Appellants is submitting that in the Company Petition, the Appellants had made various allegations against the Statutory Auditors alleging acts of omission and commission in collusion with the Board of Directors. It is submitted that the Board of Directors were not making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that prayer xvi of the Company Petition sought direction to Institute of Chartered Accounts of India to investigate into their conduct. It is stated that even prayer xvi has become redundant because the Appellants have filed complaint with the Institute of Chartered Accounts of India. Thus, it is stated that both the prayers have become redundant and Learned NCLT considered these aspects and passed orders which may not be disturbed. 4. The learned Senior Counsel for the Appellants pointed out prayer xix of the Company Petition to say that exemplary cost has been sought to be imposed on the Statutory Auditors for the acts of oppression and mismanagement. The learned Counsel has then relied on Sub -Section 2 of Section 245 of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by mis-statement to the members or depositors; (d) to restrain the company and its directors from acting on such resolution; (e) to restrain the company from doing an act which is contrary to the provisions of this Act or any other law for the time being in force; (f) to restrain the company from taking action contrary to any resolution passed by the members; (g) to claim damages or compensation or demand any other suitable action from or against (i) the company or its directors for any fraudulent, unlawful or wrongful act or omission or conduct or any likely act or omission or conduct on its or their part; (ii) the auditor including audit firm of the company or any improper or misleading statement of particulars made in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positors or not less than such percentage of the total number of depositors as may be prescribed, whichever is less, or any depositor or depositors to whom the company owes such percentage of total deposits of the company as may be prescribed. (4) In considering an application under sub-section (1), the Tribunal shall take into account, in particular (a) whether the member or depositor is acting in good faith in making the application for seeking an order; (b) any evidence before it as to the involvement of any person other than directors or officers of the company on any of the matters provided in clauses (a) to (f) of sub-section (1); (c) whether the cause of action is one which the member or depositor could pursue in his own right rath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application for class action shall be defrayed by the company or any other person responsible for any oppressive act. (6) Any order passed by the Tribunal shall be binding on the company and all its members, depositors and auditor including audit firm or expert or consultant or advisor or any other person associated with the company. (7) Any company which fails to comply with an order passed by the Tribunal under this section shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to three years and with fine which shall not be less than twenty-five th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisites. 6. Considering the submissions and going through the material which was before the Learned NCLT and the claims made we are unable to find error with the impugned order which has recorded proper reasons. Even otherwise, when the complaint against the Auditors is being looked into by the Institute Comp. App(AT) No. 297 of 2017 -10- of Chartered Accounts of India and it is stated that investigation is still going on, it will not be appropriate that same subject should be agitated before two different Forums as there may be conflict of decisions. In the Company Petition, the learned NCLT will be looking into the acts of oppression and mismanagement by other Respondents within the framework of Sections 241 and 242 of the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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