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TMI Blog2020 (4) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... Affairs, New Delhi, for cancellation of Directors Identification Number; to direct the -Registrar of Companies, Karnataka, Bangalore, to initiate criminal investigation for fraud under Section 447 of the Companies Act, 2013 as against the 2nd and 3rd Respondent, etc. 2. Brief facts of the case, as mentioned in the Petition/ Application, which are relevant to the issue in question, are as follows: 1) M/s. Colour Books Associates Private Limited (herein after referred to as Company) was incorporated on 14.05.2018 under the Companies Act, 2013 bearing CIR U74999KA2018PTC113093 having registered office at 49/24,3rd Floor, 11th C Cross, Kodandaramapuram, Malleshwaram, Bangalore-560003. 2) The Petitioner and the Respondent No. 2 are wife and husband, and both are alleged to be Shareholders and first Directors of the R-1 Company. The Petitioner and second Respondent were married on 20.05.2015, which has become strained relationship between them. The Petitioner has filed First Information Reports on 15.12.2017, 29.01.2018 and 26.02.2018 under Sections .2394(b), 506(1), 498(A), 294(b), 406, 506(1) & 354D of the India Penal Code, 1860 and Sections 66D & 66B of the Information Technolog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts. 4) It is also stated that on 05.06.2018, the R-1 Company through Mr. S. Manikandan, Advocate has caused to issue three more notices u/ s 138 of the Negotiable instruments Act as against this Petitioner on behalf of his clients namely a) M/s.VXT Garments, C/o. Ramesh, residing at 1/2C Murugankoil Street, Tirupur-638752 b) M/s. Tirumala Tours and Travels, C/o Tiruvel, residing at #48, 2nd Floor, Opp. Srinivas Restaurant Old Post Office Road, Tirupur-641602 and c) M/s. Vedhapuri Textiles C/o karunanithi, Door No. 227, ThambuChetty Street, Parrys, Chennai-600001 again accusing the Petitioner as though she has borrowed monies from them and in consideration of the said borrowing had issued three cheques all drawn on HDFC Bank, Kumbakonam Branch, Tamilnadu which bounced and compelling the Petitioner to pay the cheque mentioned amounts. Necessary replies were given to the aforesaid 3 notices. The Petitioner has no account with the said HDFC Bank at Kumbakonam or any other place in India and she has promptly lodged necessary complaints with the Bank to which it has replied that Petitioner is not the account holder for the notice mentioned account. Earlier the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r firmly believes that the 1st Respondent-Company have been incorporated by rank forgery, misleading the Authorities by manipulation, misuse of her personal documents wherein she has not agreed, consented nor signed in any of the incorporation documents as required under law. The Petitioner understand that for incorporation of a private limited company, a person has to give his/her consent to act as its Promoter and Director and self-attest PAN CARD, AADHAAR CARD etc. The Petitioner also understands that Respondent No.2 has manipulated the 4th Respondent-Authorities incorporated a fraudulent company with her consent either express or written behind her back. The Petitioner reiterates that she has not signed in any of the applications, statutory forms, documents or records pertaining to incorporation and also not obtained the Digital Signature in her name. The Respondent No.2 had fraudulently obtained Digital Signature and falsely submitted the Digital Signature application form and committed forgery by using the said Digital Signature Certificate. The Petitioner on 26.09.2018 has questioned the M/s.Sify Technologies Limited, Safe Scrypt CA, Chennai. Necessary notice to cancel the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Magistrate courts at Bangalore and Hosur, Tamil Nadu and the allegations in this regard is absolutely false and the same is hereby denied, and the applicant may be put to strict proof of the same 4) It is true that he was arrested by All women police Station, Srirangam, Tiruchirapalli Tamil Nadu, in Cr.No.30/2018 for the offences punishable under Sections 498-A, 294-B, 406, 506(1), 354-D of Indian Penal Code and under Section 4 of the Prohibition of Harassment of Woman Act, 2002, , since the Petitioner at the behest of her father has given a false complaint against the Respondent by making several false and baseless allegations against the Respondent further the Petitioner and her father got the Respondent arrested by using his influence. The allegations that the Petitioner was shocked to know that the second Respondent has perpetuated a fraud upon the Petitioner by including her name without her permission and knowledge as one of the first Directors of the First Respondent is absolutely false and the same is denied and the Petitioner may be put to strict proof of the same. The averment that the Petitioner has separated from the second Respondent since July, 2017 and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case tailor - made for her requirement as against the 3rd Respondent, but she is also guilty of the principle 'suppreciovarisuggestiofalsi' and on this ground alone, the present petition is liable to be dismissed in limine. 2) It is denied that regarding the marriage between the Petitioner and the 2nd Respondent and the girl child born to them is known to the 3rd Respondent. This was disclosed by the 2nd Respondent himself when he visited the 3rd Respondent's office for incorporation of a Company. However, the custody of the child is not known to the 3rd Respondent. 3) It is stated that the 2nd Respondent approached the 3rd Respondent seeking his professional services for incorporating a Private Limited Company. The 2nd Respondent informed the 3rd Respondent that he and his wife i.e., Petitioner intended to incorporate a Private Limited Company and sought for the 3rd Respondent's professional services. He has had clearly informed the 2nd Respondent that the presence of his wife, i.e., Petitioner is very much necessary at the time of incorporation of the Company as she would have to sign on certain application forms, declarations and documents required for inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty without mala fide intention and the allegations made by the Petitioner is untenable and baseless, and thus the Company Petition is liable to be dismissed. 4. The Registrar of Companies i.e., the Respondent No.4 has filed counter dated 22nd July, 2019 by inter alia contending as follows: 1) It is stated that the ROC i.e., 4th Respondent is not contesting Respondent and therefore he is confined only to the averments made in respect of incorporation of the M/s.Colour Books Associates Private Limited i.e., 1st Respondent. As per the record of this office, the 1st Respondent Company was incorporated on 14.05.2018 in the state of Karnataka with CIN U74999KA2018PTC113093 and registered office is situated at 49/24, 3rd Floor, 11th C Cross, Kodandaramapuram, Malleswaram Bangalore, Karnataka-560003. As per the Memorandum of Association of the Company, the promoter/ subscriber to the Memorandum is Shri Sundaram Chockilingam, the 2nd Respondent and Smt. Nagappan Swarnalatha the Petitioner. As per the AOA, the said persons are also the first Directors of the Company. The incorporation documents are filed in E Form spice with spice MOA and AOA which are digitally signed by the above two Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ankar along with Shri M. Rathina Kumar, learned Counsels for the Petitioner and Shri L. Mallesh, learned Counsel for Respondent No. 1 & Respondent No.2 and Shri Kumar M.N. learned Standing Counsel for R-4. We have carefully perused the pleadings of the parties and extant provisions of the Companies Act, 2013. 6. The main issue arise for consideration in the instant Company Petition is whether the incorporation of the R-1 Company was done in accordance with extant provisions of Law with due consent of the Petitioner or not. 7. It is relevant to refer relevant provisions of the Companies Act 2013 with regard to procedure for incorporation of a Company. Section 7 of the Act is relevant provisions for the same, which reads as under : 1) "There shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be suited, the following documents and information for registration, namely:- a. The memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed; b. A declaration in the prescribed form by an advocate, a chartered accountant, cost accountant or company secretary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itated to come physically present before him, has given the requisite forms for incorporation to him for obtaining signatures of his wife. The Respondent No.3 i.e., Mr. R. Madesh Nayak, A.C.A. Chartered Accountant admits that he was required to take declaration required for incorporation of the Company by physical verification of the person who signed the requisite documents. Therefore, the requisite documents furnished by the Second Respondent was uploaded for incorporation of the R-1 Company. However, the certified copies of Incorporation of Respondent No. 1 Company produced by the Petitioner includes C.C.No.1553 of 2018 dated 10.05.2018, Form SPICe MOA (INC-33) C.C. No.1552 of 2018 dated 26.04.2018, Form SPICe MOA (INC-33) C.C.N0.1549 of 2018 dated 10.05.2018, Form SPICe AOA (INC-34) C.C.N0.1550 of 2018 dated 26.04.2018 and Form SPICe AOA (INC-34) C.C.N0.1551 of 2018 dated 10.05.2018 which contained in Page No. 105 to 145. It is relevant to point out in Page No. 113, 119, 132 and 145, the R3 has declared that both the Petitioner as well as Respondent No.2 signed before him. At the same time he declared that the Petitioner was not present before him. It is relied upon the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and matters incidental thereto and I have verified the above particulars (including attachments) from the original/ certified records maintained by the Applicant which is subject matter of this form and found them to be true, correct and complete and no information material to this form has been suppressed. I further certify that: (i) The draft memorandum and articles of association have been drawn up in conformity with the provisions of sections 4 and 5 and rules made thereunder; and (ii) All the requirements of Companies Act, 2013 and the rules made thereunder relating to the registration of the company under section 7 of the Act and matters precedent or incidental thereto have been complied with. The said records have been properly prepared, signed by the required officers of the Company and maintained as per relevant provisions of the Companies Act, 2013 and were found to be in order. (iii) I have opened all the attachments to this form and have verified these to be as per requirements, complete and legible; (iv) I further declare that I have personally visited the premises of the proposed registered office given in the form at the address mentioned herein above and ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent since there are admittedly matrimonial disputes pending between the Petitioner and second Respondent by granting liberty to the petitioner to prosecute remedies available to her in respect of other grievances. Since the Second Respondent is responsible for incorporation of the Company, he is solely responsible for transaction made on behalf of the Company. 15. In the result, C.P.No.617/BB/2018 is disposed of with the following directions: 1) We hereby declared that the incorporation of M/s.Colour Books Associates Private Limited (Respondent No. 1 Company, is vitiated by fraud and consequently, the Certificate of Incorporation dated 14th May, 2018 issued by the Government of India, Ministry of Corporate Affairs, Central Registration Centre is declared as invalid with immediate effect; 2) The Respondent No.2 is directed to discharge all liabilities, if any, on behalf of the Respondent No. 1 Company, done in the course of business of the Company. 3) Other reliefs as prayed by the petitioner in the Petition are hereby rejected, by granting liberty to the petitioner to prosecute remedies available, in respect of other grievances as made in the instant petition, under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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