TMI Blog2020 (4) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... ory professional duties in following the extant provisions of the Companies Act, in incorporating the R 1 Company. He has given false declaration that the petitioner has signed the requisite documents in question before him. Therefore, the incorporation of R 1 Company ab initio void as per the said proviso, apart from criminally liable for action against the Second and third Respondent - also, the Lease Agreement in question for lease of house of father of Petitioner for the office of the Company cannot be relied upon and the statement in this regard by the third Respondent is also deemed to be false. The incorporation of R 1 Company vitiated by fraud, and the same is done by the Second Respondent in connivance with third Respondent - Application disposed off. - C.P.No.617/BB/2018 - - - Dated:- 20-9-2019 - Hon'ble Shri Rajeswara Rao Vittanala, Member (Judicial) And Hon'ble Dr. Ashok Kumar Mishra, Member (Technical) For the Petitioner: Shri S. Shivashanker with Shri M. Rathina Kumar For the Respondent: Shri Mallesh And Shri Kumar M.N. ORDER Per: Rajeswara Rao Vittanala, Member (J) 1. C.P.No.617/BB/2018 is filed by Mrs. NagappanSw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending. Out of the Wedlock the Petitioner and Respondent No.2 have a girl child namely Aksshara. 3) It is stated that due to constant dowry harassment, physical and mental torture, the Petitioner had to leave her matrimonial home from Bengaluru to Tiruchirappalli on 14.06.2017. Suffice to state that the Respondent No.2 (Husband) has fabricated and forged the Petitioner's signatures and has coupled her name as Joint Account holder with M/s. Canara Bank, Malleshwaram Branch, Bengaluru and has also opened individual bank accounts with the HDFC Bank, Kumbakonam, Tamilnadu IDFC Bank at Bengaluru. There are spate of cheque complaint cases filed as against the Petitioner pending before the Magistrate Courts of Bengaluru and Hosur, Tamilnadu at the instigation of the Respondent No.2-husband, Sundaram through his friends and relatives, as though the Petitioner has borrowed monies from them by issuing cheques which is stoutly and forcefully denied as false and invented. It is ironical that the R-1 on 14.05.2018 through Mr. Iniyan Robert, Advocate has caused to issue three notices U/ s 138 of the Negotiable Instruments Act as against this Petitioner on behalf of his clients namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry of Corporate Affairs, New Delhi website www.mca.gov.in a Company under the name and style 'M/s.Colour Books Associates Private Limited' has been incorporated in CIN U74999KA2018PTC 113093 on 14th May, 2018. 6) It is stated that the Petitioner was shocked to know that after the perusal of the Company Master Data, which reveals that the estranged Respondent No.2 is the trouble maker has perpetuated a fraud upon her by including her name without her permission and knowledge as one of its First Director of the aforesaid reference mentioned 1st Respondent-Company. Already, the Petitioner was separated from the Respondent No.2 since July 2017 and divorce proceedings are pending before the Family Court, Tiruchirappalli in HMOP No.425 of 2017 for dissolution of the marriage, FIR's have been filed against the Respondent No.2, spate of cheque complaints have also been filed against the Petitioner by his friends and relatives, he has been arrested in the Dowry Prohibition Act, and it is nothing but quixotical and humanly not at all possible for this Petitioner to lend her name in the formation of the 1 st Respondent Company as its First Director because of her marria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix her signature in the presence of the said 3rd Respondent- Mr. R. MadeshNayak, A.C.A, Chartered Accountant at any point of time nor on that particular dated (26.04.2018). As the Digital Signature has been obtained in a fraudulent manner, it is the 3rd Respondent who had criminally connived with Respondent No.2 have perpetuated a fraud to cheat and harass the Petitioner both physically and psychologically to achieve their unlawful object to taking revenge upon her and her daughter Aksshara. 3. The Respondent No.2 namely Mr. Sundaram Chockalingam has filed Statement of Objections dated 19.09.2019, by inter alia contending as follows: 1) The petition is not maintainable either in law or on facts and the same was filed at the behest of the father of the Petitioner, who is ill disposed towards him with a mala fide intention to harass and humiliate him. The Petitioner has deliberately given wrong address of the first Respondent with a mala fide intention to mislead the Tribunal. 2) It is denied that Respondent No.2 has thrown out the Petitioner along with the child out of the matrimonial house. However, it is admitted that the Petitioner has filed a petition bearing H.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociates Private Limited, registered on 14/05/2018, so as to coincide with the birth day of their daughter and accordingly the Petitioner and the Respondent had requested the third Respondent to make arrangements to get the company incorporated on 14/05/2018 and accordingly the company was incorporated on 14/05/2018. 5) The allegations that the first Respondent was incorporated by forging, misusing personal documents of the Petitioner is false and denied. The allegation that the Petitioner has not signed any of the applications, statutory forms, documents or records pertaining to incorporation of the first Respondent is absolutely false and denied. Similarly, the allegations with regard to the digital signature application form and committed forgery by using the digital signature certificate are absolutely false and denied and the Company incorporation was done in accordance with law. The allegations that the Petitioner did not affix her signature in the presence of the third Respondent at any point of time nor on 26.04.2018 is absolutely false and the same is hereby denied. 6) It is stated that the Tribunal do not have jurisdiction to go into question of allegation of fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectness of the documents and the identity proofs of the proposed Directors, has certified the same and uploaded the incorporation documents in the MCA portal and upon approval from the MCA authorities, the 1st Respondent Company came to be incorporated. It is stated that, the 3rd Respondent was in no way colluded/ conspired with the 2nd Respondent against the Petitioner. The 3rd Respondent did not have any ulterior motive in incorporating the 1st Respondent Company. On the contrary, the 3rd Respondent has acted in good-faith and has shown humanitarian consideration towards the Petitioner, who had, at that point of time delivered a baby and was not in a position to commute. Instead of being grateful to the 3rd Respondent, the Petitioner has made him as a party in this Petition, which is more of a family dispute between husband and wife, only with an intention to harass and trouble the 3rd Respondent. 5) It further stated that the Petitioner had applied and got the DSC by herself and the 3rd Respondent was in no way party to the DSC application filed by the Petitioner before the certifying authorities. There is no lis between the Petitioner and the 3rd Respondent apart from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her of Petitioner and the rental agreement entered with the said owner along with NOC for using his premises as registered office of the Company is also filed with this office. Therefore, basing on the above documents, the Company was incorporated by the Central Registration Centre of MCA. 2) It is also stated that as per Section 7 sub-section (5) that the answering Respondent is not aware if the digital signature of the Petitioner has been obtained fraudulently and the first Respondent Company has been incorporated without the consent of the Petitioner by misusing her identification document and by forging her signature as alleged by the Petitioner. Further the answering Respondent does not have the technical expertise to verify the veracity of the documents/ DSC used for filing incorporation forms. Therefore, as per under Rule 14 of the Companies Incorporation Rule 2014, the declaration of the professional, who is engaged in the formation of the Company in Form INC 8 is required to be filed so as to ensure that all the requirements of the Companies Act and Rules made there under in respect of Registration and matter precedent and incidental there to have been complied. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company under this Act or any previous company law during the preceding five years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief; d. The address for correspondence till its registered office is established; e. The particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscribers to the memorandum along with proof of identity, as may be prescribed, and in the case of subscriber being a body corporate, such particulars as may be prescribed; f. The particulars of the persons mentioned in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed; and g. The particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7 (5) of the Companies Act 2013, says if any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action under Section 447. It is true that Respondent No.4 i.e., ROC cannot checkup of the declaration given by the parties for incorporation of the Company. Therefore, the law prescribes the verification of requisite forms by qualified Advocate or Chartered Accountant etc. 10. As per Section 7 of the Companies Act, 2013 apart from the ROC, the Tribunal has also empowered to take appropriate action in case of the incorporation of the Company is made by submitting false declarations as per said Section. Since the Petitioner has established that the documents required for incorporation of the Company in respect of the Petitioner is furnished found to be false and the Tribunal is empowered to pass necessary order in the interest of justice to the Petitioner. 11. The Respondent No. 3 has enclosed Form No. INC-32 as Annexure RI, Page No. 10-18, where in at page No. 17, wherein the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has signed the requisite documents in question before him. Therefore, the incorporation of R 1 Company ab initio void as per the said proviso, apart from criminally liable for action against the Second and third Respondent. 13. Even comparison of the signatures of the Petitioner stated to have signed on requisite documents filed for incorporation with that of signatures signed on case papers filed before the Tribunal, Family court etc. and other documents like Driving Licence, Voter ID Card, passport, etc., it is crystal clear with naked eyes that the signatures of the Petitioner on the documents filed for incorporation of the Company are not tallying at all. Moreover, the Petitioner has also filed criminal case for forgers and the copy of the FIRs are also enclosed along with the Company Petition. It is also relevant to point here that the Petitioner and second Respondent are not living together from July, 2017 and thus question of taking her signature do not arise for incorporation of the Company on later date i.e. 14.05.2018. It is also relevant to point out here that the second Respondent himself alleged that the father of Petitioner is not interested for marriage of his ..... 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