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TMI Blog2020 (11) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ding litigation cost that R-1 company might have to incur to restart the R-1 company. 4) Cost and re-audit of accounts be recovered from Respondents and all Bankers be ordered to share all information and Bank statements with Petitioner in the interest of R-1 Company to find the manipulation. 5 All pending litigations initiated by all other parties due to misdeeds and forgery by respondents may be borne by them and if company has to defend such cases all such costs may also be recovered including cost of building, plant and machinery around Rs. 2 crore and loss of assured business through government licenses. 2. The petitioner states that Respondent No. 2, Mr. Sumer Singh, Respondent No. 3, Mr. Davendra Singh Ratnawat and Respondent No. 4 and Mr. Ganesh Singh Rajawat were directors of Respondent No. 1 company. 3. It is stated that M/s. Rajputana Biotech Private Limited, Respondent No. 1 company is registered under the Companies Act, 1956, in the State of Gujarat, on 26th day of September, 1996 and the main object and business of the company is of Medical Waste Treatment. A copy of Memorandum of Association and Articles of Association of the respondent company are annexed as A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as Annexure-C. 9. In short, the petitioner has made following allegations against the respondents. For the sake of convenience, paragraphs-3 to 8 of the present company petition are being reproduced hereunder; 3) R-2 and R-3 were legally removed from the office of directorship sometimes in September 2012 for all their misdeeds and forgery. R-2 and R-3 have filed one CP No. 63 of 2013 before Company Law Board Mumbai bench and the same is now pending before NCLT Ahmedabad bench vide TP No. 44 of 2016. Pending this petition also respondents have done acts of siphoning of funds and Hon'ble CLB was kind enough to appoint independent Chartered Accountant to do investigation and report of Chartered Accountant appoint by CLB is very specific about siphoning of huge funds. The report is part of TP 44 of 2016 and petitioner would like to rely on the same. 4) Respondents have spoiled company's business of around 100 crs. plus name and fame and prestige in the industry and government as disputed company and shareholders hard work and net worth has been wiped off due to such acts and deeds of R-2 to R-4. It is therefore in the interest of shareholders and R-1 Company to do jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further fixed for hearing on its merits and final argument. As per record, on 19.09.2019, the proxy counsel for respondents' counsel Ms. Natasha Shah appeared on behalf of advocate Mr. Susshil Daga and sought adjournment. Hence, a shorter adjournment was granted for hearing, i.e. final argument by the next date of hearing. Thus, final arguments in the present matter were heard on 26.11.2019. 12. It is matter of record that present Company Petition itself is a counter company petition to the erstwhile [TP No. 44 of 2016 (CP No. 63 of 2013)] which was preferred by the present respondent, namely, Mr. Sumer Singh and another against the alleged operation of mismanagement being conducted by the present petitioner in Respondent No. 1 Company Rajputana Biotech Private Limited and against their illegal removal from the directorship of the company. 13. It is also matter of record that in the present Company Petition (counter petition) earlier Advocate Mr. Susshil Daga has appeared for the present respondent but they fail to file counter reply/ affidavit reply despite sufficient opportunity were being granted by this Court to the respondent. 14. It is pertinent to mention here that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the C.L.B or by this Court. Therefore, before accepting such report there arise some legal and procedural requirement to testify the independent Charted Accountant on oath by verifying and confirming the facts of his report submitted to the C.L. B and equally the respondents opposite parties are eligible to file rebuttal document/second opinion-cum-report of another Chartered Accountant on the same issue which were referred to the independent Chartered Accountant and to get reasonable opportunity for filing rebuttal/confronting documents. Thereafter, only a conclusive finding could be given by a competent Court of law i.e, CLB of or this Bench which is not the case here. Therefore, a report of the independent Chartered Accountant can be treated as good as of an opinion but not necessarily a conclusive evidence/proof of alleged misdeed of irregularities committed by the Respondent No. 2-4, despite they were Petitioner in that Company Petition. 17. Hence, this Court equally in the present Company Petition cannot accept such report of independent Chartered Accountant nor can issue direction on the basis such report of independent Charted Accountant. Without giving any opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to it under Section 241-242 of the Companies Act, 2013 to redress the grievance complained of the Respondent-1 Company and to consider the paramount interest of the company and its shareholders. 19. It is also matter of record that the petitioner has enclosed a copy of the pending criminal case (Annexure-C page 39) which were filed by the petitioner against the respondents or some other complaint against the respondent including R-1 Company. The chart goes to show that there were twelve cases filed against the present respondents. It is pertinent to note here that such cases were filed against the present respondent Mr. Ganesh Singh under Section 420, 406 and other offences under the IPC. The Police has filed its final report so as to the position of another Criminal Complaint / Crime No. 207/12/PS/Kanota by the Petitioner against the Respondent under Section 379, 406 etc. of the IPC wherein also police has filed its final report. Further in Crime No. 456/12, FIR by the Hamendra Singh Vs. Ganesh singh under Section 420, 406 etc. against the offences of alleged cheating and embezzlement on this case the Police has also filed its final report. Further the Petitioner has failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests of any members of the company by other members thereof or by the company; *(c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share capital; (d) restrictions on the transfer or allotment of the shares of the company; (e) the termination, setting aside or modification, of any agreement, howsoever arrived at, between the company and the managing director, any other director or manager, upon such terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the circumstances of the case; (f) the termination, setting aside or modification of any agreement between the company and any person other than those referred to in clause (e): Provided that no such agreement shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned; *(g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions shall apply accordingly to the memorandum or articles so altered. (7) A certified copy of every order altering, or giving leave to alter, a company's memorandum or articles, shall within thirty days after the making thereof, be filed by the company with the Registrar who shall register the same. (8) If a company contravenes the provisions of sub-section (5), the company shall be punishable with fine which shall not be less than one 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 six months or with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both. 22. Therefore, this bench in exercise of the power conferred it to under Section 242 of the companies act to do the justice with the parties with a view to the bringing to an end the matter complained and to ensure smooth function of the Company as going concern. Followings directions are issued to be complied with by both the parties. i) The respondent company is directed to convene its AGM/EGM as the case may be to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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