9911796707
TMI Blog2022 (4) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... /2016, 'M/s. Explorers Travels and Tours Private Limited' preferred this Appeal under Section 421 of the Companies Act, 2013, (hereinafter referred to as 'The Act'). The NCLT in the Order Impugned observed as follows: "Ld. Counsel for the Petitioner submits that the Petitioner holds 35% of the stake in the company. The application has been filed for seeking inspection of the records of the company with the help of an Auditor or any person, to video graph the entire proceedings of the 28th AGM dated 23.11.2021 and appoint an observer to the said meeting. We have heard the Petitioner, and also the Counsel for the Respondent. The Counsel for the Respondent inter alia submitted that some FIRs have been filed in 2016 against the Petitioner, who as the Managing Director of the Company has siphoned off funds and she has not been responding to the investigations taken up by the Police. In view of the prayers made in the Application and contentions made by the Ld. Counsel for the Applicant, we feel it necessary to appoint an observer for AGM to be held on 23.11.2021. Accordingly, we hereby, appoint Mr. P. Nagesh, Sr. Counsel as an observer to watch the proceedings of the 28th AGM dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds from the Registered Office of the Company and also that she had siphoned off the funds from the Company. NCLT failed to appreciate that the documents sought for by the first Respondent are forming part of the Criminal Investigation against the Appellant and the same could not have been directed as the law requires that the accused in a Criminal Investigation is not entitled to have any access to any incriminating document. 3. Submissions of the first Respondent: Being the erstwhile Managing Director and 35% shareholder of the Appellant Company, it is submitted that the first Respondent was constrained to file CP No. 3 (ND)/2016 before the NCLT due to various instances of Oppression and Mismanagement. NCLT passed various Interim Orders on account of their continued mismanagement. Recently, the first Respondent was served with a copy of Notice for an AGM seeking to approve the financials for the year 2016-17. However due to various discrepancies and non-grant of inspection, the first Respondent was constrained to file CA 522/2021 inter alia seeking a) Appointment of observer to the AGM. b) Videography of AGM. c) Rectification of Financial. d) Inspection of the Books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act which allows inspection of accounts only by a Director. NCLT granted relief much beyond the Prayer. Similar Applications were preferred and the Bench had refused to entertain the same as the Applications sought the same relief/s as sought for in the main Petition. At no stage, has the first Respondent ever challenged any resolution passed in the AGM/EGM. Learned Counsel drew our attention to the prayers in the Application in CP No. 3(ND)/2016 filed by the first Respondent seeking to video graph the EGM and AGM and inspection of Accounts and other Financials. The Hon'ble Delhi High Court vide Order dated 04/05/2016 has observed that the first Respondent was prima facie guilty of siphoning off funds and appointed five Commissioners to conduct the inspection. Learned Counsel contended that the 'appointment of the observer' was completely unwarranted keeping in view the facts and circumstances and the history of this case. NCLT in its Order dated 27/07/2021 noted that instead of taking up the CAs, the main Petition itself should be taken up along with the CAs and the matter was listed on 08/09/2021. Learned Counsel drew our attention to (Annexure A-9) which is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to reproduce the Prayer sought for in CA 522 of 2021: 8. From the aforenoted reliefs sought for by the first Respondent/Applicant it is evident that some of the Prayers have not been addressed to and that the main Application is still pending before NCLT. NCLT passed an ad Interim Order as the AGM was scheduled to be held on the very next date and appointed Learned Sr. Counsel as an observer and allowed the entire proceedings of the AGM to be video recorded. Additionally, the first Respondent was entitled to have inspection of any statutory records and Financial Statements through a reputed Chartered Accountant or Company Secretary and produce the Inspection Report before the Court. It was also directed that the Appellant herein should not object to the record of the proceedings or to the presence of the observer in the AGM. It is an admitted fact that the Notices for the AGM was received on 18th of November and therefore the urgent Application was filed. 9. It is submitted by both the parties that the AGM was not held on 23/11/2021 and was adjourned sine die on 03/12/2021. It is also seen from the material on record that the Appellant filed CS (Comm.) No. 466/2021 before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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