TMI Blog2022 (5) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... onnection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members. Moreover, there is no single evidence placed before this Tribunal to show that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director, or the manager, of the company. The contention of the applicant that this Tribunal has directed to file an appropriate application cannot survive as the application should stand on its own feet and application should be accompanied by prima-facie evidence, which is not the case in the present application. Hence, this Tribunal is not inclined to allow the present application. Application dismissed. - C.A. No. 434/C-III/ND/2019 in CP(IB) No. 195/ND/2017 - - - Dated:- 10-5-2022 - Bachu Venkat Balaram Das, Member (J) And Narender Kumar Bhola, Member (T) For the Appellant : Ishwar Mohapatra, Adv. For the Respondents : Rakesh Kumar, Preeti Kashyap, Chitranshul A. Sinha, Jaskaran S. Bhatia, Namrata Mohapatra and Rupesh Tyagi, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Hon'ble Tribunal through his status report about the sceptical relations of the employees to Gallium Industries Ltd., Gallium Equipment Pvt. Ltd. Gallium Engineering Management Services Pvt. Ltd. The facts are as follows:- A. Common email id domain galliumindia.com being used by the CD and the resolution applicants. B. GST summons sent to the CD, being received and forwarded to the Resolution Professional, by Sh. Rakesh Kumar, an employee of Gallium Equipment Put Ltd. C. FIR filed by the operational creditors of the CD against the KMP for Fraudulent diversion of material supplied to M/s. Gallium Industries Ltd. to another company M/s. Gallium Equipment Pvt. Ltd. D. Two emails, one dated 11.01.2018, sent by Sh. Sanjeev Shakya (working with the CD till 31.03.2017 and post that with M/s. Gallium Equipment Pvt. Ltd. till September 2017) and the other email dated 14.01.2018 sent by Ms. Kiran Arora (her resignation letter), to the RP, were also marked to the resolution applicants, Sh. Sanjay Malik and Sh. Rajender Singh. The RP confirmed that no payment had been released to Sh. Sanjeev Shakya, during the CIRP. E. Travelling bills received by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberate attempt to mislead the Adjudicating Authority and paint its negative image in the eyes of the Hon'ble Adjudicating Authority. Further stated that only Ministry of Corporate Affairs can direct it to investigate into the affairs of Company. It is argued that the allegation raised by the Liquidator have been duly submitted to the Forensic Auditor and also to the Liquidator. Hence, the allegations are baseless and vehemently denied. 4. Respondent No. 2 and 3 have been set ex-parte. 5. In his reply to the present application respondent No. 4 submitted that the Corporate Debtor had entered into a Joint Venture with Kusakabe Electric and Machinery Co. Ltd. ( KEMCO ) in November 2000. As a part of the Joint Venture Agreement, KEMCO nominated Respondent No. 4 as one of the Directors to the Board of Directors of the Corporate Debtor. Respondent No. 4 was a Nominated Director in the Corporate Director and not an Executive Director, and was neither in-charge nor responsible for the conduct of business of the Corporate Debtor at any point of time. In 2013, KEMCO decided to withdraw its nominees from the Board of Directors of the Corporate Debtor. As a result, Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Ramesh vs. Ramanathan Bhuvaneshwari (Company Appeal No. 574/2019). It has been held that Adjudicating Authority was not competent to straight away direct any investigation to be conducted by the 'serious fraud investigation office'. However, the Adjudicating Authority (Tribunal) being competent to pass order u/s. 213 of the Companies Act, 2013, it was always open to the Adjudicating Authority/Tribunal to give notice with regard to the aforesaid charges to the promoters and others, including the appellants herein and after following the procedure laid down in section 213, if prima facie case was made out, it could refer the matter to the central government for the investigation and on such investigation. 10. The respondent has further relied on Hon'ble Appellate Authority, NCLAT judgment dated 23.12.2016 in the matter of R.S. India Wind Energy Pvt. Ltd. vs. PTC India Financial Services Ltd. Ors. bearing Company Appeal (AT) No. 15 of 2016 where, under the Para 48 of the judgment, the Hon'ble Appellate Authority observed that: 48. The basic principle of justice delivery system involving offence resulting punishment is that if any allegation is made by any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or are otherwise in public domain having been communicated to the Registrar of Companies or posted on the portal of the MCA website, then investigation need not be ordered. Investigation is ordinarily ordered in cases where funds of the company have siphoned of in a manner shrouded in mystery or accounts of the company or its management have been conducted in a manner which is shrouded in a mystery. Therefore, at least prima facie evidence must exist with regard to existence of such circumstances which would lead to the conclusion that an investigation is imperative and must be ordered. In that regard, we place reliance on a judgment of Hon'ble Delhi High Court in the case of Delhi Flour Mills Co. Ltd., In Re. (1975) 45 Com Cases 33(Del). For a similar view, we also place reliance on the observations made by the Hon'ble Supreme Court in the case of Barium Chemicals Ltd. v. CLE [1966] 36 Comp Cases 639 and Rohtas Industries Ltd. v. Agarwal (S.D.) [1969] 37 Comp Cases 781. A Five Judge Bench in Barium Chemicals Ltd. (supra), after making a reference to Section 237(b) of the erstwhile Companies Act, 1956 has held that the exercise of power to order investigation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pedition to find evidence. Although the formation of opinion is subjective but the existence of circumstances relevant to the inference is a sine qua non for exercise of jurisdiction. It has further been observed that it is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusions of certain definiteness. The conclusions must relate to intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct or the withholding of information of a particular kind. In other words, the circumstances as pointed out above do not exist then no inference of the kind stated in extracted para (a) to (d) could be drawn and the prayer for investigation must fail. 13. The present application has been filed u/s. 210(2) and 213(b) of the Companies Act, 2013. It is pertinent to discuss section 213(b) before going into the merits of the application. The section 213(b) of the Companies Act, 2013 is as follows: 213. Investigation into company's affairs in other cases.- (b) on an application made to it by any other person or otherwise, if it is satisfied that there are circumstances suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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