9911796707
TMI Blog2022 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... c requirements of the provision of Companies Act as the Respondents are not a company as on the date of filing of the present petition. 2. The facts giving rise to this Appeal are as follows : i) The Appellant and the Respondent No. 1 together purchased a company namely M/s SAS Info Solutions for the purpose of establishing a Solar System Project on the land of the erstwhile company on 20.09.2011. The Respondent No. 1 is the wife of a friend of the Appellant namely, Mahesh Garg, who was made director of the company as Mahesh Garg is an employee with Northern Railway and Respondent no. 1 was made a director as being a woman, she will get some concession/benefits. That in lieu of the same, after investing the entire amount for the payment of all the liabilities of the company, the Appellant agreed to keep only 100 shares in his name and rest 89,900 shares in the name of Respondent no. 1 with the assurance that Respondent no. 1 will transfer the shares in her name to the name of the Appellant. The entire amount of Rs. 58,50,000/- towards the purchase of M/s SAS Info Solutions, it's assets i.e., the land admeasuring 3 Bighas and 8 Biswas, out of Khasra no. 67//22/1/1 min (1-08), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ROC on 19.10.2015 (Annexure-P-10 at page 154 to 155 of the Appeal Paper Book). The Appellant has filed another complaint dated 23.12.2015 in the ROC on 05.02.2016 against the Respondents (Annexure P-22 at page 275 to 276 of the Appeal). The Appellant while following actions on his complaints before the ROC, came across another fraud played upon by the Respondent no.1 and 5 by claiming themselves as only directors and shareholders of Respondent no.6 as they changed the entity of Respondent no.6 to Respondent no. 7 and got it registered on 05.01.2016. The procedure as provided for in the Limited Liability Partnership Act for conversion of Respondent no.6 to 7 was not followed which was done only for the purpose of defrauding the Appellant and is illegal as the liability of the Respondent no. 6 company towards M/s Flowmech Engineers Pvt. Ltd. is still outstanding. iv) Further case is that the Appellant has come to know that Respondent no. l had even transferred the 89,900 shares in her name in the name of one Mamta Aggarwal on 10.07.2014 who apparently held the same till September, 2015. The Respondents have together committed forgery in forming the Respondent no. 7 and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany into Respondent No. 7 LLP in order to avoid clearing their liability towards the Appellant and his other concern namely M/S Flowmech Engineers to whom the Respondent No. 6 owed money admittedly as per documents annexed as Annexure- P-8 with the Appeal. The Appellant could have only agitated his grievance upon discovering the fraud and not anytime earlier. 4. It is further submitted that jurisdiction in company matters rests exclusively with NCLT and the jurisdiction of civil Court is barred under Section 430 of the Companies Act. It has been held in Sas Hospitality Pvt. Ltd. and Ors. Vs. Surya Constructions Pvt. Ltd. and Ors. held that NCLT has been vested with powers that are far reaching in respect of management and administration of companies. The said powers of the NCLT include powers as broad as "regulation of conduct of affairs of the company" under Section 242(2)(a), as also various other specific powers. The NCLT is a Tribunal which has been constituted to have exclusive jurisdiction in the conduct of affairs of a company and its powers can be contrasted with that of the CLB under the unamended Companies Act, 1956. A similar view was taken in Jaiveer Singh Virk Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly denied the fact that the Appellant was made to resign fraudulently, therefore, the fraudulent conversion of the company to LLP is a circumstance supporting the case of the Appellant for seeking waiver under Section 244 of the Act. The contents of the order dated 05.03.2020 passed by the Hon'ble High Court has to be read in its entirety and when done so, it clearly mentions that the NCLT has the jurisdiction to adjudicate the grievance raised by the Appellant. 7. It is further submitted that in the case of Brookeield Technologies Pvt. Ltd. Vs. Shylaja Iyer and Others reported in 2020 SCC OnLine NCLAT 829 held that "To determine whether the petition filed under Section 241 and 242 of the Companies Act, 2013, the Tribunal has to examine only the averments mentioned in the petition. The concept of 'oppression' is larger than the idea of 'legal rights' and indeed, the term 'interests' is wider than rights. As a matter of fact, the law does not define an 'oppressive act'. Whether an act is oppressive one or not is fundamentally a question of fact. The law relating to 'oppression' is cemented on the principles of equity and fair play as agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, before the Tribunal. The Appellant resigned from the Directorship on 28.03.2014 and the shares were transferred way back on 31.03.2014 and the Appellant filed his case before the Tribunal on 13.07.2018 without any application to condone the delay while filing the company petition. As per Section 244(1) of the Act, in the case of "S. Ahamed Meeran Vs. Ronny George & Ors. Company Appeal (AT) No. 162 of 2018" wherein this Tribunal observed as under: "6. Thereafter Appellate Tribunal proceeded and made following observations:- "150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any of the requirements specified in clauses (a) and (b) of sub-section (1) of Section 244. Such opinion required to be formed on the basis of the (proposed) application under Section 241 and to form opinion whether allegation pertains to 'oppression and mismanagement' of the company or its members. The merit cannot be decided till the Tribunal waives the requirement and enable the members to file application under Section 241. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is intentionally and shrewdly mixing settled issues. Further, the Appellant at many places i.e. FIR, Company Petition before the Tribunal and Hon'ble High Court (based on petition filed) has deliberately mentioned the wrong shareholding of the Respondent No. 1 and wrong paid up capital of the Respondent No. 6 Company for his benefit to divert the Tribunal/Courts as well as Authority in his favour. The judgment obtained on the basis of the fraud played upon the Court shall be rendered nullity as has been held by the Hon'ble Supreme Court in the case of "Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853". Further, the stage of the present Appeal does not render the merits of the present Appeal of a lesser importance, as in cases of fraud, the stage of the proceedings has no consideration. The same has been observed in the case of "M.C.D. Vs. State of Delhi & Anr., (2005) 4 SCC 605". Based on above submissions, the Tribunal has rightly passed the impugned order, therefore, there is no merit in the present Appeal, the Appeal is fit to be dismissed with heavy costs. 12. After hearing the parties and going through the pleadings made on behalf of the parties, we observe that the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
