TMI Blog2022 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... before filing of Company Petition. Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the National Company Law Tribunal (New Delhi Court III), forthwith. - Company Appeal (AT) No. 122 of 2021 - - - Dated:- 8-12-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Mr. Kanthi Narahari ] Member ( Technical ) For the Appellant : Ms. Neha Kapoor , Advocate For the Respondent : Mr. Ajay Garg and Mr. Mahesh Sharma , Advocates for R - 1 , 3 , 5 7 . JUDGMENT Justice Anant Bijay Singh ; The present Appeal is arising out of Section 421 of the Companies Act, 2013 against the impugned order dated 09.07.2021 passed by the National Company Law Tribunal (New Delhi Court III) in New CA-274/2021 in 270/241/242/ND/18. By which, the Tribunal dismissed the company petition along with the application under Section 244(1) vide order dated 09.07.2021 on the ground that the Appellant does not satisfy the basic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the board resolution by which they were allegedly appointed or the alleged resignation of the Appellant was accepted however, the same was also refused to him. The Appellant requested the Respondent no.1 and her husband to provide with the copy of statutory record of the company maintained by them as they had taken the responsibility for the project apart from the register of directors/shareholders, minute book of general meeting required to be maintained, books of account and registers, however none was provided to him. iii) The Appellant thereafter obtained certified copies of the relevant documents from the office of ROC upon which it was discovered that apparently a letter of resignation dated 03.02.2014 as mentioned on the copy received from the office of ROC and in the DIR Form the date is written 03.02.2014 was sent by the Respondent no.1 to the ROC on 28.03.2014 bearing forged signatures of the Appellant. The Appellant thus having no choice, made a complaint dated 16.10.2015 to 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which related to same subject matter and same cause of action. v) Thereafter, the Appellant had filed the Company Petition No. 270/241/242/ND/2018 before the NCLT, Delhi and after hearing the parties, the Tribunal dismissed the petition holding that the Appellant does not satisfy the basic requirements of the provision of Companies Act as the Respondent are not a company as on the date of filing of the present petition, which led to filing of this Appeal. Submissions on behalf of the Appellant 3. The Ld. Counsel for the Appellant during the course of argument and in her memo of Appeal along with written submissions submitted that it is an admitted case position that the Respondent No. 6 was a company on the date of the oppression and mismanagement pleaded by the Appellant i.e. when the Appellant was fraudulently shown as having resigned from the directorship of the said company. The Appellant resignation is forged and fabricated and the Respondents have malafidely converted Respondent No. 6 company 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the fraud played upon him by the Respondent No. 1, Therefore, in the month of April 2016, he inadvertently failed a civil suit which was withdrawn by him with liberty to approach the NCLT on 18.10.2016. The Appellant then filed the company petition in July 2018 which is admittedly within 3 years of his gaining knowledge of the fraud. The time spent by the Appellant before the Civil Court would be excluded for the purposes of counting the limitation period. 6. It is further submitted that the judgments relied upon by the Respondents are not applicable in the facts of the present case as there has been no fraud, concealment or misrepresentation on behalf of the Appellant and there has been no judgment in place which is being sought to be declared a nullity herein. The judgment relied upon by the Respondent in fact supports the case of the Appellant as he has made out a case for waiver in view of the fraud played upon by him by the Respondents more so for the reason that the Respondents have not specifically 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is neither Director nor Shareholder. To hide this fact, the Appellant has always preferred false affidavit (without disclosing relation with defendant entity). The Appellant resigned from Directorship from the company on 28.03.2014 and sold his entire shareholding of 100 shares on INR 10/- each on 31.03.2014. The provisions of Section 241 and 242 of the Act, regulating oppression and mismanagement in companies are applicable only on companies registered under Companies Act, 2013 and/or Companies Act, 1956 and in this case Respondent No. 6 the erstwhile company i.e. Bhero Baba Infosolutions Pvt. Ltd. has been converted into (Respondent No. 7) LLP i.e. Bhero Baba Info Solutions LLP way back in 05.01.2016 more than 2 and years before filing of original petition, therefore, the Tribunal held that the Respondent are not the company as on the date of filing of the petition. 10. It is further submitted that in this case the inordinate delay of more than 4 years in filing the Company Petition under Section 241 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2016. The Appellant is neither the Shareholder nor Director. The Company Petitioner barred by limitation and the Appeal is also barred by limitation. The company petition as well as Appeal are totally fraud played with the Respondents and to mislead the Tribunal as well this Tribunal. 11. It is further submitted that dismissal on the grounds of fraud and concealment by the Appellant played upon this Tribunal: First Fraud- The Flowmech Engineers Pvt. Ltd. (non Applicant) sought balance confirmation for the year 2010-11 for the purpose of Income Tax audit of books of accounts, from the Respondent No. 1 on behalf of Respondent No. 6 on 10.02.2015 because he knew that he cannot sign such confirmation. Second Fraud- The Appellant has deliberately and malafidely concealed material facts, circumstances and documents which in itself do not reflects any claim of Appellant but reflect past settled claim of non applicant. Third Fraud- The Appellant never extended any loan to erstwhile company Respondent No. 6. The Appellant is intentionally and shrewdly mixing settled issues. Further, the Appellant at many places i.e. FIR, Company Petition before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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