9911796707
TMI Blog2025 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ers dated 17.5.2021 and 4.8.2021 passed by the Ld. Adjudicating Authority, National Company Law Tribunal, New Delhi in IA No.1248/2020 and IA No.3341/2021. The appellant is aggrieved of the fact that per impugned order, the appellants have been held guilty of perjury and have been imposed a fine of Rs.2 lakh on each of the appellant. The Ld. NCLT had also directed the RP to initiate proceedings for perjury against Mr Ajay Vij per para 10 of the impugned order. The impugned order is as under:- 9. After hearing the parties and perusing the documents, the conversion of the corporate debtor from a company to LLP is analyzed via a vis the provisions of the Companies Act and Limited Liability Partnership Act, 20008. We find that company has intentionally taken steps to convert the entity of the corporate debtor from the private limited company to LLP.to escape the rigors of insolvency code and to shrug off the liabilities of the creditors of the corporate debtor. As also it is evident that neither at the time of passing of the order nor during CIRP. the LLP partner have come forward for compliance of Section 56 and shown any willingness to accept the liability of the corporate debtor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd further undertook to hand over the same as recorded in the said order. The order further records the statement of the corresponding unit holder of handing over of the possession of respective units. Mr.Naveem Gambhir is the common person being the director in the company and designated partner in alleged LLP has not come forwards for the explanation before the bench. 10. The above facts does not leave any doubt in our mind that the management of the corporate debtor in connivance with the alleged LLP partners have acted to defraud the creditors and to make their claims infructuous. We see strong reason to initiate perjury proceedings against the management of the corporate debtor specifically Mr. Ajay Vij. 1 who has submitted incorrect and wrong information while applying for LLP. to RoC. We direct Resolution Professional to immediately initiate appropriate proceedings for perjury against Mr. Ajay Vij. We fail to understand that without any formal agreement/documents/MOU between the corporate debtor and the proposed LLP with respect to the status of creditors, debtors, rights and liabilities, the conversion of accounts and all other formalities with respect to transfer of sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 was incorrect since by that time i.e. on 25.04.2018 an application under Section 9 IBC stood filed against Corporate Debtor. Further CIRP commenced later on 14.3.2019. 6. It is the case of the appellants such wrong answer was inadvertently given by Ajay Vij, a Director of the company while filing declaration/Form 18. It is argued even if it is to be considered as has been intentionally done by one of the directors then also offence of perjury could be attracted only when false declaration touches any material fact. Heard. 7. We agree to the submission of the learned counsel for the appellant that Form No.18 was only required to facilitate conversion of the company to LLP, though such declaration filed was not material for such conversion. Further per law the conversion of a company into LLP shall have no effect to the pending proceedings by and against the company since per Section 58(4)(b) of LLP Act, 2008; upon conversion of a company into LLP, all assets, interest, rights, privileges, liabilities, obligation relating to the company and whole of the undertaking of the company stood transferred to the LLP. Clause 6(b) of the 3rd Schedule of LLP Act also supports the same. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession is not taken over by landlord, may be because of pending dispute.. That apart, this statement has no material bearing on the subject of conversion of the Company into LLP because of S. 58(4)(b) of the LLP Act. Thus the impugned orders dated 17.05.2021 and 04.08.2021 deserve to be set aside on this ground too. 11. Thus we are of the considered view no act of perjury has been committed by the Appellants. But even if it is presumed just for the arguments' sake that an offence of perjury stands committed, then also the impugned order dated 04.08.2021 r/w impugned order dated 17.05.2021 permitting the Liquidator to file complaint u/s 340 Cr.P.C is not sustainable there being admittedly no finding recoded to the effect "that it is expedient in the interest of justice a complaint should be filed. In the absence of a finding to the above effect which is a sine qua non under S. 340(1)(a) Cr.P.C, the impugned order dated 04.08.2021 is not sustainable in law. 12. The Hon'ble Supreme Court in Chajoo Ram v. Radhey Shyam (1971) 1 SCC 774 has held: "7. .... Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the impugned order dated 17.05.2021 convicting the Appellants u/s 68(i)(a) IBC and imposing a fine of Rs. 2 lac on each Appellant deserves to be set aside on this ground itself. Even otherwise, there are no averments qua commission of an offence u/s 68(i)(a) IBC in IA No. 1248/ND/2020 filed by the RP as a matter of record. Moreso, there is no finding in the impugned order dated 17.05.2021 as to how the said offence is attracted in the present case. 17. We have also examined the notification dated 27.7.2016 as under : - S.O. 2554(E).-In exercise of the powers conferred by sub-section (1) of section 435 of the Companies Act, 2013 (18 of 2013), the Central Government hereby, with the concurrence of the Chief Justice of the High Court of Delhi, designates the following Court as Special Court for the purposes of providing speedy trial of offences punishable under the Companies Act, 2013 with imprisonment of two years or more under the Companies Act, 2013, namely : - TABLE Sl. No. (1) Existing Court (2) Jurisdiction as Special Court (3) 1 Court of Additional Sessions Judge-03, South-West District, Dwarka National Capital Territory of Delhi 2. The aforesaid Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
