Gireesh Kumar Sanghi vs Sanghi Industries Ltd. & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 164 of 2017

IN THE MATTER OF:

Gireesh Kumar Sanghi .Appellant Vs Sanghi Industries Ltd. & Ors. Respondents

Present: For Appellant:- Ms. Anju Jain and Mr. Hitesh Sachar, Advocates.

For Respondents:- Mr. Anirudh Wadhwa and Mr. Hiresh Chaudhary, Advocates.

ORDER

29.05.2017- Appellant preferred an application under section 94 of

the Companies Act, 2013 for inspection of documents and to provide

certified copy of the members' register along with index of members'

register as on 29.09.2016. The National Company Law Tribunal by

impugned order dated 24th March, 2017 in C.A.No. 81/94/HDB/2016

passed by Hyderabad Bench, refused to grant relief with following

observations: -

"7. The Petitioners' prayer to direct the respondents to

provide certified copy of the members' register along with

index of members' register and to direct R 16 to prosecute

Respondents No. 2 to 15 for contravening the mandatory

provisions of Section 94 of the Companies act, 2013 is not

considered favourably by this Bench in view of the following

reasons and the submissions of the Respondents. a. As per the provision and notification issued by the

Government of India in Gazette No.S.O.891 (E), dated

31.03.2015 issued by the Ministry of Corporate Affairs, if

an inspection of document is refused by the Company the

aggrieved person is obligated to get a direction from the

Central Government/Regional Director. However, in the

instant case the petitioner has not obtained any approval

from Central Government/Regional Director as mandated

u/s 94(5) of the Companies Act, 2013. Therefore, the

prayer of the petitioner is not maintainable. In the Official

Gazette of India, the power to direct inspection of records

and furnishing of extracts thereafter had been delegated

and vested with the Regional Director. In view of the

above submissions present case is outside the purview

and jurisdiction of this Hon'ble NCLT.

b. As per the official notification the powers are delegated

under section 94(5) to the Regional Director Mumbai,

Calcutta, Chennai, Noida, Ahmadabad, Hyderabad and

Shillong. Therefore, this Hon' ble Tribunal has no original

jurisdiction to entertain the above application filed by the

Applicant Under section 94 of the Companies Act, 2013.

c. Any order passed by this Tribunal would set a

precedence for other members/ any other person seeking

inspection of members register etc. As generally known,

more than 5000 companies are listed on the Stock Exchanges in our country. If this kind of request for

inspection of members register and copies of index

register is accepted/provided the same would prone to be

misused and may also invade into the personal privacy

of shareholders, especially High Net worth Investors.

d. The Bench further feels that facility of inspection would

be prone to be misused, especially some listed companies

have more than lakhs of shareholders.

e. Further, the listed companies shares are being treaded in

dematerialised mode (demat) and through electronic

trading platform. Therefore, the shares of the frequently

traded Companies will keep changing hands frequently

on minute-tominute basis, hourly and daily basis.

f. The Applicant prays this Tribunal to direct the

Respondents to provide certified copy of members'

register along with index of members' register as on

20.09.2016, but there is no provision with regard to

issuance of certified copies of such registers in the

Companies Act, 2013.

g. The Applicant requesting the Chairman and

Shareholders Grievance Committee to arrange and

provide him a copy of members register maintained by

the Company u/s 94 of the Companies Act, 2013 is not

acceptable as it is not a reasonable request. h. The Applicant's 2nd prayer i.e. "direct R. 16 to prosecute

Respondents 2 to 15 for contravening the mandatory

provision of Section 94 of the Companies Act, 2013" is

without any basis/justification. It is noted that R 16 is

only a Registrar and Share Transfer Agent of RI company

and not a statutory body or Government Authority

empowered with the powers to prosecute further.

i.The applicant has also not justified the powers vested

upon R. 16 to prosecute Respondents No.2 to 15.

Therefore, this prayer is also without any basis and

deserves to be rejected.

Considering the reply of the Respondents and the order dated

26.092016 of the NCLT, Mumbai Bench, in a similar matter

between Sri Anil Kumar Poddar Vs MIS Prime Focus Ltd and

(90) other companies, wherein it was observed that hard time

starts to companies to defend the company petition filed by the

petitioner; the prayers of the applicant, in the instant matter, do

not merit consideration and therefore, we dismiss the Company

Application No.81/94/HDB/201 6.

No order as to costs."

We have heard Ld. Counsels for the parties and perused the

impugned order. From sub-section (5) of Section 94, it is clear that the

Central Government is the competent authority to pass any order and

direct an immediate inspection of the document, or direct that the extract

required shall forthwith be allowed to be taken by the person requiring it. In view of such provisions, the Central Government by Gazette

Notification dated 31st March, 2015 issued from the Ministry of Corporate

Affairs allowed the aggrieved persons to move the application before the

Central Government/ Regional Director. In fact, as per the official

notification the powers have been delegated to the Regional Director

Mumbai, Calcutta, Chennai, Noida, Ahmadabad, Hyderabad and

Shillong.

Admittedly, the Appellant has not moved before the Competent

Authority! Central Government. The Tribunal has no jurisdiction to

entertain the application under sub-section (5) of Section 94 of the

Companies Act, 2013. For the reasons, if the Tribunal refused to

entertain the petition we are not inclined to interfere with the impugned

order dated 24th March, 2017.

However, order passed by the Tribunal will not come in the way of

Appellant to move before appropriate authority under sub-section (5) of

Section 94 of the Act, 2013.

The appeal is dismissed but in the facts and circumstances, there

shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Mr. Balvinder Singh) Member(Technical) Ar