Ravi Kizhedath vs Hearts Malabar Clinical Solutions ...

Vandana Prabhakaran, Resident of Aryankalam House Annara, Tirur PO, Malappuram - 676101, Kerala. ... Appellants V Hearts Malabar Clinical Solutions Private Limited CIN: U51397KL2013PTC033998 Pilathara, Near Mathrubhumi Office PО, Randathani, Kottakkal, Malappuram - 676 510, Kerala, India.

Cheriya Kachery Byju 28/155 Ragam Thondayad Chevarambalam Post, Chevayur PO, Kozhikode -673 017. Kerala, India.

Karuvante Kelappan Valappil Cheriya Kacheri Ambadi, B.G. Road, Westhill PO, Kozhikode-673005, Kerala, India.

Uttam Kumar UK & Co, Practising Company Secretary Kalpaka Bazar, Town Hall Road, Palayam Kozhikode - 673 001, Kerala, India.

A P Vinod Kumar SVM Associates, Chartered Accountants, C-14,15, 3rd floor, Mananchira Towers, Opp. Hotel Nalanda, A.G. Road, Kozhikode - 673 001, Kerala, India. ...Respondents

Comp App (AT) (CH) No.21/2021 Page 1 of 12 Present : For Appellants : Mr. Bijoy P Pulipra, Advocate For Respondents : Dr. K.S. Ravichandran, PCS for R1-R3 Mr. Sankar P Panicker, Advocate for R4, R5 JUDGMENT

(Hybrid Mode)

20.11.2025:

Oral Judgment: Justice Sharad Kumar Sharma, Member (Judicial) The Appellants in the instant Company Appeal, happens to be the

petitioner's to the proceedings of the Company Petition No.4/KOB/2020,

preferred having invoked the provisions contained under Sections 241 & 242 of

the Companies Act, 2013, for the purposes of setting aside the allotment of shares,

which is alleged to have been made in violation of the provisions contained under

Section 62 (1) (a), Section 62 (1) (c) and Section 62 (2) of the Companies Act.

There had been various other ancillary reliefs, which had been sought for by the

Petitioners/Appellants in the Company Petition.

2. One of the prime grounds, which has been taken by the Appellant, while

contesting the proceedings, was that the contents of most of the documents, which

turned the basis of the impugned order were fraudulent documents. These

documents were required to be tested in accordance with the law of evidence, and

the prime contention qua those documents, which had been taken into

consideration or relied by the respective party to the proceedings, were

considered by the Learned Tribunal, while recording its finding in para 11 of the

impugned judgment in relation to the pleading raised by the Petitioner/Appellant

herein. The proceedings were contested to the hilt by the Respondent by filing an

Comp App (AT) (CH) No.21/2021 Page 2 of 12 objection, when at the stage of the proceeding of the Company Petition itself, the

Petitioner/Appellant had preferred an IA, being IA No.96/KOB/2020. By virtue

of the said Interlocutory Application, which was preferred by the Appellant, in

fact, the Appellant has prayed for the following reliefs: -

"In view of the above, it is most humbly prayed that this Hon'ble Tribunal be pleased to order the production of the originals of the following documents before the Hon'ble Tribunal to verify the genuineness of the documents produced along with Counter Affidavit and, if found not satisfactory, refer the said documents to the Central Forensic Science Laboratory, Hyderabad or any other accredited Forensic Laboratory, as may deem fit, for detailed examination and to conduct signature analysis, carbon dating and document age analysis."

3. The Application in itself, sought-verification of genuineness and validity

of the documents, which were produced and relied by the Respondents along with

the Counter Affidavit, filed by them in the proceedings before the Learned

Tribunal. The Appellant had specifically prayed that these documents were

required to be placed before the Central Forensic Science Laboratory, Hyderabad

(CFSL) for the genuineness of the same being tested so that the signatures

appearing on it may be scientifically analysed. The relief has sought for in the

IA, has been extracted above.

4. The matter proceeded on merits, and ultimately, the Company Petition

was dismissed by the impugned order dated 25.02.2021, which is presently the

subject matter of challenge, at the behest of the Petitioner/Appellant by invoking

the Appellate provision contained under Section 421 of the Companies Act, 2013.

Comp App (AT) (CH) No.21/2021 Page 3 of 12 The basis governing provision which aim at regulating the proceedings under the

Companies Act are those as contained under Section 424 of the Companies Act,

2013, which prescribes that there has to be strict adherence to the Principles of

Natural Justice, in order to ensure that any party to the proceedings before the

Tribunals are provided with an effective hearing in order to enable the party to

establish his case or to denounce the case of the other side and there should not

be any deprivation at the hands of the Tribunal or the adjudicating body at any

stage of proceeding leading to rendering a person or a party to the proceedings to

be deprived of his opportunity of being heard; In the instant case it involved

authenticity of document, under question raised by the Respondents in the

Counter Affidavit thus preferred before the Learned Tribunal. Learned Counsel

for the Appellant, contend and before the Tribunal that those documents cannot

be relied with for deciding the Company Petition since these had been obtained

by playing fraud.

5. In order to attain the legislative objective as contained under Section 424

of the Companies Act, 2013, where the basic framework aims for the adherence

of the Principle of Natural Justice and for the aforesaid purpose, the provisions

contained under CPC, in principle are to be made applicable. Acting under the

provisions contained under the Companies Act. The Government while

exercising its powers under Section 469 of the Companies Act, had framed the

rules called as the NCLAT Rules of 2016. The Rule 43 of NCLAT Rules confers

an exclusive power with the bench or the Tribunal to call for further information

Comp App (AT) (CH) No.21/2021 Page 4 of 12 or evidence, which may be necessary for the purposes of an effective adjudication

of the case or which could facilitate the Tribunal to exercise its jurisdiction

effectively in order to enable the parties to the proceedings to produce further

documents or to lead their evidence. Rule 43 of the NCLT Rules reads as under:

-

"43. Power of the Bench to call for further information or evidence. -

(1) The Bench may, before passing orders on the petition or application, require the parties or any one or more of them, to produce such further documentary or other evidence as it may consider necessary:-

(a) for the purpose of satisfying itself as to the truth of the allegations made in the petition or application; or

(b) for ascertaining any information which, in the opinion of the Bench, is necessary for the purpose of enabling it to pass orders in the petition or application.

(2) Without prejudice to sub-rule (1), the Bench may, for the purpose of inquiry or investigation, as the case may be, admit such documentary and other mode of recordings in electronic form including e-mails, books of accounts, book or paper, written communications, statements, contracts, electronic certificates and such other similar mode of transactions as may legally be permitted to take into account of those as admissible as evidence under the relevant laws.

(3) Where any party preferring or contesting a petition of oppression and mismanagement raises the issue of forgery or fabrication of any statutory records, then it shall be at liberty to move an appropriate application for forensic examination and the Bench

Comp App (AT) (CH) No.21/2021 Page 5 of 12 hearing the matter may, for reasons to be recorded, either allow the application and send the disputed records for opinion of Central Forensic Science Laboratory at the cost of the party alleging fabrication of records, or dismiss such application."

6. The petitioner faced with the stand taken by the Respondent in the

counter affidavit and documents filed in support thereto, before the Learned

NCLT had filed the IA No.96/KOB/2020. At this stage of the proceedings of the

Company Appeal it is a solitary argument, which has been pressed by the Learned

Counsel for the Appellant, that in fact there had been no adjudication of the

Application i.e., IA No.96/KOB/2020 on the merits, which goes to the very

foundation of the stand taken by the Respondent in their counter in the

proceedings before the Learned Tribunal and that itself would exclusively vitiate

the proceedings. He submits that in the application thus preferred by him before

the Learned Tribunal, where he wanted to get a forensic audit conducted in

relation to about 107 documents, which were appended and enlisted with the

application, those document, which were referred in the Counter Affidavit filed

by the Respondent and which were the foundation of the pleadings raised by the

Respondent in the proceedings before the Learned NCLT. The said interlocutory

application remained pending, and while conducting a proceeding at the final

stage, the Learned Tribunal, while recording its finding in para 34, has only made

a passing observation that, the IA No.96/KOB/2020 was filed in this Company

Petition for ordering production of the original documents, while considering the

provisions contained under Rule 43 of NCLT Rules, the Learned Tribunal had

failed to observe and consider that the actual relief, which was prayed for by the

Comp App (AT) (CH) No.21/2021 Page 6 of 12 Applicant/Petitioner, in the said application apart from production of the

additional documents, which falls to be within the ambit of Rule 43 of the NCLT

Rules. Simultaneously the Appellant had prayed for that aforesaid documents

mentioned in the application after being summoned may be sent for its Central

Forensic Audit in order to test its genuineness, based upon which the Respondent

had based its case to deny the relief prayed for by the Appellant/Petitioner in the

proceedings of the Company Petition before the Learned NCLT. It was argued

by Respondents that the observation which has been made in para 34 & 35 of the

impugned order, that in fact the Learned Tribunal did place reliance upon the

application and has perhaps adverted to it, and that itself will amount that there

has been positive consideration and decision taken by the Learned Tribunal on

IA No.96/KOB/2020. He further submits that in the light of the observations,

which have been made in the body of the judgment recording the adjudication of

the matter on merits, if it is considered in its entirety, that itself will lead to a

presumption that the documents relied in the Counter Affidavit, were tested on

the anvil of its truthfulness by the Learned Tribunal, while arriving at its

conclusion, for the purposes of taking it as to be the basis for dismissal of the

Company Petition.

7. After having heard the Learned Counsel for the parties and particularly

in the context of the limited argument that has been extended by the Learned

Counsel for the Appellant, that it is absolutely a perverse finding, which has been

recorded by the Learned Tribunal in para 48 of the judgment, where it rather

Comp App (AT) (CH) No.21/2021 Page 7 of 12 records that there was no justification for summoning the documents, which was

sought for to be produced and examined in the application preferred i.e., IA

No.96/KOB/2020 for the reason being that the finding recorded was contrary to

the application, documents and relief, as it records to the contrary that the

petitioner in fact has not prayed for sending those documents for its forensic

investigation. The relevant observation made in para 48 is extracted

hereunder: -

"48. The present petition has been filed on behalf of the Petitioners under section 241 & 242 of the Companies Act 2013 read with Rule 81 of the National Company Law Tribunal rules, 2016, the Petitioners as an immediate triggering cause of action has impugned the issuance of Right issue of 11420200 shares from the year 2017 which according to the petitioner was done as per the provisions of law and during the course of proceedings the same were not subscribed by the petitioners. According to the Petitioners, the cause of action for the institution of the present petition had commenced in the year 2015 when the alleged right issue was brought in by Respondent Nos. 2 & 3 which is alleged act of oppression and mismanagement carried out by the Respondents. Apart from the present right issue which is the immediate triggering issue of the Respondents, the Respondents have averred and narrated other incidents of conversion of 'Professional Fee' to the 'Unsecured loan' and also the shifting of Registered Office of the Company. The effect of the increase in the share capital or allotment of the same to any person has an automatic effect, i.e., it results in the alteration of the register of members. Any dispute in respect of rectification of the register of members under Section 59 can be raised by any person aggrieved to the Board. But in the present case, the petitioners have not proved the mismanagement in issuance of share, therefore,

Comp App (AT) (CH) No.21/2021 Page 8 of 12 rectification of share cannot be ordered. It is also not the case of the Petitioners that the Board Meetings pertaining to the Right issue shall be declared a null and void by the Tribunal nor the Petitioners have sought cancellation of the resolutions passed in the said Board Meetings. The petitioners aver that all the copies produced by the Respondents in relation to the Notices, attendance and Minutes of Board Meetings and Annual General Meetings are forged. But in such a case also, the petitioners have not prayed for any forensic investigation of signatures. In absence of any prayers being sought by the petitioners no such relief can be granted by this Tribunal. Therefore, the copies attached with the counter shall be presumed as true, be4cause the Petitioners themselves attended the Board Meeting where the 'Professional Fee' payable to Directors are transferred to 'Loan' & has obtained the Boards Report and Auditor's Report of each Annual General Meetings".

8. In fact, this observations, that has been made by the Learned Tribunal in

para 48 of the impugned judgment, runs contrary to the document itself and the

pleading of the Applicant/Appellant in his application IA/96/KOB/2020, where

there has been a specific prayer made by the Appellant, which falls within the

light of the provisions contained under Rule 43 of the NCLT Rules. Besides the

prayer for summoning the documents the Appellant has also prayed for that the

same may be sent to the Central Forensic Science Laboratory for being tested.

The Learned Tribunal on the contrary has recorded that, in the absence of there

being any specific plea or prayer raised by the Appellant for sending those

documents for a scientific forensic investigation. The Learned Tribunal has

declined to accept the contention raised by the Learned Counsel for the Appellant

Comp App (AT) (CH) No.21/2021 Page 9 of 12 qua the objection raised to the counter filed by the Respondent in the proceeding

before the Learned NCLT.

9. The Learned Counsel for the Appellant has submitted that the judgment

under challenge in the instant Company Appeal, is perverse and is being rendered

because of the non-application of judicious mind because of the fact that the IA

No.96/KOB/2020, has not been adjudicated on merits, and no findings have been

specifically recorded by the Learned Tribunal, on the said application its contents

and prayer, which is being argued to the converse by the Learned Counsel for the

Respondent in the light of extracting certain stay findings, which has been

recorded by the Learned Tribunal, with regard to it, to be read as to be in relation

to the merit appreciation of the documents filed by the Appellants along with a

IA No.96/KOB/2020. At this stage, in the absence of there being any specific

finding we are not in a position to appreciate the argument extended by the

Learned Counsel for the Respondent that, the consideration of the document

submitted by him, along with a Counter Affidavit, which has been considered by

the Learned Tribunal and taken as to be the basis while passing the impugned

order, will itself amount to be consideration on merit, qua the pleading raised by

the Appellant/Petitioner pertaining to the propriety of those documents, which he

has specifically pleaded in the proceedings, that those documents as relied by the

Respondent in opposition to the relief sought by the Appellant in the Company

Petition were fraudulently procured document, and all these documents required

to be tested by the Forensic Audit.

Comp App (AT) (CH) No.21/2021 Page 10 of 12

10. Those findings, which have been recorded by the Learned Tribunal,

does not justify the test provided by Section 424 of the Companies Act, 2013, to

be read with Rule 43 of the NCLT Rules, for the reason being that when any party

to the proceedings moves a particular application so as to justify or to oppose the

stand taken by the other party to the proceedings, it becomes mandatory rather a

judicial duty on part of the Learned Tribunal to be discharged, to have either

considered or rejected the contention raised by the Appellant in its

IA/96/KOB/2020. By making a passing observation and which has been referred

to by the Learned Counsel for the Respondent, particularly while drawing the

attention of this Tribunal to para 44 & 45 of the Judgment, that in itself will not

amount to be an adjudication of application on merits. Closing the said

application while concluding the Company Petition, itself will not amount to be

an adjudication of IA/96/KOB/2020, which are alleged to be fraudulent document

to denounce the relief sought for by the Petitioner/Appellant in the Company

Petition.

11. The test of the relief sought by the Petitioner in the Company Petition,

when it is being opposed by the Respondent by filing a Counter Affidavit, which

is foundationed upon the documents in support of his contention and when

genuineness of the documents is doubted, it becomes all the more the

responsibility of the Tribunal that it should have considered the application,

where the Appellant has specifically prayed for summoning of those documents

and sending it for test before the Forensic Laboratory.

Comp App (AT) (CH) No.21/2021 Page 11 of 12

12. Having not considered the same, having not passed the specific order

in the said application nor recording any finding on it, and just recording the

perverse finding to the effect that there was no prayer made for getting the

documents tested through the Forensic Laboratory, itself is a perverse finding

contrary to records that itself would vitiate a judgment, particularly when it runs

contrary to the records itself and when it runs contrary to the very basic spirit of

an effective and complete adjudication as contemplated under Section 424 of the

Companies Act, 2013, which is to be read in consonance to the provisions

contained under Rule 43 of the NCLT Rules. On this short premise itself, without

entering into the merits of the matter, the impugned order is quashed, and the

matter is remitted back to the Learned NCLT, Kochi Bench, with a request to the

Learned Tribunal to redecide the Company Petition, and it is hoped and trusted

that before taking the final call on the Company Petition, based on the material

already placed on record, the Learned Tribunal is expected to make an

adjudication on merits of the IA/96/KOB/2020 and then to proceed to decide the

Company Petition on its merits. Subject to the aforesaid, the Comp App (AT)

(CH) No.21/2021 would stand allowed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Indevar Pandey] Member (Technical) VG/MS/AK

Comp App (AT) (CH) No.21/2021 Page 12 of 12