Sunil Tolaram Kukreja & Ors vs Saiom Developers Private Limited & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT) NO.246 OF 2023 (Arising out of order dated 12th September, 2023 passed by the National Company Law Tribunal, Mumbai in CP(MB) No.131 of 2023) In the matter of: 1. Sunil Tolaram Kukreja, 5A, Ashish Bungalow, Smt. Nargis Dutt Road, Pali Hill, Bandra (W) Mumbai 400050

2. Yashraj Sunil Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W) Mumbai 400050

3. Maza Developers Pvt Ltd Laalasis, Plot No.219, 11th Road, Chembur, Mumbai 400071 .....Appellants

Versus

1. Saiom Developers Private Limited, CIN: 67120MH1984PTC033750 A Company incorporated under the Provisions Of the Companies Act, 1956 and having its registered office at laalasis, Plot No. 219, 11th Road, Chembur, Mumbai-400071.

2. Mohan Tolaram Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai 400050.

3. Victory Flask Company Private Limited 2

CIN: U25207MH1960PTC011724, A company incorporated under the provisions of the Companies Act, 1956 and having its Registered office at Laalasis, Plot No. 219, 11th Road, Chembur, Mumbai-400071. 4. The Federal Bank Limited Chembur Branch, Ed EI Building, Plot 208, Central Avenue Road, Chembur East, Mumbai-400071.

5. Punjab National Bank Limited Large Corporate Branch, Cuffe Parade, Maker Tower, F Wing, 14th Floor, Cuffe Parade, Mumbai-400005.

......Respondents

For Appellant: Mr. Arun Kathpalia, Sr. Advocate with Ms. Misha, Mr. Siddhant Kant, Mr. Lallan Gupta, Ms. Atika Vaiz, Ms. Anu Mehta, Ms. Kirti Gupta, Ms. Madri Chandak, Ms. Diksha, Advocates. For Respondent: Mr. Amar Dave, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Ankur Saigal, Mr. Gaurav Shrawat, Mr. Kaustubh Singh, Mr. Shivam Shukla, Ms. Geetika Sharma, Advocates. Mr. Arun Kumar Shukla, Mr. Mrinal Kishore Jha, Mr. Naman Shukla, Advocates for R-4. WITH COMPANY APPEAL (AT) NO.247 OF 2023 (Arising out of order dated 12th September, 2023 passed by the National Company Law Tribunal, Mumbai in CP(MB) No.127 of 2023) In the matter of: 1. Sunil Tolaram Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W) Mumbai 400050

2. Yashraj Sunil Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W) Mumbai 400050

Company Appeal (AT) Nos. 246 and 247 of 2023 3

3. Maza Developers Pvt. Ltd. Laalasis, Plot No.219, 11th Road, Chembur, Mumbai 400071 .......Appellants

Versus

1. Sonu Realtor Pvt Ltd, Laalasis, Plot No.219, 11th Road, Chembur, Mumbai 400071.

2. Mohan Tolaram Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai 400050.

3. Tanu Mohan Kukreja, 5A, Ashish Bungalow, Smt Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai 400050.

4. Neha Ramchand 901/902 Sankalpita, 16th Road, Bandra (W) Mumbai 400050

5. Timestar Developers Pvt Ltd, Laalasis, Plot No.219, 11th Road, Chembur, Mumbai 400071

6. Union Bank of India Ltd, Mumbai Samachar Marg Branch Ground Floor, Union Bank Building 66/80 MS Marg, Mumbai 400023

7. The Federal Bank Ltd, Chembur Branch, ED E1 Building Plot 208 Central Avenue Road Chembur East, Mumbai 400071 ......Respondents

Company Appeal (AT) Nos. 246 and 247 of 2023 4

For Appellant: Mr. Arun Kathpalia, Sr. Advocate with Ms. Misha, Mr. Siddhant Kant, Mr. Lallan Gupta, Ms. Atika Vaiz, Ms. Anu Mehta, Ms. Kirti Gupta, Ms. Madri Chandak, Ms. Diksha, Advocates. For Respondent: Mr. Amar Dave, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Ankur Saigal, Mr. Gaurav Shrawat, Mr. Kaustubh Singh, Mr. Shivam Shukla, Ms. Geetika Sharma, Advocates. Mr. Arun Kumar Shukla, Mr. Mrinal Kishore Jha, Mr. Naman Shukla, Advocates for R-4. JUDGMENT

(Hybrid Mode)

Company Appeal (AT) No. 246 of 2023 has been filed by Sunil Tolaram

Kukreja and Ors., wherein Respondent No. 1 is Saiom Developers Private

Limited, assailing the order dated 12.09.2023 passed by the Ld. National

Company Law Tribunal, Mumbai bench in CP(MB) No. 131 of 2023 wherein

the Ld. NCLT had appointed KPRM & Co. as an independent auditor for

conducting forensic audit of Saiom Developers Private Limited and its

associate entities.

2. It was urged that the Ld. NCLT has erred in traveling beyond the scope

of the company petition, failing to outline the scope of the forensic audit and

ordering forensic audit of the associate entities of Respondent No. 1, which

are not part of the company petition and has erred in not making out

primafacie case for ordering forensic audit against the Appellants or the

associate entities of the Respondent No. 1.

3. Company Appeal (AT) No. 246 of 2023 has been filed by Sunil Tolaram

Kukreja and Ors., wherein Sonu Realtor Private Limited is Respondent No. 1,

Company Appeal (AT) Nos. 246 and 247 of 2023 5

against the order dated 12.09.2023 passed by Ld. NCLT, Mumbai Bench in

CP(MB) No. 127 of 2023 wherein similar objections as above (in para2) have

been raised by the Appellants against the impugned order dated 12.09.2023.

4. During the course of hearing it was submitted by the Learned Counsels

for the Appellants and Respondents that these appeals relate to family dispute

between brothers and they will be satisfied if statutory audit of the two

companies, namely, M/s Sonu Realtor Private Limited and M/s Saiom

Developers Private Limited, is done by an independent auditor. The Learned

Counsels for the Appellants and Respondents exchanged the names of some

Chartered Accountants for the purpose of audit but could not agree to name

of any statutory auditor, and later through IA No. 6882 of 2024 and 6883 of

2024 have requested this Tribunal to appoint an independent statutory

auditor.

5. I.A. No. 6883 of 2024 in Company Appeal (AT) No. 246 of 2023 has been

filed by the Applicant (Mohan Tolaram Kukreja, Respondent No. 2 in the

Appeal) stating therein that Mr. Rakesh R. Agarwal & Associates was

appointed as Auditor who acted in highly unilateral and arbitrary manner and

an independent statutory auditor be appointed by this Tribunal to complete

the statutory audit for the pending years of the Respondent No. 1 company

M/s Saiom Developers Pvt. Ltd.

6. I.A. No. 6882 of 2024 in Company Appeal (AT) No. 247 of 2023 has been

filed by the Applicant (Mohan Tolaram Kukreja, Respondent No. 2 in the

Appeal) stating therein that accounts of the Respondent No. 1 company M/s

Company Appeal (AT) Nos. 246 and 247 of 2023 6

Sonu Realtor Pvt. Ltd. have not been audited/finalized for Financial Year

2021-22, 2022-23 and 2023-24 which is in contravention of Section 129 and

143 of the Companies Act. It was prayed to appoint an independent statutory

auditor to complete the statutory audit for the pending years.

7. The Learned Counsel for the Appellants had submitted copy of order

No. Mum/Pr.CCIT/Co-ord/U-II/Empanelment/2022-23 dated 20.03.2023 of

Pr. Chief Commissioner of Income-Tax, Mumbai giving the list of 82 Chartered

Accountants empanelled by the Income Tax department for conducting

special audit under the provisions of Income Tax Act, 1961. Utilising this list

of empanelled Chartered Accountants, we nominate the following Chartered

Accountant Firm for statutory audit of M/s Sonu Realtor Private Limited for

Financial Year 2021-22, 2022-23 and 2023-24.

Name of the PAN Address Contact No. Applicant M.A. Shah & AABFM0309D 101 B & C Joly 22624733/35 CO.(CA Bhawan-2, Opp. Nirmala Niketan College New Marine Lines Mimbai-400020

8. Utilizing the said list, we nominate the following Chartered Accountant

Firm for statutory audit of M/s Saiom Developers Private Limited for Financial

Year 2022-23 and 2023-24.

Name of the PAN Address Contact No. Applicant Talati and Talati AAAFT4520A Unit No. 625, 6th 9824059005 LLP Floor, the Summit

Company Appeal (AT) Nos. 246 and 247 of 2023 7

Business Bay, Near Weh Metro Station, Off Andheri-Kurla Road, Mumbai- 400057

9. The Appellants and the Respondents shall cooperate with the auditor(s)

and ensure that statutory audit is completed within three months from the

date of this order. The companies M/s Sonu Realtor Private Limited and M/s

Saiom Developers Private Limited shall bear the respective costs of the

statutory audit and other expenses related to it.

10. With the above directions both the I.A. No. 6882 of 2024 and 6883 of

2024 are allowed. The rights and contentions of the Appellants and

Respondents are to be kept open in the proceedings under Section 241 and

242 of the Companies Act, 2013 pending before the Ld. NCLT, Mumbai. The

impugned orders qua forensic audit are thus set aside. Both the appeals viz.

Company Appeal (AT) No. 246 of 2023 and Company Appeal (AT) No. 247 of

2023 along with I.A. Nos. 6883 and 6882 of 2024, are disposed of. All pending

applications are also disposed of.

[Justice Yogesh Khanna] Member (Judicial)

[Mr. Ajai Das Mehrotra] Member (Technical)

R.N./Manu Date: 06.02.2025.

Company Appeal (AT) Nos. 246 and 247 of 2023