T.O. Abraham vs St. Mary’S Pvt. Ltd. & Ors

St. Mary's Pvt. Ltd. & Ors. ...Respondents

Present:

For Appellant : Mr. Bhuvan Mishra, Mr. Jogy Scaria and Mr. Leegan S. Ban, Advocates

ORDER

15.05.2018 Respondents filed an application under Sections 59, 241 and

242 of the Companies Act, 2013 registered as CP/9/2016 and pending before

the National Company Law Tribunal, Chennai (hereinafter referred to as the

'Tribunal'). In the said petition an application being CA/57/2017 was filed under

Section 130 of the Companies Act, 2013 for convening the AGM. It was alleged

that the earlier accounts have not been prepared properly nor audited physically

and there are instances of mis-management during the relevant period which

causing doubt on the reliability of the financial statements till 2008.

2. Learned Tribunal keeping into consideration of Section 130 of the

Companies Act, 2013 and the statements made by the parties observed that

there is nothing on record to suggest that the accounts of the company were

prepared, audited physically and adopted. In that view of the matter, the impugned order dated 6th March, 2018 was passed with the following

observations :

"9. In totality of the circumstances, as have been

brought to the notice of this Tribunal, there requires

an Order for re-opening of the books of accounts for

the purpose of re-casting the financial statements

through validly appointed Auditors in respect of the

1st Applicant Company. However, before passing

any Order, it is incumbent upon this Tribunal to

issue notice to the RD, RoC, Income-Tax authority

and to other regulators. Therefore, the Registry is

directed to issue notice to the RD, RoC, Income-Tax

Authority including the concerned "Assessing

Officer", and other regulators to whom the notice is

required to be issued, with a direction to the

Authorities concerned to make representation, if

any, within 30 days from the date of receipt of this

Order, failing which, it shall be presumed that they

have no objection for re-opening of the accounts of

the 1st Applicant Company for the period as

mentioned above.

10. The Applicants/Respondents are also directed to

issue private notice to the said Authorities

2 concerned along with the copies of CA/57/2017

and Memo date 14.09.2017 filed in CP/9/2016,

and file the proof of service of notice along with an

Affidavit in the Registry before the next date of

hearing."

3. Learned counsel appearing on behalf of the appellant submitted that the

observations made by the Tribunal casting doubt on the reliability of the

financial statements of the appellant who was the Director and in-charge of the

company. According to him, it is for the AGM which may decide the question of

the reliability of the financial statements and the Tribunal ought not have given

any finding on mere presumption.

4. Having heard the learned counsel for the appellant and on perusal of the

record, we find that the main petition relates to allegation of 'oppression and

mismanagement' and is pending consideration before the Tribunal, which had

fixed 20th April, 2018 as the next date of hearing. It is not known and as to what

order was passed on 20th April, 2018 and whether in the meantime the AGM has

taken place or not. However, on perusal of impugned order, it is clear that the

Tribunal for coming to the conclusion whether a direction should be issued

under Section 130 of the Companies Act, 2013 or not noticed the submission

made by the parties and may passing observations, which cannot be treated to

be a finding of the Tribunal. For the said reason, we are not inclined to interfere

with the impugned order as the AGM is required to decide the matter

3 uninfluenced by the impugned order dated 6th March, 2018 passed by the

Tribunal.

5. The appeal stands disposed of with the aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc

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