Vashisht Kumar Goyal vs M/S Rishi Infratech Pvt Ltd. & Ors

(Arising out of Order dated 10th February 2017 passed by NCLT, Principal Bench in C.A. (SB) NO.25/2016 of C.P. No. 36(ND)/2016)

Vashisht Kumar Goyal Appellant

Vs.

M/s Rishi Infratech Pvt Ltd. & Ors. Respondent Present: Mr. Sangram Patnaik, Advocate with Mr. Dlirubajit Saikia, Swayamsidha Patnaik, Advocates for the appellant. Mr. Ashish Aggarwal with Mr. Gurkamal Hora 4rora, Advocates for Respondents No.1 and 2. Mr. Amit Kumar, Advocate for Respondent No.3 to 6. JUDGEMENT

BALVINDER SINGH, MEMBER (TECHNICAL)

1. This appeal has been preferred by the Appellant against the order

dated 10th February, 2017 by National Company Law Tribunal,

Principal Bench (hereinafter referred as 'Tribunal') in Company

Application No.25/20 16 in Company Petition No. 36(ND)/2016 filed

on 25.2.20 16 whereby and whereunder the amendment application

filed by the Respondent/ Petitioner 1 & 2 has been allowed and S

allowing the Respondent/ Petitioner to implead one Mr. Amit Kumar

as Party Respondent No. 6 to the said Company Petition, with

following observations.

2

This is an application filed under Order VI Rule 17 with a prayer for incorporating various amendments. Some amendments have been indicated in para 21. It has been prayed that new paras 20A to 20K be permitted to be incorporated in the petition along with the prayer. There is further prayer for adding para G & H to para 21 of the petition giving further illustrations of facts concerning oppression and mismanagement.

Still further the petitioner has prayed for amendment by adding para E to para 21. Then a consequential'prayer has also been sought by seeking to amend the relief clause as per the prayer made in para 24. It has further been represented that Mr. Amit Kumar is also required to be impleaded as party respondent No. 6 as he is necessary party for proper and just adjudication of facts, along with a request for correction of the address of respondent4.

Notice of the application was issued and copy was served on the non-applicant respondents. The pleadings are complete.

Having heard the learned counsel for the parties and keeping in view the fact that the facts and events which are sought to be incorporated in the CP by way of amendment have occurred after filing of the petition. Therefore, such subsequent events are necessary to be brought on record. Accordingly, we allow the application subject to all just exceptions including the issue of delay and laches. The amended petition is already on record. a

Notice of the amended petition be issued to all the respondents. The petitioner shall supply a copy of the amended petition to all the respondents including to the newly added one. Learned counsel for the respondent 4 Mr. Kalia accepts notice.

Reply to the amended petition be filed within four weeks with a copy on advance to the counsel opposite. Rejoinder, if any, be filed within two weeks thereafter with a copy in advance to the petitioner's counsel.

List for further consideration on 10.04.2017."

2. The Company Petition 36(ND)/2016 has been filed by

Respondent/ Petitioner under Sections 397, 398, 399 read with Sections 235, 237(b), 402 & 403 of the Companies Act, 1956.

During the pendency of Petition in view of further developments

amendment of petition was sought for, on the ground of detailed

below:

a. Petitioner/ Respondent No.1 i.e. Rishi Infratech Private

Limited alleged that it purchased 22,80,000 equity shares

of the Respondent No. 1 Company of the Petition i.e.

Mahamaya Exports Pvt. Ltd (Respondent No. 3 in the

present Appeal) as on 07.11.2014 and 11,40,000 equity

shares of Mahamaya Exports Pvt Ltd were transferred

from Respondent No. 5 of the Petition i.e. Atul Bansal

(HUF) to the Petitioner as on 27.08.2015. Thus

Petitioner/ Respondent No. 1 Company pleaded to become

owner of 34,20,000 equity shares representing 30% of

equity share capital of the Mahamaya Exports Pvt. Ltd.

b. Petitioner No2/Respondent No. 2 was appointed as

additional and nominee director of Petitioner! Respondent

No.1 company in Mahamaya Exports Pvt. Ltd.

c. Further Petitioner Co. Rishi Infratech Pvt Ltd. Asserted in the

petition that it did not receive any notice of AGM for the S

Financial year 2014-2015 and requested the Respondent

company and its directors vide its letter dated 16.12.2015 to

permit the Petitioner and its professionals for inspection of

statutory books, records including register of members,

minutes book, financial books and accounts and register of 4

charges etc of the company. But no intimation was given by

the Respondents either for holding of the AGM or for granting

permission to the Petitioner to inspect the statutory and other

financial records. That on visit on 22.12.2015 to the

registered office by the authorised representative of the

Petitioner Company no records were found there. Further

adducing that the Respondent Company objected to the

refusal of the inspection of the records and that no registered

office of the company was being run on the alleged address.

Its pleaded that it was revealed to Petitioner from the MCA

portal that w.e.f. 01.02.20 15 the Respondent has changed its

place of keeping the statutory books and registers from

Registered Office to Corporate Office at 2nd floor, ABW tower,

IFFCO Chowk, Gurgaon,m 122002 as per resolution dated

31.01.2015 to which no notice was ever sent to the I

Petitioners. It was further revealed to the petitioner that

several fictitious entries have been made by the respondents

so as to misappropriate the amount from the respondent no.

1 company.

3. (a) That the erstwhile Company Law Board, New Delhi vide its

order dated 03.03.2016 in the aforesaid Petition had directed the

respondents to provide certified copies of the following list of

documents to the petitioner, which are as follows: 5

(I) Financial statements of the company for the Financial Year 2014-2015.

(ii) Provisional Financial Statements of the 'company for the period 01.04.2015 to 31.12.2015 along with trial balance and inventory of stock in hand as at 31.12.2015.

(iii) Details regarding all loans taken in the name of the company.

(iv) Copy of Register of Charges. (v) Copy of Register of contracts. (vi) A list of all freehold land and buildings held

by the company with short description along with copies of relevant title deeds, sale/ conveyance deeds. Also provide confirmation that the freehold and leasehold properties disclosed above represent all the properties owned and/or occupied by the company.

(vii) Full bank account statements of all Bank accounts, profit and loss statements and all other accounts of the respondent No.1 company from the date of incorporation till date.

b; It is further adduced that in furtherance of the above

order passed by the Board, the bench officer was

direted to get hold of the documents mentioned in

order dated 303.20 16 and deposit the same with the

Company Law Board. The Respondents therein

deposited following documents to Bench Officer as on

23.05.2016 as it is pleaded in amendment application:

i. Register of Contracts under Section 189(1) of the

Companies Act, 2013;

ii. 10 Sale Deeds in favour of the respondent No. 1

Company

c. The Petitioners/ Respondents No.1 and 2 alleged that

the agreements entered into between the Respondent

No. 1 Company and Mr. Amit Kumar (Brother of

Vashisht Goyal) as shown in the Register of Contract

submitted by the Respondent and which were approved

in the meeting held on 21.12.2015 for which no notice

was received by the Petitioners. Thus on the basis of

the documents submitted in furtherance of interim

order of the Company Law Board, the Petitioners moved

the impugned application for amendment of the

Company Petition by adding some paragraphs and for

relief, such as cancellation of the agreements approved

in meeting held on 21.12.2015 and impleadment of Mr.

Amit Kumar as party respondent No 6 in the petition

which was allowed vide impugned order supra dated

lOth February, 2017.

4. Learned Counsel on behalf of the Appellant has moved the

argument that as relevant provisions of the Companies Act, 1956

i.e. Section 397/398 read with Company Law Board Regulations,

1991 (CLB Regulation for short) were discontinued so application for amendment under Regulation 44 of the CLB

Regulations was not maintainable and the judgement dated

10.02.2017 under Regulation 44 of CLB Regulations is without

jurisdiction on that day, void in law. The Counsel has further

submitted that the amendment is filed on a completely different,

distinct and separate cause of action, particularly when the

Respondents 1 & 2 asking for termination of the agreements

placing the allegations in amendment application which were not

at all found or referred in the original petition, in any case same

is time barred and beyond limitation. Further for the first time

fraud and forgery has been alleged in the amendment application

which was not mentioned in original petition. Thus, if the

amendment is allowed which is based on new cause of action

and changed the nature of petition will affect the rights of

appellant adversely. Further, Learned counsel for the appellants

submitted that when the CLB Regulations and the NCLT Rules

has specific towers under the Regulation or Rules as the case

may be the inherent power of the Tribunal could not have been

invoked. Further, the, appellant has alleged that the original

petition filed itself is not maintainable then how the amendment

in the said petition could be maintainable.

5. This Appellate Tribunal in the matter of Company Appeal (AT)

No. 25/2017 (IVRC Ltd Vs M/S TOT Utkal Energy Services Ltd

& Others) has dealt with the similar question and has passed the

order, the relevant portion is produced as below: 8

"5. In tliis regard we may observe that if the facts relate to

the period prior the filing of the company petition, and the

appellant had no knowledge of the same and came to know

afterfihing of the company petition then the Tribunal should

allow the appellant to bring such facts to the notice of the

Tribunal.

6.on the other hand, if the act of 'oppression and

mismanagement' relates to earlier period, including both the

meeting dated 31st December, 2012, and the appellant had

knowledge of the same directly or through its S

representative, the same cannot be allowed to be pleaded.

Similarly, if during the pendency of the company petition

7.

further acts of 'oppression and mismanagement' taken

place and is connected with the allegations already made,

such as consequential action taken by Respondent, the

Tribunal should allow the appellant to bring development to

the notice of the Tribunal.

8.on the other hand, if the subsequent acts of 'oppression

and mismanagement' is afresh cause of action, such plea

cannot be raised in the pending company petition, though it

is always open to the aggrieved party to move before the

NCLT under Section 241 and 242 of the Companies Act,

2013 by filing a separate petition.

9.********

10. The Tribunal in its turn will take into account the

additional facts, if it is in consonance with the observations

made in the preceding paragraphs, otherwise will ignore the

other facts by deleting such paragraphs from the additional

affidavit."

6. The information which the petitioner has been asking for has been

made available to it now cannot be treated to be in the knowledge

of the petitioner at the time of filing of the petition. Therefore,

amendment to incorporate the relevant fact in the petition, on the

basis of information now available, required to be noticed for

substantive justice and proper disposal of the Company Petition.

Having gone through the records and reasons recorded by the

Tribunal, we are not inclined to interfere with the impugned order.

In absence of any merit the Appeal is dismissed. Both parties to

bear their own cost.

(Justice S .J. Mukhopadhaya) (Balvinder Singh) Chairperson Member (Technical)

New Delhi Dated: 28th July, 2017