Interlocutory Application No. 33/2016. Case: Durga Ray Vs Kshirode Chandra Ghosh and Sons Pvt. Ltd. and Ors.. Company Law Board
| Case Number | Interlocutory Application No. 33/2016 |
| Counsel | For Appellant: V.V.V. Sastry and Nikita Chowdhury, Advocates |
| Judges | Vijai Pratap Singh, Member (J) and S. Vijayaraghavan, Member (T) |
| Issue | Constitution of India - Article 226 |
| Judgement Date | January 05, 2017 |
| Court | Company Law Board |
Order:
Vijai Pratap Singh, Member (J), (Kolkata Bench)
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I.A. No. 33/2016 has been filed in connection with the Company Petition No. 400/2012 by the Applicant. The petitioner has filed this petition for the reliefs that the Board of Directors of the company be superseded and an administrator be appointed to take charge of the management of the affairs of the company. Alternatively, the committee be constituted by this Board consisting of representatives of the petitioner to function as such Administrator for the management and control of the affairs of the company. The petitioner has also sought declaration that the Board meeting held on 31.03.2007 be declared as illegal, null and void. The petitioner has also sought that an injunction restraining the respondents from interfering with the management and affairs of the company be issued. A scheme be framed for management and control of the company and running of operation thereof. In this company application, the petitioner has stated that he has filed this petition on 27.07.2012 and after that in October, 2012, it has come to the knowledge of the petitioner that the name of the respondent No. 1 has been struck off by the Registrar of Companies since October, 2012. The petitioner has submitted that the fact of striking off the name of the respondent No. 1 was not brought to the knowledge of this Tribunal.
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The petitioner has further submitted that there has been a failure on the part of the respondent Nos. 2, 3, 4 and 5, who were at all material times in management and control of the company have failed to carry out their duties prescribed under the Companies Act by filing the necessary balance-sheet, audited accounts and other relevant forms as required from time to time. The petitioner has further submitted that the liabilities of the respondent company has increased over the period of time and post 2007 no balance-sheet or annual records have been filed, which is contrary to the provisions of the Companies Act. The petitioner has further submitted that alleged act of the respondents in having name of the company struck off from the Register and records of the MCA are also an attempt to deal with, dispose of and siphoning off the assets of the company. This is more so because the company is no more existent and hence the respondent Nos. 2, 3, 4 and 5 are acting in a collusive manner and have taken all efforts to siphon off the funds of the company and also sold all the assets of the company to third parties including the respondent No. 9, which is also a challenge made in the present company petition that the liability of the Directors to the creditors and other interested persons continue to exist, even if the name with the company is struck off. The petitioner has moved this I.A. with a prayer that the respondent directors be directed to render accounts in dealing with the funds and properties of the respondent No. 1 company from the date of the filing of the Company Petition till striking off and also prayer has been made for issuing directions to the respondent Nos. 2, 3, 4, 5 and 8 to disclose all statutory records, balance-sheet and profit & loss account and annual return to the petitioner. The petitioner has also requested that an investigation be made in respect of dealings and transactions of the respondent Nos. 2, 3, 4, 5 and 8 in connection with the management and affairs of the company and any independent auditor be appointed by this Tribunal to carry out such investigation.
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In reply to the above company application, the respondents have filed their objection wherein they have stated that the instant company petition is not maintainable and accordingly subsequent application is also not maintainable in the eyes of law. The petitioner is not a shareholder of the respondent no 1 company and therefore no locus to institute the proceeding. It was also urged that there is a partition suit pending in respect of entire estate and late Shri N.C.Ghosh, the deceased father of the applicant herein and hence applicant states that respondents are attempting...
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