2020 (8) TMI 583 - AT - Companies Law

NCLAT affirms NCLT's orders for forensic audit & status quo in oppression case, stresses inherent power

Archer Power System Pvt. Ltd. Versus Cascade Energy Pvt. Ltd., Zynergy Solar Projects and Services Private Limited, Rohit Rabindranath, Greatshine Holdings Private Limited, Alectrona Energy Private Limited

Archer Power System Pvt. Ltd. Versus Cascade Energy Pvt. Ltd., Zynergy Solar Projects and Services Private Limited, Rohit Rabindranath, Greatshine ... Issues Involved:1. Maintainability of the Company Petition under Section 241/242 of the Companies Act, 2013.2. Legality of NCLT's interim orders directing forensic audit and maintaining status quo.3. Compliance with Section 89 of the Companies Act, 2013.4. Allegations of oppression, mismanagement, and siphoning of funds.Detailed Analysis:1. Maintainability of the Company Petition:The appellant contended that the NCLT should have decided the maintainability of the petition before passing any interim orders. The NCLAT held that the question of maintainability need not be decided as a preliminary issue and can be decided along with the main petition. The Tribunal has inherent powers under Rule 11 of the National Company Law Tribunal Rules, 2016 to pass such orders as necessary for meeting the ends of justice. The NCLAT emphasized that maintainability is a mixed question of facts and law, and conducting a forensic audit could produce important facts required by the NCLT to decide the preliminary issue.2. Legality of NCLT's Interim Orders:The appellant challenged the interim orders dated 14.06.2017 and 18.07.2017 directing a forensic audit and maintaining the status quo. The NCLAT upheld these orders, stating that the Tribunal has the power to make interim orders for regulating the conduct of the company’s affairs under Section 242(4) of the Companies Act, 2013. The Tribunal found it necessary to conduct a forensic audit due to allegations of siphoning of funds, breach of agreements, and failure to maintain proper books of accounts. The status quo order was aimed at preventing any party from taking advantage during the pendency of the case.3. Compliance with Section 89 of the Companies Act, 2013:The appellant argued that R-1 failed to make a declaration under Section 89(1) and (2) of the Companies Act, 2013, which mandates filing declarations in Form MGT 4 and MGT 5. Under Section 89(8), the beneficial owner cannot exercise any rights in respect of the shares held. The NCLAT rejected this argument, stating that R-1 held shares in its own name and was registered as a shareholder as of the date of the petition. As no competent authority had decided the question of beneficial interest, R-1's rights could not be taken away. Therefore, the petition was maintainable on the date of filing.4. Allegations of Oppression, Mismanagement, and Siphoning of Funds:The appellant alleged that R-1 and its promoter, Kohli, were involved in criminal activities and had misrepresented facts, leading to significant economic and reputational loss. The NCLAT noted that the allegations included misfeasance, siphoning of funds, breach of trust, and failure to maintain proper books of accounts. The Tribunal found it necessary to order a forensic audit to determine the status of the company's affairs before progressing with the matter. The NCLAT upheld the NCLT's orders, stating that they were essential to meet the ends of justice.Conclusion:The NCLAT found no merit in the appellant's arguments and upheld the NCLT's interim orders directing a forensic audit and maintaining the status quo. The appeals were disposed of with the observation that the Tribunal has the inherent power to pass such orders to ensure justice and prevent abuse of the process. The NCLAT emphasized that the maintainability of the petition could be decided along with the main petition, and the forensic audit would provide crucial facts for this determination.