2022 (12) TMI 372 - AT - Insolvency and Bankruptcy

Appeal dismissed as conversion to LLP not fraudulent or illegal. Delay in filing petition not excused.

Ajit Mittal Versus Rekha Garg, Yogesh Aggarwal, Amar Aggarwal, Sudhir Aggarwal, Hari Om Prasad Sharma, M/s Bhero Baba Infosolutions Pvt. Ltd., M/s Bhero Baba Infosolutions LLP, Chakradev Devcon Pvt. Ltd.

Ajit Mittal Versus Rekha Garg, Yogesh Aggarwal, Amar Aggarwal, Sudhir Aggarwal, Hari Om Prasad Sharma, M/s Bhero Baba Infosolutions Pvt. Ltd., M/s Bhero ... Issues Involved:1. Eligibility to file a company petition under Section 241 and 421 of the Companies Act, 2013.2. Jurisdiction of NCLT in company matters.3. Allegations of fraud and mismanagement.4. Conversion of a company to LLP and its implications.5. Limitation period for filing the company petition.6. Waiver under Section 244 of the Companies Act, 2013.7. Validity of the resignation and transfer of shares.8. Sale of immovable property and its legality.Issue-wise Detailed Analysis:1. Eligibility to File a Company Petition:The appellant's eligibility to file a company petition was questioned on the grounds that he was neither a director nor a shareholder at the time of filing the petition. The appellant had resigned from directorship on 28.03.2014 and sold his shares on 31.03.2014. The Tribunal held that the provisions of Section 241 and 242 of the Companies Act, 2013, apply only to companies registered under the Act, and since the respondent company had converted into an LLP on 05.01.2016, it was not a company at the time of filing the petition.2. Jurisdiction of NCLT:The appellant argued that jurisdiction in company matters rests exclusively with NCLT under Section 430 of the Companies Act, 2013. The appellant cited cases like Sas Hospitality Pvt. Ltd. vs. Surya Constructions Pvt. Ltd. to support the claim that NCLT has broad powers in the regulation of company affairs. However, the Tribunal affirmed that since the respondent entity was an LLP at the time of filing the petition, NCLT's jurisdiction did not apply.3. Allegations of Fraud and Mismanagement:The appellant alleged that his resignation was forged and that the respondents fraudulently converted the company into an LLP to avoid liabilities. The appellant discovered the alleged fraud in October 2015 and filed complaints with the ROC, followed by a civil suit, which was dismissed with the direction to approach NCLT. The Tribunal, however, found that the appellant failed to prove these allegations sufficiently.4. Conversion of Company to LLP:The appellant contended that the conversion of the company to an LLP was done to defraud him and avoid liabilities. The Tribunal noted that the conversion had taken place more than two and a half years before the filing of the petition and that the appellant did not provide adequate evidence to challenge the legality of this conversion.5. Limitation Period for Filing the Company Petition:The Tribunal observed that there was an inordinate delay of more than four years in filing the company petition. The appellant resigned in March 2014, and the petition was filed in July 2018. The appellant argued that the delay should be condoned as he discovered the fraud only in October 2015 and had filed a civil suit within three years of this discovery. However, the Tribunal did not find this argument convincing and held that the petition was barred by limitation.6. Waiver under Section 244 of the Companies Act, 2013:The appellant sought a waiver under Section 244 of the Companies Act, 2013, arguing that the fraud played upon him justified such a waiver. The Tribunal referred to the case of S. Ahamed Meeran vs. Ronny George & Ors., which outlines the factors to be considered for granting a waiver. The Tribunal found that the appellant did not meet these criteria, particularly since he was not a member of the company at the time of filing the petition.7. Validity of Resignation and Transfer of Shares:The appellant claimed that his resignation was forged and that the transfer of shares was fraudulent. The Tribunal noted that the appellant had not provided sufficient evidence to support these claims and that the resignation and share transfer were recorded in the company's documents.8. Sale of Immovable Property:The appellant sought to declare the sale of the company's immovable property as void, alleging it was sold fraudulently. The Tribunal observed that the property sale occurred after the conversion of the company to an LLP and that the appellant had not established a clear link between the alleged fraud and the property sale.Conclusion:The Tribunal dismissed the appeal, affirming the NCLT's order dated 09.07.2021, which held that the respondents were not a company at the time of filing the petition. The Tribunal found no merit in the appellant's claims and did not condone the delay in filing the petition. The appeal was dismissed with no order as to costs.