2010 (2) TMI 580

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..... 41 of 2005 which is in the form of a memo filed by the company petitioners on 14-7-2009 seeking for the following prayers : "(A)To direct the present Auditor Sri C.R. Murali's appointment as Chartered Accountant for verification process is withdrawn, forthwith. (B)Direct an independent Auditor from Bangalore be appointed from a panel of names to be suggested by the Karnataka Association of Chartered Accountant. (C)Direct that the report of the verification and scrutiny for the purposes of quantification of misappropriation, fraud and defalcation of accounts of respondent No. 1 by respondent No. 2 be submitted by 1st October, 2009. (D)Pass such other and further orders that this Hon'ble Court may deem fit in the facts and circu....

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....nging the auditor who was required to go into the aspects mentioned above, against whom the appellants-petitioners made themselves bold to allege professional misconduct, etc., and the Board examining this application which had been joined issue by the respondents, particularly, second respondent by filing objections etc., found that the prayer was not practical one, particularly, with the auditor having been appointed as per order dated 13-1-2006 and only for the purpose of submitting a report to the Board on the question of the extent of misappropriations and ironically both company petitioners and the second respondent who are the only two shareholders of the company trading charges against one another and to ascertain the existence of a....

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....ng company petition under sections 397 and 398 of the Act and for modification of an earlier order on an earlier interim application and a consent order. 10. Though Sri Rao, learned counsel for the appellants has taken us through the provisions of sections 539 to 544 of the Act and submits that these sections enable filing of a complaint and prosecution being launched against the erring persons who are in the management of the company etc., they are all neither relevant nor can be subject-matter for an appeal of the present nature seeking for change of an auditor who had been earlier appointed by the Board with the consent of the parties and as prosecution proceeding is an independent proceeding which is independent of the application un....