TaxTMI 
TaxTMI 
2012 (11) TMI 453
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under section 399 of the Act for filing a petition under section 397 and 398 of the Act, it was stated in para-2 of the petition that Petitioner No. 1 Mr.Rupak Gupta held 16320 shares representing 2.267% of the equity and paid-up share capital of the Company. Petitioner No.2, Mrs. Supriya Gupta was stated to be the whole-time Director of the Company. In her affidavit filed in support of the petition it was stated that she is a member of the company. Petitioner No.3 Mr. P.D. Gupta & Sons (HUF) were stated to own 23760 shares in the Company representing 3.3% of the issued and outstanding share capital of the Company and was represented by Mr.Rupak Gupta as its Karta. Petitioner No.4 Mr.L.P. Gupta Family Trust (hereinafter the Trust) was stated to hold 1,24,640 shares in the Company representing 17.31% of the issued and paid-up capital of the company. In the affidavit filed on behalf of the Trust Mr. Rupak Gupta stated that he is the sole Trustee of the Trust. 4. Four affidavits were filed in support of and to verify the contents of the petition. In three affidavits, Mr. Rupak Gupta and in the 4th affidavit Mrs. Supriya Gupta signed and verified as deponent on 30/05/2012. In all the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otarized on 08/06/2012 revealed that their signature did not tally with the signature of the deponent in these four affidavits filed on 12/06/2012 with CA No.313/2012. However, the signature of the deponent in all the four affidavits matched with the unidentified and unexplained signature appearing on every page of the Company Petition. It was informed by the counsel for the Petitioners that the signatures in the petition and in the affidavits filed with C.A. 313 were that of one Mr. G.K. Agrawal. 7. To worsen the situation, the law-firm representing the Petitioners instead of filing a proper affidavit of the person signing the petition and an application amending the petition to show that it was signed by a duly constituted attorney of P-1, P-3 and P-4 started pouring in a plethora of affidavits of the Petitioners to cover up the lapse. C.A. No.388/2012 was filed by the Law firm for placing on record freshly signed affidavits. In two of such affidavits the law firm even advised Mr. Rupak Gupta and Mrs.Supriya Gupta to state on oath that they had signed and affirmed affidavits filed with C.A. No.313/2012 through the pen of Sh. G.K. Agrawal who held their Power of Attorney (hencefo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he company was not eligible to file the petition under sections 397 and 398 of the Act. Replying to the case-law relied by the Learned Senior Counsel for the Petitioners, it was stated that the case-law cited was clearly distinguishable on facts and did not apply to the present case. 9. Shri S. Ganesh, ld. Sr. Counsel appearing for the Petitioners on the other hand argued that the errors that had crept in the petition and the affidavits were trivial and purely accidental and not intentional and do not constitute fraud. Ld. Counsel contended that Mr.Rupak Gupta was all-through present before this Board on the 13th and 14th June, 2012 as large as life and would not have gained by these accidental errors and omissions. An attempt was also made to show that the affidavits filed in support of C.A. No.313/2012 were signed and verified by Mr. G.K. Agrawal in accordance with law. Learned counsel submitted that signing of the petition by Mrs. Supriya Gupta was sufficient as she was an officer of the company being its whole-time Director. The error in the affidavits and the non-disclosure of the identity of the person signing the petition for P-1, P-3 and P-4 was trivial and purely accident....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fend on his behalf, Reliance was placed by the ld. Sr. Counsel for the Petitioner on Bibi Asghari (supra) to support the argument that absence of presentation on the part of some of the Plaintiff in the suit does not affect the jurisdiction of the court and the suit must be deemed to have been instituted on their behalf as well if it was filed with their knowledge and authority. Reliance was also placed on United Bank of India (supra) in support of the proposition that public interest should not be permitted to be defeated on a mere technicality and procedural defect which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts under the Code of Civil Procedure, to ensure that justice is not denied to a party who has a just cause. The proposition of law laid down by the Hon'ble Supreme Court of India is well-settled and in the above case relates to a matter where suits were instituted or defended on behalf of the public corporation like Bank where pleadings have been signed by one of its officers. In such a situation a corporation can ratify the said action of its officer in signing the pleadings. Such ratification....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Gupta in favour of Mr.G.K. Agrawal were also notarised on 8th June, 2012. These POAs do not bear the signature of acceptance by Mr. G.K. Agrawal If Mr.Rupak Gupta was present before the Notary Mr. Ashok Kumar for notarisation of the three affidavits signed and verified by him on 30th of May, 2012 and the three POAs executed on 8th June, 2012 he could have signed the petition also because in the petition there was not even a whisper by the Law-firm that it was to be filed through Mr. G.K. Agrawal, a POA of Mr.Rupak Gupta. Even under the signature in the petition it was not divulged that the signature was that of Mr. G.K. Agrawal. Even in the two affidavits of Mr.Rupak Gupta and Mrs. Supriya Gupta filed with CA No.388/2012 it was not stated that the petition was filed through their POA. 14. A perusal of the three affidavits of Mr. Rupak Gupta filed with the petition shows that they were notarised by Mr. Ashok Kumar, Notary, New Delhi (R.No.3061) in the Notary Register at Sl.No.347/2012, 348/2012 and 349/2012. There is nothing to show that Mr. G.K. Agrawal was present before the Notary on 8th June, 2012. He had already signed the petition before the affidavits were notarised. The POA....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vidual, as Karta of HUF and as the Trustee of the Trust. 15. I am still unable to comprehend as to why the Law-firm instead of straightaway filing an affidavit of Mr. G.K. Agrawal and amending the petition to show that it was filed through the duly constituted POA of Mr. Rupak Gupta in his three different capacities, opted to flood the record of the petition with a plethora of affidavits to cover its lapse in not verifying before filing the petition whether it satisfies the mandate of Order 6, Rule 14 of CPC. 16. Admittedly Mr. G.K. Agrawal who is the signatory in the petition in all the three capacities did not even swear an affidavit till date in support of the petition to show that he had signed the petition and verified its contents as the duly constituted Power of Attorney of Mr.Rupak Gupta in his capacity as an individual member of the company, as karta of the HUF and as Trustee of the Trust. Further, a perusal of the four affidavits filed by Mr. G.K. Agrawal in support of the application No.313/2012 on 11/06/2012, i.e. a day before the petition was mentioned shows that Mr. G.K. Agrawal signed as deponent and verified the three affidavits in the name of Mr.Rupak Gupta and o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d file the Company Petition in the interest of the Trust. However, the facts in the present case are clearly distinguishable. The petition has been signed by a person not duly authorized by any of the three Petitioners, i.e. P-l, P-3 and P-4 at the time of signing of the petition. Another important factor which needs to be taken into consideration is that there is no allegation of oppression of the Trust, its beneficiaries or Trustee in the sense that hindrance was being caused by the Respondents in the purported object for which the Trust was created. 19. Shri S. Ganesh, Ld. Sr. Counsel laid strong emphasis that there were no facts to constitute fraud by the Petitioners. However, it is to be noted that but for the inclusion of the Trust as a Co-Petitioner the petition would not have been maintainable at the instance of Mr. Rupak Gupta as an individual shareholder and as a shareholder Karta of the HUF because their shareholding fell far below the percentage of shareholding required under section 399 for maintaining a petition under sections 397 and 398 of the Act. Therefore, it appears that it was felt necessary by the Law Firm to mention in the affidavit of Mrs. Supriya Gupta tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion I strongly rely on the dictum of the Supreme Court of India in S.P. Chengalvaraya Naidu (supra) and Dalip Singh v. State of Uttar Pradesh [2010] 2 SCC 114. In my considered opinion in the facts and circumstances mentioned above the Company Petition No. 75(ND)/2012 and C.A. No. 313/2012 is nothing but an abuse of the process of this Board and also an abuse of the sanctity attached by Courts to affidavit. 21. I am of the considered opinion that Company Petition is liable to outright rejection on the following grounds:- (a) It is not an appropriately constituted petition as the person signing the petition on behalf of Mr. Rupak Gupta in three different capacities was not duly constituted Power of Attorney of the Petitioners at the time when he signed the petition. (b) Mrs. Supriya Gupta, P-2 not being a member of the company was not eligible to file the petition under section 397 & 398 of the Act. Her signing the petition is therefore of no avail. (c) The Petitioners had suppressed material facts and had also made statements on oath which were false to their knowledge. This was done with an intention to gain advantage which would not have been available if tr....