TaxTMI 
TaxTMI 
2019 (2) TMI 1045
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....ned Counsel for the Appellant has submitted that as Interim Order dated 12.06.2018 - Annexure - 2 of the Appeal shows the Company Petition had come up before National Company Law Tribunal, Mumbai Bench, Mumbai ('NCLT' in short) and the matter had been adjourned to 31.07.2018 with a direction to place on record minutes of the meeting and such information connected with the issue of removal of the Director through a Praecipe at any convenient date; the Respondents had been directed to file the Reply by the end of the month to be circulated on the other side and thereafter, Rejoinder, if any, was to be filed by 15th July, 2018; and, Petition was listed on 31.07.2018 for further hearing. Thus, according to the learned Counsel, the Petition was basically listed for getting the pleadings completed and for further hearing on 31.07.2018. Counsel submitted that Respondent No.7 filed his Reply on 11.07.2018, copy of which is at Page - 77. It is short Affidavit in Reply which reads as under:- "I, Tehmasp Rustomjee, Designated Partner of Respondent No.7, having office at Indiabulls Finance Centre, Tower 3, 27th 32nd Floor, Senapati Bapat Marg, Elphinstone Road, (West) Mumbai 400013, do hereb....
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....s called none from the side of the Petitioner is present. 3. The Respondent has placed on record a Praecipe on 19.06.2018. Listed therein the commencement of the EOGM and also annexed the minutes wherein it is mentioned that the Petitioner declined to present its case. 4. None is present from the side of the Petitioner. 5. From the side of R7 Learned Representative has placed on record the Affidavit in Reply and stated that R7 has wrongly been impleaded. Para 2 of the Affidavit reproduced below.:- "Respondent No.7 has been added as a party by the Petitioner purportedly on the basis that Respondent No.7 was purportedly appointed by Respondent No.1 Company for the purpose of financial advisory and compliance management. Respondent No.7, however, has never been engaged by Respondent No.1 of Company, whether for financial advisory and/or compliance management as mentioned by the Petitioner. Therefore, no remedy or relief as mentioned in the Petition can be claimed against the Respondent No.7." 6. Considering the statement affirmed on oath that R7 has never been engaged by the Respondent Company and in the absence of any objection from the side of the Petitioner; R7 is hereby ....
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....articipating in the affairs of the Respondent No.1 Company or exercising his lawful rights as a promoter, director and the managing director." Prayer 1(a) of the Company Petition seeks relief against Respondent No.7 also. 5. The learned Counsel for the Appellant submitted that in answer to such Company Petition, the Respondent No.1 Company had filed response and in para - 18 of the Reply filed in NCLT (Copy at Page - 108 of Appeal) and made averments regarding connection of Respondent Nos.2 and 4 with Respondent No.7. Para - 18 reads as under:- "18. The contents of the corresponding paragraph are denied as the 'gradual' and 'systematic takeover' that the Petitioner mentions was, as is evident from the documents placed on record, actually inconsistencies and lapses on part of the Petitioner that were being sought to be rectified by the Respondent No.2 and Respondent No.4 with the assistance of the Respondent No.7, a professional organisation assisting in its professional capacity." According to the learned Counsel, in Reply filed by the Company, it did not claim that the Respondent No.7 had nothing to do with the Company - Respondent No.1. Thus, according to the learned Counsel....
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....ion. The learned Counsel submitted that in the set of e-mails, there are hardly 2 - 3 e-mails which are from Kishore and those e-mails are on behalf of Respondent No.7 and they relate to service tax issues and it is stated that Respondent No.7 was unnecessarily arrayed as party in the Company Petition and the Counsel defended the Impugned Order to say that the Respondent No.7 was rightly deleted from the array of parties. 8. Counsel for the Appellant in the course of arguments referred to Judgement in the matter of "S. Sukumar v. The Secretary, Institute of Chartered Accountants of India & Ors." reported in 2018 SCC OnLine SC 158 and referred to para - 50 of that Judgement. That mater was under the Chartered Accountants Act and was in relation to breach of Code of Professional Conduct and initiation of investigation which was sought against Multinational Accounting Firms (MAFs) and Indian Chartered Accountancy Firms (ICAF). The Judgement dealt with the issue of MAFs operating in India in violation of law in force in a clandestine manner. In para - 50 of the Judgement, there is discussion of Expert Committee Report which found compliance by MAFs only in form and not in substance, b....