TaxTMI 
TaxTMI 
2020 (7) TMI 535
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dismissed and the Respondent company was ordered to be wound up. Vide the same impugned order dated 4.9.2018, NCLT, New Delhi has also dismissed the Company Petition No.15(ND)/2008 filed by the Respondent No.2 against the appellant No.1. Company Appeal (AT) No.380 of 2018 2. The appellants submit that their petition has been dismissed on the sole ground of alleged suppression on part of the Appellants with regard to non-disclosure of allotment of equity shares of Respondent company by Appellant No.1 to various persons including the appellant No.1 himself on 17.12.2007, 28.12.2007 and 27.02. 2008 and the irregularities in the allotment of shares. 3. The appellants submit that the Respondent No.2 has handled the affairs of Respondent Company in a 'dishonest manner' and the same has been accepted by the Tribunal. 4. The appellants submit that the Hon'ble High Court of Delhi vide order dated 13.5.2013 (Page 362 of appeal) directed that the Auditor appointed by Company Law Board will undertake a comprehensive audit of accounts of Respondent No.1 company from the year 2007-08 to 2012-13. The appellants submits that the Respondent No.2 did not produce any record but filed a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellant. Therefore, we are in agreement with the findings of the NCLT on this issue. 10. We have heard the parties on the issue of producing of record before the Administrator. We find that in the year 2013, Respondent No.2 lodged police complaint stating the during the shifting of office, the statutory record was not found and lost in transit. We also note that in the year 2015 Respondent No.2 is stating that the record of the company which was carried by his son, has been burn out due to fire in the car. On this issue we doubt that two instances cannot happen again and again. Thus there was an attempt not to produce the record by the Respondent. 11 We have perused the proceedings dated 18.11.2015 (Page 532) of Administrator and noted that the Administrator has clearly stated that all the tangible assets of the Company had been removed from the said premises at Pilukhawa, Hapur, We also note that the Hon'ble High Court of Delhi vide its orders dated 11.3.2016 (Page 545) has ordered to initiate suo moto proceedings for contempt against the Respondent No.2 for disobeying the order of Hon'ble High Court and Company Law Board. On these basis we find that the conduct of the Resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es by Respondent No.2 to himself and to his friends and relatives. 15. The appellant submitted that no Board Meeting took place for the allotment of shares by Respondent No.2. The appellant submitted that the said allotment is rightly set aside and shareholding is liable to be restored to its original position and pattern as on 30.09.2007. 16. The appellant submitted that the records were actually burnt in car accident and the appellant approached various authorities for reconstruction of documents but the same were denied by the authorities. The appellant submitted that ultimately the appellant informed the Arbitrator to pass directions in this respect to procure the entire record. The appellant submitted that the Respondent No.2 opposed the request of the appellant. 17. The appellant submitted that the Respondent No.2 in connivance with the Chartered Accountant allotted shares to his own HUF and even to his wife and friends in order to fraudulently increase his shareholding in the Company. The said allotment was without any Board Meeting. The appellant stated that the Respondent No.2 with Chartered Accountant did the fraudulent acts of illegal allotment by misusing the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed a false complaint with the Police that the statutory record has been lost. 26. Respondent No.2 submitted that the appellant undertook to produce the record on 16.9.2015 before the Administrator but he did not produce the same and later on informed the Administrator that the record has been burnt. 27. Respondent No.2 submitted that due to non-cooperation extended to Administrator by the appellant, the Hon'ble High Court initiated suo moto contempt proceedings against the appellant. 28. We have heard the parties and perused the record. 29. Learned counsel for the appellant argued that the allotment of equity shares on 17.12.2007, 28.12.2007 and 27.02.2008 were illegal. Learned counsel for the Respondent No.2 argued that the shares were legally allotted. We find that no Board Resolution has been placed before the NCLT or before this Appellate Tribunal to establish that the shares were allotted as per law. Therefore, we have no material that the findings of the NCLT on this issue are not reasonable. 30. We have heard the parties on the issue of producing of record before the Administrator. We find that in the year 2013, Respondent No.2 lodged police complaint st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mode whenever they were in control of the company and having dubiously destroyed the company, the winding up of the company would not unfairly prejudice its members thus the winding up will be just and proper order. 34. As to the averment made by the appellant that there were 9 issues framed but only one issued has been decided. Looking at the issues framed and in absence of any record and destruction of the company we are of the considered opinion even if these issues are decided separately it will not bring back the substratum of the company. Hence the arguments that these issues have not been decided by the Tribunal are not material to the decision made. 35. We also note that a complaint was filed against the Chartered Accountants by appellant which was dismissed vide order dated 10.2.2014 (Page 394) and this order was finally upheld all the way upto the Hon'ble Supreme Court (Page 409). On the basis of these we are of the view that the appellant has filed false cases against the Chartered Accountant. CONCLUSION 36. On the basis of the pleadings and arguments we have come to the conclusion that allotment of shares has been done without getting it approved in any Boar....