TaxTMI 
TaxTMI 
2022 (4) TMI 267
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....Delhi) in CA No. 522 of 2021 in CP No. 3(ND)/2016, 'M/s. Explorers Travels and Tours Private Limited' preferred this Appeal under Section 421 of the Companies Act, 2013, (hereinafter referred to as 'The Act'). The NCLT in the Order Impugned observed as follows: "Ld. Counsel for the Petitioner submits that the Petitioner holds 35% of the stake in the company. The application has been filed for seeking inspection of the records of the company with the help of an Auditor or any person, to video graph the entire proceedings of the 28th AGM dated 23.11.2021 and appoint an observer to the said meeting. We have heard the Petitioner, and also the Counsel for the Respondent. The Counsel for the Respondent inter alia submitted that some FIRs have been filed in 2016 against the Petitioner, who as the Managing Director of the Company has siphoned off funds and she has not been responding to the investigations taken up by the Police. In view of the prayers made in the Application and contentions made by the Ld. Counsel for the Applicant, we feel it necessary to appoint an observer for AGM to be held on 23.11.2021. Accordingly, we hereby, appoint Mr. P. Nagesh, Sr. Counsel as a....
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.... that, the first Respondent destroyed the financial records of the Company and removed the records from the Registered Office of the Company and also that she had siphoned off the funds from the Company. NCLT failed to appreciate that the documents sought for by the first Respondent are forming part of the Criminal Investigation against the Appellant and the same could not have been directed as the law requires that the accused in a Criminal Investigation is not entitled to have any access to any incriminating document. 3. Submissions of the first Respondent: Being the erstwhile Managing Director and 35% shareholder of the Appellant Company, it is submitted that the first Respondent was constrained to file CP No. 3 (ND)/2016 before the NCLT due to various instances of Oppression and Mismanagement. NCLT passed various Interim Orders on account of their continued mismanagement. Recently, the first Respondent was served with a copy of Notice for an AGM seeking to approve the financials for the year 2016-17. However due to various discrepancies and non-grant of inspection, the first Respondent was constrained to file CA 522/2021 inter alia seeking a) Appoi....
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....2016-17 though, admittedly, she resigned from the Directorship of the Company on 09/06/2016 itself. NCLT has allowed the Prayer of the inspection in contravention of Section 128(3) of the Act which allows inspection of accounts only by a Director. NCLT granted relief much beyond the Prayer. Similar Applications were preferred and the Bench had refused to entertain the same as the Applications sought the same relief/s as sought for in the main Petition. At no stage, has the first Respondent ever challenged any resolution passed in the AGM/EGM. Learned Counsel drew our attention to the prayers in the Application in CP No. 3(ND)/2016 filed by the first Respondent seeking to video graph the EGM and AGM and inspection of Accounts and other Financials. The Hon'ble Delhi High Court vide Order dated 04/05/2016 has observed that the first Respondent was prima facie guilty of siphoning off funds and appointed five Commissioners to conduct the inspection. Learned Counsel contended that the 'appointment of the observer' was completely unwarranted keeping in view the facts and circumstances and the history of this case. NCLT in its Order dated 27/07/2021 noted that in....
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....empt Petition without issuing any Notice in CA 522/2021. It is also evident from the material on record that the relief(s) sought for in CA 522 of 2021 is similar to the relief(s) sought for in the previous Application filed prior to the scheduled date of AGM. At this juncture, this Tribunal finds it relevant to reproduce the Prayer sought for in CA 522 of 2021: 8. From the aforenoted reliefs sought for by the first Respondent/Applicant it is evident that some of the Prayers have not been addressed to and that the main Application is still pending before NCLT. NCLT passed an ad Interim Order as the AGM was scheduled to be held on the very next date and appointed Learned Sr. Counsel as an observer and allowed the entire proceedings of the AGM to be video recorded. Additionally, the first Respondent was entitled to have inspection of any statutory records and Financial Statements through a reputed Chartered Accountant or Company Secretary and produce the Inspection Report before the Court. It was also directed that the Appellant herein should not object to the record of the proceedings or to the presence of the observer in the AGM. It is an admitted fact that the Notices for the A....
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..../11/2021 22:41 To: Rajiv K Adlakha ; [email protected] Cc: Rishika ; [email protected] 1 attachments (11 KB) winmail.dat; Forwarded message From: Punita Khatter Date: Mon, Nov 22, 2021, 12:06 Subject: List of documents/Books of accounts/Registers & software required for Inspection 23rd Nov 21 To: Arjun Mehta , Explorers Travels and Tours Pvt. Ltd , , Cc: deepika mehta , , , Vijay Tulshyan , Dear Mr. Mehta This is furtherance to the order dated 22.11.2021 passed by the Hon'ble NCLT. I would like to request you to provide me with all the books of accounts of the Company pertaining to FY 2016-17 before the AGM i.e., at 10:30 AM. Further, I request you to arrange for me to inspect the following documents. of the Company tomorrow itself i.e., 23.11.2021 (either at 10:30AM if possible or post the AGM) pertaining to the financial years a) 2013-14, b) 2014-15, c) 2015-16, d) 2016-17, e) 2017-18, f) 2018-19, g) 2019-20, h) 2020-21, i) 2021-22 (1st April 2021 till 31st October 2021): As permitted by honourable court, I will be joined mt CA,CS & a staff that can operate Winyatra software. And of course, hon Shri Nagesh ji as appointed by the esteem court. ....
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.... Directors; 25. Details of Loans/Guarantees availed by the Company; 26. Details Loans/Guarantees given by the Company 27. Also, as there are different copies of 2013-14 Balance sheet being placed on record, will appreciate your providing me with a True copy. 28. Similarly there are different audit objection copies being tabled before different forums (issued by the CA N Puri 2014-15), bases which you the management had justified my removal as MD. You are hereby requested to share the true copy as per your records. In case you are unable to provide any of above, you are requested to kindly give the reason of not providing the same in written. Thanks Punita khatter WRUE CON 616 617 Document 3 PRAYER In light of the above facts and circumstances, it is most humbly prayed that this Hon'ble Tribunal may kindly be pleased to pass the following order(s) in the interest of justice: (五) Pass an appropriate direction appointing an observer to observe the 28th AGM of the Respondent No. 1 Company to be held on 23.11.2021 and thereafter submit a detailed report to this Hon'ble Tribunal; (ii) Direct the Respon....