TaxTMI 
TaxTMI 
2024 (3) TMI 1243
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....rim order dated 23.11.2023 passed by the National Company Law Tribunal, Division Bench, Court II, Kolkata in Company Petition No.278/KB/2023 stating interalia the said order was passed without proper consideration of the facts and non-application of mind. The Learned counsel for the appellant submitted the Respondent No.1 has breached the shareholders' agreement and exclusivity agreement and had engaged itself in rival competitive business against the interest of the Joint Venture and though the Respondent No.1 was always given access to the appellant's books of accounts despite that an interim order was passed without recording proper reasons. It is argued the impugned order of directing an independent forensic audit into the affairs of the Appellant company would rather harm the reputation of the appellant company. 2. It is submitted the Respondent No.1 and Respondent No.2 are the shareholders in Appellant company i.e. LAS Goldair Handling (Bagdogra) Pvt Ltd, a Special Purpose Vehicle created to bid for a tender floated by Airport Authority of India (AAI) to carry out ground handling service at Bagdogra airport and for participating in the bidding process of concession for groun....
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....cise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."(Vide State of Orissa V. Dhaniram Luhar and State of Rajasthan V. Sohan Lal)." 41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors.; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. Steel Authority of India Ltd....
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....vide/comply with urgent and critical requisitions made by the Petitioner. ii. Prevention of and obstruction to the Petitioner's right to appoint an external auditor to examine the accounts, accounting practices and internal control procedures of Respondent No. 1 SPV; iii. Prevention/obstruction of the Petitioner's statutory right to call for an EGM under section 100 of the Act. iv. Statutory violations committed by the Respondent No.2 under the Act. v. Questionable Appointment of the alleged statutory auditor, Mukesh M. Choksi & Co. as well as unclear role of BDMV & Co., alleged associate of the purported statutory auditor. vi. Non-Compliances, Missing documentation, lack of proper compliance control systems and violation of section 173(3) of the Act. vii. Related Party Transactions viii. Discrepancies Audit Report dated 29th August 2023 issued by the Independent Auditor. 7. It is evident that when the matter came up on 17/10/2023, Ld. Senior Counsel for both parties were present. It was directed that a reply affidavit will have to be filed within two weeks from the date on which the matter was reserved for interim relief and it is evident that the matter wa....
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....of the opinion that maintainability is a mixed question of facts and law and conducting a forensic audit could produce the important facts that may be required by the NCLT in order to decide the preliminary issue. 41. From the bare perusal of the impugned order we are of the view that the Tribunal have the power to make interim orders which it think fit for regulating the conduct of the company's affairs. There are allegations of siphoning of funds, breach of agreements and failure to maintain proper books of accounts thus it was required on the part of the Tribunal to conduct a forensic audit by an independent auditor in order to proceed further with the petition. We are of the opinion that imposition of forensic audit and calling for the report of Forensic Audit before the Tribunal is a measure to help the Tribunal to appreciate the issue on the basis of an independent report so as to ensure that the case is processed with due regard to rights and obligations of contesting parties would be in the interest of justice. Similarly the status quo as made is only with a view to regulate the conduct of the company's affairs during the pendency of the case so that no contesting party t....