AI Drafter 
TaxTMI 
TaxTMI 
2022 (11) TMI 1506
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....20 in TIA No. 102/KOB/2020 in TCP/8/KOB/2019. 3. The 3rd Appellant and the Respondent are real brothers, Non-resident Indians and the only shareholders of the 1st Appellant Company. In march 2018, the 'Respondent' filed a company petition in the Tribunal alleging oppression and mismanagement of the Company. The Petition was numbered as CP 12 of 2018 and in September 2018, the 'Respondent' filed MA/247/2018 for forensic investigation on the signatures of the 'Respondent' on three documents i.e. (i) a Power of Attorney dated 31.07.2006, (ii) the financial statements of the Company for 2013-14 and (iii) the financial statements of the Company for 2014-15. Pleadings were completed in the company petition and in the applications. The NCLT, Chennai Bench directed the company petition and the applications to be taken up for hearing together. However, in the meantime, one new bench of the Tribunal at Kochi was constituted and CP No. 12 of 2018 and MA No. 247 of 2018 were transferred to Kochi Bench and were renumbered as TCP/8/KOB/2018 and TIA No. 102/KOB/2020 respectively. 4. On 13.10.2020, NCLT, Kochi Bench passed orders in TIA No. 102/KOB/2020 directing (i) the Power of Attorney da....
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.... Tribunal should dispose off the main petition on merit rather than getting such forensic audit done. 9. The Learned Counsel for the Appellants pointed out that the main company petition does not contain any specific allegations of forgery of the financial statements for the years 2013-14 & 2014-15. The Learned Counsel for the Appellants stated that the 'Respondent' only made sweeping allegations of forgery of all the financial statements. The Learned Counsel for the Appellants further stated that as regards financial statement for the year 2014-15 the respondent 'only pleaded in the petition that the signatures do not match, and not of forgery, without even attaching the financial statement for the year 2013-14 as a document with the petition. 10. The Learned Counsel for the Appellants pointed out that the 'Respondent' sent a letter dated 06.02.2018 sent to the 1st Appellant company immediately after the auditor's letter and the 'Respondent' did not allege forgery of the financial statements in this letter and only questioned the appointment of the 2nd Appellant as a director without involving the 'Respondent' and therefore terming decision as invalid and not binding....
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....y the majority shareholders of the minority shareholder. 18. The Learned Counsel for the Respondent emphasised that the Tribunal gave the 'Impugned Order' correctly after taking into account all the facts and legal position into consideration. The Learned Counsel for the Respondent refuted all the averments made by the 'Appellants' especially averments made that the 'Respondent' had not pleaded forgery of signature of Appellants in his main petition. The Learned Counsel for the Respondent further stated that he has given para wise counter of the all-wrong averments made by the 'Appellants' and maintained that all his arguments and request including alleged forgery by the 'Appellants' which were mentioned in the original company petition which is still pending before the Tribunal. 19. The Learned Counsel for the Respondent assailed the conduct of the 'Appellants' which according to him is evident from delaying tactics and as a result the 'Impugned Order' dated 13.10.2020 could not be implemented even after more than two years which is only for verification of records and signatures. The Learned Counsel for the Respondent pleaded strongly that the appeal should be set aside wit....
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....' who had referred to the PAN cards by making false allegations against the 'Respondent'. The Learned Counsel for the Respondent clarified that as the Tribunal was satisfied that the signature of the 'Respondent' in the PAN card, which was a fabrication indulged in by the 'Appellant', also did not tally with the original signature of the 'Respondent', the Tribunal directed this also to be referred for forensic examination. The Learned Counsel for the Respondent emphasised that there is absolutely no merits in the appeal which is against the 'Impugned Order' of the Tribunal which is merely enabling a fact- finding enquiry. 23. The Learned Counsel for the Respondent submitted that the 'Respondent' had complied with the directions of the Tribunal by executing specimen signatures, handing over the original PAN card bearing No. AFWPN7566B which was the one in possession of the 'Respondent' and payment of the requisite costs for forensic examination. However, the PAN card bearing No. ASPEK5529M is in possession of the 'Appellant' and, the 'Appellant' has not complied with the same. The Learned Counsel for the Respondent stated that the 'Respondent' had also filed an application before....
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....er by this Appellate Tribunal. 27. The Learned Counsel for the Respondent pointed out that the 'Appellants' have been continuously mentioning that the signature mismatch is due to the alleged habit of the 'Respondent' of signing his signatures differently in different document and the same is being highlighted by referring to the two PAN Cards bearing No. ASPEK5529M and No. AFWPN7566B. The Learned Counsel for the Respondent further pointed out the Appellants also referred to the variation that exist in the signatures of the Respondent between the Financial Statements and the pleadings that were signed. The Learned Counsel for the Respondent submitted that prima facie it is clear that there is a variation in the signature, and it would only aid the Tribunal in arriving at an informed decision on the issue of forgery if the documents in question are sent to forensic examination before deciding in main company petition. 28. The Learned Counsel for the Respondent concluded that the present Appeal may be dismissed with cost and further direct the 'Appellants' to forthwith submit the original Power of Attorney dated 31.07.2006, PAN Card bearing No. ASPEK5529M, original signed balan....
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....ither allow the application and send the disputed records for opinion of Central Forensic Science Laboratory at the cost of the party alleging fabrication of records, or dismiss such application." [emphasis supplied] "Section 424 Of Companies Act Procedure before Tribunal and Appellate Tribunal (1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the....
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....issue of forgery or fabrication of any statutory records, then it shall be at liberty to move an appropriate application for forensic examination and the Tribunal hearing the matter can allow the petition if it think so. Therefore, in the present case the Tribunal has relied on the above mentioned sections to order forensic investigation of the signature and other documents. d) Similarly in the present case because the 'Respondent's' signatures did not match his original signature, and because the 'Appellants' also corroborated the variance in signatures, it was necessary for the Tribunal to verify the signatures and the documents. It has been made out by the 'Appellants' that the 'Respondent' did not plead forgery in the Company Petition. This, however, does not collaborate with the record made available and this Appellate Tribunal notes that the 'Respondent' elaborated on the forging of financial accounts in the main Company Petition, in paragraphs (o) to (s). In fact, the 'Appellants' agreed that the signature in the financial statements varies and claimed that the respondent had a practise of using multiple signatures at different times. Therefore, it is clear that....