TaxTMI 
TaxTMI 
2025 (7) TMI 1341
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....to expand their business in the field of construction and infrastructure development on 06.05.2009 had founded Respondent No.3 company, i.e. M/s. Lakras Infrastructure Pvt. Ltd. (hereinafter referred to as the "Company"); ii) both Parties had equal equity shareholding of 50% each. The registered address of the Company was situated at the residential address of the Appellants and thus most managerial work was under the control of the Appellants; iii) respondent No. 3 company purchased a plot of 12,600 sq.ft. partly on 14.10.2011 and on 30.03.2012 for the purpose of constructing a multi-storied building consisting of 28 flats under the name of 'Nilaya Avenue' (hereinafter referred to as subject project); iv) for the construction of the residential multistory building on the aforesaid plot, the Respondent No. 3 Company applied for and was sanctioned a term loan of Rs. 1,09,65,000 by Madhya Pradesh Financial Corporation i.e. Respondent No. 6 on 05.02.2015 on equitable mortgage of the aforesaid plot and personal guarantees of the Appellants and Respondent No. 1 & 2; v) the Company entered into sale deed for sale of one flat out of 28 flats and....
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....functioning of the Company, however the Appellants denied to share any information or document, as a result of which Respondent inspected company records with the MCA and realised irregularities as under: - a) since the Company's incorporation, M/s. SBA & Company served as auditors, appointed until 30.09.2019. However, without informing the Respondents, the Appellants appointed M/s. Pankaj Rathi & Associates from 01.04.2015, who resigned on 01.01.2016. The reasons for both resignations are absent from MCA records. An alleged EOGM on 05.02.2016 appointed M/s. Tanmay V Rajurkar & Co. for 2015-16 and reappointed them until 31.03.2021, again without notifying Respondents. The E-Form ADT-1 filings were only made in 2018; b) the returns for the year 2015-16 and 2016-17 were submitted without informing the Respondents as evident from the facts there exists no signature of the Respondent No.1; c) there existed discrepancy in the amounts paid to creditors compared to the amounts reflected in the books of account. The scrutiny report dated 27.08.2022 by the Chartered Accountant identifying the discrepancy is also on record. d) the respondents reported alle....
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....erference of the respondent No.2 & 3 in the management and working of the company. 12. It is also noted that this Hon'ble Tribunal vide order dated 31.01.2020 directed to maintain status quo with respect to the assets and shareholding of the company and therefore MPFC i.e respondent No.6 is unable to exercise its rights over the assets mortgaged to it and has filed IA 165 of 2020. Further this hon'ble Tribunal has in the said order asked the respondent No.2 & 3 to explain follow up action taken in compliance of the letter dated 17.07.2019 of the ROC. The relevant part of the order dated 31.01.2020 is reproduced as under: Meanwhile, in order to ensure the transparency and equilibrium in corporate governance an Interim direction is issued that the Respondent shall maintain status quo as of today in respect of the movable/immovable properties and fixed assets of the Respondent Company and not to make change its shareholdings pattern. Further, the Respondent Company is required to explain about the follow up action took in compliance of the letter of the ROC dated 17.07.2019. 13. We also note that based upon the calculation of the respondent No.2 & 3, even af....
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....terest of the company. 16. We find that there is mismanagement in the company on the part of respondent No.2 & 3 and Section 242 of the Companies Act, 2013 empowers the Tribunal to remove the director of the company if the affairs of the company have been or are being conducted in a manner prejudicial to the interest of the company. The relevant part of section 242 of the Companies Act, 2013 is reproduced hereunder: 242 (1) If, on any application made under section 241, the Tribunal is of the opinion- (a) that the company's affairs have been or are being conducted in a manner prejudicial or oppressive to any member or members or prejudicial to public interest or in a manner prejudicial to the interests of the company; .......... the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit. (2) Without prejudice to the generality of the powers under subsection (1), an order under that subsection may provide for- ........ (h) removal of the managing director, manager or any of the directors of the company; 17. Hence in the interest and furtherance of the company, we find ....
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....f Rs.4.43 crores which included the loan from Respondent No.6. The company had only used Rs.1 Crore 09 lacs out of Rs.2 crores loan as sanctioned by Respondent No.6, so remaining amount in hands of the Respondent No.3 Company at such time may be Rs.3.34 crores alongwith a balance amount of Rs.4 crores 85 lacs viz receivable from the buyers of the 27 flats, which makes a total of Rs. 8.19 crores. In that scenario the Respondent No.3 company was not even required to approach Respondent No.6 for loan amount and should have completed the construction of the building by receiving installments from alleged buyers on progressive basis. As per the loan appraisal report submitted to Respondent No.6 on 21.01.2015, the construction had reached at the first floor roof stage even before the Respondent No.6 took up the loan application. The Respondents vehemently claim the appellant needed Rs.2.50 crores for completion of the project by their own admission before the Ld. NCLT, Indore Bench and the total cost of the Project was Rs.6.70 crores. Further more than 60% of the project was complete, then why not a single installment was paid on progressive basis by any of the buyer(s). Learned counsel ....