2020 (7) TMI 535 - AT - Companies Law

Non-disclosure of allotment of equity shares of Respondent company - Dispute between the Directors - allegation that Respondent No.2 has handled the affairs of Respondent Company in a dishonest manner - production of record before the Administrator - shifting of office - non-speaking order - HELD 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 - there are no material that the findings of the NCLT on this issue are not reasonable. It is apparent that there is dispute between the two directors regarding their shareholding of the company. Whenever any one of the director has been in control of the company admittedly before 2008 by Lalit Agarwal and after 2008 by Pramod Goil, both of them have taken action in such a manner that the company has been mismanaged to the extent that it has lost its substratum. Once the company has lost its substratum that itself is a valid ground for winding up of company on just and equitable ground. The allotment of shares has been done without getting it approved in any Board Meeting - In the absence of any record available to be produced by either of the parties and non-existence of the assets of the company, it will be futile exercise to make any order except winding up of the company in the circumstances. The NCLT has passed a speaking and well reasoned order and there is no merit in the appeals to interfere with the impugned order. The impugned order is upheld - appeal dismissed.

Summary

Issues Involved:
1. Alleged suppression and non-disclosure of allotment of equity shares.
2. Dishonest handling of company affairs.
3. Loss and non-production of company records.
4. Dissipation of company assets.
5. Legality of share allotments.
6. Misuse of digital signatures.
7. Allegations of siphoning off company funds.
8. Manipulation of company records.
9. Enhancement of cash credit limit.
10. Non-cooperation with auditors and administrators.

Issue-wise Detailed Analysis:

1. Alleged Suppression and Non-disclosure of Allotment of Equity Shares:
The appellants argued that their petition was dismissed due to alleged suppression regarding the non-disclosure of equity share allotments by Appellant No.1 on specific dates. The tribunal found that no board resolution was presented to establish that the shares were allotted legally. The appellant admitted that no board meetings were held for the allotment of shares, indicating suppression of facts and false claims.

2. Dishonest Handling of Company Affairs:
The appellants claimed that Respondent No.2 handled the company affairs dishonestly, which the tribunal accepted. The tribunal noted that Respondent No.2 did not produce records and filed a police complaint about lost documents during office shifting. The tribunal doubted the repeated instances of lost records, suggesting an attempt to avoid producing records.

3. Loss and Non-production of Company Records:
The tribunal found that Respondent No.2 lodged a police complaint in 2013 about lost records during office shifting and later claimed the records were burnt in a car fire in 2015. The tribunal doubted the credibility of these claims, indicating a deliberate attempt to avoid producing records.

4. Dissipation of Company Assets:
The tribunal noted that the Administrator reported the removal of all tangible assets from the company's premises. The High Court initiated contempt proceedings against Respondent No.2 for disobeying court orders, indicating his conduct was not up to the mark.

5. Legality of Share Allotments:
The appellants argued that the share allotments were legal and consented to by Respondent No.2. However, the tribunal found no board resolution to support this claim and noted contradictions in the appellant's statements, leading to the conclusion that the allotments were not legally authorized.

6. Misuse of Digital Signatures:
The respondents argued that the appellants misused digital signatures to allot shares fraudulently. The tribunal found no evidence of board authorization for the allotments, supporting the claim of misuse.

7. Allegations of Siphoning Off Company Funds:
The appellants accused Respondent No.2 of siphoning off company funds for personal use. The tribunal noted that Respondent No.2 did not provide explanations for the encashment of cheques and fund transfers, indicating possible misappropriation of funds.

8. Manipulation of Company Records:
The tribunal found that the appellants manipulated company records and failed to produce statutory documents, leading to contempt proceedings by the High Court.

9. Enhancement of Cash Credit Limit:
The tribunal noted that the enhancement of the cash credit limit from ?85 lakhs to ?200 lakhs by Canara Bank was in violation of the specified procedure, indicating irregularities in financial management.

10. Non-cooperation with Auditors and Administrators:
The tribunal found that the appellants did not cooperate with auditors and administrators and failed to produce statutory documents, leading to contempt proceedings by the High Court.

Conclusion:
The tribunal concluded that the share allotments were unauthorized and the appellants did not cooperate with auditors and administrators. The tribunal upheld the NCLT's order for winding up the company due to loss of substratum and mismanagement by both directors. The appeals were dismissed, and costs were imposed on the appellants to be deposited with the National Defence Fund.