2022 (4) TMI 267 - AT - Companies Law

Seeking inspection of the records of the company with the help of an Auditor or any person, to video graph the entire proceedings and appoint an observer to the said meeting - HELD THAT - This Tribunal, keeping in view the facts and circumstances of the attendant case on hand, specifically in the light of the fact that the main Application is still pending before the NCLT and only a few relief(s) have been addressed to and the AGM has been adjourned sine die, read together with the fact that the first Respondent who is an Ex-Managing Director, who resigned way back in 2016 is now seeking inspection of records of the subsequent period also in her capacity as a shareholder, the Impugned Order is set aside, and the matter remitted back to NCLT to decide the matter giving due opportunity to all parties to complete their pleadings, to the Appellants herein to file their objections and dispose of the case as expeditiously as practicable, but not later than three months from the date of this Order. Appeal allowed by way of remand.

Issues Involved:
1. Jurisdiction of NCLT in restraining criminal proceedings.
2. Entitlement of a former director to inspect company records.
3. Appointment of an observer and videography of AGM.
4. Allegations of mismanagement and siphoning of funds.
5. Interim orders and their implications on the main petition.

Issue-wise Detailed Analysis:

1. Jurisdiction of NCLT in restraining criminal proceedings:
The Appellant argued that NCLT exceeded its jurisdiction by restraining the Respondents from proceeding with criminal investigations lodged with the police. The NCLT had issued an order preventing the continuation of criminal proceedings until the next hearing date, which the Appellant contended was beyond the tribunal's authority.

2. Entitlement of a former director to inspect company records:
The Appellant contended that the first Respondent, having resigned as Director on 09/06/2016, sought retrospective inspection of records for FY 2016-17, which is allowed only for current Directors under Section 128(3) of the Companies Act, 2013. The NCLT had granted inspection of statutory records for any financial year, which was beyond what was prayed for by the first Respondent.

3. Appointment of an observer and videography of AGM:
The NCLT appointed an observer to oversee the 28th AGM and ordered the entire proceedings to be video recorded. The Appellant argued that this was unnecessary, especially given the history of the case and the ongoing criminal investigations. The first Respondent sought this relief due to alleged discrepancies and non-grant of inspection of company records.

4. Allegations of mismanagement and siphoning of funds:
The Appellant accused the first Respondent of running a parallel company and diverting business, leading to the filing of CS (Comm.) No. 466 of 2021 in the Delhi High Court, which appointed commissioners to inspect the Respondent's computers for misuse of proprietary software. FIRs were also lodged against the first Respondent for allegedly destroying financial records and siphoning funds.

5. Interim orders and their implications on the main petition:
The NCLT passed several interim orders, including the appointment of an observer and allowing inspection of records, which were part of the ongoing petition for oppression and mismanagement. The Appellant contended that these interim orders were beyond the reliefs sought and that the main petition should be addressed comprehensively.

Assessment:
The Tribunal noted that the NCLT issued the impugned order without giving the Appellant an opportunity to present their case, as the application was taken up a day before the scheduled AGM. The Tribunal found that some reliefs sought in CA 522/2021 were similar to those in previous applications, and the main application was still pending.

The Tribunal observed that the NCLT's order to appoint an observer and allow inspection of records was an interim measure due to the urgency of the AGM. However, given the ongoing main petition and the chequered history of the case, the Tribunal set aside the impugned order and remitted the matter back to NCLT for a comprehensive decision after giving all parties an opportunity to complete their pleadings.

Conclusion:
The Appeals were allowed to the extent that the impugned order was set aside, and the matter was remitted back to NCLT for a detailed adjudication within three months. The Tribunal directed the Registry to upload the judgment on its website and send a copy to NCLT forthwith.

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