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TMI Blog2012 (11) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... de error the damage cannot be undone. The Law-firm representing the Petitioners in this petition and one of its Advocates had acted, in the matter of preparing the petition and filing of affidavits, in an irresponsible manner which is appalling and not expected of a Law-firm. False affidavits were sworn on 08/06/2012 by Mr. G.K. Agrawal and notarised by the Notary Shri Dipankar Das. False identification was done by an Advocate representing the Law-firm in the affidavits. Taking a liberal view and granting liberty to the Petitioners Nos. 1, 2 & 4 to file a properly constituted fresh petition subject to cost of Rs. 50,000/- to be deposited within a week with the High Court Legal Aid Committee, New Delhi. The Law Firm and one Advocate had acted in the matter of filing of affidavits in this petition also impose exemplary cost of Rs. 50,000/- on the Law Firm and direct that the cost be deposited within a week from today with the High Court Legal Aid Committee, New Delhi. - C.A. NO. 392 OF 2012, C.P. No. 75 (ND) OF 2012 - - - Dated:- 17-8-2012 - D.R. DESHMUKH, J. S. Ganesh, Ms. Ritu Bhalla, Ashwin Sood and Mayank Pandey for the Petitioner. U.K. Chaudhary, Vibhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Each page of CP No.75(ND)/2012 bears two signatures out of which one is of Mrs. Supriya Gupta P-3. It went unnoticed that the other signature in the petition was not that of the Petitioner Mr.Rupak Gupta in three different capacities as P-l, P-2 and P-4. No explanation whatsoever was to be found in the petition regarding the person who had signed the petition besides Mrs.Supriya Gupta. Even his name was not disclosed under his signatures. The four affidavits filed with the petition though signed by the deponents on 30th May, 2012 were notarised on 8th June, 2012 by one Notary Mr.Ashok Kumar of Delhi with Regn. No.3061. It is important to note that these affidavits were registered in the notary Register at Sl.No.347/2012, 348/2012, 349/2012 and 350/2012. 6. The petition was mentioned by Sr. Counsel Sh. Sarkar on 12th June 2012 before me. I pointed out that the affidavits filed with the petition having blanks were defective. I had permitted counsel to mention the petition on 13th June, 2012 after removal of the defects. However, even on the said date, it was brought to my notice that an application C.A. No.313/2012 had been filed on 12/06/2012 by the Petitioners under Regulation 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also filed for withdrawing the affidavit of Mrs. Supriya Gupta filed with the petition and substituting it with a fresh affidavit to support the petition. Even in such affidavit it was not stated that the petition had been signed by the POA appointed by the Petitioners. 8. Shri U.K. Chaudhary, ld. Sr. Counsel appearing for the Respondents while praying for dismissal of the petition in liminie argued that the Petitioner had not approached the equitable jurisdiction of this Board with clean hands and therefore the petition was liable to be dismissed summarily. The Petitioners had suppressed the material fact in the petition that Mrs. Supriya Gupta did not hold any share of the company and that the petition was filed through and signed by the holder of a Power of Attorney, for Mr. Rupak Gupta as P-1, P-2 and P-4. Mrs.Supriya Gupta had deposed falsely in her affidavit filed with the petition that she was a member of the company. In the affidavit filed by Mr. Rupak Gupta on behalf of the Trust he had falsely projected himself as the sole Trustee. Ld. Sr. Counsel farther demonstrated from the record that none of the four Power of Attorneys had been attested by the Notary at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. [2004] 56 SCL 1 (SC), Bibi Asghari v. Muhammad Kasim AIR 1951 Pat 323, Killick Nixon Ltd. v. Bank of India [1985] 57 Comp. Cas. 831(Bom), United Bank of India v. Naresh Kumar AIR 1997 SC 3, L. Rama Subbu v. Madura College Board [1998] 93 Comp. Cas. 246/16 SCL 595 (CLB-Chennai), Rajahmundry Electric Supply Corporation Ltd. v. A. Nageswara Rao [1956] 26 Comp. Cas 91(SC), All India Reporter Ltd., Bombay with Branch Office at Nagpur v. Ramchandra Dhondo Datar AIR [1961] Bom 292, Karam Singh v. Ram Rachhpal Singh AIR [1977] HP 28 and The Jaipur Udyog Ltd., Sawaimadhopur v. Union of India AIR [1972] Raj 129, Karavadi Manikya Rao v. Nalluri Adenna [1949] 1 MLJ 291, Smt. Jarat Kumari Dassi v. Shaligram Subhkaran Khemani AIR 1960 Cal 489 and Mahant Som Giri v. Mahant Ram Ratan Giri AIR 1941 All 387. 10. I have considered the arguments advanced on either side and the case-law cited. I have also perused the record with utmost circumspection. 11. In the facts and circumstances mentioned above, the first question that merits consideration is whether the Company Petition No.75(ND)/2012 is a properly signed petition as required by Order 6, Rule 14 C.P.C. The said provision is as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable to the Petitioners for two reasons. Firstly Mrs. Supriya Gupta has not filed the petition on behalf of the company as its whole-time Director. Secondly, under sections 397 398 a petition alleging oppression and mismanagement by the Respondents in the company could be filed only by a member and none else. Mrs. Supriya Gupta admittedly did not hold any share of the company and was thus not a member of the company. The test would be if Mrs. Supriya Gupta was the sole Petitioner could file such a petition under sections 397 and 398 of the Act could be maintained. The question is clearly in the negative because Mrs. Supriya Gupta is not a member of the company. Admittedly there is no authorization by P-l, P-3 and P-4 in favour of Mrs. Supriya Gupta to sign the petition on their behalf. Therefore, the case-law cited being clearly distinguishable does not help the Petitioners in any manner. There is no allegation in the petition concerning any act of oppression towards Mrs. Supriya Gupta as the beneficiary of the Trust. Therefore, the signing of the petition by Mrs. Supriya Gupta does not in any manner constitute compliance of the provision contained in Order 6 Rule 14 C.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. It is thus crystal-clear that Mr.G.K. Agrawal had no authority to act as a duly constituted attorney on behalf of Mr.Rupak Gupta as an individual, as a Karta of HUF or as a Trustee of the Trust at the time when he signed the Company Petition. To reiterate, since the four affidavits dated 30/05/2012 in support of the petition which were notarised on 08/06/2012 were prior to the notarisation of the Power of Attorney in favour of Mr. G.K. Agrawal, it can be said that in law at the time of signing the petition, Mr. Rupak Gupta in three different capacities had not authorised Mr. G.K. Agrawal to sign the Company Petition as a duly constituted Power of Attorney. Considering the manner in which the affidavits have been notarized by the Notary I had deputed an officer of this Board to authenticate the Notary Register of Notary Shri Ashok Kumar for 8th June, 2012. A Xerox copy of the authenticated Notary Register reveals that neither Mr. Rupak Gupta nor Mrs. Supriya Gupta was present before Mr. Ashok Kumar on 8th June, 2012 at the time of notarising of the affidavits or POAs. It was also reported that Mr. Ashok Kumar had sold his chamber No.B-112, BGS Block, Tis Hazari Courts, New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pak Gupta and Mrs. Supriya Gupta by Mr. G.K. Agrawal and also revealed the utter carelessness with which the Notary Public Mr. Dipankar Das, Regn. No.916, Govt. Of India, 14, Lawyers Chamber, Supreme Court, New Delhi had attested the affidavits inasmuch as Mr .G.K. Agrawal had not only signed and verified as deponent in the affidavit of Mr. Rupak Gupta but had also signed and verified the affidavit of a lady, i.e. Mrs. Supriya Gupta. Not only this, Mr. M. Pandey an Advocate representing the Law-firm had also certified in each affidavit that the deponent was identified by him as such and had signed in his presence. All the four affidavits sworn-in by Mr. G.K. Agrawal and filed with application No.313/2012 are thus per se false. The manner in which the Law-firm has conducted itself in the matter of filing such tainted affidavits in this petition is indeed shocking. A Law-firm of the present stature is expected to aid the courts in determining the truth and not stifle it with traverse miscarriage of the procedure. The affidavits instead of being notarised are thus notorious in character and border on a criminal offence. The argument that all the four affidavits being under the pen of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps to suppress the fact that Mr. Rupak Gupta had not taken any steps so far for appointing a fresh Trustee in compliance to Article 19 of the Trust Deed which constituted a failure on the part of the surviving Trustee to appoint a fresh Trustee in terms of the Trust Deed dated 21/04/2006. If the facts were divulged the Trust Deed on a closer scrutiny would have also revealed that under Article-8, after 21 years from 1/4/2007 the surviving Trustee Mr. Rupak Gupta was to be the exclusive owner of the Trust property to the exclusion of even the surviving beneficiary of the Trust. A question would also have arisen whether Mr. Rupak Gupta was duly authorized by the Trust to file the Company Petition as there was no allegation in the entire petition constituting any oppression of the Trust, its Trustee or the beneficiaries in any manner. Therefore, in the affidavit it was thought fit to depict Mr. Rupak Gupta as the sole Trustee and Mrs. Supriya Gupta as a member of the company. Had it not been so a question would have arisen that if the Trust was not to be impleaded as a co-petitioner the remaining Petitioners would not satisfy the eligibility criteria to maintain a petition under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law-firm representing the Petitioners in this petition and one of its Advocates had acted, in the matter of preparing the petition and filing of affidavits, in an irresponsible manner which is appalling and not expected of a Law-firm. (e) False affidavits were sworn on 08/06/2012 by Mr. G.K. Agrawal and notarised by the Notary Shri Dipankar Das. False identification was done by an Advocate representing the Law-firm in the affidavits. 22. I, therefore, allow CA No. 392/2012 and dismiss C.P. No. 75(ND)/2012 in limine as not being a duly constituted petition in law. Instead of ordering criminal prosecution against Mr. G.K. Agrawal, Mr. Dipankar Das the Notary and the Advocate Mr. Mayank Gupta, I take a liberal view and grant liberty to the Petitioners Nos. 1, 2 4 to file a properly constituted fresh petition subject to cost of Rs. 50,000/- (Rupees Fifty Thousand only) to be deposited within a week with the High Court Legal Aid Committee, New Delhi. In view of the appalling manner in which the Law Firm and one Advocate had acted in the matter of filing of affidavits in this petition I also impose exemplary cost of Rs. 50,000/- ( Rupees Fifty Thousand only) on the Law Firm and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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