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TMI Blog2017 (11) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... with an intention to delay the outcome of the Company Petition No.70 of 2006 filed by the appellant. In view, there is no infirmity with the impugned order passed by the Company Law Board. Appeal is devoid of merit. - Company Appeal No.12 of 2014 In Company Petition No.70 of 2006 - - - Dated:- 12-7-2017 - MR. R.D. DHANUKA, J. For The Appellant : Ms.Ankita Singhania a/w Ms.Shruti Sardesai i/by Mr.Kuldeep Nikam For The Respondent : Mr.Rajnish Sinha a/w Ms.Minakshi Surve i/by Mr.Satyan Israni Judgment :- By this appeal under Section 10F of the Companies Act, 1956, the appellant (original petitioner no.1) has impugned the order dated 23rd September 2013 passed by the Company Law Board, New Delhi Bench, New Delhi in CA No.471 of 2012 in C.P. No.70 of 2006 dismissing the CA No.471 of 2012 filed by the appellant and another inter alia praying for forensic examination of various documents to determine whether those documents were forged and/or bear forged signatures and for other reliefs. Some of the relevant facts for the purpose of deciding this appeal are as under :- 2. It is the case of the appellant that some time in the year 1974-75, the respondent no.1 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed its manufacturing activity and gave a notice and declaration to the Excise Department of re-starting the factory. On 19th October 1993, the respondent no.1 imported spare parts in the form of needles and shuttles from PERFECTA, Switzerland valued ₹ 5 lakh and paid the said amount after borrowing the amount. 5. It is the case of the respondent nos.1 to 5 that the respondent no.1 faced acute financial difficulty and required additional working capital to meet with its day to day requirements and thus the respondent no.1 resolved to issue further capital and made an offer to all its shareholders to subscribe for 1800 equity shares of the respondent no.1 company, at ₹ 100/- each on pro rata basis in accordance with Articles 37 and 38 of the Articles of Association on 10th January 1994. It is the case of the respondent nos.1 to 5 that due notice was given to all the shareholders. The appellant and the respondent nos.7 to 10 however chose not to subscribe in response to the said notice. 6. On 7th February 1994, the Board of Directors accepted the offer of Ms.Usha Jayakar, Director and resolved to allot 1800 shares of ₹ 100/- each to her. On 6th May 1994, Mr.San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said issue of further capital but none of the other shareholders wished to invest in a loss making company. 10. It is the case of the respondent nos.1 to 5 that the respondent no.1 company again faced problem of shortage of working capital, labour shortage, machinery breakdown and low production and also the looming threat of excise demand, penalty, property tax demand etc. The Board of Directors in the meeting held on 23rd March 1998 resolved to increase share capital further by issuing 2000 equity shares of ₹ 100/- each on pro rata basis to all the existing shareholders. 11. On 15th April 1998, no offer was received from any of the existing shareholders. Mr.Nand Lal Gupta, however, offered to purchase the shares under HUF head. The Board of Directors accordingly passed a resolution on 15th April 1998 and allotted 2000 shares of ₹ 100/- to Mr.Nand Lal Gupta (HUF). On 13th June 2003, Mr.Somdev Gupta, eldest brother in the Gupta Family who was also a shareholder in the respondent no.1 company passed away. It is the case of the appellant that in the month of June 2003, Mr.Nand Lal Gupta came to meet the family members during the funeral rites of Mr.Somdev Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the year 2006 onwards, the appellant faced with advancing age and the conduct of Mr.Nand Lal Gupta and thus the appellant decided to enquire about the status of the respondent no.1-company. On 14th June 2006, the appellant has alleged to have inspected the records of the respondent no.1-company on a website maintained by Tata Consultancy Services where under a government scheme, certain records of the companies were being uploaded. It is the case of the appellant that he was able to obtain a copy of the memorandum and Article of Association. It is further the case of the appellant that on 20th July 2006, the appellant got physically inspected the records of the company at office of the Registrar of Companies in Mumbai and obtained additional informations. The appellant learnt that the Nand Lal Gupta group (the respondent nos.2 to 5) had completely changed the shareholding pattern by raising their shareholding from 20% to around 78% and there were reducing shareholdings of the appellant and his wife from 35% to about 5%. The shareholdings of other three brothers were also reduced from somewhere around 20% to 5%. 16. It is the case of the appellant that the shareholdings of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enate, dispose or create third party interest in the assets and properties of the respondent no.1 and to only conduct normal day to day activities and directing the Bench Officer, Company Law Board, Mumbai to authenticate the statutory records of the respondent no.1 forthwith and submit a report to the Principal Bench, Delhi immediately. 19. On 10th August 2006, 5 persons including Bench Officer of the Company Law Board, Mumbai, the appellant herein, his advocate and two other unidentified persons went to the office of the respondent no.1 to carry out serach, seize and authenticate the statutory records of the respondent no.1. It is the case of the respondent nos.1 to 5 that since the appellant had not given notice of the order passed by the Company Law Board, they were not aware of the said order passed by the Company Law Board and thus they being not sure as to the identity of the persons accompanying the appellant and his advocate, they denied the said inspection to the appellant. However, upon realizing their mistake, the respondent nos.1 to 5 through their counsel tendered unconditional apology on 4th October 2006 before the Company Law Board and expressed readiness and wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m with the Registrar of Companies. 23. The appellant filed rejoinder and made bald allegation that the signatures of the appellant were forged. It is further alleged by the appellant that the appellant was pushed out of Sabina Woollen Mills Pvt. Ltd. by the end of 1980 and he also denied all workings thereof. He also denied that he was working as Director of Sabina Woollen Mills Pvt. Ltd. It was the case of the appellant that he had been denied the access to the registered office of Cameo Fabrics Ltd. for many years. On 31st January 2007, the statutory records of the respondent no.1 were produced in the Court room of the Company Law Board and was authenticated by the Bench Officer, New Delhi. No objection was taken by the appellant to the production of such statutory records of the respondent no.1. 24. In the month of March 2007, the respondent nos.1 to 5 filed sur-rejoinder. It is the case of the respondent nos.1 to 5 that to establish that the appellant had full knowledge of the affairs of the respondent no.1 at all material times and his statements were patently false and the appellant having denied his signatures on wealth tax returns though not having denied the contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 5 along with the affidavit-in-reply to the Company Application No.425 of 2007. It is also the case of the respondent nos.1 to 5 that the documents filed with sur-rejoinder were admissible since either they has been specifically mentioned in the counter affidavit or they had been filed to rebut the averments made in the rejoinder and in any event, were already forming part of the record as Annexure II to the affidavit-in-reply filed in Company Application No.425 of 2007. 28. On 9th June 2008, the respondent nos.1 to 5 filed an application (CA No.513 of 2008) inter alia praying for permission to carry out repairs/renovations/construction of the factory premises of the respondent no.1 since the said building had fallen into utter disrepair and had suffered serious damage from the monsoons of 2006 and 2007. 29. On 13th August 2008, the respondent nos.1 to 5 filed a company application being No.514 of 2008 against the appellant and his wife inter alia praying for dismissal of the Company Petition No.70 of 2006 with exemplary costs on the ground that the appellant and his wife had made false statements on oath in the rejoinder filed by them in the Company Petition No.70 of 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On 24th January 2011, the mediation report dated 14th January 2011 of failure was filed by the learned mediator before the Company Law Board which came to be taken on record on 24th January 2011. 34. The Company Law Board directed the appellant and his wife to file their reply to CA No.372 of 2010 within four weeks from the date of the said order and listed the said company application for arguments on 4th March 2011. On 20th April 2011, the Company Law Board disposed of the Company Application No.372 of 2010 recording that in view of there being strong objections from the appellant and his wife claiming 80% of the shareholdings of the respondent nos.1 to 5 in CA No.372 of 2010, the Company Law Board directed that the arguments in Company Petition Nos.2 of 2008 and 70 of 2006 would be heard in the month of July 2011 on day to day basis from 25th July 2011 to 29th July 2011. 35. On 16th June 2011, the respondent nos.1 to 5 pressed reliefs in CA No.514 of 2008 inter alia praying for dismissal of the Company Petition No.70 of 2006 in view of the alleged false statements made by the appellant and his wife. The Company Law Board, however, directed that all contentions of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntre, Cuffe Parade, Mumbai and C-16, MIDC, Kalwa Industrial Estate, Thane. 39. On 10th September,2012, the appellant and his wife filed an application bearing Company Application No.471 of 2012 in Company Petition No.70 of 2006 inter alia praying for forensic examination of various documents annexed to the sur-rejoinder filed by the respondent nos.1 to 5 to determine its authenticity and the date when they were created and to determine whether they were forged and/or bear the forged signatures etc. 40. On 7th January,2013, the appellant and his wife insisted that the pending Company Application No.425 of 2007 for impleadment of Tara Industries Ltd. and Company Application No.471 of 2012 for forensic examination being taken first, the said request of the appellant was opposed by the respondent nos. 1 to 5 on the ground that at that advanced stage of proceedings after the parties had addressed their arguments, the appellant and his wife could not press for hearing of pending Company Application No.425 of 2007 and could not have filed a company application for forensic examination. On 7th January,2013 the Company Law Board directed the parties to make their submissions in Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2013, the Company Application No.471 of 2012 was heard and was reserved for orders. On 23rd September, 2013, the Company Law Board passed a detailed judgment and order and rejected the Company Application No.471 of 2012 filed by the appellant and his wife inter alia praying for forensic examination of some of the documents. 44. In the month of November 2013, the appellant and his wife filed an application before the Company Law Board seeking recusal of the learned member Mr.B.S.V.Prakash Kumar. The learned member of the Company Law Board recused himself from the matter. On 1st December, 2013, the appellant filed the Company Appeal No.12 of 2014 under section 10F of the Companies Act, 1956. 45. Ms.Singhania, learned counsel for the appellant invited my attention to some of the documents annexed to the compilation of the documents, some of the paragraphs of the affidavits filed by both the parties before the Company Law Board, averments from Company Petition No. 70 of 2006 filed by the appellant and his wife and also the order passed by this court on 23rd June, 2014. She also invited my attention to the impugned order and judgment delivered by the Company Law Board dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was never a director of the said company. He was also not aware of any statutory filings of the respondent no.1. He had no control over the company and the records of the company were never shown to him. He had no hand in any aspect of the running of the company and/or control over the records of the company. Mr.Nand Lal Gupta was thus in a position to forge and fabricate or to back date any documents. 49. It is submitted by the learned counsel that Mr. Somdev Gupta, the eldest brother in the Gupta family died on 13th June, 2006. The remaining brothers decided to distribute the company amongst themselves. Mr.Nand Lal Gupta consented to the family settlement in the meeting held in February 2006 and assured equal distribution of assets of the company however resiled from his commitment subsequently and refused to share information with respect to the appellant and other members of the family. She submits that the appellant conducted an online inspection of the records of the company on 14th June, 2006 on the website maintained by Tata Consultancy Services. The said TCS had started uploading certain records of companies under a government scheme since around March 2006. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed by Nand Lal Gupta Group annexing disputed statutory record of the company and other fabricated documents, could not be taken on record. She submits that Delhi High Court passed an order on 26th February,2009 in the contempt petition filed by the appellant recording that the appellant was granted liberty to urge before the Company Law Board that the Nand Lal Gupta Group had used five months time to forge and fabricate the documents and that the Company Law Board should decide the same in accordance with law. 53. It is submitted that though the company petition as well as various applications were listed for arguments from July 2011 to March 2012, the same remained unconcluded. She submits that the respondent nos. 1 to 5 filed additional affidavits dated 25th November 2011, 26th November 2011 and 17th March 2012 annexing further disputed documents before the Company Law Board. She submits that in view of this conduct on the part of the respondent nos. 1 to 5, her client filed Company Application No.471 of 2012 before the Company Law Board in the month of September 2012 for seeking forensic examination of the documents and statutory records of the company. 54. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minutes relied upon by respondent nos. 1 to 5 are ante-dated and fabricated documents which were not signed and filed contemporaneously by Nand Lal Gupta Group. 57. Insofar as documents listed at serial nos.2, 3, 6 and 7 are concerned, those documents are pertaining to Sabina Woollen Mills Private Limited. The documents at serial nos. 2 and 3 were filed by Nand Lal Gupta Group along with sur-rejoinder dated 12th March,2007. The documents at serial nos. 6 and 7 were filed by Nand Lal Gupta Group along with additional affidavit dated 26th November, 2011 and 17th March 2012. She submits that it is admitted that the office of Sabina Woollen Mills Private Limited and the respondent no.1 is common office located at 101, Churchgate Chambers, 5 Marine Lines, Mumbai. She submits that Nand Lal Gupta Group was in possession of the registered office of the two companies where all statutory filings were done. 58. Prem Gupta Group and his spouse and two sons were based in Ludhiana and were looking after day to day affairs of Sabina Woollen Mills Private Limited. The appellant was not actively involved in the management of the affairs of Sabina Woollen Mills Private Limited. She submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Group in collusion with Prem Gupta Group to the prejudice of the shareholders and to the detriment of the company, it is vital to send the said documents for forensic examination which would demonstrate as to how the statutory records in both, the company and Sabina Woollen Mills Private Limited have been fabricated and forged. 61. It is submitted by the learned counsel that insofar as the documents listed at serial nos. 4 and 5 of the tabular chart are concerned, the said documents are the purported letters to the banks which had been filed by Nand Lal Gupta Group for the first time along with their additional affidavits dated 24th November,2011 which were not furnished or produced by the Nand Lal Gupta Group at the time of filing of the affidavit in reply dated 13th October,2006 or were not even filed along with sur-rejoinder dated 12th March, 2007. No reasons are furnished by the respondent nos. 1 to 5 as to why such documents were not brought on record earlier. She submits that the signatures of the appellant on the purported letters produced by the respondent nos. 1 to 4 are forged and thus deserves to be sent for forensic examination. 62. It is submitted that the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Directorate and Ministry of Corporate Affairs. She submits that the admitted signatures were placed by the appellant before the Company Law Board and the signatures of the appellant are on the company application as well as the affidavit accompanying the petition. She submits that the details of the disputed documents are in the application as well as the written submissions. 65. Learned counsel for the appellant placed reliance on the report of the Central Forensic Science Laboratory, Ministry of Home Affairs, Government of India dated 1st October, 2012 on the basis of the complaint filed by the appellant against Nand Lal Gupta Group and the respondent no.10 group. She submits that in the said report, it was found that the questioned signatures were different from those of the standard signatures leading to the opinion of different authorship. She submits that instead of relying on the Central Forensic Science Laboratory's Report dated 1st October,2012, the Investigating Officer who has submitted the closure report dated 26th August, 2014 has allocated to himself the role of a handwriting expert. She submits that even the said closure report is inconsistent and contrad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17th October, 2013. In such circumstances, the appellant was constrained to file an application being Company Application No.15 of 2013 seeking recusal of the learned member of the Company Law Board. The learned member had accordingly recused himself by an order dated 3rd December, 2013. She submits that the appellant was not responsible for any delay or did not make any attempt to delay the proceedings. 70. It is submitted by the learned counsel that since the respondents sought to rely upon the new documents only in the surrejoinder filed before the Company Law Board in the year 2007, there was no occasion for the appellant to file any application to refer the documents for forensic examination earlier. She submits that the respondent nos. 1 to 5 deliberately did not produce any financial records of the respondent no.1 before the Company Law Board earlier. Various minutes of the meeting were not annexed to the affidavit in reply but were annexed to the sur-rejoinder. 71. Learned counsel for the appellant invited my attention to the part of the pleadings in Company Appeal No.14 of 2014 in support of her submissions that the appellant had made allegations of manipulation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents from another handwriting expert which is not permissible. 74. Learned counsel for the appellant invited my attention to a letter addressed by HDFC Bank to the appellant (at page 821 of Volume IV) showing that the signatures of the appellant does not tally with the signatures on record. Learned counsel placed reliance on the judgment of Supreme Court in case of Bhanu Kumar Jain Vs.Archana Kumar Anr., reported in (2005) 1 SCC 787 at page 798. She also placed reliance on the judgment of Delhi High Court in case of A.P.Jain vs.Faridabad Metal Udyog, decided on 4th July, 2006 and in particular paragraph 14 in support of her submission that since the petitioner was not responsible for any delay in making an application for referring the document for forensic examination and in any event had explained such alleged delay, the Company Law Board could not have refused to exercise its discretionary power in favour of the appellant. She submits that the respondent no.10 is supporting the appellant and has filed a separate Company Petition (2 of 2008) before the Company Law Board. She submits that Mr.Shivraj Gupta, respondent no.7 is also supporting the appellant and has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantially complete, the Company Application No.471 of 2012 was filed on 9th September, 2012 by the appellant alleging that the annexures to the counter affidavit, sur- rejoinder and additional affidavit dated 24th November,2011 were forged and be sent for forensic examination. She submits that those documents had been also filed in Company Petition No.21ND of 2010 which was filed by Mr.Subhash Chander Gupta and another vs. Sabina Woollen Mills Pvt. Ltd. and others to which the appellant was impleaded as respondent no.6. 78. It is submitted by the learned senior counsel that though most of the documents annexed to the sur-rejoinder bear the signatures of the appellant, the same have been now alleged to be forged by the appellant. She submits that though the sur-rejoinder was filed on 10th March, 2007 and though the appellant had filed the Company Application No.429 of 2007 on 29th September 2007, inter-alia praying that the surrejoinder filed by the respondent nos.1 to 5 be rejected on the ground that new documents cannot be permitted to be filed, after more than five years from filing of the said documents, the appellant filed the said company application for referring some o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the learned senior counsel that pursuant to the order passed by the Company Law Board on 11th January, 2007, the records of the respondent no.1 were authenticated at Delhi. She submits that though the appellant was not a shareholder of Tara Industries Limited, he filed a frivolous Company Application (425 of 2007) on 16th August, 2007, inter-alia praying for impleadment of Tara Industries Limited as a party respondent to the Company Petition No.70 of 2006 filed by him. She submits that Premkumar Gupta has filed a company petition against Tara Industries Limited. The application of the appellant for intervention in the said company petition was admittedly rejected by the Company Law Board. The company appeal filed by the appellant was admittedly dismissed by this Court and the Special Leave petition filed by the appellant was dismissed by the Supreme Court against the said order. 82. Learned senior counsel placed reliance on the documents forming part of Convenience Compilation Volume I and particularly various wealth tax returns filed by the appellant in support of her submission that increase in the share capital of the respondent no.1 was all through out to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for increase of the share capital. 86. The Delhi High Court dismissed the contempt petition filed by the appellant observing that no useful purpose would be served in the proceedings for contempt petition filed by the appellant leaving it open to the appellant to urge his contention with respect to forging and fabricating all certain documents before the Company Law Board and leaving it open to the Company Law Board to decide the issue in accordance with law. The Delhi High Court did not adjudicate upon the said controversy in the said contempt petition. She submits that though the Delhi High Court had passed the said order in the contempt petition on 24th February, 2009, the appellant filed the Company Petition No.471 of 2012 only on 5th September, 2012 much after final hearing of the petition that already commenced and the parties had been heard extensively and the respondents had almost finished its arguments. 87. It is submitted by the learned senior counsel that inadvertently the minutes of the meeting of the Board of Directors were not filed with the counter affidavit. However, complete and full reference was made to the minutes of the meeting of the Board of Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to file such application seeking forensic examination of such minutes of the meeting and other documents was evident and after thought and was made with a view to further delay the hearing of the company petition. She submits that it is not the case of the appellant that the appellant had filed any different returns from the one produced by the respondent nos.1 to 5 with reply affidavit nor has produced any material or documents to show that different returns had been filed by the appellant with the Income Tax Department. 92. Learned senior counsel submits that the respondent nos.1 to 5 had also produced similar tax returns of the other respondents also evidencing the same value towards their respective shareholding in the respondent no.1 which have not been challenged as forged or fabricated by those respondents. My attention is invited to several such documents relating to the income tax and wealth tax returns of the various parties, including the appellant and other respondents for several years. 93. It is submitted by the learned senior counsel that there was deliberate and gross delay on the part of the appellant in filing the Company application No.271 of 2012 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations of the appellant that his signatures on various documents were forged and fabricated by the respondent nos.1 to 5. She submits that the proceedings before the Company Law Board being similar in nature any complicated disputes and the allegations of forgery, manipulation of the record and cannot be resolved on the strength of the averments made in the affidavit simplicitor and can only be decided by proper evidence. 97. Insofar as reliance placed on the order dated 23rd June, 2014 passed by this Court in Company Appeal No.14 of 2014 filed by the appellant against Sabina Woollen Mills Private Limited and others in support of the contention that the documents at serial nos.2, 3 and 7 had been sent for hand writing export's opinion and it had been reported that there were different authorship is concerned, it is submitted by the learned senior counsel for the respondent nos.1 to 5 that veracity of the said report has been already questioned by one of the respondent seeking to cross-examine the said handwriting expert appointed by an ex-parte order and the said application is still pending before this Court. She submits that the subsequent report of the Economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were compiled in Ludhiana and filed at Mumbai. The appellant himself had filed an affidavit dated 16th December 1997 stating that Wealth Tax returns were filed by the appellant as Karta of his HUF. He and his family members had also availed of the benefits under Section 68(2) of the Voluntary Disclosure of Income Scheme, 1997 and had filed various returns on 9th January 1998. The wife of the appellant i.e. Mrs. Rama Gupta had also filed income tax returns and also the returns under Voluntary Disclosure of Income Scheme. Son of the appellant had also declared purchase of jewellery under Voluntary Disclosure of Income Scheme. It is submitted that the averments made by Mr.Subhash Chander Gupta in the proceedings filed by him against M/s.Sabina Wollen Mills Pvt. Ltd. were admittedly confirmed by the appellant herein. 101. Learned counsel for the respondent nos.1 to 5 also invited my attention to the letter dated 4th January 1994 addressed by M/s.Sabina Woollen Mills Pvt. Ltd. to the Bank of Baroda which was signed by the appellant alleging forgery by one of the Directors as far back as on 4th January 1994. She also invited my attention to the letter at page 1434 of compilation of do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and fraud committed by the respondent nos.1 to 5 only after the inspection of the records from the Registrar of Companies. She submits that not a single notice of any meeting of the Board of Directors were served upon the appellant nor the same were annexed to affidavit in reply though several other documents were annexed by the respondent nos.1 to 5. Though the minutes and resolutions alleged to have been passed by the respondent no.1 were referred in the affidavit in reply, the same were deliberately not annexed. The respondent nos.1 to 5 have also not produced any proof of delivery of any of notices or copy of the resolution passed by the respondent no.1 upon the appellant. The records of the respondent no.1 were not produced and whatever was produced, was not genuine. 106. It is submitted that the delay tactics was played by the respondent no.1 and not by the appellant. She submits that the respondent nos.1 to 5 had not sought any leave in the affidavit in reply to refer to and produce those documents in future. She submits that in the rejoinder filed by the appellant, the appellant had already averred that the wealth tax returns were forged by the respondent nos.1 to 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Magistrate by the appellant which application is pending. 110. Ms.L.M. Jenkins, learned counsel for the respondent nos.1 to 5 in sur-rejoinder dealt with the chart submitted by the learned counsel for the appellant in rejoinder and would submit that it is not the case of the appellant that no records of the respondent no.1 exist or that no returns were filed by the appellant at all. She invited my attention to the averments made by the appellant in rejoinder before the Company Law Board and more particularly paragraph 15 and would submit that the appellant had himself given details of fixed deposits from March, 1992 till March, 2005. These records were not on the website of the Registrar of Companies for all these years. Unless the appellant had these documents available with the appellant, the appellant would not have given such details of the fixed deposits from March, 1992 to March, 2005. The appellant had thus all records of the respondent no.1 company with him all through out. 111. It is submitted that pursuant to the order passed by the Company Law Board on 31st January, 2007, the respondent nos.1 to 5 had produced statutory records. The appellant did not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orensic examination while disposing of the contempt petition filed by the appellant. She submits that the reasons which are not rendered by the Company Law Board cannot be supplanted by the respondent nos.1 to 5 while opposing the company appeal filed by the appellant. REASONS AND CONCLUSIONS : - 114. There is no dispute that the appellant and the respondent no.2 are brothers. The respondent no.1 was acquired by five brothers of Gupta family including the appellant and the respondent no.2. It is the case of the appellant that when the respondent no.1 was acquired the shareholding of each brother was approximately 20% of the equity capital of the said company. It is the also the case of the appellant that in the year 1987, Mr.Nand Lal Gupta started increasing his shareholdings in the respondent no.1-company from time to time and diluting of the shareholding of the appellant. According to the appellant, such increase in the share capital of the respondent no.1 by the Nand Lal Gupta Group was made on several occasions. 115. On the other hand, it is the case of the respondent nos.1 to 5 that the equity share capital of the respondent no.1 was required to be increased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent no.1, the respondent nos.1 to 5 filed their reply to the said company petition and placed reliance on the income tax and wealth tax returns of the appellant and the respondent nos.8, 9 and 10 for the assessment years 1986-87, 1989-90, 1992-93 and 1996-97 showing their respective shareholding in M/s.Cameo Fabrics Ltd. and valued the said shares as declared from year to year in the balance sheet of the respondent no.1. The respondent no.1 was the Executive Director in M/s.Sabina Woollen Mills Pvt. Ltd. 118. In so far as the company application made by the appellant (471 of 2012) in Company Petition No.70 of 2006 filed by the appellant inter alia praying for forensic examination of various documents to determine whether those documents were forged and/or bear forged signatures and for other reliefs is concerned, it is not in dispute that the final arguments in the Company Petition No.70 of 2006 had taken place between 25th July, 2011 to 28th July, 2011, on 18th August 2011, 6th September 2011, 7th September 2011, 20th October 2011, 29th October 2011, 28th November 2011 and concluded their arguments on 27th January 2012. The respondent nos.1 to 5 also commenced their argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as in the company application were totally vague and without particulars, the Company Law Board was right in dismissing the company application filed by the appellant inter alia praying for referring the documents for forensic examination to determine whether those documents were fraud, bear forged signatures and for other views. In my view principles of law laid down by the Supreme Court in the aforesaid three judgments are applicable to the facts of this case. I am respectfully bound by the principles laid down by the Supreme Court in those judgments. 122. A perusal of the record indicates that the appellant herein had already filed an application for intervention in the company petition filed by Mr.Prem Kumar Gupta against Tara Industries Ltd.. It is not in dispute that the said application for intervention made by the appellant in the said company petition was dismissed by the Company Law Board. The company appeal filed by the appellant impugning the said order passed by the Company Law Board was dismissed by this court. The Special Leave Petition filed by the appellant impugning the order passed by this court came to be dismissed by the Supreme Court. 123. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot accept that for a period of about 20 years, the appellant was totally kept in dark about various decisions taken by the respondent nos.1 to 5 in respect of the respondent no.1 company including increase in equity shares of the respondent no.1, the offer of the additional shares to the existing shareholders and various statutory returns including income tax and wealth tax returns filed by the respondent no.1 all these years. It is clear that based on the returns filed by the respondent no.1 for last several years, the appellant and his family members had filed their personal wealth tax and income tax returns. Unless the appellant had access to such income tax returns and other financial documents on record of respondent no.1 company, the appellant could not have filed their personal wealth tax and income tax returns for all these years. It is not the case of the appellant that the appellant and his other family members had filed any other wealth tax and income tax returns returns other than those returns, copies whereof were produced by the respondent nos.1 to 5 before the Company Law Board. 127. A perusal of those personal returns of the appellant produced by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Law Board against the respondent no.1 continued to be in force. The respondent no.1 had accordingly filed an application for vacating the said interim order passed by the Company Law Board. A perusal of the record produced before this court which was forming record before the Company Law Board makes it clear that the appellant deliberately delayed the matter before the Company Law Board with a view to continue to enjoy the ex-parte interim order passed by the Company Law Board against the respondent no.1. 130. The appellant had himself relied upon the financial report and the financial report of the company beginning from 1992-93 until 2004. I am inclined to accept the submission of the learned senior counsel for the respondent nos.1 to 5 that the documents annexed by the respondents clearly reflected the extent of the information available with the appellant about the respondent no.1. 131. A perusal of the record further indicates that the respondent nos. 1 to 5 had produced similar tax returns filed by the other respondents evidencing the same available towards their respective shareholding in the respondent no.1 which had not been challenged by any of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant, the income tax returns of the appellant were compiled in Ludhiana and were filed in Mumbai. The appellant himself had admitted in his affidavit that the tax returns were filed by him as Karta of HUF in the affidavit filed on 16th December, 1997. 134. It is not in dispute that the petitioner, his wife and son had availed of the benefits of Voluntary Disclosure Scheme introduced by the Central Government in the year 1997 by filing an affidavit of disclosure dated 9th January, 1998. Those documents would clearly indicates that the appellant and his family members had various information forming part of the financial documents and returns filed by the respondent no.1. The appellant was thus fully aware of the earlier returns filed by the appellant under the Income Tax Act, 1961 and also Wealth Tax Act. 135. A perusal of the record further indicates that the Unit Trust of India had written a letter dated 30th March,2013 to Economic Offence Wing showing that the appellant was issued two separate pan cards with two different signatures. In my view in these circumstances, the appellant could not have waited for more than 20 years to raise an issue of fraud, forgery a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta group (the respondent nos.2 to 5) had completely changed the shareholding pattern by raising their shareholding and there were reducing shareholdings of the appellant in the respondent no.1 in the year 2006 when the inspection of the records of the company was taken by the appellant from the Registrar of Companies, no application for referring the documents for forensic examination was made till 2012. The appellant had already disputed the signature of the appellant on the purported tax returns in the affidavit in rejoinder filed by the appellant in the year 2007 itself and thus the application for referring the documents for forensic examination made in the year 2012 was ex facie after thought and with a view to delay the outcome of the Company Petition No.70 of 2006 filed by the appellant. Even according to the appellant, Nand Lal Gupta Group had already produced the statutory records of the company on 31st January 2007 pursuant to the order dated 8th August 2006 passed by the Company Law Board, the application thus filed by the appellant for referring the documents for forensic examination was made in the year 2012 belatedly. 141. In so far as the reliance placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court ex parte in another company petition bearing no.14 of 2014. There was no prayer for referring the documents for forensic examination made by the appellant in that case either before the Company Law Board in the company petition or in the company application filed therein. The said order passed by this Court in the Company Appeal No.14 of 2014 thus would be of no assistance to the appellant in this case. Be that as it may, it is a common ground that the report of the said handwriting expert was not final, conclusive and binding on any of the parties. In my view, in view of gross delay on the part of the appellant in this case, the appellant cannot place reliance on the said ex parte order passed by this Court in Company Petition No.21(ND) of 2010 in case of Sabina Woollen Mills Private Limited. 144. A perusal of the record indicates that it is the case of the appellant before this Court that the appellant being the brother of Mr.Nand Lal Gupta had entrusted the entire filing of the documents including taxation to his brother Mr.Nand Lal Gupta and since the filing were at Mumbai, the documents were sent to Mumbai and dealt with at Mumbai. The appellant having taken such st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sur-rejoinder for forensic examination. 148. A perusal of the averments made in paragraph 6.94 of the company petition filed by the appellant clearly indicates that the appellant has admitted that he had inspected Form-II available with the Registrar of Companies. It is the case of the appellant that the appellant came to know about the alleged fabrication and fraud committed by the respondent nos.1 to 5 only after inspection of the records of the company from the Registrar of Companies was taken. It is thus clear that the application filed by the appellant for referring some of the documents for forensic examination in the year 2012 was after though and was filed with an intention to delay the outcome of the Company Petition No.70 of 2006 filed by the appellant. In my view, for the reasons recorded aforesaid, there is no infirmity with the impugned order passed by the Company Law Board. Appeal is devoid of merit. 149. I therefore pass the following order :- (i) Company Appeal No.12 of 2014 is dismissed. (ii) Hearing of the Company Petition No.70 of 2006 is expedited. (iii) The National Company Law Tribunal, Delhi shall make an endeavour to dispose of the Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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