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TMI Blog2024 (3) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... d 08.06.2022, passed by National Company Law Tribunal, Kochi Bench, in CP/127/(KOB)/2019 filed under Sections 241 & 242 of the Companies Act, 2013. 2. Shorn of unnecessary details, the brief facts of the case are that the Respondent No. 1 Company Amruthamgamaya Nature Care and Leisure Private Limited was founded in the Year 2006 by Ajith Nagappan Nair Radhamony (Respondent No. 2) and Ms. Sarah Judith Tamara Cohen (Respondent No. 6). R- 6 was a foreign national and had brought in the required capital in the form of FDI in various tranches. R-6 had transferred her shares to the Appellant. A Petition under Section 241 & 242 of the Companies Act, 2013, was filed by Ajith Nagappan Nair Radhamony (Respondent No. 2 herein) and Gayatri Padmakumari Sukumaran (Respondent No. 3 herein) alleging acts of `Oppression and Mismanagement' and, inter alia, claiming following reliefs: "A. Issue appropriate order for the revision of the Audited Financial Statements for the Financial Year 2015-16, 2016-17 and 2017-18 in view of the violation of the provisions of Section 129 and Section 134 of the Act. B. Direct the 2nd and 3rd Respondents to conduct and convene the Annual General meetings for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct an investigate audit and draw up the accounts of the Company for the financial years ended on 31st March, 2016, 31st March, 2017 and 31st March, 2018 and identify any accounting fraud occurred in the Financial Statements of the Company M/s. Amruthamgamaya Nature Care and Leisure Private Limited, taking into consideration of the averments made by both parties in this Company Petition. The Independent Auditor shall submit his report to this Tribunal within four weeks from the date of receipt of this order. The fee of the Independent Auditor is fixed as Rs. 1,00,000 (Rupees One Lakh Only), which shall be paid by the petitioners (Rs. 50,000) and respondents (Rs. 50,000) on completion of the Audit and submit a report before this Tribunal. 47. List the CP/127/KOB/2019 on 15.07.2022 for report of the Independent Auditor/hearing. 49. Registry shall issue a copy of this order to the Independent Auditor immediately." 5. Learned Sr. Counsel Mr. R. Murari, appearing for the Appellant stated that the Tribunal has erred in directing for Audit of the accounts of the Company through an independent Chartered Accountant without giving a finding of `Oppression and Mismanagement' and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations by the parties to the dispute in Company Petition filed under Section 241 & 242 of the Companies Act, 2013, which was being adjudicated upon by them. 9. The issues raised in this appeal were considered by Three Member Bench of this Tribunal in the case of `Archer Power System P. Ltd.' Vs. `Cascade Energy P. Ltd. & Ors.', reported in 2020 SCC OnLine NCLAT 1241, the relevant portion of the Order of NCLAT in `Archer Power System P. Ltd.' (supra) is reproduced below for benevolent reference: "The other issue raised by the appellant is that the National Company Law Tribunal, Chennai has erroneously passed the impugned order dated July 18, 2017 directing the status quo ante and the impugned order dated June 14, 2017 directing forensic audit before deciding the issue of maintainability. We heard the contentions of the parties and we are of the view that the question of maintainability need not to be decided as preliminary issue which can be decided along with main petition. Thus the National Company Law Tribunal under rule 11 of the National Company Law Tribunal Rules, 2016 has the inherent powers to pass such orders as may be necessary for meeting the ends of justice or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after due notice and after obtaining the consent of the party concerned; (g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference; (h) removal of the managing director, manager or any of the directors or the company; (i) recovery of undue gains made by any managing director, manager or director during the period of his appointment as such and the manner of utilisation of the recovery including transfer to Investor Education and Protection Fund or repayment to identifiable victims; (j) the manner in which the managing director or manager of the company may be appointed subsequent to an order removing the existing managing director or manager of the company made under clause (h); (k) appointment of such number of persons as directors, who may be required by the Tribunal to report to the Tribunal on such matters as the Tribunal may direct; (l) imposition of costs as may be deemed fit by ..... 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