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TMI Blog2022 (11) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... and mismanagement raises the issue of forgery or fabrication of any statutory records, then it shall be at liberty to move an appropriate application for forensic examination and the Tribunal hearing the matter can allow the petition if it think so. Therefore, in the present case the Tribunal has relied on the above mentioned sections to order forensic investigation of the signature and other documents. The Appellants agreed that the signature in the financial statements varies and claimed that the respondent had a practise of using multiple signatures at different times. Therefore, it is clear that there existed the issue of forgery/ signature difference, intentionally or unintentionally, and the Tribunal was not out of line while adjudicating on the same as pleaded by the Appellant in its appeal by allowing referring relevant signature and financial statements as elaborated in the Impugned Order for forensic examination by Central Forensic Science Laboratory at the cost of party allegation fabrication on record. The Appellate Tribunal do not find any error in the Impugned Order in this regard and hold that the Tribunal has sufficient power to refer the case for forensic examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation on the signatures of the Respondent on three documents i.e. (i) a Power of Attorney dated 31.07.2006, (ii) the financial statements of the Company for 2013-14 and (iii) the financial statements of the Company for 2014-15. Pleadings were completed in the company petition and in the applications. The NCLT, Chennai Bench directed the company petition and the applications to be taken up for hearing together. However, in the meantime, one new bench of the Tribunal at Kochi was constituted and CP No. 12 of 2018 and MA No. 247 of 2018 were transferred to Kochi Bench and were renumbered as TCP/8/KOB/2018 and TIA No. 102/KOB/2020 respectively. 4. On 13.10.2020, NCLT, Kochi Bench passed orders in TIA No. 102/KOB/2020 directing (i) the Power of Attorney dated 31.07.2006, (ii) the financial statements for 2013-14, (iii) the financial statements for 2014-15 and also (iv) two PAN cards of the Respondent to be sent for forensic examination for comparing the respondent s signatures appearing in these documents. 5. Hence, the present `Appeal , before this Appellate Tribunal. Appellants Submissions: 6. The Learned Counsel for the Appellants refuted all the allegations of forgery and opposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants further stated that as regards financial statement for the year 2014-15 the respondent 'only pleaded in the petition that the signatures do not match, and not of forgery, without even attaching the financial statement for the year 2013-14 as a document with the petition. 10. The Learned Counsel for the Appellants pointed out that the Respondent sent a letter dated 06.02.2018 sent to the 1st Appellant company immediately after the auditor's letter and the Respondent did not allege forgery of the financial statements in this letter and only questioned the appointment of the 2nd Appellant as a director without involving the Respondent and therefore terming decision as invalid and not binding on company. 11. The Learned Counsel for the Appellants pointed out that the Respondent has not alleged any financial misappropriation or that the financial statements do not reflect a true and fair picture of the affairs of the company for the years 2013-14 2014-15 in the company petition. The Learned Counsel for the Appellants pleaded that even on this ground, forensic examination of the documents is not necessary for a decision on the main company petition. 12. The Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter of the all-wrong averments made by the Appellants and maintained that all his arguments and request including alleged forgery by the Appellants which were mentioned in the original company petition which is still pending before the Tribunal. 19. The Learned Counsel for the Respondent assailed the conduct of the Appellants which according to him is evident from delaying tactics and as a result the Impugned Order dated 13.10.2020 could not be implemented even after more than two years which is only for verification of records and signatures. The Learned Counsel for the Respondent pleaded strongly that the appeal should be set aside with cost. 20. The Learned Counsel for the Respondent emphasised that he had made out a clear case for referring the following documents for forensic examination: a. Financial Statements of Channel Foods Pvt. Ltd., for the FY 2013-14 b. Financial Statements of Channel Foods Pvt. Ltd., for the FY 2014-15 c. Power of Attorney dated 31.07.2006. 21. The Learned Counsel for the Respondent emphasised that the Respondent had invoked the provisions of Rule 43 (3) of the NCLT Rules, 2016 for referring the documents to forensic examination. The Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng enquiry. 23. The Learned Counsel for the Respondent submitted that the Respondent had complied with the directions of the Tribunal by executing specimen signatures, handing over the original PAN card bearing No. AFWPN7566B which was the one in possession of the Respondent and payment of the requisite costs for forensic examination. However, the PAN card bearing No. ASPEK5529M is in possession of the Appellant and, the Appellant has not complied with the same. The Learned Counsel for the Respondent stated that the Respondent had also filed an application before the Tribunal seeking to amend the Impugned Order by way of Application M.A.No. 209/KOB/2020 in TCP/8/KOB/2019 which is currently pending before the Tribunal. 24. The Learned Counsel for the Respondent emphasised that the Impugned Order of the Tribunal was to only to determine whether the signatures of the Respondent were forged on statutory documents such as Financial Statements FY 2013-14 and 2014-15 and Power of Attorney dated 31.07.2006 which in turn would determine the outcome of the Company Petitions TCP/8/KOB/2019 and TCP/11/KOB/2019 filed under Section 241 and 242 of the Companies Act, 2013. The Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is clear that there is a variation in the signature, and it would only aid the Tribunal in arriving at an informed decision on the issue of forgery if the documents in question are sent to forensic examination before deciding in main company petition. 28. The Learned Counsel for the Respondent concluded that the present Appeal may be dismissed with cost and further direct the Appellants to forthwith submit the original Power of Attorney dated 31.07.2006, PAN Card bearing No. ASPEK5529M, original signed balance sheets of Channel Foods Pvt. Ltd., for the FY 2013-14 and 2014-15 to the Tribunal in order to Commence the forensic examination as directed by the Tribunal in the Impugned Order . Findings 29. Heard Learned Counsel for the Appellants and the Respondent and also perused record made available to us. Few issues in are required to be deliberated upon before coming to final conclusion. (I) Whether NCLT can order for production of documentary evidence and for forensic examination under section 424, Companies Act 2013 read with rule 43 of the NCLT Rules? (II) Whether the Respondent had pleaded forgery of his signatures and documents in main company petition? Issue No. (I): Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or a copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) dismissing a representation for default or deciding it ex parte; (g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (h) any other matter which may be prescribed. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Petition, in paragraphs (o) to (s). In fact, the Appellants agreed that the signature in the financial statements varies and claimed that the respondent had a practise of using multiple signatures at different times. Therefore, it is clear that there existed the issue of forgery/ signature difference, intentionally or unintentionally, and the Tribunal was not out of line while adjudicating on the same as pleaded by the Appellant in its appeal by allowing referring relevant signature and financial statements as elaborated in the Impugned Order for forensic examination by Central Forensic Science Laboratory at the cost of party allegation fabrication on record. e) This Appellate Tribunal also notes that this is only fact finding exercise and do not in any way affect the rights of Appellant or give special privileges to the Respondents . It is also observed that the main company petition is still pending and the Impugned Order dated 13.10.2020 has not been implemented till date. Therefore, the Appellate Tribunal do not find any error in the Impugned Order in this regard and hold that the Tribunal has sufficient power to refer the case for forensic examination and ask for productio ..... 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