9911796707
TMI Blog2021 (2) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... ort does not implicate the role of the Independent Directors. In the concluding paragraph of the decision, the NCLT noted the position relating to two other Independent Directors, who were stated to be members of the Audit Committee of IFIN. On that basis, an order of impleading the appellants was passed together with the proposed respondents. The NCLAT, on the other hand, has stated that it was primarily considering the facts of the auditors Deloitte Haskins Sells LLP, treating that the appeal raised the same questions of law. The ends of justice would be met if an order of remand is passed requiring the NCLT to apply its mind to the issue as to whether the appellants should be impleaded. Undoubtedly, Independent Directors have a vital rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants were appointed as Independent Directors of IL&FS Financial Services Limited "IFIN". Ms Neera Saggi, the appellant in the first of the two appeals before this Court was appointed as an Independent Director on 18 March 2015. She resigned from the position on 25 July 2016. Ms Renu Challu, the appellant in the companion appeal, was appointed as an Independent Director on 27 September 2017. She resigned on 17 September 2018. 5 The NCLT, while dealing with the question as to whether they should be impleaded, observed in paragraph 74 of its order that: "74. With regard to proposed Respondent No. 336, Neera Saggi, SFIO has stated in its complaint before the Special Court at Mumbai that the independent Directors and CFO of the company are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole of Independent director has been specified. It is observed from the record that even though Mr. Surinder Singh Kohli, Ms.Subhalakshmi Panse were the Independent Directors, they were also the part of Audit Committee of IFIN. We therefore, at this stage allow MA 2071/2019 and direct the petitioner to implead the names of Proposed additional Respondent Nos. 321 to 343 to the Company Petition No.3638/2018" 8 The above extracts would indicate that the NCLT noted that the second SFIO Report did not specify the role of the appellants. However, it observed that though two other Directors (Surinder Singh Kohli and Subhalakshmi Panse) were Independent Directors, they were also part of the Audit Committee of IFIN. On this basis, the NCLT allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as delivered on 18 July 2019. 13 Mr N Venkataraman, learned Additional Solicitor General appearing on behalf of the respondents, has relied upon the provisions of sub-sections (8) and (12) of Section 149 of the Companies Act 2013 and of Schedule IV which specifies the Code for Independent Directors. Section 149(12) provides as follows: "(12) Notwithstanding anything contained in this Act,-- (i) an independent director; & (ii) a non-executive director not being promoter or key managerial personnel, shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, has stated that it was primarily considering the facts of the auditors - Deloitte Haskins & Sells LLP, treating that the appeal raised the same questions of law. 17 On the basis of the record, we are of the view that the ends of justice would be met if an order of remand is passed requiring the NCLT to apply its mind to the issue as to whether the appellants should be impleaded. Undoubtedly, Independent Directors have a vital role, as is indicated by the provisions of the Companies Act 2013. While Independent Directors are intended to be independent, they cannot remain indifferent to the position of the company. Since, however, the NCLT and NCLAT have not devoted due consideration to the role, position and allegations against the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
