9911796707
TMI Blog2025 (3) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... rties - HELD THAT:- Admittedly the impugned order dated 17.05.2021 has held the appellants guilty of act of perjury only on account of a declaration in Form 18 filed before the ROC (see Page 194 of the Appeal Paper Book). In the said declaration, against point No.15 viz whether any proceedings by or against the company is pending in any court or tribunal or any authority, the answer given by one Mr Ajay Vij, i.e. the appellant No.1 was NO. It is fairly conceded by the learned counsel for the appellant that declaration/Form 18 dated 03.11.2018 was incorrect since by that time i.e. on 25.04.2018 an application under Section 9 IBC stood filed against Corporate Debtor. Further CIRP commenced later on 14.3.2019. A wrong declaration in Form 18 allegedly made inadvertently before the ROC cannot be said to be material in the context of conversion from a Company into LLP so as to fall within the definition of perjury u/s 199 IPC. Thus holding the Appellants guilty of an act of perjury deserves to be set aside on this ground alone; and consequential impugned order dated 04.08.2021 permitting the Liquidator to file complaint u/s 340 Cr.P.C also deserves to be set aside - Admittedly such decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Partnership Act, 20008. We find that company has intentionally taken steps to convert the entity of the corporate debtor from the private limited company to LLP.to escape the rigors of insolvency code and to shrug off the liabilities of the creditors of the corporate debtor. As also it is evident that neither at the time of passing of the order nor during CIRP. the LLP partner have come forward for compliance of Section 56 and shown any willingness to accept the liability of the corporate debtor and pay its creditors. Considering that LLP partners were also appearing before the bench and had actively participated while handing over the possession of the units to the lessor which were taken on lease by the corporate debtor The Registrar of Companies in its reply has given the details of the directors of the corporate debtor prior to conversion into LLP as well as the list of designated partners of the LLP. We find Mr. Naveen Gambhir as a common name in both the entities. The chronology of the incidents reveal that the management of the corporate debtor has played a fraud on this bench and is guilty of perjury. Mr. Pankaj Gambhir has acted in the entire design as an active participa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically Mr. Ajay Vij. 1 who has submitted incorrect and wrong information while applying for LLP. to RoC. We direct Resolution Professional to immediately initiate appropriate proceedings for perjury against Mr. Ajay Vij. We fail to understand that without any formal agreement/documents/MOU between the corporate debtor and the proposed LLP with respect to the status of creditors, debtors, rights and liabilities, the conversion of accounts and all other formalities with respect to transfer of share capital, how merely on filling Form No. 18 with Registrar of Companies can change/convert the legal status of an entity into entirely different entity especially when both the entities fall under the governance of different statutes The Registrar of Companies is directed to take a cognizance of such kind of conversion on merely filling a single form in the Form No. 18. along with required fees to convert the entity which will have vast and grave repercussions on the public in general, in absence of any detailed document deciding the rights and liabilities of the parties concerned as well as the third parties who will be affected by such simplicit or conversion. 2. Thus the reason for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration filed was not material for such conversion. Further per law the conversion of a company into LLP shall have no effect to the pending proceedings by and against the company since per Section 58(4)(b) of LLP Act, 2008; upon conversion of a company into LLP, all assets, interest, rights, privileges, liabilities, obligation relating to the company and whole of the undertaking of the company stood transferred to the LLP. Clause 6(b) of the 3rd Schedule of LLP Act also supports the same. Even per Section 58(3) read with Clause 8 of third schedule of LLP Act, all proceedings by and against the company pending before any Court, tribunal or other authority can be continued, completed and enforced by or against the LLP. 8. Therefore, it is amply clear on conversion to LLP, the Appellants could not have evaded insolvency proceedings, thus the observation made by the Ld. NCLT viz the company has intentionally taken steps to convert the entity of the corporate debtor from private limited company to LLP, to escape the rigors of insolvency code and to shrug off the liabilities of the creditors of the corporate debtor is based on misreading. Thus a wrong declaration in Form 18 alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly no finding recoded to the effect "that it is expedient in the interest of justice a complaint should be filed. In the absence of a finding to the above effect which is a sine qua non under S. 340(1)(a) Cr.P.C, the impugned order dated 04.08.2021 is not sustainable in law. 12. The Hon'ble Supreme Court in Chajoo Ram v. Radhey Shyam (1971) 1 SCC 774 has held: "7. .... Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge." 13. Further the Hon'ble Supreme Court in Santokh Singh v. Izhar Hussain (1973) 2 SCC 406 held: "11. ..... Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
