ORDER
Facts leading to the present Petition and Submissions advanced by Petitioner are as follow:
1. The Petitioner submits that the Respondent No. 1 company i.e. M/s Om Shree Greens Pvt. Ltd. was incorporated on 20.08.2007 as Private Limited Company and the Petitioner and Respondent No. 2 are the Directors and Share Holders of the Respondent No. 1 Company.
2. The Respondent No. 2 in and around March, 2007 represented to the Petitioner that he had a "Shetkari License" and they can engage in agricultural produce and animal husbandry business. The Respondent No. 2 further submitted that he had got few good deals in respect to agricultural lands in Kankvali Taluka, Sindhudurg District, Maharashtra and he already had discussions with the Farmers owning the land and are ready to sell the same.
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3. The Respondent No. 2 asked the Petitioner to invest money in the said land, as the agricultural and animal husbandry business would fetch good return and so the Petitioner agreed to invest the money in the said land. The Petitioner and the respondent No. 2 thereafter, consulted the professionals who advised that as the company is not permitted to hold agricultural land in the State of Maharashtra, the land can be purchased in the name of Respondent No. 2 who has got Shetkari Licence in his favour and that the Petitioner agreed to infuse sufficient funds to the company so that the Company could make the payments to the sellers of the land so that the fixed assets can be held by the company.
4. The Petitioner submits that in order to achieve the said goals the petitioner and the respondent No. 2 agreed to incorporate the Respondent No. 1 and accordingly the respondent No. 1 was incorporated on 20.08.2007 with the petitioner and the respondent No. 2 as its shareholders and directors.
5. That thereafter funds were infused into the bank accounts of the Respondent No. 1. The transfer of money from the Petitioner proprietorship concern to the Respondent No. 1 account and further the sellers of the land is evident from the statement of
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account of the Respondent No. 1 with Citi Bank and rest of the fund was transferred from M/s. Om Shri Logix, a partnership firm wherein the Petitioner and the Respondent No. 2 are partners.
6. The Respondent No. 1 purchased the Land in Village: Bordawe, Taluka: Kankavli, Dist: Sindhudurg, Maharashtra and in Osargaon, Taluka: Kankavli, Dist: Sindhudurg, Maharashtra. The Petitioner submits that the price of the lands purchased by the Respondent No. 1 Company in the name of the Respondent No. 2 is fortified by the fact that the entire consideration for payment of the said lands were made from the Respondent No. 1 account maintained either in Saraswat Bank, Antop Hill, Mumbai and/or Citi Bank, Bandra Kurla Complex, Bandra (E), Mumbai.
7. That the total sale consideration of the aforesaid lands was paid by the Respondent No. 1 and this fact is further fortified from the balance sheet of the Respondent No. 1 in the Assessment Year, 2009-10 and similarly in all subsequent balance sheets which were also filed with ROC Mumbai till Assessment 2017-18. The Payments made by the respondent No. 1 to the aforesaid sellers are reflected in the Bank Account. It is further submitted that all balance sheets have been signed by the petitioner and the Respondent No. 2. That the balance
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sheet of Respondent No. 1 as on Assessment Year 2008-2009 clearly records the fact that the company owns fixed assets in the form of land at Kankavli which are held in the name of the director/Respondent No. 2 on behalf of the company. It is further stated that in all balance sheets, subsequent to the said date and in the latest balance sheet as on 31.03.2017, the said land is shown to be owned by company in the name of its director.
8. The Respondent No. 2 has sold the land measuring 551 Guntha being Exhibit E situated at Village Bordwe, Tal: Kankavali, Dist:
Sindhudurg which was held by the Respondent No. 1 in the name of Respondent No. 2 to one M/s. Dilip Buildcon Ltd.
9. The petitioner further came to know that the Respondent No. 2 is negotiating with several prospective buyers for the remaining land bearing Gut No. 2185B, admeasuring 97.50 Guntha, Village:
Osargaon, Taluka: Kanakvali, Dist: Sindhudurg.
10. The Petitioner apprehends that the Respondent No. 2 may also sale /transfer or create third party interest in the said land thereby causing further loss to the respondent No. 1 company and the Petitioner as a 50% shareholder in complete breach of his fiduciary duty as director.
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11. Lastly, it has come to the notice of the Petitioner that Mr. Debkumar Banerjee has been appointed as an Additional Director on 10th February, 2020 contrary to the provision of section 161 of the Companies Act, 2013 read with Clause 33 of the Article of Association.
Submissions advanced by the Respondents are as follow:
12. The Respondent submits that the Petitioner had filed false affidavit as date of stamp paper is different from the date of affirmation and Entry made by the Learned Notary S.C Sawant is backdated.
13. The Respondent submits that presently neither the Petitioner nor the Respondent No. 2 are the directors of the Respondent No. 1 company. The Respondent No. 2 has resigned as director of the company on 16th March, 2020. Though the Petitioner was disqualified in the year 2016 the said fact was never informed by the Petitioner. The Petitioner being disqualified still used to sign balance sheets posing as the director of the Respondent No. 1. Also, Mr. Bindra is a Chartered Accountant of various companies in which the Petitioner is one of the directors. His disqualification was in knowledge of Chartered Accountant. However, Mr. Bindra, fraudulently and with an ill intention, the said fact was kept hidden from the Respondent No. 2. There has been also
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procurement of loans in different companies based on these balance sheets which are signed as a director by the Petitioner. Therefore, the nexus of Mr. Bindra and the Petitioner is established. Mr. Bindra, Chartered Accountant passed this incorrect entry of showing Respondent No. 2's personal assets as the asset of the company is an act of fraud played by the Petitioner and Mr. Bindra.
14. The Respondent No. 1 submits that the claim of the Petitioner that the said agricultural lands were purchased by the Respondent No. 1 company from the funds infused by the Petitioner and thus, the said agricultural lands are the assets of the Respondent No. 1 company is completely false. Till date, there is no resolution on the record to support the Petitioner's contentions. The Respondent submits that a company to own a fixed asset or to purchase an asset, a resolution has to be passed for the same; whereas allegation of the Petitioner is no such resolution has been passed in the Respondent No. 1 company to purchase the said agricultural lands in the name of the Respondent No. 2.
15. The Respondent submits that as agreed by the Petitioner that there is no resolution passed for purchasing those agricultural lands, there is also no resolution for selling those lands. The said
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agricultural properties are purchased by the Respondent No. 2 and are owned by him, hence, the Respondent No. 2 is under no obligation to deposit the consideration received from selling those lands to the Respondent No. 1.
16. The Respondent submits that the petitioner not only hide the said fact but also siphoned away a huge amount of Rs. 32,00,000/- (Rupees Thirty-Two lakhs only) from the Respondent No. 2 on the pretext that he shall resign from the Respondent No. 1 as a director and shall sell all of his shares. Believing in the Petitioner, the Petitioner was paid the said amount of Rs. 32,00,000/- (Rupees Thirty-Two lakhs only) on 20.04.2018, 15.05.2018, and 11.07.2018 from the account of Respondent No. 1.
17. The Respondent No. 2 further submits that as the Petitioner did not fulfil his commitment of resigning from the Respondent No. 1 as a director and also giving up his ownership. The Respondent No. 1 suffered loss at the hands of the Petitioner. The sum of amount of Rs. 7,00,000/- (Rupees Seven lakhs only) which was brought by the Petitioner from his sole proprietary concern has been adjusted against the Rs. 32,00,000/- (Rupees Thirty-Two lakhs only) which was received as mentioned in the earlier paragraphs. Therefore, till date Rs. 25,00,000/- (Rupees Twenty-
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Five lakhs only) stands receivable from the Petitioner.
18. The Respondent No. 1 submits that the person mentioned as Additional Director i.e., Mr. Deb Kumar Banerjee is no more the Additional Director of Respondent No. 1 company. Therefore, the Petitioner's prayers of declaring Mr. Deb Kumar Banerjee's appointment as Additional Director as null and void are redundant.
19. The Respondent also submitted that on 10.07.2023, he was served with a summons along with a copy of the Plaint and Interim Application in relation to a Special Suit No. 1 of 2022 filed by Sanjeev Kumar Medh i.e. the Petitioner herein before Hon'ble Civil Judge Senior Division Court at Oras, Sindhudurg. The Petitioner is seeking identical prayer before Hon'ble Civil Judge Senior Division Court at Oras.
FINDINGS
20. Heard the Ld. Counsel for the Petitioner and the Ld. Counsel for the Respondent and perused the records.
21. In view of the facts & circumstances stated supra and as clarity is required in the inter-se Financial Transaction to arrive at a considered decision, this Bench is of the view, that an Independent Auditor has to be appointed for conducting an Audit of the Financial Transactions of
Respondent No.1 as also to verify the claims of the
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Petitioner and Respondent No.2 regarding their Financial Transactions pertaining to Respondent No.1.
22. This Bench hereby appoint N B Shah & Associates, having registered office at 702, Skyline, Wealth Space, Above KIA Motors, Vidyavihar West, Mumbai-400086 as an Independent Auditor with a fee of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) which is to be equally borne by both the parties i.e the Petitioner & Respondent No. 2 and is directed to submit the report before this Bench within 6 weeks.
Sd/- Sd/-
ANU JAGMOHAN SINGH KISHORE VEMULAPALLI
Member (Technical) Member (Judicial)