DHIREN DAVE COMPANY SECRETARY Vs. SURAT DYES

JUDGEMENT

(1.) Heard the learned Counsel for the appellant on the question of maintainability of this appeal.

(2.) Present is an appeal under Section-483 of the Companies Act, 1956 at the instance of the appellant, who was not a party before the learned Company Judge, against Order dated 24th August, 2004. It will have to be seen that against an order passed by the learned Company Judge on 7th May, 2005 in Company Application No.42 of 2004, the learned Company Judge directed winding up of the Company after rejecting the plea of the Company that it had taken all necessary steps for its voluntary winding up. The said order dated 7th May, 2004 was challenged by the Company in O.J. Appeal No.30 of 2004. The Company, after realising that certain important evidences could not be produced before the learned Company Judge and certain facts if could be brought to the notice of the learned Company Judge, they may obtain an order in review, made a submission before the Division Bench that they be allowed to withdraw O.J. Appeal No.30 of 2004 with a liberty to go to the learned Company Judge. Vide Order dated 2nd July, 2004, the permission was accorded in favour of the Company. It is to be noted that in O. J. Appeal No.30 of 2004, an affidavit sworn by one Mr.Dhiren Dave, Company Secretary, sworn on 1st July, 2004, was filed. After withdrawal of the appeal, a Review Application was filed, which was registered as Company Application No.245 of 2004 in Company Application No.42 of 2004. After giving anxious consideration to the submissions made before the learned Company Judge and also after taking into consideration the documents, by Order dated 24th August, 2004, the learned Company Judge rejected the Review Petition. While rejecting the Review Petition, he observed that the Director, namely, Shailendra K.Agrawal, had made false statements; he was trying to take advantage of a plot provided by Mr.Dhiren Dave. He also recorded a finding that the statement made by Mr.Dhiren Dave in the affidavit that with his covering letter dated 29th June, 2003, necessary information was submitted to the Registrar of Companies on 2nd July, 2003 was a wrong statement, rather it was a created statement. He also observed that in fact, a validly constituted declaration was submitted with the Registrar of Companies on 29th July, 2003. He also observed that in the affidavit dated 1st July, 2004 sworn by Mr.Dhiren Dave and affidavit of Shailendra K. Agrawal dated 5th July, 2004, there were material contradictions, which could not be reconciled. He also observed that the acknowledgment on the covering letter of Mr.Dhiren Dave appeared to be not genuine because from the records of the Registrar of Companies, it appeared that during the said period, in relation to the Company, no such documents were received. The learned Company Judge, after summarising the facts, observed that the appellant failed to make out any case for review. The Court observed that the applicant tried to build a case on the basis of non-existent document with the help of Shri Dhiren Dave, Company Secretary, and both of them have made factual averments on affidavit, which were prima facie untrue. After recording these findings, the learned Company Judge directed that the applicant (Shailendra Agrawal) and Shri Dave be prosecuted for the offence punishable under Section-195 of the Code of Criminal Procedure, 1973 for committing an offence relating to submission of the false documents. The Court also directed that contempt proceedings be also drawn against both of them and it simultaneously ordered that the Council of the Institute of Company Secretaries of India, constituted under the Company Secretaries Act, 1980, is required to initiate appropriate action under Section-21 of the Company Secretaries Act.

(3.) It is to be noted that Shailendra K. Agrawal is facing prosecution before a competent Magistrate and has also filed his reply to the contempt proceedings, which are registered as Miscellaneous Civil Application No.76 of 2004. The said Miscellaneous Civil Application though was to be heard by the Division Bench separately, but, in view of the present O. J. Appeal No.53 of 2004, the proceedings have been tagged with O.J. Appeal No.53 of 2004.