Delhi District Court
M/S Basant Ram & Sons vs M/S Basti Sugar Mills Ltd on 24 March, 2017
The Court of Nishant Garg, Civil Judge - 02, Patiala House Courts,
New Delhi District, New Delhi.
Judge Code-DL801
CS No. 147/2015
Case No. 57158/16
M/s Basant Ram & Sons,
Chartered Accountants,
A/18, Nizamuddin (East), Murli Marg,
New Delhi-110013.
............Plaintiff
vs.
1. M/s Basti Sugar Mills Ltd.,
207, Essel House, Asaf Ali Road,
New Delhi-110002.
(Since merged with defendant no. 2)
.......Defendant no. 1
2. M/s Phenil Sugars Ltd.,
207, Essel House, Asaf Ali road,
New Delhi-110002
.......Defendant no. 2
ORDER ON APPLICATION UNDER ORDER VI RULE 17 CPC
1. This order shall dispose of an application under Order VI Rule 17 CPC
filed by M/s Basant Ram and Sons (hereinafter referred to as "the
plaintiff") seeking amendment of the plaint. The application is contested
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by M/s Phenil Sugars Ltd. (hereinafter referred to as "the defendant no.
2").
2. The facts of the case, in brief are that the plaintiff is a firm of Chartered
Accountant duly registered with the Institute of Chartered Accountants of
India in which H.K. Chadha is a senior partner, through whom the present
suit is filed. The plaintiff firm was re-appointed as a statutory auditor by
M/s Basti Sugar Mills Ltd. (hereinafter referred to as "the defendant no.
1") its Annual General Meeting held in September 2000. The defendant
no. 1 company has now been merged with Defendant no. 2. The merger is
challenged by the plaintiff for which separate proceedings are pending
before Hon'ble High Court of Delhi.
3. Earlier, H K Chadha was holding 8 "A" Class Equity shares of Rs. 100/-
each of defendant no. 1 company. However, in 2000 when Section 226 of
the Companies Act 1956 was amended, he transferred these shares in
favour of his son Raman Chadha. The procedure for effecting transfer as
laid down under Section 108 of the Companies Act was duly followed.
The share transfer deed duly signed by the transferor, transferee and the
witnesses was executed; share transfer stamps were affixed as per law;
and the transfer deed complete in all respects, along with requisite
documents, was delivered to the Company Secretary of defendant no. 1
company on 09.04.2001. Acknowledgment of receipt was also given by
the company secretary of defendant no. 1 company on the photocopy of
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transfer deed. The transfer of shares was confirmed by Managing
Director of defendant no. 1 company vide his letter dated 16.11.2001
addressed to both the transferor and transferee. Raman Chadha's name is
also reflected in the list of share-holders of defendant no. 1 company duly
authenticated by its competent officer. The defendant no. 1 company also
issued notice of its AGMs held in the years 2001 to 2005 to Raman
Chadha which further confirmed the transfer of shares in his favour. The
plaintiff firm was re-appointed as statutory auditor of defendant no. 1
company in the AGMs held in the year 2001, 2002, 2003, 2004 and 2005.
In 2006 also, the plaintiff firm was proposed to be appointed as statutory
auditor in the AGM held on 30.12.2006.
4. During the course of routine audit of defendant no. 1 for financial year
ended on 31.03.2004, the plaintiff firm noticed serious financial
irregularities which were brought to the notice of management of
defendant no. 1 company for taking remedial steps. However since the
management was not inclined to take any remedial steps, they pressurized
the plaintiff firm to drop the qualified audit report. The directors of
defendant no. 1 company even stopped providing requisite information to
the plaintiff firm to enable them to perform their duties as auditor. Since
defendant no. 1 company wanted to get rid of them, they alleged for the
first time in 2007 that senior partner of the plaintiff firm is holding its
shares.
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5. Further, a collusive suit was filed at the behest of the defendants before
the Hon'ble High Court of Delhi in December 2006 seeking to restrain
defendant no.1 from appointing the plaintiff firm as its statutory auditor
in the AGM to be held on 30.12.2006 on the grounds that the plaintiff
firm is indebited to the company and that the "plaintiff" was a relative of
a director of defendant no. 1 company. The plaintiff was not made a party
to the said suit and defendant no. 1 succeeded in obtaining favourable
orders from the Court by misleading it. An appeal against the said
restraint order dated 19.12.2006 was filed by the plaintiff. The Hon'ble
High Court of Delhi vide its order dated 16.05.2007, barred defendant no.
1 company from raising this issue before the Hon'ble Company Law
Board and also before the Hon'ble Company Court. Vide order dated
05.10.2007, the Hon'ble High Court clarified that in case the plaintiff is
aggrieved by the audit done by new auditors, they shall have a right to
challenge it.
6. The plaintiff also filed a writ petition bearing no. 4058/2016 which is
pending adjudication seeking direction to the Registrar of Companies for
not taking on record balance sheets and accounts for the financial year
ended 31.03.2005 and 31.03.2006.
7. Raman Chadha had filed a petition before the Hon'ble Company Law
Board seeking rectification of the register of the share holders of
defendant no. 1. The said petition was dismissed by the Hon'ble Company
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Law Board. The appeal against that order was dismissed by the single
bench of Hon'ble High Court of Delhi and subsequently by the Division
Bench. The Special Leave Petition against the order of the Hon'ble High
Court of Delhi was also dismissed by the Hon'ble Supreme Court of
India. The plaintiff firm was not a party to those proceedings, although
Mr. H.K. Chadha in his personal capacity was a party.
8. The defendant no. 1 company sent the balance sheets as on 31.03.2005
and 31.03.2006 to the plaintiff, purportedly in September 2006, though
received in first and third week of October 2006 respectively. On their
receipt, the plaintiff firm informed defendant no. 1 company that they are
incomplete and all the requisite documents have not been submitted. The
defendant no. 1 company was further requested to provide of the requisite
documents and records. No response was given by the defendant no. 1
company. However, since the company was expecting qualified auditor's
report for these years, they illegally obtained it from its new auditor (M/s
Vinod Kumar & Associates) which was in violation of the orders of the
Hon'ble High Court of Delhi dated 27.12.2006, 15.05.2007 and
05.10.2007. Hence the report of auditor M/s Vinod Kumar and associates
of defendant no. 1 company for the financial year ending 31.03.2005 and
31.03.2006 is invalid. It was also observed by the plaintiff firm that the
management of defendant no. 1 company has manipulated the accounts
for the year ended on 31.03.2005 and 31.03.2006 to get a favourable
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auditor's report from M/s Vinod Kumar and associates.
9. Hence, a decree of declaration be passed to the effect that shares held by
H.K. Chadha were validly transferred in the name of Raman Chadha and
H.K. Chadha ceased to be a share holder in defendant no. 1 company;
that annual returns of defendant no. 1 company for the year 2002, 03, 04
and 05 are invalid documents and cannot be considered as valid evidence;
and that AGM held on 29.09.2004, 30.09.2005 and 30.12.2006 was not
conducted in accordance with law and therefore is to be treated as
adjourned sine die. Lastly, a direction to defendant no. 2 to issue 8 "A"
Class Equity shares of defendant in favour of Raman Chadha.
10. Written statement on behalf of the defendant no. 2 was filed wherein
preliminary objections as to malafide of the plaintiff and bar of suit under
Section 11 CPC were taken. On merits, while denying the averments of
the plaint, the defendant no. 2 submitted that the plaintiff is a chronic
litigant having personal vendatta against defendant no. 1 (since merged
with defendant no. 2). The misconduct of H.K. Chadha has time and
again been taken into consideration by various courts. The reliefs sought
by the plaintiff have already been declined by various courts in separate
proceedings filed by Raman Chadha in proxy litigation. Even the appeal
no. 51 of 2013 whereby merger of defendant no. 1 with defendant no. 2
was challenged, has been dismissed by the Hon'ble High Court of Delhi
vide order dated 03.09.2015. The plaintiff suit is a misuse of the
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provision of law and is liable to be dismissed. The misconduct of the
plaintiff and bars of the suit under Section 11 CPC is reflected from the
following orders:-
(i) Basant Ram and Sons vs. UOI & Anr. (2002) 110 Comp Cases 38 (Delhi)
wherein the Hon'ble High Court of Delhi has observed as under :
"10. I find merit in the contention of the respondents that the statutory
auditors had lost the confidence of the management. This is also apparent from the chequered history of the litigation that had ensued between the petitioners or by their associates at their behest. Year after year in the reports, the statutory auditors did not raise any objection but kept on making repeating the observation with regard to the matter being under investigation and had finally in their report of 11.02.1998 had accepted the recommendation. The petitioners raised this objection belatedly on 11.11.1998 after they had fallen foul with management and with a view to resist the action for their removal."
(ii) Raman Chadha vs. The Basti Sugar Mills Co. Ltd. CP no. 9/111/2007-CLB decided on 03.08.2011 by Company Law Board wherein the following has been observed;
'12. Considering the facts of this case it is noted that no case has been made out under Section 112 of the Act, the petitioners claim is untenable, as the Managing Director, who is said to have colluded with the petitioner and his father (Sh. H.K. Chadha who also was the statutory auditor of the Respondent Company) cannot be said to the person issuing certificated instrument and having been authorized to issue such so called instrument of transfer on the company's behalf. The petitioner's claim of deemed certification falls and the case of the respondents regarding the alleged collusion is prima facie made out, documents seem to be self serving documents prepared with the motive to get over the debarring provisions of a statutory auditor, this finding is confirmed by the fact that the normal procedure for transfer CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 7/18 has not been followed by the petitioner and his father, the statutory auditor of the company. There is no answer to the Respondent's contention that the reverse side of the share certificate does not have valid transfer endorsement, there is no seal as well. There is no question of the Respondent company replying to the petition allowing or refusing of transfer when the proper documents have not been file with the company, the receipt is by a company secretary, Managing Director is directly endorsing and returning it to the petitioner, this is certainly not the normal procedure followed in the company. The chronology of events and the manner and the timing of the claim all indicate towards this proxy litigation to get an entry into the company as a statutory auditor, get the disqualification removed retrospectively. Such a proxy litigation cannot be permitted......"
(iii) H.K. Chadha vs. Basti Sugar Mills Co. Ltd. & Ors. Co. App. No. 51 of 20013 decided on 03.09.2015 by Hon'ble High Court of Delhi wherein the court has observed as under :-
"1. The instant case manifest the difficulties which a peeved statutory auditor can create for a company, if he is removed from his office. Having knowledge of all intricate details about the working of the company, he can misuse the same and make distortions thereon by virtue of his position and resort to exploitative complaints to statutory government authorities and initiate malicious litigation as in the present case to prevent the company from functioning or implementing decision."
"40. We find that other than eight shares held by the appellant - Shri H.K. Chadha, 99.99% shareholders are in agreement with the merger. All creditors, bankers etc. of the respondent company have also approved the merger and there is no objection at all by them till date to the functioning of the merged company. The appellant holding merely eight shares is litigating as he is clearly peeved at his removal as statutory auditor and that the petition as well as the appeal against the merger has been filed maliciously and malafide. "41. The Appellant found that by statutory operation, he being a CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 8/18 share-holder, could not continue as the statutory auditor of the respondent no. 1. He then dishonestly tried to perpetuate appointment by setting up a false claim of transfer of his shareholding to his son Shri Raman Chadha. Much litigation, as extracted above, was generated, clearly at the instance of the appellant utilizing the name of his son as a shield.
"42. From the above narration of facts, we find substance in the contention fo Mr. Alok Agarwal, learned counsel for the respondent that the objection of the appellant were motivated and malafide and stem out of malice because of his removal as a statutory auditor. A Chartered Accountant by profession, such actions on the part of the appellant are in utmost bad faith. For this reason, apart from appeal being devoid of legal merit, the appellant deserves to be burdened with heavy costs.
43. The malafide of the appellant has led to several proceedings before the Company Law Board, one suit on the original side, a writ petition before the single judge, Applications/objections in the proceedings under Section 391 and 394 of the Companies Act at both stages and the present appeal before a Division Bench of this Court. The appellant is represented by very senior and able legal experts. Clearly, he is a person of sufficient means who is able to afford such malicious litigation. Shri H.K. Chadha thus has the capacity to pay reasonable costs to the other side as well.
44. Valuable judicial time has been caused to be squandered on this meritless litigation at the instance of the appellant who must also compensate the system......"
11. An application under Order VII Rule 11 CPC seeking rejection of plaint on the ground of Res-judicata was filed by the defendant which is pending consideration. Issues are yet to be framed into the case.
12. By way of the present application under Order VI Rule 17 CPC the CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 9/18 plaintiff intends to amend their plaint stating that certain typographical errors crept in due to which certain paragraps went missing. Besides adding two more defendants and 16 new prayers, the plaintiff intends to add para no. 5, 6 and 19 (including the sub-paragraphs) apart from amending para no. 3, 4, 19 and 24.
13. The gist of the amendments sought by the plaintiff is as under:
i. By Amending para no. 3 and 4, the plaintiff submits that he is aggrieved by the order dated 09.09.2011 of the Hon'ble Company Law Board and order dated 02.02.2012 of the Hon'ble High Court of Delhi which were obtained by defendant No. 1 company by playing fraud. The said orders were in violation of the order dated 16.05.2007 and 05.10.2007 of the division bench of Hon'ble High Court of Delhi and are thus, null and void. The Hon'ble Company Law Board and Hon'ble Company Court had no jurisdiction to decide the matter in dispute. The appeal against these order was also dismissed but the order of dismissal of appeal is also non-est. ii. By adding new paragraph 5A, the plaintiff seeks to re-affirm that 8 "A" Class Equity shares of defendant no. 1 company were validly transferred by H.K. Chadha in favour of Raman Chadha. Vide new para 5B, the plaintiff reiterates that in view CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 10/18 of orders dated 16.05.2007 and 05.10.2007 of the Hon'ble High Court of Delhi, the Hon'ble Company Law Board and Hon'ble Company Court could not have passed the orders dated 09.09.2011 and 02.02.2012. Vide new paragraph 5C, the plaintiff challenges the eligibility of the newly appointed auditor to audit the accounts of defendant no. 1 for the years ended on 31.03.2005 and 31.03.2006 stating that they were in violation of orders dated 16.05.2007 and 05.10.2007 of the Hon'ble High Court of Delhi.
iii. Vide amendment in paragraph no. 19, the plaintiff submits that defendant No. 1 has cheated Central Bank of India by forging plaintiff's signatures on the balance sheet and auditors report.
14. The sixteen more reliefs sought by the plaintiff in the prayer clause are as under:-
1. To pass a decree and to declare that the notice for AGM held on 30.12.2006 was invalid, and therefore the AGM was not held in accordance with law;
2. To pass a decree and to declare that without making necessary adjustments of irregularities pointed out in the auditors' report dated 09.10.2006, subsequent accounts will not depict true and fair view of the state of affairs of the company;
3. To pass a decree and to declare that account of defendant no. 1 company for the years ended on 31.03.2005 and 31.03.2006, CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 11/18 were not audited in accordance with the direction given by the Hon'ble DB of the Delhi High Court;
4. To pass a decree and to declare that the accounts of defendant no. 1 company for its financial year ended on 31.03.2004, 31.03.2005 and 31.03.2006 could not have been passed in the AGM of the company held on 30.07.2007, under Section 210 of the Act;
5. To pass a decree and to declare that the re-created minutes of the AGMs held on 29.09.2004, 30.09.2005 cannot be treated as valid document under Section 193 of the Act,
6. To pass a decree and to declare that the aggregate shares held by late Sh. Sudhir Avadhoot, Mr. Vivek Sahgal, Mrs. Usha Sahgal and M/s System Investments Pvt. Limited were not validly transferred in the name of defendant no. 2 company.
7. To pass a decree and to declare that the P&L accounts & balance sheet as at 31.03.2004, which was filed in 2004 by D-1, was a forged document,
8. To pass a decree and to declare that the accounts placed before the Company Court in respect of Merger scheme did not depict the true and fair view about the latest financial position of the company as required under Section 391 of the Act,
9. To pass a decree and to declare that the directors who have given false and misleading statement in the Directors Report dated 19.06.2007 are liable to be prosecuted under Section 628 of the Act by the Ministry of Corporate Affairs, Govt. of India;
10. To pass a decree and to declare that there is no compliance of S.394(1) of the Act in view of the Inspection Report under Section 209A of the Act;
11. To pass a decree and to declare that the offences pointed out in the Inspection Report under Section 209 of the Act, by the Dy. Director (Inspection) are liable to be prosecuted under Section 628 and 629 of the Act, by the Ministry of Corporate Affairs, Govt. of India;
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12. To pass a decree and to declare that the directors' report dated 19.06.2007 of D-1 company does not reflect true and fair view, and about the adjustments of irregularities pointed out in the auditors' report dated 09.10.2006;
13. To pass a decree and to declare that D-1 company has violated the provisions of SICA by not filling reference before BIFR;
14. To pass a decree and to direct the Serious Fraud Investigation Office, Ministry of Corporate Affairs to conduct investigation about the affairs of D-1 Company from 01.04.2003 onwards, and submit the report to this Court,
15. To pass a decree and to declare that the plaintiff continued as statutory auditor of D-1 Company, till the AGM for the year 2004 and 2005 were actually concluded;
16. To pass a decree and to declare that the plaintiff is entitled to receive payment of his professional fee for conducting the audit for the year ended on 31.03.2004, 31.03.2005 and 31.03.2006 together with the accrued interest thereon;
15. In support of amendment application, the plaintiff has placed reliance on the following judgments:-
1. Ragu Thilak D John vs. Rayappan, AIR 2001 SC 699;
2. Rajesh Kumar Aggarwal vs. K.K. Modi, AIR 2006 SC 1647;
3. National Organic Chemical Industries vs. Miheer H Mafat Lal AIR 2004 SC 3933;
4. Andhra Bank vs. ABN Amro Bank AIR 2007 SC 2511
16. The application is contested by the defendants. In reply to the application, the defendant submitted that the application is a gross abuse of the process of law. By way of the present application, 43 new paragraphs and CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 13/18 16 new prayers are sought to be added besides adding two new defendants. The proposed amendments cannot be said to be mere "typographical errors" and have been made only after the defects were pointed out by the defendant in their written statement. The proposed amendments will change the pleadings, the parties as well as the reliefs. Hence, the application is liable to be dismissed.
17. Additional written submission were filed by the plaintiff stating that Writ Petition No. 4058 of 2010, which was pending adjudication before the Hon'ble High Court of Delhi, was withdrawn and liberty was granted to seek alternative reliefs. Hence, the amendments have become necessary to avoid multiplicity of litigation. It is futher submitted that due to virus in the computer, body of the suit had damaged which was detected only when pointed out by Defendant No. 2 in its written statement.
18. I have heard the ld. Counsel for the parties and have perused the case file.
19. At the outset, it may be mentioned that by seeking 16 more reliefs (as detailed above), the plaintiff is primarily seeking declarations to the effect that the annual reports of the defendant company, AGMs held; and accounts audited were unlawful, illegal and invalid. The plaintiff is further seeking declarations that certain documents cannot be treated as valid; that shares held by certain persons were not validly transferred; that the balance sheet is a forged and fabricated document; that the accounts in respect of merger scheme did not depict true and fair picture; that the CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 14/18 directors of the defendant company are liable to be prosecuted; that Section 394(1) of the Companies Act has not been complied with; that the Director's report dated 19.06.2007 does not depict true picture of the company; that defendant no. 1 company has violated the provision of SICA by not filing reference before the Board for Industrial and Financial Reconstruction; that the plaintiff continued as statutory auditor of defendant no. 1 company till AGMs of the year 2004 and 2005 were actually conducted; and that plaintiff is entitled for payment of his professional fee for auditor conducted for the year ended 31.03.2004 and 31.03.2005 and 31.03.2006. A direction to Serious Fraud Investigation Office is sought to conduct investment about affairs of defendant no. 1 company.
20. A declaration is given by the civil court under Section 34 of the Specific Relief Act, 1963. Such a declaration is limited only with respect to "legal character of a person" and "right to property". No other declaration is contemplated under Section 34 of the Specific Relief Act 1963. By way of the present application, the plaintiff is seeking declarations that certain documents are invalid; the AGMs were unlawful; the accounts do not reflect true picture; certain procedure of law has not been followed; certain shares were validly transferred; the directors are liable to be prosecuted etc. Apparently, all these declarations are beyond the purview of Section 34 of the Specific Relief Act, 1963. It is beyond the CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 15/18 jurisdiction of this court to grant any such reliefs to the plaintiff.
21. As regards relief regarding declaration that the plaintiff firm is entitled to receive payment of their professional fee, clearly, no such declaration is permissible under the law. The plaintiff has not quantified the amount of professional fee due to them from the defendants and its recovery has not been sought. The plaintiff has not valued the suit for claiming said relief and has not sought to amend the paragraph of valuation of the suit. No additional court fee has been paid on the amount sought as professional fee. The amendment will also change the nature of the suit from that of Declaration and Permanent Injunction to that of recovery.
22. By making amendments in paragraph 3 and 4, and adding para 5B, the plaintiff is challenging order dated 09.09.2011 of the Hon'ble Company Law Board and order dated 02.02.2012 of the Hon'ble High Court of Delhi stating that these could not have been passed, in view of the earlier orders dated 16.05.2007 and 05.10.2007 of the Division Bench of the Hon'ble High Court of Delhi. The plaintiff now contends that the plaintiff firm was not a party to those proceedings, though H.K. Chadha in his personal capacity was a party. During arguments, the Ld. Counsel for the plaintiff clarified that H.K. Chadha was not a party to these proceedings though he had sought impleadment.
23. It is pertinent to note that petition before the Hon'ble Company Law Board was filed by Raman Chadha, seeking rectification of the register of CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 16/18 the share-holders of the defendant company, claiming himself to be a share-holder holding 8 "A" Class Equity shares. The said petition was dismissed. The impleadment of H.K. Chadha was not accepted. Even otherwise, shares were held by H K Chadha in his personal capacity and not as a senior partner of the plaintiff firm. Similarly, the shares were allegedly transferred to Raman Chadha in his individual capacity alone. Hence, the question of plaintiff firm being a party to those proceedings does not arise. It is further relevant to note that both H.K. Chadha and Raman Chadha are the partners in the plaintiff firm, as is reflected from the authorization letter in favour of H.K. Chadha filed in the present suit. Since Raman Chadha has availed his remedy of appeal against order dated 09.09.2011 of the Hon'ble Company Law Board (which was dimissed by the Hon'ble High Court of Delhi vide order dated 02.02.2012) and impleadment of H.K. Chadha was not accepted, he and H.K. Chadha cannot challenge these orders by filing the present suit in the name of the partnership firm of which both of them are partners.
24. By adding para no. 5A, the plaintiff is seeking a declaration that 8 "A"
Class Equity shares were validly transferred in favour of Raman Chadha. As already observed, grant of such a declaration is outside the purview of section 34 of the Specific Relief Act, 1963.
25. Further, Central Bank of India and Central Govt of India, Ministry of Corporate Affairs is sought to be added as a party. It is however, not CS No. 147/2015 Case No. 57158/16 M/s Basant Ram & Sons vs. Basti Sugar Mills Page No. 17/18 specifically mentioned as to whether they are to be joined as plaintiffs or defendants. In case they are to be made a defendant, it is not shown how cause of action arose against them and what relief is sought against them. No corresponding amendment in the paragarph of cause of action is sought.
26. Hence, it is seen that the amendments sought by the plaintiff will change the nature of the suit and are also not relevant for determining the real controversy between the parties. The application under O6 R17 CPC is thus dismissed.
Pronounced in Open Court
today 24th March 2017 (NISHANT GARG)
Civil Judge-02/PHC/NEW DELHI
24.03.2017
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