- (1.) This appeal has been preferred by the appellant against the order dated 20.01.2017 passed by the National Company Law Tribunal Chennai in TCA No. 11 of 2016 in C.P. No. 64 of 2006 pursuant to an application for execution of the decree passed by Company Law Board. In the impugned order the Tribunal made observations and passed the following directions: "In view of the above, though it is held that the Applicant/R6 is entitled to file the application under Section 634A of the Companies Act, 1956, yet this application is premature. Therefore, the TCA No. 11 of 2016 is liable to be rejected. The same is dismissed, there is no order as to costs. However, the applicant/R6 is at liberty to file the Company Application at the time when the order of the CLB dated 25.2.2009 is all set for execution. Thus, the Chartered Accountant Shri R. Aghoramurthy is directed to submit his report before this Bench in the light of the directions given by the CLB in its order dated 25.02.2009, within two months from the date the copy of order is received. The Registry is directed to send a copy of this order by speed post along with the order of the CLB dated 25.02.2009 to the Chartered Accountant Shri R. Aghoramurthy for compliance." The brief facts of the case is that the Company Petition No. 64 of 2006 under Sections 397, 398, 402 and 403 read with Sections 235, 237 and Schedule XI of the Companies Act, 1956 was filed by one Shri S. Balasubramanian and four others, 1st Respondent, N. Sankaranarayanan was 6th Respondent in the said Company Petition. The Company Law Board vide order dated 25.02.2009 passed a detailed order, the portion of which reads as follows: "In view of my foregoing conclusions and in exercise of the powers vested in Sections 397 and 398 read with Section 402 of the Act, as envisaged in Harikumar Raja v. Sovereign Dairy Industries Ltd. & Others and with a view to bringing to an end the acts complained of by the aggrieved shareholders, thereby regulating the conduct of the Company's affairs, it is ordered as follows: (i) The present Board of Directors comprising of the petitioners will continue to carry on the management of affairs of the Company, in strict compliance with the articles of association, subject to the stipulations (i) to (iii) imposed in the order dated 09.08.2007 made in C.A. No. 41 of 2007. (ii) Shri R. Aghoramurthy, Chartered Accountant, Chennai (Mobile No. 9444322347) is authorised to carry out an investigative audit of the accounts of the Company for the period from 01.04.2000 to 31.03.2005 by scrutinising the books of account, vouchers and other connected records of the Company and on hearing submissions of all the connected parties. The Chartered Accountant will submit a report on the financial transactions of the Company for the relevant period, which shall include all the receipts, payments, expenses incurred on behalf of the company, together with the fund utilisation thereof and irregularities, if any, and serve copies of the report on all the parties, who are bound by the report of the chartered accountant. The whole process shall be completed by 30.04.2009. The Company will bear the Chartered Accountant's remuneration and towards this end, on initial amount of Rs. 50,000/- may be paid by 31.03.2009. The matter will be heard on 15.05.2009 at 02.30 P.M. for issue of appropriate consequential directions, after hearing the parties concerned, to safeguard the interests of the company and its members. With the above directions, the Company Petition and all the connected applications stand disposed of, however, reserving the right to issue necessary directions, in terms of this order."
(2.) The aforesaid order was challenged before the Madras High Court in Company Appeal No. 6 of 2009 which vide order dated 21.2.2011 confirmed the order passed by the Company Law Board, relevant of which reads as follows: "A. Execute the order of the Hon'ble Madras High Court dated 21.02.2011 in Company Appeal No. 6 of 2009 confirming the order of this Hon'ble Board dated 25.02.2009 in the above C.P. B. initiate surcharge proceedings against the Respondents 2 to 4 herein in accordance with Sections 543-545 read with Schedule XI of the Companies Act and thus render justice. C. direct the Respondents 2 to 4 to pay the 1st Respondent a sum of Rs. 11,04,07,000/- (Eleven Crores four lakhs and seven thousand only) being the loss suffered by the 1st respondent, due to mismanagement of the same by the Respondents 2 to 4." D. Such further or other orders that this Hon'ble Board may deem fit in the facts and circumstances of the case and thus render justice."
(3.) As the order passed by the Company Law Board on 25.02.2009 as was affirmed by the Madras High Court was not executed, 1st Respondent who was 6th Respondent before the Company Law Board preferred an application under Section 634A of the Companies Act, 1956 before the erstwhile Company Law Board. The said petition under Section 634A remained pending and after constitution of the Tribunal, the petition was transferred and re-numbered as TCA No. 11/2016 for execution of the decree. Therein, the Tribunal passed the impugned order as quoted above.;