Case Law Details

Case Name : Shri Nizar Mawani Vs Shri Ajay Moreshwar Antarkar (ICSI)
Appeal Number : ICSI/ DC: 216/2014
Date of Judgement/Order : 15/11/2018
Related Assessment Year :

Shri Nizar Mawani Vs Shri Ajay Moreshwar Antarkar (ICSI Disciplinary Committee )

The Disciplinary Committee and after considering all the material on record and after considering all the facts and circumstance of the matter observed that the instant case has arisen out of an affidavit purportedly filed before CLB, Mumbai, by the Respondent wherein he has denied the execution of the transfer deeds pertaining to the transfer of shares of Mr. Hanif Somji & Ms. Jenice Somji to the Complainant and his wife i.e. Mrs. Nurjehan Mawani in M/s. Zerostart Trading Pvt. Ltd., in his presence.

The Disciplinary Committee further observes that the alleged transfer of shares in question in M/s. Zerostart Trading Pvt. Ltd was done on 10th August, 2006 and the Respondent has not certified the Form 20B of M/s. Zerostart Trading Pvt. Ltd., for the financial year 2006- 2007. Even otherwise the Complainant has himself admitted in para 10 of his rejoinder dated 21.02.2014 that it is not a case of the Complainant that the Annual Return was improperly certifies by the Respondent but a misstatement in an affidavit filed by the Respondent before the CLB, Mumbai. The Disciplinary Committee further observed that the Complainant has failed to place any material evidence to show that the transfer deeds in question were signed in the presence of the Respondent apart from a letter dated 3rd February, 2010 addressed to the Respondent by the Complainant which is also signed by the Respondent beneath the signature of the Complainant. However, the Respondent on the other hand has alleged that he was forced to sign the said letter back dated and hence he had revoked the said letter vide email dated 11th March,2010. The Respondent further stated that he has also mentioned about the said letter in the affidavit in para 3.

The Committee further observed that there is another email dated 5th March,2010 of the Complainant on record addressed to the Respondent where it has been inter-alia stated that the Respondent was the External Company Secretary at the time of transfer of shares of certain companies including M/s. Zerostart Trading Pvt. Ltd. In the said email the Respondent was asked to approve/confirm the transfers of shares of M/s. Zerostart Trading Pvt. Ltd. The question arises that in case the Respondent has already confirmed the transfer of shares vide letter dated 3rd Feburary,2010 in the companies referred therein then why will the Complainant sent an email dated 5th March,2010 to the Respondent once again asking him to confirm the transfers without even mentioning about the letter dated 3rd February,2010.

In the absence of any material evidence to show that the transfer deeds in question were signed in the presence of the Respondent the question of misstatement in the affidavit does not arise.

In view of the above, the Respondent is not guilty of Professional Misconduct under the Company Secretaries Act, 1980.

FULL TEXT OF THE ORDER OF THE DISCIPLINARY COMMITTEE

1. A complaint dated 24thOctober, 2013 in Form ‘I’ was filed under Section 21 of the Company Secretaries Act, 1980 (the Act) read with sub-rule (1) of Rule 3 of the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007 (the Rules) by Shri Nizar Mawani (hereinafter referred to as the ‘Complainant’) against Shri Ajay Moreshwar Antarkar, ACS-3525 (CP No. 3022) (hereinafter referred to as the ‘Respondent’).

2. The Complainant has inter-alia stated that he is a Shareholder and Director of following seven Companies:

SL
No.
Name of the Company CIN
1. Zerostart Trading Private Limited U51399PN2006PTC 128688
2.  Wagholistart Agro Trading Private Limited U01122PN2007PTC 130391
3. Jollystart Agro Trading Private Limited U52201PN2007PTC129875
4. Nasik Trading Private Limited U51909PN2007PTC130704
5. Shirwal Agro Trading Private Limited U51909PN2007PTC130721
6. Kharadi Agro Trading Private limited U01122PN2007PTC130821
7. Kusgaon Agro Trading Private Limited U51221 PN2007PTC130773

3. The Complainant further stated that he and his wife, Mrs. Nurjehan Mawani have been made Respondent 2 and 3 in the Company Petitions No. 45 to 53 of 2013 filed by one Mr. Hanif Somji and Mrs. Jenice Somji against the above mentioned companies before CLB, Mumbai under sections 397-398 and other sections of the Companies Act, 1956.

4. The Complainant further stated that in the above petitions, the Petitioners Mr. Hanif Somji and Mrs. Jenice Somji have contended that they continue to be the shareholders of the company (5) and are in control and management of the various companies in the group. The Respondents (the complainant herein) stated that the Petitioners had already transferred the shares held by them to the Complainant and his wife in the year 2006 & 2007 and therefore Petitioners have no locus-standi to file the said petitions.

5. The Complainant has inter-alia alleged that Mr. Ajay Antarkar (the Respondent herein) has certified various e-forms 20B with respect to the Annual Returns in respect of the Annual General Meetings held in September 2007 and 2008 in respect of above 7 (seven) companies. These Annual Returns confirm the fact of share transfers had taken place. The Complainant further stated that the Respondent has certified that the shares have been transferred to the Complainant and his wife and that the Complainant and his wife were the shareholders of these companies. Further, the Respondent vide his letter dated 3rd February 2010, has also affirmed and confirmed the fact of share transfer. Further, he had also agreed that he was entrusted with the duty of completing the transfer of shares of the companies which he had duly completed. Further, the Respondent has also stated that “he shall endeavor to procure and submit the pending documents and to do other needful at the earliest” from one of the then directors, Mr. Hanif Somji who was in custody of the share transfer documents including the executed share transfer deeds, to the Companies/the complainant who is Shareholder-Director.

6. The Complainant further alleged that upon his follow-up, email dated 5th March,2010 of the Respondent has reconfirmed vide email dated 6th March,2010, that custody of all documents relating to transfer was and is with Mr. Somji and advised to directly deal with Mr. Somji alone in this regard. During the hearing in the matter before CLB on 12th August 2013, Petitioners produced an affidavit executed by Mr. Ajay Antarkar, the Respondent in which he has stated on oath that he had already revoked the letter by way of his email/letter of revocation dated 11th March 2010 which was allegedly enclosed to the affidavit. Email/letter of revocation dated 11th March 2010 was not made available along with the affidavit to the representative of the Complainant who had appeared before CLB, this email / letter of revocation dated 11th March 2010 was also not filed with CLB along with the affidavit. Hence, the Complainant could not get copy of the same from CLB. Further, the representative of the Complainant had also written to the Petitioners and their advocate for a copy of the said email / letter. The Complainant has reserved his right to refer the said email / letter of 11th March 2010 as and when produced, if so desired. The Complainant further alleged that the Respondent has also stated that the transfer forms were never executed by the Petitioners and / or the complainants in his presence and hence denied.

7. The Complainant further stated that he had sent a letter in the month of September, 2013 to the Respondent seeking his views and clarifications about the contrary statements/views taken by him. The Complainant further stated that the Respondent has certified Form 20B having attachment of the Annual return for FY 2006-07 of M/s. Zerostart Trading Pvt. Ltd., for FY 2007-08 in which the shareholding pattern after the transfer of shares from the Petitioners to the Complainant and his wife has been confirmed and verified by him.

8. The Complainant further alleged that the Respondent has acted in a prejudiced manner not befitting a professional. He has made contrary statements under his signature in his professional capacity while signing the Annual Returns and on Oath before a quasi-judicial While signing Form 20B he has confirmed the fact of share transfer to the Complainant so also in his letter. But in his affidavit he has denied the same. The Complainant further stated that he has not received any reply to the letters sent by him to the Respondent for clarification on his Affidavit which deviates from the facts. The Complainant further alleged that the Respondent has failed to take into account the above facts, anomalies and deficiencies and has acted in a careless and negligent manner not befitting to a professional.

9. Pursuant to sub-rule (3) of Rule 8 of the Rules, a copy of the complaint was sent to the Respondent vide letter dated 15th January, 2014 calling upon him to submit the written statement. The Respondent submitted his written statement wherein he inter-ali stated that the complaint is not maintainable and is liable to be dismissed. The Respondent further stated that the complaint is neither true, nor correct, nor bona-fide and all the contentions, allegations, statements and averments made by the Complainant in his complaint are denied by the Respondent and none of them is admitted by him. The Respondent does not admit that the Complainant is a shareholder and/ or director of the companies named therein as on the date of filing of this Written Statement. He further stated that he had and has very limited knowledge as to the proceedings from time to time of Company Petitions No. 45 to 53 of 2013.

10. The Respondent further stated that it is neither true, nor correct to say that he had certified e-Form 20B with the Annual Return in the year 2007 in respect of any of the alleged companies. As far as e-Form 20B with Annual Returns in respect of the year 2008 are concerned, the Respondent signed the same, in view of the representation by Mr. Somji, Director of the said companies to the effect that he had signed the e-Form 20B with Annual Returns for the year 2008 as per usual secretarial practice followed by all the companies. The Respondent further stated that he had taken due care and caution and had obtained sufficient information before signing the said return of 2008. The Complainant is trying to drag him in the controversy on the background of his disputes with other directors/ share holders of the said companies. The Respondent further stated that he was not looking after any work of any of the companies in question beyond April 2009 and therefore, he is not able to comment on the present status of shareholding by the Complainant and his wife. The present complaint is nothing but an outcome of infighting between the directors/ shareholders of the said companies inter-se and hence, the same is ill-motivated.

11. The Respondent further stated that the Complainant pressurized and coerced the Respondent to sign the foot note beneath the letter of 3rd February, 2010, written and signed by the complaint on 6th March 2010, under the facts and circumstances explained herein. The Respondent further stated that the Complainant during the relevant period hotly chased and pursued the Respondent and made his life miserable and thus, compelled the Respondent to visit him in Hotel Barista Cafe at Law College, Pune in the evening of 6th March, 2010. The Respondent further stated that on 6th March, 2010 he was alone whereas the Complainant and his advisor Mr. Balamurugan were present in the said Hotel. They were already carrying a typewritten letter. At that time the Complainant pressurized the Respondent to sign companys the foot note of the said letter. The Respondent time and again pointed out that he had already stopped to work for any of the companies in question and he did not have any document to verify and ascertain the claim of the Complainant and to carry out any of the wishes of the Complainant. However, the Complainant was asking the Respondent to obtain the documents relating to transfer of shares from the said 2 companies by hook or crook. Initially, the Complainant did not allow the Respondent to go through his said letter and compelled the Respondent to sign the foot note without reading. However, after having read the contents of the foot-note by the Respondent, the Respondent objected the same, as being untrue, baseless and impracticable. The Respondent asked the Complainant to cancel and destroy the letter. Consequently, there were hot exchange of words and altercations between the Respondent and the Complainant. The Respondent tried to persuade the Complainant to understand his limitations to fulfill the demands of the Complainant which were quite unreasonable but the Complainant was very obstinate. Eventually, however, the Complainant accepted a little change in the footnote by allowing incorporating the word “endeavor” in place of “assure”. The Complainant did not allow the Respondent to make any change in part of the said footnote in spite of insistence of the Respondent to delete or modify the words “affirm and confirm above facts relating transfer of shares from the above named transferors and the present shareholding pattern”. On the contrary, when the Respondent was asking such change, the Complainant and his advisor left the Hotel hurriedly and carried the original letter in question with them. This incident left the Respondent deeply traumatized and psychologically disturbed.

12. The Respondent further stated that on the aforesaid background, he had sent an e-mail on 11th March, 2010 to the Complainant and thereby revoked the footnote under the aforesaid letter and informed the Complainant about its invalidity as against the Respondent. Thereupon, the Complainant sent a reply e-mail to the Respondent on 19th March 2010 and thereby once again tried to put responsibility on the Respondent to procure and hand over the transfer deeds from one Mr. Somji and for that matter he tried to invoke the professional status of the Respondent.

13. The Respondent further stated that he had filed e-mail / letter of revocation dated 11th March 2010 before CLB as an annexure to his affidavit. It is pertinent to note that the very e-mail dated 11th March, 2010 had been replied by the Complainant on 19th March, 2010 and therefore, the contentions of the Complainant about non-receipt of the said e-mail letter of revocation dated 11th March 2010 from CLB is on the face of it is ill motivated and mischievous. The contents of the said e-mail of 11th March, 2010 were and are well within the knowledge of the Complainant. The purpose of the Affidavit was limited to the point that the transfer deeds related to the shares of the said companies were not executed in the presence of the Respondent. The Respondent stands by the fact of his absence at the time of execution of the transfer deeds, in question.

14. The Respondent further stated that he has never made any contrary statements/views, as alleged. Regarding certification of Form-20B having attachment of the Annual Return for FY 2006-07 for M/s. Zero start Trading Pvt. Ltd., the Respondent submitted that he has not certified the same. As regards the FY 2007-08 in case of other companies, the Respondent submitted that the facts and circumstances under which Form 20B were signed have already been explained hereinabove.

15. The Respondent further stated that Mr. Hanif Somji had informed him about the on-going proceeding before the CLB, Mumbai, in which documents related to reholding pattern of the said companies Nere relied upon by the Complainant and other persons and requested the Respondent to be a witness. However, as the transfer deeds related to shares in question were not signed in the presence of the Respondent, the Respondent expressed his inability to be witness in that behalf. However, in order to place the complete facts before the CLB, the Respondent had sworn and filed an affidavit. Further, submission of an affidavit to a quasi-judicial authority is not misconduct by any stretch of imagination.

16. The Respondent further stated that the complaint is mischievously interpreting the Affidavit, referred to above. The said interpretation is wholly irrelevant and misconceived. It is pointed out that the purpose of affidavit was only to state about non-execution of 4 transfer deeds in the presence of the Respondent. It is pointed out that the Affidavit before CLB is not a report or statement as contemplated under the Second Schedule of the Company Secretaries Act,1980. There is no generally accepted procedure relating to secretarial practice about filing of Affidavit. He further stated that he has not committed any perjury, as alleged or otherwise.

17. Pursuant to sub-rule (4) of Rule 8 of the Rules, a copy of the written statement was sent to the Complainant vide letter dated 17th February, 2014 asking him to submit the rejoinder which he submitted wherein he at the outset denied each and every contention raised by the Respondent in his reply unless otherwise and to the extent admitted by him. The Complainant further stated that the Respondent has not replied or made any comments relating to the follow up email of the Complainant dated 5th March, 2010 and reply of the Respondent dated 6th March, 2010 confirming the custody of the share transfer documents being with Mr. Hanif Somji. The Complainant further stated that the ICSI has the jurisdiction to admit, try and entertain the complaint with regards to professional misconduct of members of the ICSI. The Complainant while reiterating his earlier submissions emphasized that that he filed the complaint upon becoming aware that the Respondent had acted in contradiction of his professional duties and responsibilities. This happened when the Respondent filed affidavit before the hon’ble CLB, Mumbai. The Annual Return Certification is not a cause of complaint but making contradictory submissions on oath is a cause of complaint. The said affidavit was filed on 27thJuly, 2013 and in spite of repeated reminders; the copy of the email referred to in the affidavit was not made available by the Respondent. The Respondent has not only filed a false affidavit before CLB, Mumbai but also acted hand in gloves with the petitioners in the CP. No. 45 to 53 of 2013.

18. The Complainant further stated that the Respondent has no reason to accept or reject the fact whether the Complainant is Shareholder and Director of the Companies. Further, the Respondent has no right and/or authority to make such statements and more so where the Form 20B i.e. Annual Return containing the name of the Complainant as transferee and a member has been certified by the Respondent himself. The Complainant further stated that the subject matter of the Petition filed with CLB, Mumbai is independent of the subject matter of the present complaint. The Complainant reiterated that the present complaint is filed as an outcome of the prejudiced acts of the Professional including but not limited to submission of false affidavits before CLB etc. It is pertinent to note that the Respondent herein submitted that he is not aware of the facts and circumstances of the case sub-judice before CLB but the Respondent has himself stated on affidavit before CLB that he is making the affidavit after perusal of the pleadings produced before him by Mr. Hanif Somji. The Complainant humbly prays that in the light of grievous contentions that may follow, the Respondent apart from being subjected other consequences be restrained from making such false and self-contradictory statements.

19. The Complainant further stated that the Respondent has mentioned that due care and caution was taken and sufficient information was obtained before filing e-Forms and Annual Returns. Sufficient information or due care in professional context can only mean that the Share Transfer Forms and Register of Share Transfers, Register of Members etc., were verified before certifying Form 20B Annual Returns, including the details of share transfer. It means while certifying the Form 20B Annual returns, the Respondent knew that the entire shareholding of the companies was transferred from Mr. Hanif Somji & Mrs. Jenice Somji to the Complainant and his wife Mrs. Nurjehan Mawani and in some cases to their company Zerostart Trading Pvt. Ltd., as has been verified and certified by the Respondent himself while signing the Annual returns made up to 30th December, 2008. It is not a case of the Complainant that this Annual return was improperly certified by the Respondent. The case of misconduct is arising out of the contradictory affidavit filed by the Respondent. The Respondent should have in his written statement expressly said that when he signed the Annual return made up to 30th December 2008, there did exist the share transfer deeds evidencing transfer of shares from Mr. Hanif Somji & Mrs. Jenice Somji to the Complainant and his wife Mrs. Nurjehan Mawani and in some cases to their company Zerostart Trading Pvt. Ltd., and the transfer of shares as stated in the respective Annual Returns and as such verified by the Respondent. The Complainant has no intention or desire to drag the Respondent in the litigation but Respondent himself has jumped into the litigation by filing wrong affidavit in July, 2013 before CLB, Mumbai.

20. The Complainant further stated that the undertaking was signed by the Respondent on 3rd February, 2010. The Complainant further stated that the Respondent has signed the same out of his free will and without any coercion or duress. In fact, the Respondent perused the contents of the letter carefully, verified the same from records and suggested to replace the word “assure” with the word “endeavor”. The Complainant agreed to this change. The Complainant further stated that assuming without admitting that the undertaking was signed on 6th March, 2010, the Respondent made no endeavor to change the date of the letter when he insisted on change of language of the letter. Further, the Respondent is put to strict proof as to the letter was signed by him on 6th March, 2010 instead of 3rd February, 2010. Also, assuming without admitting that the Complainant insisted on signing a back-dated letter the Complainant submits that the sanctity and relevance of the letter is the same for the Complainant on any / all dates after the alleged transfer and the Complainant is not placed on any advantageous position by obtaining a back-dated letter.

21. The Complainant further stated that the Respondent has not exercised his independent judgment as a professional and has breached the norms laid down by the Code of Conduct by taking sides in a matter before the CLB. The question in the matter is not of signing the transfer deeds before and in the presence the Respondent but the question was and is about the existence of the share transfer ” deeds. The conduct of the Respondent is objectionable and illegal as it is made with an intention to mislead the CLB. In para 2 of the Affidavit dated 27thJuly, 2013 submitted by the Respondent in the CLB, the Respondent has twisted the facts contents of his letter dated 3rd February, 2010 stating that “The contents of Para 3 (three) of the letter addressed to me by M/s. Zerostart Trading Pvt. Ltd., and signed by Mr. Mawani are untrue as the share transfer deed/s in question were never executed neither by the transferor nor the transferees in my presence and hence I deny the same” Whereas the content of Para_3 (three) of the letter does not speak about whether the transfer deeds were signed in presence of the Respondent or not. However the Para deals with the possession of the share transfer deeds is with Mr. Hanif Somji (Petitioner). This proves that the Respondent has made a false and misleading statement in the Affidavit so that it benefits Mr. Hanif Somji (Petitioner) in delaying the process of justice before CLB. In the reply to the follow up e-mail 6th March, 2010, the Respondent has reconfirmed the possession of the share transfer documents being with Mr. Somji. It is very important to note that the first line of the letter clearly states the fact that the letter is an outcome of a personal meeting held on Wednesday, the 3rd February, 2010 and the discussion and understanding between Respondent & the Complainant. Hence, there is no question that this letter is given on a later date under coercion. It is further important to note that in the Affidavit, the Respondent has not denied which specifically dealt with the assignment of the share transfer having handled by the Respondent and about the resultant shareholding pattern. By filing such false and misleading Affidavit, the Respondent has not only acted in a manner to support and benefit the ill deeds of the petitioner but has also shred away from his professional duty towards the Complainant in procuring the share transfer documents and handling over to the Complainant. Also, the Respondent has never replied to the e-mail dated 19th March, 2010 written by the Complainant seeking clarification on the e-mail dated 1 1 th March, 2010 making false allegation of coercion.

22. The Complainant further stated that the Affidavit submitted by the Respondent before CLB is a “statement and affirmation made on oath” and certainly falls under the Second Schedule of the Company Secretaries Act, 1980. The Respondent is thus guilty of misconduct for making false and contradicting statements. The Respondent has committed an offence of perjury. The Complainant has further stated that the Respondent has merely denied all the allegations against him and has failed to produce any proof/ evidence to support this case. The Respondent has acted in prejudiced, negligent and fraudulent manner which is not befitting as a professional and has brought disrepute to the ICSI by his acts.

23. The Director (Discipline) on examination of the complaint, written statement, rejoinder and other material on record, in her prima-facie opinion dated 12th September, 2014 observed as under:

“On examination of the complaint, written statement, rejoinder and other material on record, it is observed that the instant case has arisen out of contradictory statements made by the Respondent pertaining to the transfer of shares of Mr. Hanif Somji & Ms. Jenice Somji to the Complainant and his wife Mrs. Nurjehan Mawani in M/s. Zerostart Trading Pvt. Ltd. It is observedthe Respondent has certified Form 208 of the said company indicating the share transfer deeds evidencing transfer of shares from Mr. Hanif Somji & Ms. Jenice Somji to the Complainant and his wife Mrs. Nurjehan Mawani in M/s. Zerostart Trading Pvt. Ltd. However, in an affidavit purportedly filed before CLB, Mumbai, he has apparently denied the execution of the transfer deeds. Further, the letter dated 3rd February, 2010 contains the signature of the Complainant and the Respondent also indicating the said transfer of shares. Further, the Respondent in his e-mail dated 6th March, 2010 stated that the custody of all documents relating to transfer is with Mr. Somji.

Though, the Respondent has stated that the purpose of the Affidavit was limited to the point that the transfer deeds related to the shares of the said companies were not executed in his presence hence, he denied the transfer of shares in the affidavit but this contention of the Respondent th_athe, was not aware of the transfers cannot be accepted in the instant case, as he himself has certified Form 20B of the said company indicating the share transfer.

In view of the foregoing, the Respondent is prima-facie ‘Guilty’ of professional Misconduct under Clauses (6) (7) and(8)of Part I of the Second Schedule of the Company Secretaries Act, 1980 as he (i) failed to report a material mis-statement did not exercise due diligence and (iii) failed to obtain sufficient information necessary for affirmation.

24. The Disciplinary Committee at its meeting held on 24th September, 2014 had considered the prima-facie opinion dated 12th September, 2014 of the Director (Discipline) and material on record. The Committee agreed with the prima-facie opinion of the Director (Discipline) and had decided to proceed further in the matter in accordance with the Company Secretaries Act, 1980 and the Company Secretaries (Procedure of Investigations of Professional and other Misconduct and Conduct of Cases) Rules, 2007.

25. Accordingly, the copy of the prima-facie opinion of the Director (Discipline) has been sent to the parties vide letters dated 25thSeptember, 2014 asking them to submit the written statement and rejoinder, respectively. The parties submitted their written statement dated 24th October, 2014 and rejoinder dated 13th January,2015 submitting wherein they mainly reiterated there earlier submissions and made certain additional submissions.

26. Thereafter, parties were called upon to appear before the Disciplinary Committee on 12th January, 2015 , 19th November, 2016, 27th December,2016, 18th August,2017 , 25th April, 2018 and 12th September,2018 wherein the parties made their respective oral and written submissions through their respective representatives.

27. CS Makarand Lele, Presiding Officer of the Disciplinary Committee has recused himself from this matter on the ground that his partner had previously appeared on behalf of the Respondent.

28. The Disciplinary Committee held its final hearing in the matter on 12th September, 2018 and after considering all the material on record; submissions made by the parties and after considering all the facts and circumstance of the matter advised both the parties to submit their written submissions, if any in the matter within 2 weeks. The Complainant vide email dated 24th September, 2018 submitted his written submissions. However, no written submissions were received from the Respondent.

29. The Disciplinary Committee and after considering all the material on record and after considering all the facts and circumstance of the matter observed that the instant case has arisen out of an affidavit purportedly filed before CLB, Mumbai, by the Respondent wherein he has denied the execution of the transfer deeds pertaining to the transfer of shares of Mr. Hanif Somji & Ms. Jenice Somji to the Complainant and his wife i.e. Mrs. Nurjehan Mawani in M/s. Zerostart Trading Pvt. Ltd., in his presence.

30. The Disciplinary Committee further observes that the alleged transfer of shares in question in M/s. Zerostart Trading Pvt. Ltd was done on 10th August, 2006 and the Respondent has not certified the Form 20B of M/s. Zerostart Trading Pvt. Ltd., for the financial year 2006- 2007. Even otherwise the Complainant has himself admitted in para 10 of his rejoinder dated 21.02.2014 that it is not a case of the Complainant that the Annual Return was improperly certifies by the Respondent but a misstatement in an affidavit filed by the Respondent before the CLB, Mumbai. The Disciplinary Committee further observed that the Complainant has failed to place any material evidence to show that the transfer deeds in question were signed in the presence of the Respondent apart from a letter dated 3rd February, 2010 addressed to the Respondent by the Complainant which is also signed by the Respondent beneath the signature of the Complainant. However, the Respondent on the other hand has alleged that he was forced to sign the said letter back dated and hence he had revoked the said letter vide email dated 11th March,2010. The Respondent further stated that he has also mentioned about the said letter in the affidavit in para 3.

31. The Committee further observed that there is another email dated 5thMarch,2010 of the Complainant on record addressed to the Respondent where it has been inter-alia stated that the Respondent was the External Company Secretary at the time of transfer of shares of certain companies including M/s. Zerostart Trading Pvt. Ltd. In the said email the Respondent was asked to approve/confirm the transfers of shares of M/s. Zerostart Trading Pvt. Ltd. The question arises that in case the Respondent has already confirmed the transfer of shares vide letter dated 3rd Feburary, 2010 in the companies referred therein then why will the Complainant sent an email dated 5th March,2010 to the Respondent once again asking him to confirm the transfers without even mentioning about the letter dated 3rd February,2010.

32. In the absence of any material evidence to show that the transfer deeds in question were signed in the presence of the Respondent the question of misstatement in the affidavit does not arise.

In view of the above, the Respondent is not guilty of Professional Misconduct under the Company Secretaries Act, 1980.

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