Case Law Details

Case Name : Mrs. Nagappan Swarnalatha Vs M/s. Colour Books Associates Private Limited (National Company Law Tribunal)
Appeal Number : C.P. No. 617/BB/2018
Date of Judgement/Order : 20/09/2019
Related Assessment Year :
Courts : NCLT (17)

Mrs. Nagappan Swarnalatha Vs M/s. Colour Books Associates Private Limited (National Company Law Tribunal)

1) We hereby declared that the incorporation of M/s. Colour Books Associates Private Limited (Respondent No.1 Company, is vitiated by fraud and consequently, the Certificate of Incorporation dated 14th May, 2018 issued by the Government of India, Ministry of Corporate Affairs, Central Registration Centre is declared as invalid with immediate effect;

2) The Respondent No.2 is directed to discharge all liabilities, if any, on behalf of the Respondent No.1 Company, done in the course of business of the

3) Other reliefs as prayed by the petitioner in the Petition are hereby rejected, by granting liberty to the petitioner to prosecute remedies available, in respect of other grievances as made in the instant petition, under the extant provisions of Companies Act, 2013 and the Rules made thereunder.

FULL TEXT OF ORDER OF  NATIONAL COMPANY LAW TRIBUNAL,

1. C. P. No. 617/BB/2018 is filed by Mrs. Nagappan Swarnalatha (herein after referred to as ‘Petitioner/Applicant’) against M/s. Colour Books Associates Private Limited & 3 Others(hereinafter referred to as ‘Respondents’) under Section 7(5), (6) 85 (7) of the Companies Act, 2013, by inter seeking to remove the name of the Respondent No.1 Company from the Register of Registrar of Companies and to cancel the Certificate of Incorporation ; to direct DIN CELL, Ministry of Corporate Affairs, New Delhi, for cancellation of Directors Identification Number ; to direct the -Registrar of Companies, Karnataka, Bangalore, to initiate criminal investigation for fraud under Section 447 of the Companies Act, 2013 as against the 2nd and 3rd Respondent, etc.

2. Brief facts of the case, as mentioned in the Petition/Application, which are relevant to the issue in question, are as follows:

1) M/s. Colour Books Associates Private Limited (herein after referred to as Company) was incorporated 14.05.2018 under the Companies Act, 2013 bearing CIR U74999KA2018PTC113093 having registered office at 49/24, Malleshwaram, Bangalore-560003.

2) The Petitioner and the Respondent No. 2 are wife and husband, and both are alleged to be Shareholders and first Directors of the R-1 Company. The Petitioner and second Respondent were married on 20.05.2015, which has become strained relationship between them. The Petitioner has filed First Information Reports on 12.2017, 29.01.2018 and 26.02.2018 under Sections 294(b), 506(1), 498(A), 294(b), 406, 506(1) 86 354D of the India Penal Code, 1860 and Sections 66D 86 66E of the Information Technology (Amendment) Act 2008 INF C and Section 4 of TN Prohibition of Harassment of Women Act, 2002. The Petitioner also got issued legal notice dated 16.11.2017 to the Respondent No.2 by inter alia demanding to dissolve the marriage on the ground of cruelty under the Hindu Marriage Act. In pursuant to the legal notice, the Respondent No.2 issued a reply notice dated 29.11.2017 by denying the allegations and expressed his willingness to live along with the Petitioner. Subsequently, the Petitioner has filed petition bearing H.M.O.P.No.425 of 2017 before the Family Court Judge, Tiruchirappalli under Section 13(1)(12) of the Hindu Marriage Act, 1955 by inter alia seeking to dissolve the marriage on the ground of Cruelty etc , which is still pending. Out of the Wedlock the Petitioner and Respondent No.2 have a girl child namely Aksshara.

3) It is stated that due to constant dowry harassment, physical and mental torture, the Petitioner had to leave her matrimonial home from Bengaluru to Tiruchirappalli on 14.06.2017. Suffice to state that the Respondent No.2 (Husband) has fabricated and forged the Petitioner’s signatures and has coupled her name as Joint Account holder with M/s. Canara Bank, Malleshwaram Branch, Bengaluru and has also opened individual bank accounts with the HDFC Bank, Kumbakonam, Tamilnadu& IDFC Bank at Bengaluru. There are spate of cheque complaint cases filed as against the Petitioner pending before the Magistrate Courts of Bengaluru and Hosur, Tamilnadu at the instigation of the Respondent No.2-husband, Sundaram through his friends and relatives, as though the Petitioner has borrowed monies from them by issuing cheques which is stoutly and forcefully denied as false and invented. It is ironical that the R-1 on 14.05.2018 through Mr. Iniyan Robert, Advocate has caused to issue three notices U/s 138 of the Negotiable Instruments Act as against this Petitioner on behalf of his clients namely:

a) Mrs. Ramayee w/o C. Karthik (Sister-in-law of Respondent No.2)

b) Sundaram S/o Chockalingam (2nd Respondent-Husband herein) and

c) Mahadevappa s/o Sivappaall accusing the Petitioner as though she has borrowed monies from them and in consideration of the said borrowing had issued three cheques all drawn on Canara Bank, Malleshwaram Branch, Bengaluru which bounced and compelling the Petitioner to pay the cheque mentioned amounts.

4) It is also stated that on 05.06.2018, the R-1 Company through Mr. S. Manikandan, Advocate has caused to issue three more notices u/s 138 of the Negotiable instruments Act as against this Petitioner on behalf of his clients namely a) M/s.VXT Garments, C/o. Ramesh, residing at 1/2C Murugankoil Street, Tirupur-638752 b) M/s.Tirumala Tours and Travels, C/o Tiruvel, residing at #48, 2nd Floor, Opp. Srinivas Restaurant Old Post Office Road, Tirupur-641602 and c) M/s. Vedhapuri Textiles C/o karunanithi, Door No.227, ThambuChetty Street, Parrys, Chennai-600001 again accusing the Petitioner as though she has borrowed monies from them and in consideration of the said borrowing had issued three cheques all drawn on HDFC Bank, Kumbakonam Branch, Tamilnadu which bounced and compelling the Petitioner to pay the cheque mentioned amounts. Necessary replies were given to the aforesaid 3 notices. The Petitioner has no account with the said HDFC Bank at Kumbakonam or any other place in India and she has promptly lodged necessary complaints with the Bank to which it has replied that Petitioner is not the account holder for the notice mentioned account. Earlier the said Respondent No.2 was even arrested upon the complaint made by the Petitioner with the All Women Police Station, Srirangam, Tiruchirappalli in Cr. No.30 of 2018 on 28.02.2018 for the offences under Sections 498-A, 294-b, 406, 506(1) and 354D of IPC and Section 4 of the prohibition of Harassment of Women Act, 2002 now enlarged on bail.

5) It is further stated that Hon’ble High Court of Judicature, madras as well as the Madurai Bench is fully seized of the matter. While matters being so, the Petitioner was shocked to receive a WhatsApp photo message from the Respondent No.2 evidencing a copy of the PAN Card No.AAHCC5749E in the name of M/s.Colour Books Associates Pvt. Ltd., Bengaluru. Upon verification of public documents in the files of Ministry of Corporate Affairs, New Delhi website mca.gov.in a Company under the name and style `M/s.Colour Books Associates Private Limited’ has been incorporated in CIN U74999KA2018PTC 113093 on 14th May, 2018.

6) It is stated that the Petitioner was shocked to know that after the perusal of the Company Master Data, which reveals that the estranged Respondent No.2 is the trouble maker has perpetuated a fraud upon her by including her name without her permission and knowledge as one of its First Director of the aforesaid reference mentioned 1st Respondent-Company. Already, the Petitioner was separated from the Respondent No.2 since July 2017 and divorce proceedings are pending before the Family Court, Tiruchirappalli in HMOP No.425 of 2017 for dissolution of the marriage, FIR’s have been filed against the Respondent No.2, spate of cheque complaints have also been filed against the Petitioner by his friends and relatives, he has been arrested in the Dowry Prohibition Act, and it is nothing but quixotical and humanly not at all possible for this Petitioner to lend her name in the formation of the lstRespondent Company as its First Director because of her marriage has already broke down and there are several cases foisted by the Respondent No.2 as against the Petitioner. Moreover, the 1st Respondent Company has caused to issue six notices under the Negotiable Instruments Act, out of which one such notice is the Respondent No.2 through the 1st Respondent Company has issued a Cheque Notice dated 14.05.2018 as against the complaint, which is atrocious and ridiculous.

7) It is stated that the Petitioner firmly believes that the 1st Respondent-Company have been incorporated by rank forgery, misleading the Authorities by manipulation, misuse of her personal documents wherein she has not agreed, consented nor signed in any of the incorporation documents as required under law. The Petitioner understand that for incorporation of a private limited company, a person has to give his/her consent to act as its Promoter and Director and self-attest PAN CARD, AADHAAR CARD etc. The Petitioner also understands that Respondent No.2 has manipulated the 4th Respondent-Authorities incorporated a fraudulent company with her consent either express or written behind her back. The Petitioner reiterates that she has not signed in any of the applications, statutory forms, documents or records pertaining to incorporation and also not obtained the Digital Signature in her name. The Respondent No.2 had fraudulently obtained Digital Signature and falsely submitted the Digital Signature application form and committed forgery by using the said Digital Signature Certificate. The Petitioner on 26.09.2018 has questioned the M/s. Sify Technologies Limited, Safe Scrypt CA, Chennai. Necessary notice to cancel the said DSC has been issued on 26.09.2018 and the same has been duly served upon them.

8) It is also stated that the Respondent No.2 along with the active collusion and connivance of the 3rd Respondent-Chartered Accountant have together criminally conspired with an ulterior motive to incorporate the reference mentioned Company without her consent, knowledge and permission by pressing into service fabricated and forged documents of proof of his identity and address proof describing her as its First Director and misled the 4th Respondent-Registrar of Companies, Bengaluru to register the said reference mentioned company by most unlawful, foul and illegal means. The Petitioner stoutly denies that she was not physically present and did not affix her signature in the presence of the said 3rd Respondent- Mr. R. Madesh Nayak, A.C.A, Chartered Accountant at any point of time nor on that particular dated (26.04.2018). As the Digital Signature has been obtained in a fraudulent manner, it is the 3rd Respondent who had criminally connived with Respondent No.2 have perpetuated a fraud to cheat and harass the Petitioner both physically and psychologically to achieve their unlawful object to taking revenge upon her and her daughter Aksshara.

3. The Respondent No.2 namely Mr. Sundaram Chockalingam has filed Statement of Objections dated 19.09.2019, by inter alia contending a s follows:

1) The petition is not maintainable either in law or on facts and the same was filed at the behest of the father of the Petitioner, who is ill disposed towards him with a mala fide intention to harass and humiliate him. The Petitioner has deliberately given wrong address of the first Respondent with a mala fide intention to mislead the Tribunal.

2) It is denied that Respondent No.2 has thrown out the Petitioner along with the child out of the matrimonial However, it is admitted that the Petitioner has filed a petition bearing H.M.O.P. No. 425/2017 for dissolution of marriage before the Family Court, Tiruchirapalli, Tamil Nadu and the said petition is pending. The allegation of constant dowry harassment, physical and mental torture by the Respondent are false and denied as baseless. The allegation of the fabricated and forged documents with the signature of the Petitioner is also false and denied.

3) He is not aware of spate of cheque dishonor cases filed against the Petitioner before the Magistrate courts at Bangalore and Hosur, Tamil Nadu and the allegations in this regard is absolutely false and the same is hereby denied, and the applicant may be put to strict proof of the same

4) It is true that he was arrested by All women police Station, Srirangam, Tiruchirapalli Tamil Nadu, in No.30/2018 for the offences punishable under Sections 498-A, 294-B, 406, 506(1), 354-D of Indian Penal Code and under Section 4 of the Prohibition of Harassment of Woman Act, 2002„ since the Petitioner at the behest of her father has given a false complaint against the Respondent by making several false and baseless allegations against the Respondent further the Petitioner and her father got the Respondent arrested by using his influence. The allegations that the Petitioner was shocked to know that the second Respondent has perpetuated a fraud upon the Petitioner by including her name without her permission and knowledge as one of the first Directors of the First Respondent is absolutely false and the same is denied and the Petitioner may be put to strict proof of the same. The averment that the Petitioner has separated from the second Respondent since July, 2017 and divorce proceedings in H.M.O.P.No.425/2017 on the file of the Family Court for dissolution of marriage was pending may be true. The FIR/s have been registered against the Respondent and cheque dishonour cases have been filed against the Petitioner and as a result of which, the Petitioner would not have lend her name in the formation of the first Respondent as a first director is absolutely false and the same is hereby denied and the applicant may put to strict proof of the same. The daughter of the Respondent was born on 14/05/2016, while the Petitioner and the Respondent were living together, the Petitioner and the Respondent had made arrangements to get the company registered under the name and style of “M/s. Colour books Associates Private Limited, registered on 14/05/2018, so as to coincide with the birth day of their daughter and accordingly the Petitioner and the Respondent had requested the third Respondent to make arrangements to get the company incorporated on 14/05/2018 and accordingly the company was incorporated on 14/05/2018.

5) The allegations that the first Respondent was incorporated by forging, misusing personal documents of the Petitioner is false and denied. The allegation that the Petitioner has not signed any of the applications, statutory forms, documents or records pertaining to incorporation of the first Respondent is absolutely false and denied. Similarly, the allegations with regard to the digital signature application form and committed forgery by using the digital signature certificate are absolutely false and denied and the Company incorporation was done in accordance with law. The allegations that the Petitioner did not affix her signature in the presence of the third Respondent at any point of time nor on 26.04.2018 is absolutely false and the same is hereby denied.

6) It is stated that the Tribunal do not have jurisdiction to go into question of allegation of fraud, forgery against the Respondent in getting the first Respondent incorporated with the fourth Respondent.

7) Therefore, the Respondent sought to dismiss the Petition with costs.

4. The Respondent No.3 namely R. Madesh Nayak, has filed Statements of Objections dated 19.03.2019, by inter alia contending as follows:

1) It is stated that the Petitioner has approached this Tribunal with unclean hands and she has not only suppressed material facts in order to make the case tailor – made for her requirement as against the 3rd Respondent, but she is also guilty of the principle `suppreciovarisuggestiofalse and on this ground alone, the present petition is liable to be dismissed in limine.

2) It is denied that regarding the marriage between the Petitioner and the 2nd Respondent and the girl child born to them is known to the 3rd This was disclosed by the 2nd Respondent himself when he visited the 3rd Respondent’s office for incorporation of a Company. However, the custody of the child is not known to the 3rd Respondent.

3) It is stated that the 2nd Respondent approached the 3rd Respondent seeking his professional services for incorporating a Private Limited Company. The 2nd Respondent informed the 3rd Respondent that he and his wife i.e., Petitioner intended to incorporate a Private Limited Company and sought for the 3rd Respondent’s professional services. He has had clearly informed the 2nd Respondent that the presence of his wife, i.e., Petitioner is very much necessary at the time of incorporation of the Company as she would have to sign on certain application forms, declarations and documents required for incorporating a Company. At that juncture, the 2nd Respondent informed the 3rd Respondent that his wife had just delivered a baby girl and she would not be in a position to travel to the 3rd Respondent’s office. The 2nd Respondent further informed the 3rd Respondent that he would get all the necessary documents signed by his wife, i.e., Petitioner. The 3rd Respondent acting in good-faith and out of humanitarian grounds to help the lady from the trouble of commuting, prepared the documents and declarations required for incorporation of the Company and sent it with the 2nd Respondent for getting the Petitioner’s signature.

4) It is further stated that the 3rd Respondent after having verified the correctness of the documents and the identity proofs of the proposed Directors, has certified the same and uploaded the incorporation documents in the MCA portal and upon approval from the MCA authorities, the 1St Respondent Company came to be It is stated that, the 3rd Respondent was in no way colluded/conspired with the 2nd Respondent against the Petitioner. The 3rd Respondent did not have any ulterior motive in incorporating the 1st Respondent Company. On the contrary, the 3rd Respondent has acted in good-faith and has shown humanitarian consideration towards the Petitioner, who had, at that point of time delivered a baby and was not in a position to commute. Instead of being grateful to the 3rd Respondent, the Petitioner has made him as a party in this Petition, which is more of a family dispute between husband and wife, only with an intention to harass and trouble the 3rd Respondent.

5) It further stated that the Petitioner had applied and got the DSC by herself and the 3rd Respondent was in no way party to the DSC application filed by the Petitioner before the certifying authorities. There is no lis between the Petitioner and the 3rd Respondent apart from that being a client to a professional. The claim of the Petitioner that the 3rd Respondent connived with the 2nd Respondent have perpetuated a fraud to cheat and harass the Petitioner both physically and psychologically to achieve their unlawful object of taking revenge upon her and her daughter is totally denied as false and is the same is misleading and such an allegation tantamount to defaming a professional by the Petitioner.

6) It is stated that he has discharged his professional duty without mala fide intention and the allegations made by the Petitioner is untenable and baseless, and thus the Company Petition is liable to be dismissed.

4. The Registrar of Companies i.e., the Respondent No. 4 has filed counter dated 22nd July, 2019 by inter alia contending as follows:

1) It is stated that the ROC i.e., 4th Respondent is not contesting Respondent and therefore he is confined only to the averments made in respect of incorporation of the M/s.Colour Books Associates Private Limited i.e., 1st Respondent. As per the record of this office, the 1st Respondent Company was incorporated on 14.05.2018 in the state of Karnataka with CIN U74999KA2018PTC113093 and registered office is situated at 49/24, 3rd Floor, 11th C Cross, Kodandaramapuram, Malleswaram Bangalore, Karnataka-560003. As per the Memorandum of Association of the Company, the promoter/ subscriber to the Memorandum is Shri Sundaram Chockilingam, the 2nd Respondent and Smt. Nagappan Swarnalatha the Petitioner. As per the AOA, the said persons are also the first Directors of the Company. The incorporation documents are filed in E Form spice with spice MOA and AOA which are digitally signed by the above two Subscribers and witnessed by Shri R. Madesh nayak CA with membership No. 218234 with his digital signature. Along with the said incorporation forms in terms of Section 7 R/w Companies (Incorporation) Rules 2014 (Rule 12 to 17) and Rule 38, the Subscribers including the Petitioner has submitted affidavit in INC 9. Further the first Director including the Petitioner have submitted form DIR 2 which is the consent to act as the Director of the Company in teims of Section 152(5) R/w Rule 8 of the Companies Appointment and Qualification of Director Rule 2014. As per the incorporation documents filed with the ROC, the registered office of the Company is owned by Shree S. Nagappan who is the father of Petitioner and the rental agreement entered with the said owner along with NOC for using his premises as registered office of the Company is also filed with this office. Therefore, basing on the above documents, the Company was incorporated by the Central Registration Centre of MCA.

2) It is also stated that as per Section 7 sub-section (5) that the answering Respondent is not aware if the digital signature of the Petitioner has been obtained fraudulently and the first Respondent Company has been incorporated without the consent of the Petitioner by misusing her identification document and by forging her signature as alleged by the Petitioner. Further the answering Respondent does not have the technical expertise to verify the veracity of the documents/DSC used for filing incorporation forms. Therefore, as per under Rule 14 of the Companies Incorporation Rule 2014, the declaration of the professional, who is engaged in the formation of the Company in Form INC 8 is required to be filed so as to ensure that all the requirements of the Companies Act and Rules made there under in respect of Registration and matter precedent and incidental there to have been complied. Further, affidavit in Form INC 9 from the Subscribers is also obtained stating that all the document filed with the Registrar for Registration of Company contain information that is correct and complete and true to the best of his knowledge and belief. All other averments relate to the marital dispute between the Petitioner and the 2nd Respondent and to cases filed under Negotiable Instrument Act, which are not within the knowledge of this Respondent, hence no comments are offered.

5. Heard Shri S. Shiv Shankar along with Shri M. Rathina Kumar, learned Counsels for the Petitioner and Shri L. Mallesh, learned Counsel for Respondent No.1 86 Respondent 2 and Shri Kumar M.N. learned Standing Counsel for R-4. We have carefully perused the pleadings of the parties and extant provisions of the Companies Act, 2013.

6. The main issue arise for consideration in the instant Company Petition is whether the incorporation of the R-1 Company was done in accordance with extant provisions of Law with due consent of the Petitioner or not.

7. It is relevant to refer relevant provisions of the Companies Act 2013 with regard to procedure for incorporation of a Company. Section 7 of the Act is relevant provisions for the same, which reads as under :

1) “There shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be suited, the following documents and information for registration, namely:‑

a. The memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed;

b. A declaration in the prescribed form by an advocate, a chartered accountant, cost accountant or company secretary in practice, who is engaged in the formation of the company, and by a person named in the articles as a director, manager or secretary of the company, that all the requirements of this Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have ben complied with;

c. (A declaration) from each of the subscribers to be memorandum and from persons named as the first directors, if any, in the articles that he is not convicted of any offence in connection with the promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief;

d. The address for correspondence till its registered office is established;

e. The particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscribers to the memorandum along with proof of identity, as may be prescribed, and in the case of subscriber being a body corporate, such particulars as may be prescribed;

f. The particulars of the persons mentioned in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed; and

g. The particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed.”

8. It is not in dispute that Respondent No.2 himself has initiated the process of incorporation of the R-1 Company by engaging the service of Mr.R. Madesh Nayak. A.C.A. Chartered Accountant for the purpose. As stated supra, the Respondent No. 3 has clearly admitted in his reply that he has not witnessed the Petitioner to sign relevant documents required for incorporation of the Company. And also contended that by believing the version of second Respondent that the petitioner/wife was having kid and thus she was incapacitated to come physically present before him, has given the requisite forms for incorporation to him for obtaining signatures of his wife. The Respondent No.3 i.e., Mr. R. Madesh Nayak, A.C.A. Chartered Accountant admits that he was required to take declaration required for incorporation of the Company by physical verification of the person who signed the requisite documents. Therefore, the requisite documents furnished by the Second Respondent was uploaded for incorporation of the R-1 Company. However, the certified copies of Incorporation of Respondent No.1 Company produced by the Petitioner includes C.C.No.1553 of 2018 dated 10.05.2018, Form SPICe MOA (INC-33) C.C. No.1552 of 2018 dated 26.04.2018, Form SPICe MOA (INC-33) C.C.No.1549 of 2018 dated 10.05.2018, Form SPICe AOA (INC-34) C.C.No.1550 of 2018 dated 26.04.2018 and Form SPICe AOA (INC-34) C.C.No.1551 of 2018 dated 10.05.2018 which contained in Page No.105 to 145. It is relevant to point out in Page No.113, 119, 132 and 145, the R­3 has declared that both the Petitioner as well as Respondent No.2 signed before him. At the same time he declared that the Petitioner was not present before him. It is relied upon the Respondent No.2 for the bona fide signature of the Petitioner. The Respondent No.3 has certified that both the Petitioner and the Respondent No.2 is have signed of the requisite documents before him. However, the Respondent No.3 admits that the Petitioner has not signed before him.

9. As per Section 7(1)(b) of the Companies Act 2013, a declaration in the prescribed form by an Advocate, a Chartered Accountant, Cost Accountant or Company Secretary etc. has to certify the requirements of this Act and the Rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with. As per Section 7(5) of the Companies Act 2013, says if any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action under Section 447. It is true that Respondent No.4 i.e., ROC cannot checkup of the declaration given by the parties for incorporation of the Company. Therefore, the law prescribes the verification of requisite forms by qualified Advocate or Chartered Accountant etc.

10. As per Section 7 of the Companies Act, 2013 apart from the ROC, the Tribunal has also empowered to take appropriate action in case of the incorporation of the Company is made by submitting false declarations as per said Section. Since the Petitioner has established that the documents required for incorporation of the Company in respect of the Petitioner is furnished found to be false and the Tribunal is empowered to pass necessary order in the interest of justice to the Petitioner.

11. The Respondent No. 3 has enclosed Form No. INC-32 as Annexure R1, Page No. 10-18, where in at page No. 17, wherein the third respondent has given declaration and certification, which reads as under:

“Declaration and certification by professional

I, Madesh Nayak, member of The Institute of Chartered Accountants of India having office at No. 6/ 36, 1st Floor, 1st Main, 8th Cross, Madivala, Bangalore-560068 who is engaged in the formation of the Company declare that I have been duly engaged for the purpose of certification of this form. It is hereby also certified that I have gone through the provisions of the Companies Act, 2013 and rules thereunder for the subject matter of this form and matters incidental thereto and I have verified the above particulars (including attachments) from the original/ certified records maintained by the Applicant which is subject matter of this form and found them to be true, correct and complete and no information material to this form has been suppressed. I further certify that:

(i) The draft memorandum and articles of association have been drawn up in conformity with the provisions of sections 4 and 5 and rules made thereunder; and

(ii) All the requirements of Companies Act, 2013 and the rules made thereunder relating to the registration of the company under section 7 of the Act and matters precedent or incidental thereto have been complied with. The said records have been properly prepared, signed by the required officers of the Company and maintained as per relevant provisions of the Companies Act, 2013 and were found to be in order.

(iii) I have opened all the attachments to this form and have verified these to be as per requirements, complete and legible;

(iv) I further declare that I have personally visited the premises of the proposed registered office given in the form at the address mentioned herein above and verified that the said proposed registered office of the company will be functioning for the business purposes of the company (wherever applicable in respect of the proposed registered office has been given).

It is understood that I shall be liable for action under Section 448 of the Companies Act, 2013 for wrong certification, if any found at any stage.”

12. Therefore, the Respondent No. 3 failed to fulfil his statutory professional duties in following the extant provisions of the Companies Act, in incorporating the R 1 Company. He has given false declaration that the petitioner has signed the requisite documents in question before him. Therefore, the incorporation of R 1 Company ab initio void as per the said proviso , apart from criminally liable for action against the Second and third Respondent.

13. Even comparison of the signatures of the Petitioner stated to have signed on requisite documents filed for incorporation with that of signatures signed on case papers filed before the Tribunal, Family court etc. and other documents like Driving Licence, Voter ID Card, passport, etc., it is crystal clear with naked eyes that the signatures of the Petitioner on the documents filed for incorporation of the Company are not tallying at all. Moreover, the Petitioner has also filed criminal case for forgers and the copy of the FIRs are also enclosed along with the Company Petition. It is also relevant to point here that the Petitioner and second Respondent are not living together from July, 2017 and thus question of taking her signature do not arise for incorporation of the Company on later date i.e. 14.05.2018. It is also relevant to point out here that the second Respondent himself alleged that the father of Petitioner is not interested for marriage of his daughter with the second Respondent. Therefore, it can be inferred that the Lease Agreement in question for lease of house of father of Petitioner for the office of the Company cannot be relied upon and the statement in this regard by the third Respondent is also deemed to be false.

14. For the aforesaid reasons and circumstances, we are of the considered opinion that the incorporation of R 1 Company vitiated by fraud, and the same is done by the Second Respondent in connivance with third Respondent. However, we are not inclined to recommend any criminal action to be initiated against the second and third respondent since there are admittedly matrimonial disputes pending between the Petitioner and second Respondent by granting liberty to the petitioner to prosecute remedies available to her in respect of other grievances. Since the Second Respondent is responsible for incorporation of the Company, he is solely responsible for transaction made on behalf of the Company.

15. In the result, C.P.No.617/BB/2018 is disposed of with the following directions:

1) We hereby declared that the incorporation of M/s. Colour Books Associates Private Limited (Respondent No.1 Company, is vitiated by fraud and consequently, the Certificate of Incorporation dated 14th May, 2018 issued by the Government of India, Ministry of Corporate Affairs, Central Registration Centre is declared as invalid with immediate effect;

2) The Respondent No. 2 is directed to discharge all liabilities, if any, on behalf of the Respondent No.1 Company, done in the course of business of the

3) Other reliefs as prayed by the petitioner in the Petition are hereby rejected, by granting liberty to the petitioner to prosecute remedies available, in respect of other grievances as made in the instant petition, under the extant provisions of Companies Act, 2013 and the Rules made thereunder.

4) No order as to costs.

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