Amit Nagindas Kapadia Vs United Petrofer Ltd & Ors (NCLAT Delhi)
The National Company Law Appellate Tribunal (NCLAT) considered an appeal filed under Section 421 of the Companies Act, 2013 against an order of the National Company Law Tribunal (NCLT), Ahmedabad Bench, which had dismissed a petition filed under Section 213(b) of the Companies Act, 2013 as not maintainable without issuing notice to the respondents.
The appellant had sought an investigation into the affairs of the respondent company, alleging that its business was being conducted with intent to defraud creditors and stakeholders. The petition relied upon allegations including manipulation of statutory records, false certifications, illegal allotment of shares, incomplete audit reports, non-filing of mandatory statutory forms such as DPT-3, PAS-6, and MGT-14, and a prima facie opinion of the Institute of Company Secretaries of India (ICSI) holding the company secretary guilty of professional misconduct and false certification.
The appellant contended that the NCLT failed to appreciate that the petition sought investigation into fraudulent management, concealment of the company’s true financial position, fabrication of statutory documents, repeated non-filing, false certifications, and backdated approvals, which were alleged to fall within the scope of Section 213(b). It was also argued that dismissal of the petition without notice amounted to a violation of the principles of natural justice.
The NCLT had observed that Section 213(b) empowers the Tribunal to order an investigation where it forms a prima facie opinion that a company’s business is conducted with intent to defraud creditors, members or other persons, for fraudulent or unlawful purposes, or in an oppressive manner.
The Tribunal noted that the appellant claimed to be a creditor and alleged non-payment of advances, dishonour of cheques, and issuance of notice under Section 138 of the Negotiable Instruments Act, 1881. However, it found that the allegations primarily related to statutory non-compliances, filing irregularities, professional certification issues, dishonoured cheques, and unpaid dues.
According to the NCLT, these allegations indicated regulatory lapses enforceable by the Registrar of Companies under Sections 92, 137, and 454 of the Companies Act, 2013, but did not establish a prima facie case of systemic fraud or fraudulent intent as contemplated under Section 213(b). It further observed that the preliminary findings of professional bodies related only to certification lapses, while the complaint before ICAI remained pending without findings.
The NCLT also held that dishonoured cheques reflected unpaid debts but were not conclusively linked to fraudulent intent or unlawful conduct under Section 213(b). It observed that the petition had been used as a mechanism for recovery of monetary dues, whereas Section 213(b) was intended for investigation into fraudulent affairs of companies and not as an alternative recovery forum for disputed debts or commercial claims. The Tribunal stated that adjudication of dishonoured cheques and recovery of money lay before the appropriate civil and criminal forums, including those dealing with negotiable instruments and contractual disputes. Consequently, it concluded that no prima facie case warranting investigation had been established and dismissed the petition while leaving the appellant at liberty to pursue other legal remedies.
Upon hearing the appeal, the NCLAT agreed with the findings of the NCLT. It observed that the allegations essentially related to recovery of dues, dishonoured cheques, and statutory non-compliances that were enforceable by the Registrar of Companies under Sections 92, 137, and 454 of the Companies Act, 2013. The Appellate Tribunal found no prima facie evidence of systematic fraud or intention to defraud members, creditors, or other stakeholders.
The NCLAT further noted that the appellant had already approached the relevant statutory authorities and that no final findings had yet been recorded in those proceedings, indicating that alternative remedies had already been pursued. It also rejected the allegation of violation of natural justice, observing that the appellant had been heard before the NCLT.
The Appellate Tribunal relied upon its earlier decision in Jitesh Sanmukhlal Shah V Corrtech International Ltd and Ors (2025) ibclaw.in 280 NCLAT, wherein it had held that a petition under Section 213 could not be maintained where the dispute was essentially a money dispute and the allegations of fraud against creditors had not been substantiated.
The NCLAT also held that the NCLT was justified in rejecting the petition in limine without issuing notice to the respondents because the allegations related to recovery of dues and dishonoured cheques, the alleged statutory non-compliances were regulatory lapses enforceable by the Registrar of Companies, and there was no prima facie evidence of systemic fraud or intent to defraud creditors. The Appellate Tribunal observed that the petition under Section 213 appeared to have been filed due to the appellant’s inability to recover his dues.
Finding no merit in the appeal, the NCLAT dismissed the appeal.
Cases Discussed
- Jitesh Sanmukhlal Shah V Corrtech International Ltd and Ors (NCLAT), (2025) ibclaw.in 280 NCLAT
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
The present Appeal Is preferred under Section 421 of the Companies Act, 2013 against an impugned order dated 30.10.2025 passed by the Ld. National Company Law Tribunal, Ahmedabad Bench in Company Petition No. 15 of 2024 whereby the Petition filed under Section 213(b) of the Companies Act, 2013 was dismissed as being not maintainable even without issuance of notice to the respondents.
2. The Appellant had filed the Petition seeking investigation into the affairs of the R-l Company, alleging its business was being conducted with intent to defraud creditors and stakeholders, and the management had engaged in manipulation of statutory records, false certifications, and multiple non compliances under the Companies Act, 2013.
3. It is argued the Appellant/Petitioner had submitted detailed documentary evidence, including multiple false and contradictory statutory filings, illegal allotment of shares, incomplete audit reports, and non-filing of mandatory forms such as DPT-3 PAS-6, and MGT-14 and prima facie opinion of the Institute of Company Secretaries of India (ICSI) finding the Company Secretary of R-1 guilty of professional misconduct and false certification.
4. It is argued the Tribunal failed to appreciate that the Petition was not limited to recovery of dues but sought investigation into fraudulent management of the Company, concealment of true financial position, and fabrication of statutory documents and acts which squarely attract Section 2l3(b) of the Companies Act, 2013. The Tribunal also failed to appreciate repeated non-filing, false certifications, and backdated approvals are not mere procedural lapses but systemic acts of deceit and misfeasance, falling within the ambit of “intent to defraud creditors.”
5. Being aggrieved by the alleged erroneous interpretation of Section 2l3(b), non-consideration of material evidence, and violation of principles of natural justice in dismissing the Petition without notice to the Respondents, the Appellant has preferred the present Appeal u/s 421 of the Companies Act, 2013, seeking to set aside the impugned order and to direct investigation into the affairs of Respondent No. 1 Company.
6. We have heard the arguments and also perused the impugned order which is to the following effect: –
6.1. The petitioner, Mr. Amit N Kapadia, has filed the present petition under Section 213(b) of the Companies Act, 2013, contending that the business of United Petrofer Limited (“the Company”) is conducted with an intent to defraud creditors and other persons, or for fraudulent or unlawful purposes.
6.2. Section 213(b) of the Companies Act, 2013 provides that the Tribunal may order investigation into the affairs of a company if it is of the prima facie opinion that the business of the company is being conducted with intent to defraud creditors, members or any other persons or otherwise for a fraudulent or unlawful purpose or in a manner oppressive to any of its members or that the company was formed for any fraudulent or unlawful purpose.
6.3. The Petitioner claims status as a creditor trading as Jalaram Jari Industries and alleges non-payment of advances leading to dishonour of cheques and issuance of notice under Section 138 of the Negotiable Instruments Act, 1881.
6.4. The allegations primarily revolve around non-compliances in filings and certifications, which do not prima facie establish a systemic fraud targeting creditors or members. The creditor claim pertains to a specific transaction amenable to recovery under the Negotiable Instruments Act, 1881 or civil proceedings, rather than invoking investigative powers under Section 213.
6.5. On perusal of the petition and the extensive supporting documents filed, this Tribunal notes the following material facts which do not satisfy the maintainability criteria under Section 213(b):
6.5.1. The petition filed by Mr. Amit N Kapadia under Section 213(b) of the Companies Act, 2013, seeking an investigation into the affairs of United Petrofer Limited (“the Company”), has been carefully considered along with the accompanying documents, affidavits, and submissions.
6.5.2. It is observed that the petitioner has placed reliance on various contentions, including complaints filed with professional bodies (ICAI and ICSI), alleged statutory irregularities, dishonoured cheques, nonpayment of dues, and non-compliance with filing requirements under the Companies Act, 2013.
6.5.3. Further, these indicate regulatory lapses enforceable by the Registrar of Companies under Sections 92, 137, or penalties under Section 454, but do not establish prima facie intent to defraud creditors or unlawful purpose under Section 213(b). The banker’s role (Respondent No. 6) is alleged without evidence of reliance on fabricated documents specific to the Petitioner’s transaction.
6.5.4. The Tribunal has also noted the preliminary findings of professional bodies such as ICSI and ICAI. But this pertains to certification lapses, not overarching fraud by the company or directors. The ICAI complaint remains under consideration without findings.
6.5.5. However, it is specifically noted that the petitioner has claimed dishonour of several cheques issued by the respondent company, United Petrofer Limited, as evidence of non-payment of debts. However, this Tribunal observes that such dishonoured cheques, while reflecting unpaid debts, have not been conclusively linked to fraudulent intent or unlawful conduct of the company within the meaning contemplated under Section 2l3(b) of the Companies Act, 2013.
6.5.6. Furthermore, it is incumbent upon this Tribunal to highlight that the petitioner appears to have improperly invoked this statutory forum; primarily designed for investigation into affairs of companies involving fraud, misfeasance, or oppressive conduct as a mechanism for recovery of monetary dues. Section 213(b) is not intended to serve as a substitute or alternative recovery forum for disputed debts or commercial claims.
6.5.7. The adjudication of dishonoured cheques and monetary recovery necessarily lie within the exclusive jurisdiction of appropriate civil and criminal fora, including courts dealing with negotiable instruments and contractual disputes. The use of the present petition under Section 213(b) for recovery, rather than for genuine investigation into fraudulent affairs, is therefore impermissible.
6.5.8. This misuse militates against maintainability and weighs against the grant of the relief sought herein. The petitioner is at liberty to pursue all available legal remedies in the proper jurisdiction for recovery of debts and enforcement of payments.
6.5.9. The petitioner has failed to establish a prima facie case warranting an investigation into the Company’s affairs. The grievances and contentions raised, at this stage, fall strictly within the purview of contractual or civil disputes and not under the purview of fraud as envisaged by Section 2l3(b) of the Companies Act.
7. We have heard the arguments and perused the material and we are in conformity with the findings in the impugned order. We are also of the view the allegations merely relate to the recovery of dues or dishonoured cheques as noncompliance of statutory nature/regulatory lapses are very well enforceable by the ROC under Section 92, 137 and 454 of the Companies Act, 2013 and there is no prima facie evidence of any systematic fraud with an intention to prima facie defraud its members, creditors or any other stake holders. The appellant has already filed complaints before the said statutory authorities and no concrete/final findings have come in the said complaints till date and it also shows the appellant has been taking recourse to alternative remedies. There could be no violation of natural justice either as hearing has since been given to the appellant by the Ld. NCLT.
8. The Ld. NCLT has also relied upon Jitesh Sanmukhlal Shah V Corrtech International Ltd and Ors (2025) ibclaw.in 280 NCLAT which held as under:-
“11. The only argument of appellant is the business of the respondent company is being conducted with an intent to defraud its creditors, though the appellant was unable to substantiate his allegations the creditors of the company are being defrauded. Admittedly the appellant and the Respondent are in money dispute and arbitration proceedings are pending between two. It appears to circumvent such proceedings and to create pressure upon Respondent Company; the appellant had filed the present Company Petition seeking investigation into its affairs. Further on perusal of the impugned order we find that though in para 15 of its impugned order, the Ld. NCLT has held the petition is not maintainable under sub—section (a) of Section 213 of Companies Act, 2013 yet if one examines . the impugned order in its entirety, more specifically its para (Supra) one would find the Ld. NCLT had also dealt with circumstances enumerated in sub-section (b) of Section 213 of Companies Act, 2013. Thus we find no merit in the appeal and hence it is dismissed.”
9. We are also of the considered view, the Ld. NCLT was right in rejecting the company petition in limine, without issuing notice to the Respondents on the grounds viz (i) the allegations merely relate to recovery of dues or dishonoured cheques; (ii) non-compliances are regulatory lapses enforceable by the Registrar of Companies under Sections 92, 137, and 454, and (iii) there is no prima facie evidence of systemic fraud or intent to defraud creditors. Thus, the complaint/petition under Section 213 of the Companies Act, 2013 appears to be an act of frustration of the appellant in not recovering his dues.
10. There is no merit in the appeal. Accordingly, the appeal is dismissed.
