Public limited unlisted company
Querist :
Anonymous
(Querist) 28 April 2020
This query is : Resolved
I am a creditor of a Company which has been mismanaged by the Directors who siphoned off its assets. These facts are apparent from its Balance sheets etc which are available in public domain.
As a Creditor(not a share holder) ,who do I go with a complaint about the affairs of the company, a Civil Court or the NCLT ?
Secondly the Company has not filed any annual returns etc for the last two years and hence I dont have the latest status of the this Company ! As a Creditor can I complain about this fact to the MCA ?
I have apprehension that the Company is trying to close down after manipulating the account books etc shortly !
Raj Kumar Makkad
(Expert) 28 April 2020
First of all you need to make a complaint to SEBI with all details and demand for strict action against the said company if the same is a listed company. Thereafter you need to go for NCLT.
If the company has not filed its return since last two years means has violated the rules, the same should form part/grounds of the complaint as suggested earlier.
Dr J C Vashista
(Expert) 29 April 2020
Since the company is not listed you may approach NCLT qua irregularities observed, non-adherence of legal provisions, disposal/siphoning of assets and recovery of amount due.
However, if you are interested only in recovery you may file a suit for recovery in Civil Court.
Rajendra K Goyal
(Expert) 29 April 2020
You may approach NCLT.
Insolvency and Bankruptcy code has empowered the creditor, wherein he or she can get back the dues through the Corporate Insolvency Resolution Process (CIRP) or through liquidation of defaulting debtor entity.
Read more at:
https://economictimes.indiatimes.com/small-biz/legal/procedure-for-creditors-to-file-under-ibc-insolvency-and-bankruptcy-code/articleshow/70920647.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
SHIRISH PAWAR, 7738990900
(Expert) 29 April 2020
Dear queirst,
Making complaint will not give you anything. Move NCLT against company and file application otherwise you may loose your money.
Regards,
Rajendra K Goyal
(Expert) 30 April 2020
Can move before NCLT with request to initiate liquidation proceedings.
Hemant Agarwal
(Expert) 30 April 2020
CONSIDER THIS:
1. "IF" you have documentary evidences of the misappropriation of funds by Co. directors, THEN file an FIR with the jurisdictional Police and the EOW and the ROC, and request for investigation and relevant prosecution. Apprehensively you are an unsecured Creditor and a Civil Court will not help in this.
2. IF Co., has not filed is mandatory annual returns, THEN make a written complaint to ROC (not NCLT or SEBI or MCA, and request for investigation and relevant prosecution. ONLY the ROC has this jurisdiction and nobody else.
Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com
Querist :
Anonymous
(Querist) 30 April 2020
@ expert Hemant Agarwal ! Thanks for your expert reply. I am actually a Judgement (Arbitral Award) creditor. Therefore understandably I should approach a Civil Court with an EP first ! In that Petition,can I submit those evidence of malfeasance of Directors & pray to make them liable along with the company ?
Hemant Agarwal
(Expert) 30 April 2020
1. You will not be able to raise such prayer in a EP proceedings and neither the Court could entertain it.
Raj Kumar Makkad
(Expert) 30 April 2020
You have no other option but to file an execution petition before the concerned civil court, however, the additional issues of forgery or misappropriation cannot form part of such EP. You shall have to initiate separate action against those offences as advised above.
Rajendra K Goyal
(Expert) 01 May 2020
EP has to be filed in the competent court.
Separate case has to be filed for fraud etc, it can not be initiated with EP.
