Legal Question in Business Law in India

Dear Sir,

It�s an LLP incorporated in 2012 by two designated partners, the LLP Agreement described its business export of marine product - specifically red mud crab and agricultural products - specifically fresh vegetable and fruits. Though the LLP was in its development state but now it is healthy enough to start its main business operation due to one of its designated partners strenuous endeavour, investment of personal time, money and effort, all not claimed to the LLP, which he has selflessly done for the ultimate betterment of the LLP. It is now popularly known in the international markets relevant, receiving frequent purchase enquiries from the interested buyers and importers, also receiving offers from the domestic suppliers, farmers, service and goods providers and agents. However, there is the unfortunate part in the fate of the LLP; it needs to be winded up in the bud due to indifference of the other designated partner to participate or to perform in the regular course of business of the LLP.

Meanwhile, the LLP has not performed any transaction either with a creditor or debtor, except incurring some of the fixed cost and relevant cost for statutory compliances and professional fees, which has been born by the designated partners in the form of personal loans given to the LLP. The LLP maintained all of its required compliances till last year, but somehow it failed to submit Annual return (Form 11) for the current year and might fail to submit IT Return too (ITR-V) for the reasons as stated in the following.

1. That previously, on dated 04.03.2016 FCA Prashant Chavan advised in a post (1) to refer Chapter IX of the LLP Act 2008, his goodness also referred (2) dispute resolution mechanism, as described in the file GSR_550(E)_12012015.pdf , and finally advised to (3) appoint an arbitrator as per the provisions of Arbitration and conciliation Act, 1996.

2. That according to the above advise of FCA Prashant Chavan, this applicant engaged a Company Secretary (*CS) for mediation on behalf of the LLP, as per the provisions of the LLP Agreement, before appointing an arbitrator and filling a case before tribunal. Therefore said CS notified both the designated partners of the LLP and they appeared before him for the hearing. Unfortunately, neither said CS followed the process of mediation and conciliation in framing the issues on the basis of references rather closed the mediation recording the intention of the parties, nor endeavoured to settle the disputes on the basis of reasonable conclusion. But he issued a single line attendance cum conclusion that simply states, one partner ready to close the LLP as per the provision of the LLP Act where the other partner contended to run the LLP. Later on same date, said CS accidentally uttered his original intention, charge a huge sum from the partner desiring to close the LLP, this is the cost of his said action even if it goes above the cost of his ethics as a Company Secretary.

3. That a notice was served upon said CS by the learned Advocate of the applicant that requested his to adjudicate the issues through process of mediation and conclusion after issuing notice to the consenting parties so that the reference may be meaningful. But the CS remained indifferent to said notice till date.

4. That due to the above reasons, the entire matter turned complex and not remained only within the jurisdiction as advised by FCA Prashant Chavan as above said.

5. That the CS is holding dongles of Digital Signatures of the designated partners since their creation and till date, meanwhile he used them in two occasions last years. Therefore, the other designated partners assured the LLP to follow-up submission of Annual Return (2016), accordingly relevant declaration signed by the designated partners with the request to the CS to submit said return for which he appeared to consented, as per the version of the other designated partner. However, instead of all these, said CS did not submit Form 11 to the RoC, thereafter a joint meeting held between designated partners and this applicant decided to send intimation to the CS requesting his to submit Annual Return soon after receiving said intimation by said CS, therefore the intimation was sent by the applicant. However, delivery of said intimation returned both, from his place of engagement stating the reason addressee moved, as well as a forwarding copy of said intimation returned from another place of his availability with the reason, addressee intimated but unclaimed.

6. That, this applicant filed a complaint before the Registrar of Companies, (Limited Liability Partnership), West Bengal and copy of the complaint sent to both of the addressees of the CS but both of them returned stating the same said reason as in the earlier case. A copy of the complaint mentioned below. Moreover, it is not easy to find a professional here competent in LLP and the applicant trying find one in Kolkata so that the above can be handles properly. Furthermore, the applicant initiated a personal case against the other designated partner applicable within the jurisdiction of a local civil/session court.

Therefore considering the above stated facts and circumstances your applicant seeking further advice on the entire issues. Specifically, jurisdiction where the applicant gets proper relief, relevant laws applicable. And/or other advises or suggestions deemed to be fit and proper to the end of Justice.

And for the acts of your kindness, your applicant shall ever pray.

Yours faithfully,

S N Thakur

Note: I shall be happy if you recommend a professional here, somewhere near Calcutta High Court, ready to act under your supervision that too against a cost/fee bearable to me.

------------------------ Complaint made before RoC mentioned below ------------------------------

Dated: 24 June 2016.

To,

The Registrar of Companies,

(Limited Liability Partnership),

Office of the Registrar of Companies (West Bengal),

Nizam Palace, 2nd M.S.O. Building, 2nd Floor,

234/4, Acharya Jagadish Chandra Bose Road,

Kolkata � 700020.

An Application before the Registrar of Companies - West Bengal, (Limited Liability Partnership), on behalf of M/S Kris Seafoods LLP, (*the LLP), incorporated under the Limited Liability Partnership Act, 2008 (*the Act) on 14/09/2012.

Reference: Ticket No. SR203310 registered at the MCA Services.

M/S Kris Seafoods LLP (LLPIN: AAB-1197), 254, Madhyamgram Main Road, South Bankimpally, Madhyamgram, North 24 Parganas, Kolkata 700129. West Bengal.

Soumendra Nath Thakur (DIN 05239926), Designated Partner, on behalf of the above LLP.

�............. Applicant

And

CS *******************,

(1) ******************* (Residential Office of engagement)

(2) ******************* (Recently know availability place)

�........................ Respondent

District: North 24 Parganas in the State: West Bengal

In the Office of the Registrar of Companies (West Bengal),

(Limited Liability Partnership),

Nizam Palace, 2nd M.S.O. Building, 2nd Floor,

234/4, Acharya Jagadish Chandra Bose Road,

Kolkata � 700020.

In the Matter of:

A complaint for non-filling of authenticated electronic document, as defined in Rules 4, 36(1)(i), and 36(1)(ii) of Limited Liability Partnership Rules, 2009 (*LLP Rules), by the above mentioned Company Secretary (*CS), under section 2(d)(g) of the Act, engaged on behalf of the LLP for filling said document as per the intimation/instruction of the LLP viz. Annual Return (Form-11), as provided under section 35 of the Act, read with Rule 25 of the LLP Rules.

And

In the matter of:

Non-fulfillment of intimation of the LLP sent to CS *********************** in his nominated email ID, as recorded in the LLP Master Data, for filling of Annual Return for the Financial Year ended 2016, and subsequent follow-up by a designated partner of the LLP.

And

In the matter of:

Arbitrary holding of the digital signatures certificate dongles of the designated partners of the LLP by said Company Secretary.

And

In the mater of:

Non-discharge of engagement with the LLP by said Company Secretary, before moving from his place of engagement, without intimation to the LLP or its designated partners.

And

In the mater of:

Denial of said CS ****************** to receive or to address the intimation sent by the LLP to his place of availability (another) as recently known by the LLP.

Before the Registrar of Companies, (Limited Liability Partnership).

The humble application of the applicant above named.

1. That your applicant is a designated partner of the LLP, and a certified entrepreneur for science & technology persons, undergone training in Entrepreneurship Development, Financial and Marketing Management, as per the courses of Department of Science & Technology and Small Industries Service Institute, Govt. of India, and become eligible to manage and run a business. Thereafter, the above-referred LLP formed under the Limited Liability Partnership Act, 2008 by two designated partners.

2. That the relationship between CS **************** and the LLP started about 4 years ago when CS ******* provided his visiting card and a brochure to the present designated partners of the LLP, those indicated his working with a company named Team CLV, shown his qualification, and highlighted his acumen as a Company Secretary. Said relationship further established through an engagement letter dated 17 Aug 2012 issued by one of the present designated partners of the LLP. The engagement of CS ****** entered at his residential office at C/o *********************** from where he started to operate after taking his voluntary retirement, as per his statement.

Photocopy of said visiting card, brochure and engagement letter annexed

herewith and they collectively marked with the letter (� A �)

3. That CS **************** self-engaged himself with the LLP by subscribing his own email ID ******@*****, recorded in the Master Data of the LLP till date. He subscribed the email in his own judgement even when the designated partners instructed him to enter a different email before incorporation of the LLP.

Photocopy of said Master Data of the LLP annexed herewith and marked with

the letter ( �B� )

4. That the existing Digital Signature Certificates (DSC) of the Designated Partners of the LLP approved and issued last year on dated 30/05/2015. A day or two before the date of their issuance said designated partners submitted filled in applications for said DSC before CS **************** at his said residential office, later CS ****** kept the dongles of said DSC in his own control since their delivery by the issuing authority.

Photocopy of the email of said approval and date of issuance of said Digital ID

annexed herewith and marked with the letter ( �C� )

5. That CS **************** used the above said digital signatures in two occasions, first on dated 30/05/2015 against SRN: ********** and paid the fee for LLP Form11 on behalf of the LLP, secondly on dated 31/10/2015 against SRN: *********** and paid fee for LLP Form 8 for the year ending 2015, and he kept the dongles of said DSC in his own custody till date.

Photocopy of challan dated 30/05/2015 and 31/10/2015 annexed herewith and

they are collectively marked with the letter ( �D� )

6. That under section 35 of the Act, read with Rule 25 of LLP Rules, the designated partners of the LLP ought to file Annual Return for the year ended 31/03/2016 in Form-11, as well as per item 7.2 of the LLP Agreement, said designated partners are responsible in respect of fulfillment of compliance of the provisions of the Act.

7. That according to the requirement of the above mentioned compliance, the designated partners of the LLP jointly signed the document viz. details of company/LLP in which partner/designated partner is a director/partner. Thereafter, as per previous experience, the LLP emailed the scan copy of said document to said nominated email ID of CS **************** along with another document on dated 27/05/2016 at 19.40 Hrs. to his receiving email ID as recorded in the Master Data of the LLP. Subsequently, a designated partner of the LLP followed-up with CS ****************, while he agreed to submit the Form � 11 on or before 30/05/2016.

Photocopy of the document viz. �details of LLP in which designated partner is a

partner� .and email sent to CS **************** to his email nominated ID

annexed herewith and they collectively marked with the letter ( �E� ).

8. That as per the record in minute book of the LLP, on dated 30/05/2016 at about a little before the midnight CS **************** called the designated partner of the LLP, who followed-up him, and expressed his inability to submit the Form � 11 unless he is paid Rs. 20,000 for filling of said form. In response, said designated partner agreed to pay the amount the LLP usually paid to him in all the last occasions or a reasonable amount payable for said filling, he requested CS ****** to file the Form-11, thereafter, their conversation ended.

9. That after 30/05/2016 and until date, there was no confirmation of submission of Annual Return for the year ended on 31/03/2016 on behalf of the LLP.

10. That a special meeting of the designated partners of the LLP called on 31/05/2016 regarding the above said issue, which was confirmed and held on 05/06/2016. Accordingly, the LLP decided to serve an intimation letter to CS **************** asking him to submit relevant Annual Return, immediately on receipt of said intimation by CS ****..

11. That the above said intimation letter, dated 05/06/2016, posted to CS **************** on 06/06/2016 with postal reference no. EW*************** to his residential office address and the place of his relevant engagement, which returned to the sender LLP, undelivered to the addressee (LLP), stating the reason �addressee moved�.

Photocopy of the above said returned intimation letter annexed herewith and

marked with the letter ( �F� ).

12. (i) That CS **************** never intimated his shifting to any one from the LLP before moving from his place of engagement, or, discharged his engagement with the LLP prior to the movement. nor, he handed over the digital signatures to the respective designated partners of the LLP. (ii) Further on dated 09/06/2016 a self-attested true copy of said returned intimation dated 05/06/2016 forwarded to another address of CS **************** recently known by the LLP, which later returned to the sender LLP on 20/06/2016 stating the reason �delivery attempted: unclaimed� (by the addressee).

Photocopy of the above said returned forwarding intimation letter annexed

herewith and marked with the letter ( �G� ).

Therefore, considering the above stated facts and circumstances, it is can be ascertained that CS **************** neither given any heed to address the above said instruction/email dated 27/05/2016 sent to him by the LLP, nor he filed the Annual Return in Form - 11 within or on the scheduled date of compliance dated 30/05/2016 instead of the email instruction and his relationship with the LLP, CS ***** ignored submission of said Form � 11 in some unreasonable ground.

CS **************** rather left his place of engagement without discharging his engagement and self-engagement or handing over the DSC dongles to the respective designated partners of the LLP.

Finally, he intentionally unclaimed the final intimation dated 09/06/2016 sent to him by the LLP, so as to fulfill his objective best known to him, but he definitely preferred to put the LLP and its designated partners in risk and jeopardy for no fault of their own.

The Applicant LLP therefore prays before your goodness to intervene in the matter, pass a reason order or direction so that said Annual Return for the year ended 31/03/2016 filed in Form � 11 without further delay, on behalf of the LLP.

And for your act of your kindness, the applicant LLP shall ever pray.

This application signed by Soumendra Nath Thakur (DIN 05239926), Designated Partner, M/S Kris Seafoods LLP (LLPIN: AAB-1197) on 24th June 2016.

________________________________________

Signature of the Applicant with stamp

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