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2013 (4) TMI 595 - COMPANY LAW BOARD, MUMBAI BENCHOppression and mismanagement - plea for rectification of register - petitioner was among the first subscribers to the MOA & AOA of respondent No. 1 company filing instant petition invoking the provisions of sections 111, 397 and 398 of the companies act as petitioner respondent No. 2 has removed the petitioner illegally from the directorship of the company under section 283(1)(g) and section 283(1)(z) by creating false record of issuing notices for Board meetings under certificate of posting and conducting meetings only on paper & the said notices of Board meetings were never received by the petitioner - whether the petition is maintainable? - Held that:- The petitioner contended that he is a subscriber to 3,333 shares and was the first director of the company. However, there is no admission by the petitioner that he paid the subscription amount to the company. In the affidavit the petitioner stated that he spent considerable amounts from his personal bank account running into lakh of rupees for the R1-company since its incorporation. It is to bear in mind that even to seek relief for rectification of register of members, one has to necessarily establish the reasons/grounds for such rectification. It is not the case of the petitioner that even though he had paid the amounts for the subscribed shares, the company removed his name without any reason. Mere mention of a particular provision would not make out a case automatically unless, the ingredients of that provision is satisfied in the petition. In the present case no such grounds are mentioned nor is any case made out seeking enforcement of that provision of law. Moreover it is an attempt to make out a case to maintain a petition. Admittedly, the petitioner's name appears in the MoA of the company as a subscriber and there is no other documentary proof to establish that he is a member of the company. The respondents categorically stated that the petitioner did not pay the subscription amount to the company. The petitioner did not deny the same except stating that he spent huge amounts on the company. Therefore, the petitioner did not pay the subscription amount thereby he cannot claim to be a member of the company. It is mandatory requirement that any member or members who hold not less than 1/10th of the issued share capital and have paid all calls and other sums due on their shares can only maintain the petition. In the present case the petitioner alleges that he subscribed to the shares but the sum due on the said shares has not been paid to the company. Therefore, the petitioner is not entitled to file a petition since he did not fulfill the statutory requirement as contemplated under section 399 of the Act. Hence, the petition fails. It is a well settled principle of law that if the petition is not maintainable, the same cannot be entertained by the Bench. As the petitioner is not a member of the company, he cannot maintain the petition.
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