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2013 (1) TMI 561 - HC - Companies LawScheme of Merger - applicant for recalling of order sanctioning scheme of merger of petitioner-transferor company with transferee-company as it was the case of the applicant that no information about the merger of the companies had ever been intimated to the applicant who was a majority shareholder of the transferor-company with stake of 52.47 per cent - Whether applicant was entitled to notice of meeting even though he had not taken any steps to get into register of members of company? - Held that:- There is no dispute that the name of the applicant was never entered into the register of members qua the 52,470 shares. On the date of the issuance of notices by the Chairperson for the meeting proposed for 17-4-1999, applicant was also not a member qua the 100 shares which were earlier held by him as on 27-2-1999 as he had transferred these shares in favour of Bhushan Dua as evident from transaction No. 4 reflected in the annual return 1998-99. The register of members maintained by the company from its inception, i.e., on 3-6-1982 evidenced that applicant had been registered as a member on 3-6-1982 and he ceased to be a member on 27-3-1999 as his 100 shares which he was holding were sold on 27-2-1999 & there is no other transaction of 27-2-1999. The submission of the petitioner that 52,470 shares were transferred in his name on 27-2-1999 is not borne out form the record. The register of share transfer forms also reflects four transactions between 1998 to 1999. As Section 108 lays down the procedure for the transfer of shares it is a mandate upon the company not to register the transfer of shares of the company unless the instrument of transfer was duly stamped; this is the first requirement. It must also be completed in all respects. In the instant case the share transfer forms (relied upon by the applicant shows that they were unstamped. They are also admittedly only a photocopy of the original forms which is even otherwise not stamped. The mandate and requirements of section 108 have not been met. The company could not register the unstamped shares in favour of the petitioner. Thus transaction in non-compliance of section 108 would be void Thus to conclude rights as a member could be exercised by applicant qua the company only if his name had been entered into the Register of Members. In the absence of this registration, no right would accrue to him. Facts of instant case do not make out any such allegation of fraud. Record shows that the name of the petitioner was never entered into the register of members as a holder of 52,470 shares; his own case is that the share transfer forms were available with him in 1998; he however took no steps to get himself onto the register of members; fault was entirely of the petitioner; he thus, not being a member of the register of the members of the company; when the notices were issued by the Chairperson 23-3-1999 for the proposed meeting of the merger of transferor-company transferee company - Objections raised by the petitioner are wholly without any merit.
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