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2015 (7) TMI 622 - Board - Companies LawApplication u/s 398 read with section 402 and 403 of the Companies Act, 1956 - Dispute in relation to sale deeds - Appointment of an Administrator forthwith to take charge of the assets of the company - To Convene a general body meeting of the shareholders - Authenticity of Equitable mortgage - Held that:- Appointment of an Administrator - The status of the company is not aware to the Bench whether the company is functioning and carrying out any business and whether the company is having any Assets. The petitioner has not produced any documents with regard to the functioning of the company and the Assets standing in the name of the company. In absence of the documents in relation to status of the company and its Assets, it is too late to appoint an Administrator to take charge of assets of the company in absence of the details of the assets whether moveable or immoveable which the company holds and possess. Authenticity of Equitable mortgage & holding of general body meeting - This Bench does not have the jurisdiction to go into the veracity of the mortgage Deed. In respect to the holding of general body meeting, the company is duty bound to convene its meetings as per law, however non holding of meetings as required under law is violation of the provisions of the Companies Act, and the company and its officers will be in default. In this regard sufficient provisions have been made in the Companies Act, 1956 to take necessary action against the company and its officers in default. The petitioner has not made out any prima facie case regarding to this relief. Other allegations / reliefs requested - I do not see any malafides with respect to the transaction between the R1 Company and R8. Even the petitioner has admitted the fact that the 8th respondent had advanced the amounts to M/s. Maxworth Home Ltd. Therefore the allegations made by the petitioner against these respondents are baseless and liable to be rejected. With regard to the appointment of respondents 5 to 7 as directors of the R1 Company is concerned, the company stated that the respondents 5 to 7 have been appointed by the company as directors as per the procedure and necessary Form 29 and 32 have been filed with the concerned ROC. The petitioner has not made out any case with regard to the illegality in appointment of respondents 5 to 7 and no documents have been produced to establish the said allegation. The 9th respondent is a Nationalized Bank. It is stated that they are not aware of the civil suit filed by the 8th respondent and stated that the 9th respondent is a bonafide purchaser of the plots and paid the entire sale consideration and the R1 has executed the sale deeds in its favour even prior to the suit filed by the 8th respondent. Since the counter affidavit has been filed by the authorised persons of the 9th respondent the averments made in the counter affidavit cannot be disputed. Being a Nationalized Bank the R9 could have been verified all the documents before purchasing the property from the R1 Company. The respondent No.9 admittedly purchased the property and got registered the property in its favour even prior to filing of the suit. The Bench is of the view that the transaction between the R1 and R9 is a concluded contract. With regard to the other sale deeds executed by the company and its authorised persons are concerned. the petitioner has not made out any prima facie case against the respondents. Therefore the averments and allegations made by the petitioner cannot be sustained on mere statement without producing any documents in its support. Further the sale deeds executed in favour of 9th respondent and respondents 13 to 15 are to be declared as null and void is concerned, apparently the sale deeds have been executed in the year 2004 and in the year 2002. As per section 402 of the Companies Act, 1956 this Bench has power to set aside the sale deeds if found illegal after adjudication of the matter. However as per sub section (f) of Section 402 one has to challenge the said sale/ transaction within a period of three months from the date of the said sale execution before the Bench. The Bench after adjudicating the matter under section 397 or 398 may pass the order provided, the Bench comes to a conclusion that the said sale is within time and proved as illegal and void. In the instant case even this criteria has not been fulfilled in the petition. Therefore the petitioner has not made out any case on mismanagement and the petition is miserably failed and liable to he dismissed. - Decided against the appellant.
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