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2018 (9) TMI 1837 - Tri - Companies LawOppression and mismanagement - main contention of the petitioner in the main company petition is that his shareholding of 25 per cent. had been reduced to "nil" due to the oppressive act of the respondents as well as other allegations against the respondents made in the main company petition - HELD THAT:- There is no dispute that the petitioner continues to be director in the company and that during the time when the allotment to respondents Nos. 2 and 4 were made as well as at the time when the transfer is alleged to have taken place from petitioner to respondent No. 3 he had been a director of the first respondent-company. Necessarily in order to prima facie defeat the claim of the petitioner that he is not a member in the company, the respondents in order to convince this Tribunal, apart from merely stating in the reply that the petitioner is not a member, should have produced minutes of the board meeting wherein the allotment and/or transfer had taken place, the attendance register evidencing the attendance of petitioner in the said meetings as well as the share transfer form together with share certificate along with the reply which had been filed by the respondents. Non-production of required documents - HELD THAT:- A statement is made that all the papers in relation to the first respondent-company including minute books and the Registrar of Companies documents have been lost and in the circumstances no record in relation to the first respondent-company is able to be produced. We are not very much convinced with this explanation given by respondent No. 3 for not providing evidence in relation to the share allotment and share transfer and that the above statement will not absolve respondent No. 3 from producing any shred of evidence in relation to the share transfer of the holding of the petitioner to himself as well as in relation to allotment of shares to respondents Nos. 2 and 4 which acts prima facie has made the petitioner to fall below the threshold limit of 10 per cent. as well as to make him as a non-member, if the acts of the respondents can be sustained of the first respondent-company. In the absence of any proof, the petitioner cannot be shut out under section 244 of the Companies Act, 2013 on mere statements of the respondents without any shred of evidence being produced to deny an opportunity to the petitioner to prosecute the main company petition - this application as filed by the applicant/petitioner stands allowed and in terms of proviso to section 244(1), this Tribunal waives the requirement as specified in clause (a) of sub-section (1) of section 244 of the Companies Act, 2013 and permits the petitioner to prosecute the main company petition.
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