Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2019 (5) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 1874 - Tri - Insolvency and BankruptcyOppression and Mismanagement - arrangement of transfer of shares - time limitation - appointment of directors in the board of the Company - increase of authorized capital - allotment of further capital by way of allotment of shares. Time Limitation - HELD THAT:- It is on record that the petitioners have issued the requisition under 169 of the Act, 1956 to the Company on 15.09.2012 and upon the rejection of the requisition of the petitioners by the Company vide its letter dated 28.09.2012, the petitioners have filed a civil suit in OS No. 183 of 2013 before Civil Court and it is on record that the Civil Court returned the plaint stating lack of jurisdiction in view of the amendments to the Companies Act and the final order was passed on 27.11.2017. Since this petition is filed in the year 2018, the petition is not barred by limitation - the issue answered in favor of petitioners. Transfer of Shares - HELD THAT:- It is on record that in the present petition, neither the R1 company nor the R14 and R15 have not filed the copy of the transfer deed and share certificates or the copy of the resolution passed in accordance with clause 14 of the AOA before the Tribunal to show that the shares were transferred according to the provisions of the AOA and Act. It is a fact that the original share certificates are with the petitioners and the same was produced before this Tribunal by the petitioners. Therefore, there are no hesitation to say that the petitioners have not executed any transfer deeds to R14 and R15 and Petitioner's remained as shareholders of the R1 Company. The deletion of names of Petitioner's from the Register of members is illegal, null and void - the issue is answered in favour of Petitioners. Appointment of directors - HELD THAT:- It is a fact that the board of the directors can appoint additional directors. However, their directorship should be confirmed in the next AGM. It is held that the petitioners are only the shareholders, in case, the appointment of directors and their confirmation is brought before the AGM that comprise of the Petitioner's, there was likely hood of rejecting the same by the petitioners. It is also on record that the balance sheet and the annual Return except for the year 2011 were filed in the year 2018 and therefore it creates a suspicion as to whether the AGMs have been conducted properly - the appointment of directors is made in violation of the provisions of the Act, Hence, their appointment is illegal, null and void - Issue is answered in favor of petitioners. Increase of authorized capital - HELD THAT:- It is on record that the same was done behind back of the Petitioners. The resolution to increase the share capital was passed without the participation of the petitioners, who are declared as shareholders of the Company, Therefore, the increase of authorized capital is also illegal and invalid. In this circumstances, the issue is answered in favour of Petitioners. Allotment of shares - HELD THAT:- When the company is not carrying on any business, the need of the further capital is also not needed. It is a well settled principle of law that in case of private limited companies under the Indian law, existence of right to issue shares to one director may technically be there, but the question whether the right has been exercised bona fide and in the interest of the company has to be considered in the fact of each case - the issue of shares is also answered in favour of Petitioners. The petitioners have made out a case for the interference of this Tribunal. Accordingly this Tribunal orders for the rectification of register of members with a direction to the Respondent No. 1 Company to incorporate the names of the petitioners in the Register of Members in the place of R14 and R15 - Petition disposed off.
|