9911796707
TMI Blog2015 (6) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that the respondent herein claims to the subscribers to the Memorandum of Association of the company and claims to subscribe of 25,000 shares of the company. Further the claims to be one of the promoters and directors of the company. The respondent has to establish that he is holding the shares that would entitle him to invoke the jurisdiction of this Bench. The respondent has not produced any record. correspondence, share certificates or bank particulars for having paid any money to the company to show that he is holding and is entitled to be registered for the 25,000 shares as he claims to have already paid for those shares. Even the annual returns flied by him his name has not been shown as shareholder of the company. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent were the only subscribers to the Memorandum and Articles of Association of the company. They only subscribed to the entire capital in equal shares. Under section 41 of the Act' the subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company and on its registration, shall be entered as members in its register of members. Upon incorporation of the 1 applicant company. the 2 applicant and the respondent had become members and their names were entered in the register of members. The respondent produced before this Hon'ble Bench prima facie evidence of his 50% membership in the company. The onus of proving any subsequent change in the status of the membership is on the person who claims s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to challenge. Annexure A2 shows that the respondent was holding 50% shares of the company just as the 2" applicant. Thus the respondent as a member of the company, qualified under section 399 to file a petition under section 397 and 398 of the Act. Even as the ri applicant has filed several fabricated returns and statements before the Registrar of Companies, he could not file any document regarding cessation of respondent's membership as alleged by him or to show as and since then the name of the petitioner shown as one of the subscribers to the to how without his consent and knowledge. In support the case the counsel relied upon the following cases 1. (2009) 149 CC 678 (CLB) in the matter ofd. ET Spinning Mills Pvt Ltd& Others Vs. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised share capital of the company is Rs. 50 lakhs divided into 50,000 equity shares of Rs,100/- each that the petitioner and the 2nd applicant's names were shown as subscribers to the memorandum and articles subscribing to 25,000 equity shares of Rs. 100/- each. The company was incorporated on 30.06.2008 and since then the name of the petitioner shown as one of the subscribers to the memorandum and articles and there was no dispute nor any objection raised by the applicants herein with regard to non-subscription of the share application money. After filing the petition by the petitioner, the applicants herein have raised objections with regard to the petitioner's shareholding in the 1'1 applicant company. The petitioner made var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e letter that the removal of the documents resulted in non-compliance of the statutory requirements and requested the 2nd applicant herein to bring back all the papers. After the issue of said letter the petitioner tiled suit being O.S No.249/2011 before the Principal Munsif, Ernakulam under order 39 Rule 1 read with section 151 of CPC for granting temporary prohibitary injunction restraining the defendants therein and the applicants herein. The Hon'ble Court vide its order dated 08.04.2011 granted the temporary prohibitary injunction restraining the defendants therein from alienating the plaintiff schedule property i.e. the immoveable property of the applicant company. The Hon'ble Court at para 20 of page 12 of its order had recorded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the learned court Rave its finding that the records were very much available with the plaintiffs and the truth will come out if the same is produced. in the petition at para 6.21 the petitioner has categorically stated that there was no demand notice served on the petitioner to pay the call money. In view of the specific finding given by the learned court in respect of the above issues and without going into the merits of the case by conducting a detailed enquiry into the facts of the matter, the petition cannot be dismissed at threshold. In view of the reason, the application is miserably failed and liable to be dismissed. Further the CLH in the matter of S.V.T Spinning Mills Pvt Ltd had opined that the factual issues cannot be adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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