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TMI Blog2016 (12) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... tor is showing as signed by R2 on 10.5.2014, by which time, R2 was already shown as resigned on 6-5-2014 in another Form DIR-12 dated 11-5-2014. And this Form DIR-12 dated 11.5.2014 showing as accepted by R3. 3. The petitioner further says that even if version of the respondents is believed as true, then since R2 ceased to be the director in R-1-Company on 6.5.2014 itself; R2, on 11.5.2014, could not have affixed his digital signature on Form DIR-12 regarding appointment of R3 as director, because by that time, according to the respondents, R2 already resigned on 6.5.2014. 4. The petitioner further submits that both the resignations of R2 as director and appointment of R3 as director was done without the approval and consent of the Board and also without following the procedure as laid down under provisions of Companies Act, 1956/2013 r/w Clause 11(iii) and Clause 22 of the Articles of Association of R1-company. 5. The petitioner has also levelled allegations against R2 & R3 for operating the account of R1 Company in an unauthorised manner and siphoning huge amounts of money. 6. R2, in his reply, while refuting the charges levelled against him, submits that R3, his real brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is competing with R1-Company. R3 further submit that the petitioner obtained Order from this Bench on 30.4.2015 by making false statements and solely with the purpose of putting an end to the business of the company and to stop the hotel business. 11. R3 submits that when he entered the business of R1-company, he found that there was no proper mechanism or system in the company, therefore, he applied his best efforts, experience and all possible resources and liaisons to boost the business of the company and his business acumen and astute professionalism saw R1-company grow leaps and bounds. R3 further states that he, as originally planned, joined the company on whole time basis since it was clearly understood between the family that R3 would take over not only holding of R2 but also management of the company and R2 would finally resign. He submits that R2 and the petitioner never took part in day-to-day management of the company. 12. R3 submits that in the year 2014, R1-Company was witnessing financial predicaments and since the petitioner and R2 were not interested to invest any further amount in the company, the petitioner and R2 requested R3 that since the company was a brai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f R3, these annexure are nothing but mostly unilateral correspondence from R3 to Banks and other people. 16. Whereas R2, who is none other than brother of R3, filed affidavit saying that no resolution was passed either for transfer of shareholding or for appointment of R3 as director in the company and also mentioned that he was obliged to sign on some paper owing to some undue influence by the family members but it is a fact that no resolution was passed in the company, either appointing R3 as director or showing any transfer of shareholding of R2 to R3. 17. This being the case, the point to be decided is whether appointment of R3 as director is valid in the eyes of law, whether such transfer of shares in between them is in violation of articles 7 to 9 of the articles of association, of course since this being a private company, the parties are bound by the Articles of Association in respect of transfer of shares. Assuming that all those annexure to reply as genuine correspondence, how could it be presumed that he was made director of the company and management given to him, unless R3 has been shown as appointed as director in the company by the petitioner and R2, unless such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and R2. Even if this Bench goes by the pleadings of R3 also, there is no averments and any supporting document showing that the petitioner, who is 50% shareholder in the company, passed a resolution along with R2 appointing R3 as director and there is no document or averments showing that the transfer in between R2 and R3 went before the Board and that Board has approved any such resolution reflecting that the petitioner participated in the Board meeting and passed resolution. I am not on whether the alleged transfer from R2 to R3 canvassed by R2 is valid or invalid. When such transfer is admittedly invalid, R3 has no right to continue in the management of the company or continue with showing a transfer deed in favour of him. 22. For having R3 himself holds out that he has been running the affairs of the company since he was appointed as director in the company, there need not be any other proof to say that he has been unilaterally managing the affairs of the company. When a person, who has no right in the company either as a shareholder or as a director, is conducting the affairs of the company detrimental to the interests of the shareholders, definitely it will amount to oppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner participated in the resolution appointing R3 as a director. 27. The counsel appearing on behalf of R2 says, R2 himself filed a complaint before RoC on 17.7.2014 saying that his signatures were forged by R2 for filing Form DIR-12. 28. In view of the position mentioned above, it is the petitioner who suffered in between these two brothers i.e. R2 &R3. Since R2 admitted in his affidavit that he was forced to sign on some papers, it is in between R2 & R3 to decide whether any transfer taken place or not. As long as such transfer in a private company governed by clause 7 of Articles of Association has not come before the Board for approval, the transfer in between them cannot be considered as valid. 29. For there being a grave allegation against R3 that he has siphoned more than Rs. 85 lacs from the company by withdrawing from the Bank, A. Bafna &Co., Chartered Accountants. K-2, Keshav Path, Ahinsa Circle, C-Scheme, Keshav Path-302001, Jaipur, Rajasthan (Ph. : 01414003005) is hereby appointed to find out as to whether funds of the company have been swindled by R3. Since R3 is no body in the company, he has no right to operate bank account and conduct the affairs of the co ..... 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