TMI Blog2017 (7) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... and other Respondents. After an inordinate delay of more than six years it is not possible for the Respondents to reverse the cycle of events. Something already done cannot be undone merely on the basis of bald claims. Certain events such as signing of balance sheet by the respective parties, submission of information before the ROC, an Arbitration judgment dated 08-07-2009 acknowledging the final settlement dated 15-10-2008 are such examples of fait accompli of the settlement. Thus the Petitioner was not holding the requisite number of shares on the date of filing of the Petition, therefore failed to accomplish the legal requirement prescribed under section 399 of the old Act. Legally, the Petitioner is not entitled to file this Petition. It is hereby held that the Petition is not maintainable, hence dismissed in-limine. - CO. APPLICATION NO. 83 OF 2014, AND CO. PETITION NO. 83/397-398/MB/2014 - - - Dated:- 3-5-2017 - MR. M.K. SHRAWAT, J. For The Petitioner : Sundaran Kathiresan, Learned Company Secretary and Vinayak Patil, CA For The Respondent : Ajay Kumar, Learned Practising Company Secretary ORDER The petition under consideration was submitted before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Mr. Bipinchandra Shreeram Gandhi 350 2 Mr. Vaijnath Eknath Jagushte 350 3 Mr. Nitin Manohar Khatu 350 4 Mrs. Hema Nivrutti More 3,750 Total 4,800 2.2 In the Petition the Petitioner has further stated that after the fresh share allotment the paid up share capital of the R1 Company had become ₹ 1,50,000/- constituting 15,000 equity shares as per the following details: - Sr. No. Name Shares Percentage 1 Mr. Bipinchandra Shreeram Gandhi 3,750 25 2 Mr. Vaijnath Eknath Jagushte 3,750 25 3 Mr. Nitin Manohar Khatu 3,750 25 4 Mrs. Hema Nivrutti More 3,750 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling the transfer for 75,000 equity shares; (ii.) Issue of share certificate for allotment of 71,600 shares; (iii.) appointment of an independent valuer to determine fair value of shares; (iv.) sale of business to either party at fair value determined by the independent valuer; (v.) such further or other orders be made or directions be given affording necessary relief to petitioner as in the premises of the Hon'ble Company Law Board may deem fit and proper. 3. A preliminary legal objection has been raised by the Respondents that in a situation when the entire shareholdings have been transferred by the Petitioner 15-10- 2008, then the Petitioner had no legal right to file this Petition on 10th September 2014. By invoking the provisions of Sections 399 of the old Art the Respondents have challenged the maintainability of the Petition. While raising the legal objection through a reply submitted on 26-02-2015 the Respondents have confirmed that on 10-08-2005 the company was acquired and the Petitioner along with the two Respondents have been allotted 3,400 shares each. Thereafter in the year 2005 by a Board Resolution dated 15-11-2005, further 4,800 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly settled on 15-10-2008, duly signed by the Petitioner. As per the settlement the Petitioner had resigned w.e.f. 15-10-2008. Form No.32 along with the letter of resignation was submitted to the Registrar of Companies. The resignation was also accepted at the Board meeting held in 15-10-2008. The entire shareholding of 75,000 shares were transferred equally in favour of Respondent No.2 and Respondent No.3. The original share certificates along with transfer deeds were handed to the Board of Directors at the Board meeting, claimed to have been held on 15-10-2008. This is the main reason for the preliminary legal objection as raised by the Respondents that in a situation when the entire shareholdings have been transferred by the Petitioner, therefore, having nil share on the date when the impugned Petition filed, the Petitioner had no locus standi in the eyes of law to file the petition. The second prayer of the Respondent is that the Petition is vitiated by delay and latches. According to the Respondents there was a long delay of 6 years. The Petitioner had resigned in the year 2008, however, the Petition was filed in the year 2014, resulting into the delay of long six years. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The allegation that the Petitioner was not aware of all those events is baseless because he was not only involved but the office was also at his property hence having free access to the documents of the company. 4.2 My attention was drawn on a bank account of the Rl company maintained in Janata Sahakari Bank Ltd., Pune wherein, vide two cheques bearing no.314572 and no.314571 amounts of ₹ 4,04,195/- and ₹ 7,50,000/- have been issued in favour of Shri Bipinchandra S. Gandhi, Petitioner on 17-10-2008. Learned A.R. has emphasized that the date 17-10-2008 is very important because on that date the consideration was passed and the formalities of resignation dated 15-10-2008 had also been completed. 4.3 My attention was drawn on English translation of Arbitration Report in Marathi language. As per this letter dated 08-07-2009, the Petitioner had tendered his resignation on 15-10-2008. This letter had communicated that the Petitioner had agreed for exit from the company and R2 and R3 have completed the final settlement with the Petitioner. 4.4 A vehement reliance has been placed by the learned A.R. on a settlement paper which was claimed to have been signed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce he was not aware of the allotment of those shares hence there was no question of signing of any share transfer form . Rather, according to the Petitioner number of reminders were issued such as letter dated 10-11-2005 asking to allot the shares. The Respondent had misinterpreted the said letter. The Petitioner has also denied of any final settlement. According to the arguments, the alleged settlement is simply on a piece of paper which appeared to be a forged document, pleaded by the learned A.R. of the Petitioner. Such piece of paper has no sanctity in the eyes of law. The learned A.R. has drawn attention on the annexures annexed with the rejoinder such as bank account with Bank of India of the Petitioner and one memorandum of understanding, a balance sheet drawn as on 31st March 2008. According to learned A.R. only through one cheque bearing no.314572 a sum of ₹ 11,54,195/- was received, on the other hand, the Respondent is certifying that the said amount was received through two separate cheques. The Petitioner has also denied of having access on the documents of the company allegedly capped in the office situated at the residence of the Petitioner. 5.1 Learned A.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument from the ROC which was subsequent to the filing of our Reply to the Rejoinder, the challan dated 21st July 2015 is attached). Share Transfer Deed was not signed by the Petitioner for transferring the 76000 shares. The claim made by the Respondents that all the shares were transferred and the Petitioner is not a shareholder does not hold good as the meeting did not happen, all documents like Minutes were forged and a story has been cook up by the Respondents. The case laws indicate that mere passing of resolution for transfer is not sufficient and it should be backed by Transfer Deed duly signed and lodged by the Transferor. (Supreme Court - Smt Claude-Lila Parulelkar v. Sakal Papers Pvt Ltd Others (2005) Vol 107(2) Bom LR 818 (SC), Manna/at Khetan Ors Vs. Kedar Nath Khetan Ors (1977) 2 Sec 424 and Prabhjit Singh Johar V. Johar Hotels (P.) Ltd. [2011] 157 Comp Cases 98 (CLB-N.Delhi). Hence the transfer of shares should be declared Null and Void and the Company should be instructed to bring this to the knowledge of the ROC. 3. The learned Counsel for the Respondents stated that the Transfer Deed continued to be in Registered Office which was the Petitioners house eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's resignation is a million dollar question. It can be presumed that the Respondents allowed it for the sake of putting forth arguments like this against the Petitioner as if the documents were with him and he did not return whereas the fact is different and all documents were only with the Respondents at the Admin Office. 9. The original Share Certificate for 3400 shares is still with the Petitioner and it has not been affixed with Cancelled Seal. The Petitioner never requested for consolidation of shares. Whereas they say that Consolidated Share Certificate for 3750 shares were issued after cancelling the original 3400 share certificate. Without the Petitioner's request how could the Company consolidate his shares? 10. The Counsel for the Respondents quoted that the Balance Sheet, etc were signed by the Petitioner as a Director along with Respondents. However the very same documents available at the ROC do not have the signature of any Director. 11. As per the MOU Mr. J. S. Shinde should have been appointed as the Arbitrator. But actually the arbitration was done by one Mr. Umesh Shinde and who engaged him is not known as the MOU did not give authority to Mr. J.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y introducing a fabricated Auditors Report, the Respondents have asked for more than ₹ 5,00,000 as the amount payable by the Petitioner. That should also be refunded. The mental agony gone through by the Petitioner should be adequately compensated. 6. The Respondent, challenging the maintainability has placed reliance on the case laws discussed hereinbelow:- (a) Bhola Waman Khalkar v. Laxman Waman Khalkar [2014] 126 SCL 105/45 taxmann.com 251 (CLB - Mum.) for the legal proposition that having found that the Petitioner had transferred their shareholding voluntarily and the transfer was not illegal and having found that it was established that the Petitioner was not holding share on the date of filing of the Petition, the Petition is not maintainable in terms of the provisions of Section 399 of the Act. (b) Jiwan Mehta v. Emmbros Forging (P.) Ltd. [2010] 1 taxmann.com 109 (CLB-N.Delhi) for the legal proposition that having found the Petitioner had deliberately concealed the factum of the M.O.U. from CLB, the Petitioner had not come with clean hands. (c) Srikanta Datta Narasimharaja Wadiyar v. Sri Venkateswara Real Estate Enterprises (P.) Ltd. [1992] 7 CLA (Snr.) 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings have been carefully perused and the evidences annexed have been taken into consideration. The main prayer of the Petitioner and the relief sought was that a direction be given to rectify the Register of Members in respect of 75,000 equity shares by cancelling the transfer. On the other hand, the preliminary objection of the answering Respondent is that the Petitioner has no legal right to file this petition because of the reason that the entire shareholding had been transferred by him. Facts as discussed hereinabove were that the shareholding of the Petitioner was transferred on 15-10-2008. It is not in dispute that after acquiring the company in the year 2005 on three occasions the shareholding pattern of the members/directors had modified and finally increased from 3,400 shares, stated to be acquired on 10th August, 2005, to 75,000 shares. In between first an additional allotment of 350 shares and later on further allotment of 71,250 shares to the Petitioner was made, thus constituting total holding of 75,000 shares. One more fact is not in dispute that the Petitioner and his family member have invested ₹ 20 lakhs in Rl company. The Petitioner had demanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ₹ 11,57,547/-, undisputedly deposited in his bank account? Neither in the pleadings nor during the course of argument any convincing reply was tendered by the Petitioner. The said document, although on a piece of plain paper was dated 15-10-2008 and the said date have become important due to the date of resignation claimed to have been communicated to ROC. Thereafter on number of occasions the Petitioner himself has referred the said date as the date of his exit from Rl company. In this regard a letter of the Petitioner dated 08-07-2009 is worth mentioning. From the side of the Petitioner written arguments have been submitted and carefully perused but nowhere specifically rebutted the factum of money transaction held on 15-10-2008, credited in the account on 17-10-2008. The pleadings of the Petitioner mainly revolved around the issuance of additional shares which were allegedly not in the notice of the Petitioner. Likewise, the Petitioner has also denied the execution of share transfer deed. On this legal point the Petitioner had placed reliance on few decisions viz. Smt. Claude-Lila Parulekar v. Sakal Paper (P.) Ltd. [2005] 59 SCL 414 (SC), Mannalal Khetan v. Kedar Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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