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TMI Blog2012 (1) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... he company. The petitioner and his sister are the children of late Mr. Sunil Mane from his divorced wife, Ms. Shalaka. The petitioner has approached this Bench with ulterior motive and unclean hands to grab a part of shares of the company though not entitled to the same. The petitioner is not on the register of members of the company and has in fact never been on the register of members of the company and, thus, does not have any locus standi to file the petition. The petitioner has deliberately suppressed some extremely vital and important facts from this Bench which are as follows. The petitioner was appointed as an additional director of the company on 30th April 2011 and e-Form 32 filed with the Registrar of Companies ('RoC'), Mumbai relating to his appointment. He regularly attending the office of the company. He was also authorised in respect to the various bank accounts of the company on 5th May, 2011 with a power to singly sign cheques up to any limit and in fact signed the cheques on behalf of the company and has illegally retained the company's cheque books with him. He in fact has access to all the operations of the company and all the records of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a civil court. In support of his contention the learned senior counsel relied upon the judgments : (i) In the matter National Insurance Co. Ltd. v. Glaxo India Ltd. 1999 34 CLA 30 (Bom.): AIR 1999 Bom. 240 it is held : "(I]it is, therefore, now clear from the judgment of the Apex Court in A S Corporation (P). Ltd. (supra) the Apex Court has held that insofar as the matters of rectification are concerned, it is the company court alone which would have jurisdiction. If issues which have to be answered or not peripheral to rectification but issues regarding title, etc., then such other issues will have to be decided by the civil court." Further in para 6, it is held : "When there are disputes as to whether the applicants are the owners of the shares not to be a case exclusively pertaining to rectification which could be decided by the Company Law Board." (ii) In the matter of Worldwide Agencies (P.) Ltd. v. Mrs. Margaret Desor 1991 3 CLA 248, 1990 1 SCC 536 para 6 it is held : "A preliminary objection was raised on behalf of Mrs. Amrit K Singh regarding the maintainability of the petition on the ground that the respondents were not members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal heirship is concerned, therefore no succession certificate or probate or letters of administration necessary for maintaining the petition for redressal of their grievances. Thus, the present petition is maintainable and bar under section 399 cannot be attracted. The petitioner has not embezzled any funds nor mismanaged the company. The allegation in respect of purchase of cars is concerned, it is submitted that the cars were purchased by the company in the name of the company during the petitioner's father's life time. The learned senior counsel further submitted that the petitioner made an application on 5th May, 2011 to the company seeking transmission of shares, but the company is denying the fact of making such an application. The applicant being the own uncle of the petitioner acknowledges the fact that the petitioner and his sister are the legal heirs and there is no requirement of succession certificate or probate or letters of administration. It is submitted that there is no complicated question of fact and law arisen in the present petition. It is an undisputed fact that the petitioner and his sister are the only legal heirs of late Sunil Mane. As a matter of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 397 and 398 of the Act." Heard, the learned senior counsel appearing for the respective parries and perused the pleadings, documents and citations relied upon by them. After analysing the facts, the only issue which felt for consideration is whether the petition is maintainable or not is need to be addressed. Now I deal with the issue. The petitioner filed the petition which numbered as CP 76 of 2011 under sections 111, 397, 398, 399, 400, 402, 403, 404 and 405 of the Act seeking various reliefs, inter alia, declaring that the affairs of the company are being conducted in a manner which is oppressive to the petitioner. Respond No. 2 mismanaging the affairs of the company which is directly and indirectly prejudicial to the interest of the company and the shareholders. The petitioner is entitled to 32,280 equity shares being 46.28 per cent of equity share capital of the company as prayed in para 9 of the petition. The petitioner also sought direction to rectify the register of members by inserting his name as a member of the company and holding 32,280 equity shares in the company and also sought various other reliefs as prayed in para 9 of the petition. The petition was me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. I have perused the application dated 5th May, 2011 addressed to the company by the petitioner. It is stated that he is submitting the application and requesting them to consider facts, and transmit 64,560 equity shares and 30,000 preference shares held by late Sunil Mane. On perusal of the letter, it is seen that there is no specific request for transmission of such number of shares in the name of the petitioner or in the name of his sister. On the other hand the applicant/respondent is disputing the receipt of such application for transmission of shares by the company and also stated that the petitioner has not complied the requirement as contemplated under the articles of association. Without going in to the details and its veracity, it is apparent that there is no specific request with regard to transmission of such number of shares and the entitlement to the shares of the deceased. Therefore, I am of the view that the application dated 5th May, 2011 is vague. Article 12 of the articles of association of the company, the legal representative of a deceased member shall be entitled to be recognised by the company as having title to the shares of the deceased member on producti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every other person who agrees in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company. (3) Every person holding equity share capital of company and whose name is entered as beneficial owner in the records of the depository, it shall be deemed to be a member of the concerned company. Therefore, the persons who fall under the above category are deemed to be a member of the company. According to section 399 only member or members can apply to the CLB under sections 397, 398 and other provisions of law. The petitioner is not covered under the above provision of law. Admittedly in the present case the petitioner is not a member of the company, however, claims to be legal heir and entitled to the estate of deceased shareholder, i.e., Shri Sunil Mane. On the other hand, Shri Raju Subramanium, learned senior counsel vehemently contended that the petitioner is the son of late Sunil Mane and he is the legal heir and entitled to the estate of his father and he maintains the petition in view of the judgment of the Supreme Court Margaratt Desor (supra). Per contra the learned senior counsel for the applicant/responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, the CLB relied upon the judgment of the Apex Court in re Margaratt Desor. In view of appraisal of the facts of the present case and the judgment of the Supreme Court, no need to distinguish the same. Unequivocally this Bench does not have any powers to declare a particular person or persons that they are the legal heirs and successors to the estate of a particular person. For seeking such declarations one has to approach the competent court of law. If this Bench dismisses the present application and holds that the company petition is maintainable, it amounts that the CLB is declaring the petitioner as successor to the estate of the deceased person and the relief as sought by the petitioner seeking declaration that he is entitled to 32,280 equity shares is automatically allowed. In other words granting such relief without production of any documentary proof that he is the successor to the estate is impermissible. Considering the above facts, law, and the judgment of the Apex Court, I hereby allow the CA No. 203 of 2011 and dismiss the CP No. 76 of 2011 holding that the petitioner is not entitled to maintain the petition. Accordingly the issue is answered. However, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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