TMI Blog2017 (9) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the dispute regarding continuation of respondent No. 2 as Director of the first respondent company only with a view to defeat transfer of plots made by respondent No. 10 in favour of respondent No. 3. Therefore, this issue raised by petitioner No. 1 may not help him in any way in a petition under section 397 and 398 of Companies Act, 1956. It is settled law that when there is a plea of forgery of signatures, there is need for taking evidence and decide the issue either by Civil Court or by Criminal Court. Petitioner has already filed Civil Suit before Sr. Civil Judge, Surat wherein also he has raised the issue that his signature was forged on the resolution dated 01.08.2012. Therefore, it is not proper for this Tribunal to decide whether the signature of the petitioner on the resolution dated 01.08.2012 is forged signature or not and it is left to the Civil Court to give a finding on it. Plea of the petitioner that notice of EOGM was not sent to him do not merit acceptance. In order to hold EOGM it is necessary to call for a meeting of the Board of Directors to decide the holding of EOGM. Respondents did not place any material on record to state that Board meeting took pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company underwent a change of name as Supriya Prints Private Limited, on 21st July, 2005, Authorised share capital of the first respondent company is ₹ 1.75.00.000/- divided into 17,50,000 equity shares of ₹ 10/- each. Issued, subscribed and paid-up share capital of the first respondent company is ₹ 1,75,00,000/- divided into 17,50,000 equity shares of ₹ 10/- each. Registered office of the first respondent company is situated at Plot No. 263 to 266, GIDC, Sachin, Distt. Surat. 3. Main objects of the company is to carry on the business as manufacturers, traders, spinners, weavers, processors, importers, exporters, agents and dealers in natural and synthetics and man-made fibre cloth and yarns and cotton, jute etc. as stated in Memorandum of Association. 4. Petitioner No. 1 was appointed as Director of the first respondent company by way of Special Resolution passed by shareholders in Extraordinary General Meeting convened on 16th September, 2010. 5. Shareholding of the petitioners 1 to 3 in the first respondent company is as follows: - Sr. No. Petitioner No. of equity shares held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Director of the first respondent company with effect from 01.10.2010. 10. Respondent No. 5 was appointed as Director of the first respondent company on 25.06.2005 and resigned on 10.11.2007. Respondents No. 6 to 9 were appointed as Directors of the first respondent company on 25.06.2005 and they resigned as Directors of the first respondent company on 15.01.2011. 11. Respondent No. 4 is the son of respondent No. 2. Respondent No. 4 is having 1,11,111 equity shares in the first respondent company. Respondent No. 4 was appointed as Director in the Extraordinary General Meeting held on 17.12.2012. 12. Respondent Nos. 5 to 9 sold their entire shareholding in the first respondent company aggregating 17,50,000 equity shares at a price of ₹ 18/- per share to petitioner No. 1 and Respondent No. 2 and their respective family members/associate companies. 13. Immediately after takeover of the first respondent company by petitioner No. 1 and respondent No. 2 from respondents No. 6 to 9, the following steps were taken by petitioner No. 1 and respondent No. 2. 14. Petitioner No. 1 and respondent No. 2 filed application dated 06.04.2011 before respondent No. 10 for substit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.12.2012. Copy of said resolution was forwarded to petitioner No. 1 by GIDC (Respondent No. 10). According to petitioner No. 1 he was not in Surat on 01.08.2012. He did not receive any notice of purported Board Meeting allegedly held on 01.08.2012. Petitioner stated that by the said forged Board Resolution, respondent No. 2 illegally and fraudulently for himself authorised to operate all types of bank accounts on behalf of the first respondent company and further authorised himself to sign any/or all the documents to use the common seal and stamps on behalf of the first respondent company as and when required. Respondent No. 2 further authorised himself to sign alone on behalf of the first respondent company in all or any of the documents or representation to Government/semi-government/departments and to sell transfer and rent the property of the first respondent company. 19. On 07.09.2012 Sutex Co-operative Bank Ltd. sent a notice to the first respondent company addressed to petitioner No. 1 and respondent No. 2 to make payment of outstanding amount of ₹ 2,99,30,674/- in account No. 834177 and ₹ 17,88,499.72 in account No. 300139 within ten days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement with them. Respondent No. 10 further stated in the reply notice that petitioner No. 1 has no right to restrict further transfer of plot of land. According to petitioner No. 1, respondent No. 10 being fully aware that petitioner No. 1 and respondent No. 2 had taken over the first respondent company from the erstwhile shareholders and Directors and that respondents No. 6 to 9 have no right to write letter dated 15.02.2013, in collusion with respondent No. 2 cancelled application dated 06.04.2011 and processed application dated 15.02.2013. 25. Petitioner No. 1 by letter dated 21.02.2013 addressed to Manager of Sutex Co-operative Bank Ltd. made a request that the documents relating to plot of land should only be released in his presence. In spite of specific request made by petitioner No. 1 to respondent No. 10 by letter dated 21.02.2013, requesting respondent No. 10 not to transfer the said plot of land in favour of anyone without his physical presence, respondent No. 10, by letter dated 28.03.2013 informed petitioner No. 1 that the names of the following directors of the first respondent company are appearing in terms of order dated 05.01.2006: - (i) Anandkumar Bhartiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imate share in the said refund. 30. In this petition, petitioner asked for the following amongst other reliefs: - (i) appointment of Independent Chairman to manage the affairs of the first respondent company superseding the Board of Directors, (ii) to appoint auditor for carrying out independent, complete and impartial audit of the first respondent company, (iii) to appoint an inspector to conduct enquiry with regard to the dealings and transactions of the first respondent company, (iv) to direct respondents No. 2 and 4 to restrain from in any manner dealing with the affairs of the first respondent company, its funds, entering into any agreement and conducting any meeting in absence of petitioner No. 1 etc. 31. Respondents No. 1, 2 and 4 resisted this petition on the ground that this petition is barred by principle of Res Judicata, since the Civil Suit No. 131/13 on the file of Senior Civil Judge, Surat filed by petitioner No. 1 is pending and further on the ground that petitioner No. 1 filed Special Civil Application No. 7735/2013 on the file of High Court of Gujarat. 32. Respondents No. 1, 2 and 4 pleaded that respondent No. 2 has been appointed as Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd respondent No. 2 and 3 for which reply is given on 20.04.2012 by petitioner No. 1 and respondent No. 2. In that letter petitioner No. 1 and respondent No. 2 stated that if the company fails to pay the instalments, then in that case respondent No. 3, guarantor is liable to pay outstanding loan amount. It is the case of respondents that immediately thereafter, respondent No. 2 and petitioner No. 1 and the first respondent company executed MOU with Rahmat Trading Company on 06.04.2012 for selling plant and machinery and the same was notarised on 06.04.2012 and registered. As per MOU, respondent No. 2 and Petitioner No. 1 have sold entire plant and machinery and the sale proceed was credited to Sutex Co-operative Bank Ltd. and reduced debt liability of the first respondent company. In the above said MOU, first respondent company gives the right to respondent No. 3 guarantor to transfer or sell the company's all movable and immovable assets to clear the liability of outstanding amount of Bank loan and Directors will not take any objection against the Bank and respondent No. 3. 38. The first respondent company had given power of attorney to Sutex Co-operative Bank Ltd. to sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, the liability will fall on respondent No. 3 only. In those circumstances, on request of petitioner No. 1 and respondent No. 2, respondent No. 3 arranged funds and paid the dues of the bank and agreed that, in view of respondent No. 3 paying the entire amount to the bank along with interest, the remaining assets of the first respondent company i.e. land and building which is already mortgaged to the bank will be transferred in the name of respondent No. 3. Thereafter, respondent No. 3 paid the entire amount due to Sutex Co-op. Bank Ltd. as per resolution dated 15.10.2012 signed by petitioner No. 1 and respondent No. 2. 40. Further, it is the case of respondents 1, 2 and 4 that by virtue of Board Resolution dated 01.08.2012 respondent No. 2 was given authority to sell, transfer and rent the property of the first respondent company. By virtue of said resolution, respondent No. 2, on behalf of the first respondent company and respondent No. 3 entered into MoU dated 15.02.2013 to transfer the said plot of land in the name of respondent No. 3 and obtain authority letter from the retired Directors of the first respondent company i.e. respondents No. 5 to 8 on whose name GIDC plot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third parties and those cheques were bounced and therefore, those creditors have filed suit under Section 138 of Negotiable Instruments Act. Respondent No. 3 also state that petitioner, in order to avoid arrest and to face consequences from creditors, sold away all his properties and shifted to Vapi. Respondent No. 3 has stated that he is having good reputation in textile business and in his personal circle and, therefore, in order to help petitioner No. 1 and respondent No.2 paid the outstanding due to the bank by the first respondent company and the plots were transferred to him by GIDC. Respondent No.3 states that instead of thanking him for bailing out from the financial mess, petitioner No. 1 chose to claim that transfer of assets was a conspiracy. 49. Respondents No. 6 to 9 filed separate reply stating that they have no comments about the forgery in the resolution dated 01.08.2012, about illegal and fraudulent holding of EOGM dated 17.12.2012 and about illegal appointment of respondent No. 4 as director of the first respondent company. 50. Respondents No. 6 to 9 have no comments on the change of auditors that took place in the Annual General Meeting on 30.09.2011 by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 2,43,13,881/- to the bank on 19.02.2013. 55. Notice dated 11.12.2012 to the shareholders meeting on 17.12.2012 was fraudulently sent without holding a Board Meeting and without sending notice of Board Meeting. It is the case of the petitioner No. 1 that EOGM on 17.12.2012 was illegal as no Board meeting authorising respondent No. 2 to send notice was held. It is stated that the MoU dated 15.12.2012 is illegally and fraudulently entered into. Respondent No. 3 fraudulently got possession of plot No. 263 to 266 by making payment of ₹ 2,43,13,881/- to the bank fully knowing that market of the said plot is worth ₹ 9 to 10 crores. It is stated that respondent No. 3 had paid the dues of the said bank with intention to grab the land of the first respondent company worth ₹ 9 to 10 crores for a sum of ₹ 2,43,13,881/-. 56. Heard arguments of counsels appearing for the petitioners and respondents. 57. Basing on the pleadings of both the sides and rival submissions, the following points emerge for determination in this petition. (1) Whether continuation of Pradeep Kumar Binani i.e. respondent No. 2 as director of the first respondent company from 01.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2 as Director of the first respondent company to respondent No. 10 to cancel application dated 06.04.2011 and the execution of MOU dated 15.02.2013 between the respondents No. 2 and 3 and ex Directors. Further, it is the Board resolution dated 15.10.2012 that is the root cause for filing this petition or for filing Civil Suit 133 of 2013 before Sr. Civil Judge, Surat or Special Civil Application No. 7735/2013 before the Hon'ble High Court of Gujarat. The facts of the case, pleadings of both the parties and material on record clinchingly establish what is the real dispute is the transfer of plot Nos. 263 to 266 by Respondent No. 10 to respondent No. 3 who is one of the guarantors for the loan availed by the first respondent company from Sutex Co-operative Bank. 62. In this background now it has to be seen what controversies are within the jurisdiction of this Tribunal and what controversies are outside the jurisdiction of this Tribunal. 63. Although aim of the petitioner is to invalidate transfer of plot Nos. 263 to 266 to respondent No. 3, he has challenged only certain resolutions passed or purported to have been passed in the conduct of the affairs of the first res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t company (5) Petitioner No. 1 in the regular civil case No. 131/2013 filed in the Court of Principal Senior Civil Judge, Surat has accepted respondent No. 2 as co-Director of the first respondent company. (6) In the MOU dated 22.12.2010 entered between the old Directors and petitioner No. 1, respondent No.2; respondent No. 2 is shown as Director of the first respondent company. (7) In the letter dated 12.03.2013 written by petitioner No. 1 to Divisional Manager, GIDC, Vapi, respondent No. 2 is shown as Director of the first respondent company. (8) In the Special Civil Application No. 7735 of 2013 filed by petitioner No. 1, respondent No. 2 has been shown as one of the Directors of the first respondent company. (9) In the FIR filed by petitioner No. 1 with Sachin police station on 20.04.2013, respondent No. 2 is shown as one of the Directors of the first respondent company. (10) In form No. 20-B of Annual Return of the first respondent company made upto 30.09.2011 was signed by respondent No. 2 in the capacity as Director of the first respondent company and the same has been certified by Company Secretary. (11) In page No. 240 of the petition, petitioner No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mandate of provisions of the Companies Act, 1956 as well as the Companies Act, 2013. But, petitioner No. 1 did not take any initiative even after expiry of the term of respondent No. 2. On the other hand, petitioner No. 1 along with respondent No. 2 having signed several documents as Directors, raised the dispute regarding continuation of respondent No. 2 as Director of the first respondent company only with a view to defeat transfer of plots made by respondent No. 10 in favour of respondent No. 3. Therefore, this issue raised by petitioner No. 1 may not help him in any way in a petition under section 397 and 398 of Companies Act, 1956. Point no. 2. 68. It is the case of the petitioner that his signature on the Board Resolution dated 01.08.2012 was forged. In order to appreciate the material on record on this point, it is necessary to note that the Board of Directors of the first respondent company passed resolution dated 19.01.2011 signed by petitioner No. 1 and respondent No. 2 in their capacity as Directors of the first respondent company. In that resolution also it was resolved to make an application to Sutex Co- operative Bank Ltd. for sanction of term loan against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of EOGM was given to him. Material on record clearly goes to show that notice of EOGM dated 17.12.2012 was sent to the respondent by speed post. Speed post receipt annexed with reply to the petition by respondent No. 2 and 4 is attached at page No. 41. Therefore, plea of the petitioner that notice of EOGM was not sent to him do not merit acceptance. In order to hold EOGM it is necessary to call for a meeting of the Board of Directors to decide the holding of EOGM. Respondents did not place any material on record to state that Board meeting took place on 11.12.2012 and notice of such Board Meeting was given to petitioner No. 1. Therefore, resolution passed in the EOGM dated 17.12.2012 cannot be held to be legal. Point No. 4 72. Respondent No. 2 is described as sole authorised Director of the first respondent company by Board Resolution dated 01.08.2012. The MOU dated 15.02.2013 enables Respondent No. 3 to discharge outstanding loan amount due to Sutex Co- operative Bank and thereby get the plots transferred in his name. Basis for the said MOU is resolution of Board of Directors dated 01.08.2012. It is the said resolution that authorised respondent No. 2 to act on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown as assignee. Validity and authority of the conveyance deed has to be decided by Civil Court only in Civil Suit filed by the petitioner. 77. In the Board resolution dated 15.10.2012, it was resolved in the meeting that all accounts pertaining to the first respondent company and transactions and communications between the first respondent company and bank are to be signed by respondent No. 2, Director of the first respondent company. In that resolution it is also resolved that if the guarantor repays the entire loan, property should be transferred in favour of the guarantor. In that meeting it is further resolved that, first preference should be given to the guarantor to pay the loan amount and if guarantors accept and repays the loan amount then property i.e. plot No. 263 to 266 of GIDC, Sachin, Dist. Surat should be transferred to the guarantor's name. This resolution is signed by petitioner No. 1 and respondent No. 2. On the same date, power of attorney was also given by the first respondent company to the Branch In-charge Manager of the bank authorising him to sell the plots No. 263 to 266 of the first respondent company. The said general power of attorney is also sig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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