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2017 (11) TMI 889

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..... led by the second Respondent in this regard; b. Setting aside the resolutions alleged to have been passed at the EGM alleged to have been held on 19/03/2007 for non-recognizing the allotment of 84,99,937 shares that were allotted by the first Respondent company on 01/04/2006 and direct the Registrar of Companies, Andhra Pradesh, Hyderabad not to take on record the Form 23 filed by the Second Respondent in this regard; c. Setting aside the illegal allotment of 45,00,000 shares and 84,99,937 shares that were alleged to have been allotted to the Respondent group on 19/03/2007 and 22/04/2006 respectively and direct the Registrar of Companies, Andhra Pradesh, Hyderabad not to take on record the Form 2 filed by the second Respondent in this regard; d. Directing the first Respondent company to rectify the Register of Members, reinstating the names of the Petitioners and to delete the names of the Respondent group with respect to the shares alleged to have been allotted on 22/04/2006 and 19/03/2007; e. Setting aside the illegal appointment of second, third fourth, fifth, ninth, tenth, eleventh and 12th Respondents as Directors of the sixth, seventh and eighth Respondent companies a .....

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..... in the state. (4) By virtue of the nature of the business, the second Respondent had the golden opportunity to interact with different people of different sections of the society. As the newspaper was mainly focusing on political issues in the state of Andhra Pradesh the second Respondent had to meet various political leaders of different parties and interact with them for interviews, views and discussions etc. Thus the first Respondent Company was used as a vehicle by the second Respondent to further his personal image which was already on the edifice of 'Sanghi' name. It would not be an exaggeration to say that the family sank huge money in this company mainly to help the second Respondent's political name and career, as till then, he was an unknown person outside the family circle. (5) The second Respondent, who is a boorish braggadocio with, out of the world lifestyle tastes and a mania for authority wanted to become a full time politician and expressed his willingness to the family members, who in turn extended their valuable genuine support and encouragement to the second Respondent with a fond hope that he would spend some time and energy for furthering Sanghi's image a .....

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..... lders at the Extraordinary General Meeting held on 19.03.2007 have passed resolutions (i) amending capital clause in the Memorandum of Association so as to increase the authorized share capital from Rs. 10.50 crores to Rs. 15 crores (ii) for borrowings under the provisions of Section 293(1) (d) of the Act and (iii) for non-recognition of 20,00,000 shares and 84,99,937 shares that were already allotted by the first Respondent company on 01.03.1998 and 01.04.2006. b. Filed form 5 on 12.04.2007 with RoC, A.P., Hyderabad in which he has made a false statement that the shareholders at the EGM held on 19.03.2007 have passed resolution authorizing increase of authorized share capital from Rs. 10.50 cores to Rs. 15 crores. c. Filed Form 2 on 06.04.2007 with RoC, A.P., Hyderabad Hyderabad, alleging that 84,99*937 shares were allotted to Respondent group by the Board of Directors at its meeting held on 22.04.2006. d. Filed Form 2 on 14.08.2007 with RoC, A.P., Hyderabad Hyderabad, alleging that 45, 00,000 additional shares were allotted to him by the Board of Directors at its meeting held on 19.03.2007. (7) It is stated that the first Respondent company did not hold any general meetin .....

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..... Company is a public limited company, and, therefore, the provisions of section 81 of the Act are applicable to the company. He should have also known that as per clause 57 of the Articles of Association the power to issue additional shares vests with shareholders, and not with the Board of Directors. Therefore, the impugned Forms 5 and 23 are illegal and ultra vires the MOA and AOA of the Company, apart from the Company Act. The second Respondent, in the course of making an attempt to show him as a major shareholder has invented a new concept "non- recognition" of shares for which no provision is available under the present Companies Act, 1956. (9) The second Respondent has also filed Form 2 with RoC, Hyderabad on 06.04.2007 and 14.08.2007 claiming that the first Respondent company has issued additional 84,99,937 shares to Respondent group at the Board meeting held on 22.04.2006 and 45,00,000 shares to second Respondent himself at the Board meeting held on 19.03.2007. The first Respondent Company, being a public limited company is also governed by the provisions of section 81 of the Act. The second Respondent, while trying to allot additional shares to himself and his group, has .....

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..... ted an audit of circulation by ABC. This clearly shows the malafide intention of the Respondent group who year after year mismanaged the first Respondent company. (b) A perusal of the balance sheet as at 31.03.2006 and 31.03.2007 would reveal that the first Respondent company had a huge balance of Rs. 21,78,49,064/- and Rs. 25,65,99,805/- respectively under the Head "Sundry Debtors". The said amounts constitute almost twenty five percent of the turnovers reported in the respective financial years, which is very much abnormal in the industry of this nature. The second Respondent failed to maintain a balance between the turnover and debtors and has allowed the debtors to rise to the level of one fourth of the turnover. Also the reporting of the sundry debtors is not as per the format prescribed under schedule VI to the Act, thereby violating the provisions of section 211 of the act. (c) The second Respondent has also diverted huge amounts through "loans and advances" account as is evident from the balance sheet as on 31.03.2007. The balance under the head "loans and advances" show an amount of Rs. 5,75,48,580/-. The first Respondent company is engaged in the business of printing, .....

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..... parties relationships and transactions between the first Respondent company and its related parties. (h) The illegal acts of the second Respondent did not stop with the Petitioners and first Respondent company but also extended to other entities, where the Petitioners had a huge stake. The sixth Respondent Company is a company registered in the State of Andhra Pradesh. The Petitioners group have huge stake in the sixth Respondent Company through the first Respondent Company. The first Respondent company has entered into few contracts with sixth Respondent company. Third Petitioner and thirteenth Respondent are the Directors of the sixth Respondent Company right from its inception and they are also in charge of the day to day affairs of the sixth Respondent Company. The second Respondent with an ulterior motive of taking control over sixth Respondent company has unauthorizedly filed the following Forms with RoC, AP to show that both the Board and the share capital are under his control. (1) Filed Form 32 on 03/06/2008 to show that second, fourth, tenth, eleventh and twelfth Respondents were appointed as Directors of sixth Respondent company w.e.f. 30/03/2005. (2) Filed Form 3 .....

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..... s Company has entered into few contracts with both the seventh and eighth Respondent companies as well. The second Respondent with an ulterior motive of taking control over both the seventh and eighth Respondent companies has unauthorizedly filed the following Forms with RoC, AP to show that both the Board and the share capital of the seventh and eighth Respondent companies are under his control. (1) Filed Form 32 on 05/06/2008 to show that the second fourth, tenth, eleventh and twelfth Respondents were appointed as Directors of the seventh and eighth Respondent companies w.e.f 30/09/2005. (2) Filed another Form 32 on 05/06/2008 to show that third, fifth and ninth Respondents were appointed as Directors of both the seventh and eighth Respondent companies w.e.f. 01/04/2007. (3) Filed Form 2 on 06/06/2008 to show that 40,000 shares were allotted to third and ninth Respondents at the Board meeting of both the seventh and eighth Respondent companies held on 15/05/2008. (4) Filed Form 18 on 09/06/2008 to show that the registered office of both the seventh and eighth Respondent companies have been shifted from Bank Street to Lower tank bund road w.e.f 15/05/2008. (5) It is subm .....

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..... . It is further contended that the affairs of the first Respondent Company are being conducted in a manner prejudicial to public interest and members of the Company and is fit to wind up under just and equitable ground but if any such an order is passed, it would unfairly prejudice the interest of members. Therefore, the Tribunal is prayed to interfere in the subject matter by passing appropriate orders as it thinks fit and just as to bring to an end the matters complained in the instant case. 3. Shri. Girish Sanghi, the second Respondent herein, has filed counter/written submissions dated 10th January 2017. The main contents as raised by him are as follows: (1) One of the important qualifications for filing a company petitions U/s 397 and 398 is that that the Petitioner should have at least 10% of the share capital of the Company as on the date of filing a petition. However, it is alleged that the Petitioners did not hold any shares in the Company as reflected in annual return for the year ended 31-03-2008. So, the claim of Petitioner that they are holdings 43.75% of the paid up capital is totally denied and the petition itself is not maintainable. (2) It is alleged by misusi .....

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..... Tax Penalty 480,000 A.Y. 99-2000 ITAT Income Tax Penalty 14,50,000 A.Y. 2003-04 CIT(A) Interest and Penalties of Rs. 57,600, Rs. 256,800 and Rs. 480,000 were dropped by the ITAT Order dated 19th December, 2007. Penalty and Penalties of Rs. 14,50,000, The Appeal No. 0374/06-07 is still pending with CIT(A) II, Hyderabad. (6) It is stated that the Petitioner are trying irrelevant issues which cannot be termed as mismanagement. In the general course of business, the business executives and General Managers working for the company are given certain powers and Managing Director will have overall superintendence on the affairs of the company. (7) It is asserted that majority shareholders (Superior printers(R6) are, Gaurav Sanghi and Ms. Aarti Sanghi) holding 99.98% shares and balance shares in the name of some Vartha employees. Moreover, the Petitioners are going beyond the scope of present litigation and they have no locus standi to question the affairs of the Company. (8) It is further stated that Respondent Nos.7 and 8 had all along independent Directors and their shareholdings is as follows: Sraddha Ads Pvt Ltd Name of the Shareholder No. of Shares Held P. Kusum .....

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..... re capital of 8th Respondent as on that date was 1.05 crores equity shares of Rs. 10/- each while the Applicants are holding 26,24,946 equity shares of Rs. 10/- each. Hence all the Four Applicants together are holding approximately 25% of equity in the 8th Respondent Company. * They have also relied upon judgment of the Hon'ble Supreme Court passed in Civil Appeal Nos. 10940-10941 of 2014 in Baluram v. P. Chellathangam & ors and another judgement of Apex court in Dale and Carrington Invt. (P.) Ltd. v. P.K. Prathapan [2004] 54 SCL 601 (SC) Therefore, the CA No. 131 of 2017 is allowed by separate order dated 29.09.2017 and therefore, they are arrayed as Petitioners Nos. 8 to 11 to the main Company Petition. 5. The Petitioner Nos.1, 3, 5 Et 6 have filed a rejoinder dated 18.04.2007 to the reply counter/written submissions dated 10.01.2007 filed by the 2nd Respondent. The following are their main contentions raised; (a) As per section 399(1)(a) not less than 1/10th of the total numbers of its members or also any member or members holding not less than 1/10th issued share capital of the Company shall have right to apply under sections 397 or 398 of the Companies Act, 1956. The P .....

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..... account of shareholding pattern and composition of Board of Directors of the Company Accordingly, the case was listed for hearing on 27.11.2008 and passed the following further interim order "In the meanwhile, considering the apprehension expressed on behalf of Petitioners, the Respondents shall maintain status quo in regard (1) to shareholding pattern and (ii) composition of the Board of Directors of the Company until further orders" (2) Upon constitution of NCLT Bench at Hyderabad, in pursuant to abolition of Company Law Board, all the cases including the present case, which falls under the jurisdiction of this Bench, are transferred to this Bench in June, 2016. Accordingly, the case was taken on record of this Bench and thus, posted on various dates viz: 21.07.2016, 08.08.2016, 01.09.2016, 09.09.2016, 24.10.2016, 18.11.2016, 21.12.2016, 28.12.2016, 30.12.2016, 05.01.2017, 10.01.2017, 24.01.2017, 07.02.2016, 22.02.2017, 07.03.2017, 10.03.2017, 30.03.2017, 24.04.2017, 15.06.2017, 29.06.2017, 13.07.2017, 21.07.2017, 25.07.2017. The case was adjourned on those dates at the request of one party or the other by citing so many grounds. 8. Shri M.S. Prasad, Senior Advocate mad .....

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..... s etc. 12. Subsequently, Form-2, pursuant to section 75(1) of the Companies Act, 1956, Return of allotment, was uploaded with Registrar of Companies, vide SRN : A11143922 dated 06.03.2007 by allotting 20,00,000 equity shares at nominal amount per share at Rs. 10-/each by enclosing a list of allottees dated 1st March, 1998. It is stated that entire amount Rs. 2,00,00,000 @ Rs. 10 each was paid. And the list enclosed is as follows:: AGA PUBLICATIONS LIMITED LIST OF ALLOTTEES DATED 1st MARCH, 1998 NAME OF ALLOTTEE NO. OF SHARES Shri Anand Prakash Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Smt.Anjana Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Mr.Amit Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Ms.Swati Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Shri. Sudhir Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Smt.Usha Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Ms.Pooja Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Mr.Siddarth Sanghi 4-3-352, Bank Street, Hyderabad 1,25,000 Shri. Ravi Sanghi Sanghinagar PO Hayatnagar Mandal, Ranga Reddy District, AP-501 5114-3-352, Bank Street, Hyderabad 1,25,000 Smt. Anita Sanghi Sanghi nagar PO Hayatnagar M .....

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..... allottees dated 1st April, 2006 is as follows: AGA PUBLICATIONS LIMITED LIST OF ALLOTTEES DATED 1STAPRIL, 2006 NAME OF ALLOTTEE NO. OF SHARES Shri Anand Prakash Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Smt.Anjana Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Mr.Amit Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Ms.Swati Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Shri. Sudhir Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Smt.Usha Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Ms.Pooja Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Mr.Siddarth Sanghi 4-3-352, Bank Street, Hyderabad 5,31,250 Shri. Ravi Sanghi Sanghinagar PO Hayatnagar Mandal, Ranga Reddy District, AP-501 511 4-3-352, Bank Street, Hyderabad 5,31,250 Smt. Anita Sanghi Sanghinagar PO Hayatnagar Mandal,Ranga Reddy District, AP-501 5114-3-352, Bank Street, Hyderabad 5,31,250 Mr.Aditya Sanghi Sanghinagar'PO Hayatnagar Mandal, Ranga Reddy District, AP-501 5114-3-352, Bank Street, Hyderabad 5,31,250 Mr.Alok Sanghi Sanghinagar PO Hayatnagar Mandal, Ranga Reddy District, AP-501 5114-3-352, Bank Street, Hyderabad 5,31,250 Shri Gireesh Sanghi Sanghinagar PO Hayatnagar Mandal, Ranga .....

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..... arch, 1998, which was E-filed along with Form No.2, without the proper authorization of the Board by misuse of the Digital Signature of the Chairman fit Managing Director on 5th March, 2007 be and is hereby not recognized by the Company/Board and the factual allotments are as under:" S.No Name & Address of Allottee Date of Allotment No. of Equity Shares Allotted Amount (Rs.) 1 Gireesh Kumar Sanghi 1-144, P.O. Sanghi Nagar, Ranga Reddy Dist Andhra Pradesh-501 501 01-03-1998 10,00,000 1,00,00,000 2 Smt.Alka Sanghi 1-144, P.O.Sanghi Nagar, Ranga Reddy Dist Andhra Pradesh- 501 501 01-03-1998 5,00,000 50,00,000 3 Gaurav Sanghi 1-144, P.O.Sanghi Nagar, Ranga Reddy Dist Andhra Pradesh- 501 501 01-03-1998 5,00,000 50,00,000   TOTAL   20,00,000 2,00,00,000 "6. NON RECOGNITIN OF RETURN OF ALLOTMENT FILED ON 05-03-2007 WITH SHARE ALLOTMENT LIST DATED 01.04.2006: "RESOLVED THAT statement showing allotment of 84,99,937 Equity Shares of Rs. 10/- each to the names, addresses and number of shares allotted pursuant to the Board Resolution dated 1st April, 2006, which was E-filed along with Form No.2, without the proper authorization of the Board, by misu .....

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..... ily, including second Respondent and his group clearly shows that the allegation that he has given his digital signature to his elder brother, who has mis-used it, is totally false and baseless and it is hereby rejected out rightly having no iota of truth in it. 16. Since the main issue raised by' the second Respondent is about mis-use of his digital signature, it is necessary to advert to various provisions with regard to issue of Digital signature, and its custody, its legal validity under the Information and Technology Act, 2000. And the relevant provisions of the Act are extracted below: "section 3. Authentication of electronic records:- (1) subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature. (2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. Explanation: For the purpose of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as "hash result" su .....

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..... f Parliament.] Section-4: Legal recognition of electronic records:- Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is- (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference. COMMENTS If any information or matter is rendered or made available in an electronic form, and accessible so as to be usable for a subsequent reference, shall be deemed to have satisfied the requirement of the law which provides that information or any other matter shall be in writing or in the typewritten form. Section 5: Legal recognition of [electronic signature]:- Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of [electronic .....

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..... on- 41: Acceptance of Digital Signature Certificate:- (1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he published or authorizes the publication of a Digital Signature Certificate- (a) to one or more persons; (b) in a repository; or Otherwise demonstrates his approval of the Digital Signature Certificate in any manner. (2) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digital Signature Certificate that- (a) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same; (b) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true; (c) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true. Section-42: Control of private key:- (1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and .....

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..... not witness to the proceedings filed along with the two Form -2 filed on 06.03.2007. It is also to be noted that the main company petition was filed in the year 2008, no reply is filed on behalf of Respondents except the second Respondent, who has filed his belatedly on 10th January, 2017. The second Respondent in his reply only baldly denied by alleging that his digital signature was misused by his elder brother. It is to be noted that it is not even the case of the 2nd Respondent that the 1st Petitioner has taken his digital signature unauthorizedly but only mere allegation is that his digital signature was misused. Once digital signature was properly exercised by subscriber, which is duly certified by the Chartered Accountant/Company Secretary, it is deemed to be conclusively proved that he has signed through his digital signature. And the subsequent allegations are not at all tenable. It is not possible for the Tribunal to enter into roving enquiry about baseless allegations of misuse without producing any prima facie evidence to that extent. Moreover, subsequent acts of the second Respondent in allotting all shares of the Respondent No. 1 to his family members and his group b .....

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..... liable to be declared as illegal as it the contravene provisions of Memorandum and Articles of Association of the Respondent Company apart from the provisions of the Companies Act, 1956/2013. The shares allotted on 01.03.1998 and 01.04.2006 to the Petitioners as well as the 2nd Respondent and his group of people are declared to be legally valid and they cannot be de-recognized subsequently. 19. The Certifying Authority is also empowered to suspend the Digital Signature Certificate upon a request to that has been received as per section 42 of the IT Act 2000. Until, any communication is received from the subscriber about misuse/compromise etc of digital signature, it is subscriber, who is liable. It is also stated in the section that if the private key corresponding to the public key is compromised, the subscriber should communicate it without any delay to the Certifying Authority. Section 42 is relevant in this regard, which is extracted below for ready reference: "Section 42: Control of private key: (1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all .....

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..... private key; (b) there is a misuse of the Digital Signature Certificate; (c) there is a misrepresentation or errors in the Digital Signature Certificate; (d) the Digital Signature Certificate is no longer required. (3) The revoked Digital Signature Certificate shall be added to the Certificate Revocation List (CRL)" 20. It is not in dispute that the 2nd Respondent has obtained the Digital Signature Certificate in question from the Competent Authority, and it is not his case that his Digital Signature Certificate is tampered with by anybody. But his only untenable allegation is that he has given his Digital Signature to his elder brother (the 1st Petitioner) and he had exercised it un-authorisedly by allotting and uploading 2 Form No 2 by allotting shares to all family members of Sanghi family including the 2nd Respondent and his family members. The contentions of second Respondent that the impugned allotments dated 1.3.1998 and 1.4.2006 are uploaded in the year 2007, i.e after expiry of 30 days' time granted under the law is not correct and not tenable. As per law, no additional fee is required to be paid if appropriate forms uploaded within 30 days but they can be uploade .....

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..... s, which are convenient to him and his own family members, the allegation of its misuse by his elder brother namely Late Shri Anand Prakash Sanghi (the first Petitioner herein) is totally baseless and un-tenable and the same is hereby out rightly rejected. And the subsequent transactions especially with regard to impugned allotment of shares to the second Petitioner, his own family members and his group are declared as violation of Memorandum and Articles of Association of Respondent No. 1 Company. All these acts constitute acts of oppression and mismanagement as contended by the Petitioners on the part of Respondents. Further, as stated supra, several allegations of Acts of Oppressions Mismanagement made in the petition remain un-disputed/un-controverted till date, except a bald reply counter/written submission dated 10th January, 2017 for the case filed in the year 2008. Therefore, it is to be held that the affairs of Respondent No. 1 Company are being conducted in a manner prejudicial to public interest and in a manner oppressive to the Petitioners and that to wind up the Company would un-fairly prejudice to the Petitioners, other stake holders and the Company in general and thu .....

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..... llotment of 45,00,000 shares and 84,99,937 shares that were alleged to have been allotted to the Respondent group on 19/03/2007 and 22/04/2006 respectively are hereby set aside with consequential direction to the Registrar of Companies, Ministry of Corporate Affairs, Hyderabad(Telangana) not to take on record the Forms 2 filed by the second Respondent in this regard; (4) Hereby directed the first Respondent Company to rectify the Register of Members reinstating the names of the Petitioners and to delete the names of the Respondent group with respect +to the shares alleged to have been allotted on 22/04/2006 and 19/03/2007; (5) The Registrar of Companies, Ministry of Corporate Affairs, Hyderabad, is hereby directed to take appropriate action(s) to carry out above directions immediately, after receipt of copy of this order and directed the Registry of NCLT to mark a copy of this order to the Registrar of Companies, Hyderabad. (6) The other reliefs, which are prayed in the Company petition, are hereby rejected as Petitioners are not entitled for those reliefs. (7) The Respondent No.1 Company and 2nd Respondent are hereby directed to follow all the extant provisions of Companie .....

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