9911796707
TMI Blog2000 (1) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... as it is not possible for the company to do so due to non-cooperation amongst the only two directors/shareholders of the company. It is alleged that due to non-cooperation of the respondent, it has become impossible to function in a normal manner resulting in non-finalisation of accounts for the year 1996-97 and 1997-98, non-holding of Board meetings after March, 1998, and non-holding of annual general meeting after the last one held on 30.9.1996. It is further alleged that the company has only two shareholders and directors and since the respondent, the only other shareholder/director of the company, is not co-operating by not attending the Board meetings resulting in the non-holding of Board meetings for want of quorum. 3. In reply to the said petition, Shri Satvinder Singh, respondent, disputed the allegations regarding non-holding of annual general meetings in the years 1997 and 1998. It is further submitted that the accounts for the year 1996-97 have been duly approved in the annual general meeting held on 30.9.1997. In his reply, he further disputed the contention of the petitioner regarding the shareholding pattern claimed by him. It is further submitted that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1995, the petitioner and respondent No. 2 are the only two shareholders of the company and their shareholding is as under: Name of shareholder Number of shares Ashish Das Gupta 2,000 50% Ashish Das Gupta jointly with Satvinder Singh 2,000 50% 5.1 The above two shareholders are only two directors of the respondent-company. The aforesaid position is also confirmed as per annual return made upto 30.9.1996 filed with the Registrar of Companies duly signed by the petitioner as well as respondent and the contents of the same stands admitted. 6. According to the petitioner, later on forged/fabricated annual return as on 30.9.1997 has been filed with Registrar of Companies, Jalandhar, showing the shareholding pattern as under: Name of shareholder Number of shares 1. Ashish Das Gupta 1,000 25% 2. Ashish Das Gupta jointly with Satvinder Singh 1,000 25% 3. Satvinder Singh 2,000 50% 6.1 It is also alleged that the directorship of the company has also been altered as under: (1) Shri Bhushan Ahuja is stated to have been appointed as an additional director in the Board of directors meeting held on 31.3.1997. It is stated that his appointment has been regularised in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period 1986 to 1995 and submitted that these are registered documents with RoC and depicts the correct position of the shareholders and directors of the company as under: S. No. Directors Date of appointment 1. Ashish Das Gupta 30.12.1985 2. Satvinder Singh 20.12.1986 3. Praveen Kant 30.12.1985 4. R.K. Garg 20.10.1986 5. N.K. Mehandidatta 20.10.1986 S. No. Shareholder Number of shares 1. Ashish Das Gupta 1,000 2. R.K. Garg 1,000 3. Praveen Kant 1,000 4. Ashish Das Gupta jointly -- 4,000 with Satvinder Singh 1,000 9. He further clarified that the respondent has inadvertently accepted the shareholding pattern as depicted in the annual return made upto 30.9.96 as correct in the reply filed in the petition under Section 186 of the Act instead of the annual return upto 30.9.95 and, accordingly, filed an amendment reply later on. 10. Shri Somani further submitted that on 6.10.95, Shri Praveen Kant and Shri R.K. Garg sold their shares to Shri Ashish Das Gupta and Shri Satvinder Singh. Later, on 7.10.95, Shri Ashish Das Gupta sold his interest in these 2,000 shares to Shri Satvinder Singh. Thus, Shri Satvinder Singh became the owner of these 2,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that important records and documents including several share transfer deeds, blank but signed transfer deeds, etc., of the company were missing. 12. Shri Khanna, Advocate, appearing for the petitioner, denied petitioner having made any illegal endorsement on the share certificates. He further submitted that the shareholding pattern of the company as existed on the share certificate has been admitted by Shri Satvinder Singh under his own signatures in Annexure II attached to the annual return made up to 30.9.1996. It is further stated that the shareholding pattern as claimed by the petitioner has been again admitted by respondent in the averments made in para 2 of his reply in the petition filed under Section 186 of the Act. The relevant portion of the reply of the respondent in para 2 of the petition under Section 186 of the Act reads as under: "The shareholding pattern upto 30.9.96 as mentioned by the petitioner is accepted since it is based on annual return made upto 30.9.1996." 13. He submitted that respondent cannot be allowed to shift stand every time convenient to him. In this connection, he placed reliance on the decided cases Narendra Kumar v. Vishnu Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has never sold the shares as alleged above. No transfer deeds have been signed by him and no such deeds have been produced by the respondent. He further submitted that if respondent's plea is to be believed that he has purchased 2,000 shares from Shri R.K. Garg and Shri Praveen Kant, then aforesaid position of transfers as reflected in annual return made upto 30.9.97 cannot be correct. He, therefore, submitted that, it is abundantly clear that the plea taken by the respondent of having purchased the shares from Shri R.K. Garg and Shri Praveen Kant is not correct and is contradicted by the document on which reliance has been placed. Thus, it follows that the position of the shareholding as reflected in the annual return made upto 30.9.96 which is signed by respondent as well as petitioner and admitted is the correct position. 16. With regard to the plea taken that subsequent annual returns filed with Registrar of Companies and duly registered by him reflects the true shareholding pattern and should be taken as such, Shri Khanna submitted that mere production of certified copies of documents filed with Registrar does not prove the same as the question of its admissibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hushan Ahuja could not have been appointed as regular director also in the AGM held on 30.9.97 for the reason that in the absence of the petitioner, no proper AGM could have been held for want of proper quorum. 19. Similarly, regarding the cessation of petitioner as director of the company, no minutes or any other evidence regarding the non-attending of three consecutive Board meetings by the petitioner has been produced by the respondent. He further submitted, that no such valid Board meeting could have been held in the absence of the petitioner for want of quorum. He further submitted that the respondent has taken the contradictory stand regarding the cessation of the petitioner as director of the company. In the reply filed in petition filed under Section 186 of the Act, respondent has taken the plea that petitioner was removed from the directorship of the company due to siphoning [off] of the funds of the company whereas in the reply filed in the petition under Sections 397/398 of the Act, the respondent has taken the stand that he ceased to be director under Section 283(1)(g) of the Act for failure to attend three consecutive meetings of the Board. He submitted that the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his family members and 1,000 from Sirmour Sudberg Auto Ltd., photocopy(ies) of the relevant shares certificate have been filed). 24. The petitioner also claims to have acquired another 2,000 shares on 6.10.95 from Shri Praveen Kant and Shri R.K. Garg and these shares were jointly held with Shri Satvinder Singh. During the course of hearing, the records of the company relating to membership of the company and transfer of shares (register of members and share transfers) were shown in support of that contention. 25. On the other hand, respondent is claiming that Shri Ashish Das Gupta acquired only 1,000 shares in his personal name in the year 1986 and another 1,000 shares were held in the joint names of Shri Ashish Das Gupta and Shri Satvinder Singh since 1986 and there is no change in the shareholding of the company as is evident from annual returns for the years 1986 to 1995. Further, the respondent claims that after purchase of the interest of Shri Praveen Kant and Shri R.K. Garg of 1,000 shares each by respondent and petitioner on 6.10.95, respondent purchased the interest in these shares from Shri Ashish Das Gupta ; thus, these 2,000 shares are now held in his individual name. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Brief note on Parwanoo Enterprises (P) Ltd.' -- the following has been stated : "The entire share capital of the above company was purchased by promoters named Shri Ashish Das Gupta, Shri R.K. Garg and Shri Praveen Kant in the ratio of 2 :1:1 respectively." 28. The above position is also reflected in the shareholding pattern of the directors and their relatives at page 11 of annual return made upto 30.12.86. The letters referred to above and summarised shareholding and the details provided by the petitioner as to from whom he has purchased these 2,000 shares, copies of share certificate and entries in register of members of the company lends support to petitioner's contention that 2,000 shares were acquired by him in the year 1986 in his individual name. On the other hand, respondent is only relying on the entries made under the heading 'the past and present members' in the said annual return at pages 5-6, which is contradicted on page 11 of the said return. Under the circumstances, we hold that in the year 1986 Shri Ashish Das Gupta acquired 2,000 shares in his individual capacity. 29. In regard to the 2,000 shares acquired in the year 1995, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent as well as petitioner. But petitioner has denied signing any such annual return. According to petitioner, a copy of early years' annual return which have been fabricated by the respondent in connivance with auditors of the company. 31. The entire case of the respondent is based on the annual return filed with Registrar of Companies ; all these annual returns were filed together on 31.1.1996. According to respondent, the shareholding pattern from 1986i to 1995 is as under: S. No. Shareholders Shares 1. Sh. Ashish Das Gupta 1,000 2. Sh. Praveen Kant 1,000 3. Sh. R.K. Garg 1,000 4. Sh. Ashish Das Gupta jointly with Satvinder Singh 1,000 4,000 32. According to respondent, he acquired the shares held by Shri Praveen Kant and Shri R.K. Garg on 7.10.95 and, if it is so, the shareholding pattern of the company as on 30.9.96 should be reflected as under: S. No. Shareholders Shares 1. Sh. Ashish Das Gupta 1,000 2. Sh. Ashish Das Gupta jointly with Satvinder Singh 1,000 3. Sh. Satvinder Singh 2,000 4,000 33. Then in the annual return made upto 30.9.97, it is indicated that on 31.3.97, he has acquired by transfer 1,000 shares each from Shri Ashish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with Satvinder Singh 2,000 4,000 36. Another point of dispute is regarding the appointment of Shri Bhushan Ahuja as additional director of the company on 31.3.97 ; the petitioner has emphatically denied of having attended any Board meeting in which Shri Bhushan Ahuja was appointed as additional director as he was travelling, and in his absence, the appointment could not have been made in any Board meetings for want of quorum, there being only two directors of the company at that point of time. No minutes of the Board of directors meeting wherein he was allegedly appointed as additional director have also been filed. We also note that his appointment as additional director has been notified in Form No. 32 to Registrar of Companies on 22.2.99 almost after two years from the date of his appointment on 31.3.97 gives support to petitioner's assertion that no Board meeting was held and he was never appointed as additional director. Further, Shri Bhushan Ahuja whose appointment is under challenge and who has been made one of the parties in the proceeding under Sections 397/398 of the Act has not taken part in these proceedings by filing the submission or appearing before this Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures in the balance sheet. The petitioners in support of his contention has filed bank certificates of State Bank of India showing balance to the credit of the company as on 31.3.97 at ₹ 1,008 and Punjab National Bank of ₹ 1,659 (Annexures A-26 and 27) pages 39 and 40 attached to petitioner reply to sur rejoinder which do not tally with the figures of bank balance shown for these two banks in the balance sheet as at 31.3.97 filed by the respondent with Registrar of Companies. Further, the number of shares held by the company in Sirmour Sudberg Auto Ltd. are also not correctly reflected. Therefore, the petitioner's contention that the balance sheet as at 31.3.97 does not reflect true and correct position -- appears to be correct. 40. Having held that 2,000 shares are held in the name of Shri Ashish Das Gupta in his individual name and that another 2,000 shares are jointly held in the names of Shri Ashish Das Gupta and Shri Satvinder Singh and that they are the only validly appointed directors, the question is the nature of relief to be granted. There are two petitions before us. One is under Section 186 of the Act and another under Section 397/398 of the Act. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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