TMI Blog2018 (5) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... holding. - Review Application (AT) No. 01 of 2017 In Company Appeal (AT) No. 22 of 2017 - - - Dated:- 7-3-2018 - Mr. S. J. Mukhopadhaya And Mr. Balvinder Singh, JJ. For The Appellant : Mr. U.K. Uniyal, Senior Advocate with Mr. Dhananjay Garg, Mr. Abhishek Garg, Mr. Deepak Mishra and Mr. Deepak Garg Advocates For The Respondents : Mr. Pushkar Malhotra and Mr. Somesh Tiwari, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J . This Review Application has been preferred by Applicant/Appellant in view of the observations made by the Hon ble Supreme Court vide order dated 21st August, 2017, passed in Civil Appeal No. 11007 of 2017, relevant portion of which reads as follows: It is submitted by Mr. Uniyal after drawing our attention to page Nos. 121 and 126 of the paper book that the tribunal at the first instance has recorded a finding that the appellant has 14.017% shareholding, but has rejected it and the National Company Law Appellate Tribunal, New Delhi, by the impugned order, has not properly appreciated the same because it has not adverted to the same. Regard being had to the said submission, we are inclined to grant permission to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 434 of the Companies Act, 2013 (hereinafter referred to as Act, 2013 ), if any application was preferred before the erstwhile Company Law Board under Act, 1956, on its transfer, the same is required to be heard by the Tribunal as per the present Act (Companies Act, 2013), as apparent from Section 434 (1)(a), which reads as follows: 434. Transfer of certain pending proceedings . ─ (1) On such date as may be notified by the Central Government in this behalf, - (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956, immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act 7. As per the present Act (Companies Act, 2013), the eligibility to file application under Section 241 is prescribed under Section 244, as quoted below: 244. Right to apply under section 241 . ─ (1) The following members of a company shall have the right to apply under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant/Appellant, who is the Petitioner before the Tribunal. We will be referring to relevant paragraphs of the pleadings made by Applicant/Appellant (Petitioner) in the Company Petition preferred before the Tribunal in regard to the share capital. 13. The case of the Applicant/Appellant (Petitioner) as pleaded are as follows: - (xv) That the petitioner had contributed to one of a basic module of a project economics by transferring his and his mother (consenting Party) 5 Pacca bighas (15125 Sq. Yards) of land located at Khasra No. 64 village Hajipur at the Main Highway Road, Hapur Road, Meerut. In actual only 3 Pacca Big a (9075 Sq. Yards) of land was agreed to transfer for the purpose of project. And 2 Pacca Big a (6050 Sq. Yards) have been assured by the Respondent 2, 3 4 to return back to the petitioner. This was due to a reason that the land of lessen volume could not be sold/registered because of restriction given in Section 168 of the U.P. Zamindari Abolition Act 1952 for commissioning a project of the company. The promise of the Respondent 2, 3 4 remain a promise from the last 20 years. Annexed hereto and marked as Annexure- P12 is the copy of sale deed in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AMOUNT AMOUNT %Shareholding As Per B/S In Real In Real 1.Narayan Dass 2,61,000/- 2,61,000/- 30% 2.Brij Mohan 1,96,000/- 1,96,000/- 21.77% 3.Pooran Chand 1,31,000/- 1,31,000/- 14.55% 4.Vinod Kumar 1,000/- 3,12,200/ - 34.68% 5,89,000/- 9,00,200/- So its clear evident that the petitioner had contributed 34.68% of the Equity at that time as per their own signed Balance sheet but the same was shown as 0.16%. his equity was intentionally taken to Unsecured Loan for ₹ 280000/-. The where abouts of ₹ 31200/- paid in cash is unknown. However, in real money terms, the contribution of the Petitioner was almost four times of the other contributors. The total capital exposure of the Company from the first year goes as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company of the conduct of its business and any such shares may be issued as fully or partly paid up. 16. Therefore, there is nothing wrong if the Applicant/Appellant (Petitioner) claimed that against the property he was to be given equity shares. But the question is actually whether such equity share has been allotted in favour of the Applicant/Appellant (Petitioner) or not and if so allotted, whether it was reduced to below 10% prior to filing of the Company Petition. 17. The Company records, as enclosed by Applicant/Appellant (Petitioner) show share capital of the previous year against liability shown in Chartered Accountant s Report dated 16th August, 1991 as Rs.5,89,000/- against share application money amount of Rs.2,72,500/ has mentioned, relevant portion of which is quoted below: S.K. KUMAR CO. M/s. BHAWANI COLD Chartered Accountants BALANCE SHEET PREVIOUS YEAR AMOUNT LIABILITIES CURRENT YEAR AMOUNT Rs. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From Share Holders From Others 4,43,000-00 8,06,606-55 (As per list attached) CURRENT LIABILITIES: 54,279-98 SUNDRY CREDITORS: M/s Shyam Lal Prem Prakash 9,788-70 M/s Dharam Dass Hardwari Lal 30,255-00 40,043-70 1,50,500-00 1,95,400-00 ADVANCE RENT R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Kela Devi 30,000=00 Smt. Veena Devi 10,000=00 Smt. Raj Kumari Maheshwari 18,000=00 Shri Prakash Chand 30,000=00 Shri Raj Kishore 50,000=00 Shri Naresh Kumar 20,000=00 Shri Mukesh Chand 20,000=00 Smt. Shashi Devi 20,000=00 Shri Budh Prakash Vaid 1,00,000=00 Shri Sat Prakash 50,000=00 Shri Rajeev Sharma 50,000=00 TOTAL ₹ 9,09,106=55 19. However, the said amount of ₹ 2,80,000/- has been shown as unsecured loans as on 31st March, 1994 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid documents have been enclosed by the Applicant/Appellant (Petitioner). On 17th November, 2017, when the case was admitted and heard in part, the Applicant/Appellant (Petitioner) was allowed to file additional affidavit enclosing the copy of the Company Petition, including annexures thereto and was also asked to state as to whether any share certificates were issued in favour of the Applicant/Appellant (Petitioner) by the Company. Though the documents have been filed, but no copy of the share certificates has been filed by the Applicant/Appellant (Petitioner) and in the additional affidavit no statement has been made that any share certificates was issued by the Company in favour of the Applicant/Appellant (Petitioner). 21. Learned counsel has also admitted that there is no share certificate available with the Applicant/Appellant (Petitioner). Therefore, we have a doubt whether any share certificate was issued in favour of the Appellant or not. Merely on the basis of some statement made by somebody in the year 1989 or calculation, it is not possible to hold that the Applicant/Appellant (Petitioner) holds more than 10% of the share certificates of the company. 22. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible. He has also argued that the questions whether or not the transfer of shares is true and whether the transfer was made according to procedure and whether the non- applicant has any reason to transfer his shares have to be decided on merits and the Company Petition cannot be thrown away at the threshold. The Ld. Counsel for the non-applicant further contends that soon after the search report given by the Chartered Accountant Mr. Amresh Vashisht on 30.03.2010 (Annexure P2), the non-applicant came to know about the transfer of his shares and issued a notice to Vishal Mittal but it was not served and therefore Vishal Mittal is not a genuine transferee of the shares. The Ld. Counsel therefore urged to dismiss the CA mainly because the question whether the transfer of shares is true is a pure question of fact and has to be enquired into in the main CP only. 16. This argument seems missing force for the particular reason, the Company Petitioner who claims that he had never sold 10 shares, failed to file the original share certificate along with his affidavit. He did not explain in the entire pleading as to what happened to that original share certificate. Therefore, the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraphs of the order, even according to the non-applicant, the sum of ₹ 2,80,000 was shown in the records of the company as unsecured debt and not as equity from the very inception. His case that it was understood at the time of sale of land to the Company, the amount of sale consideration is paid to the company as his equity investment cannot inspire confidence as his another plea that the applicants agreed to return 2 bighas of land to him subsequently. If the total consideration of ₹ 2,80,000 was taken as equity, returning part of the land purchased by the Company from the non- applicant does not arise. If that land is returned, accepting the sale consideration for the total land of 5 bighas will not arise. Thus, the plea of the non- applicant is mutually destructive. Therefore, the non-applicant s stand that he has possessed 10% quantitative equity eligibility to maintain the Company Petition is sheer hypothesis. The Company Petition itself discloses on its very face that the Company Petitioner does not own 10% equity prescribed by Sec. 399 of the Act. He will get that qualified percentage of equity only when the Tribunal declares that the investment made by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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