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TMI Blog2017 (8) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... now transferred and pending before this Hon'ble Tribunal. 2. The present application has been filed by the Respondent No. 4 in the main Company Petition in as much as he claims that he is a Director of the R1 Company and filed this Company Application challenging the maintainability of the very Company Petition. It is stated, the main Company Petition has been filed by the Petitioner No. 1 who is the first Promoter of the R1 Company, the Petitioner No. 2 the Promoter and the first Director of the R1 Company. Petitioner No. 3 is the Promoter and first Director of the R1 Company and Petitioner No. 4 who is the subscriber to the Memorandum of Association of R1 Company holding 100 equity shares of Rs. 10 each which constitutes 14.29% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 103185W and appears to be statutory Auditor of the R1 allegedly appointed by the Respondent. R7 is a private limited company which is dormant as per the MCA portal and has been used by the Respondent to sell immovable property of the Respondent Company i.e. land. 5. R8 is the Ministry of Corporate Affairs which has been arrayed as Respondent No. 8 due to the wrongful filing system and automatic taking on records of the documents filed through e-filing allowed through the MCA portal. R9 is a Chartered Accountant who has certified the e-forms filed by the Respondent Company. R10 allegedly holds 100 equity shares of the Company. R11 allegedly holds 100 equity shares of the Company. R12 allegedly holds 100 equity shares of the Company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made, the Petitioners considered it desirable to transfer/sell parts of the land. The Petitioners also advertised, as a first step, for such repayment to the investors. Through an agreement for sale of land admeasuring 1 hector 10 Are was transferred by R1 company through its directors i.e. Petitioner No. 1 in the name of Kripal Gidwani, the son of Petition No. 1. The said sale was made after issuing public notice dated 08.10.2013 which was published in local newspaper 'Prabhat' along with its English translation. It is stated that nobody raised any objection in response to the said public notice and subsequently the land was sold and necessary mutation entries was made in the revenue records. After the said transaction the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main Company Petition does not fulfill the principle condition as required by Section 399 of the Companies Act, 1956 and hence do not have the right to file the Company Petition to agitate under Section 397 and 398 of the Companies Act, 1956. The Petitioners have no focus standi to file this Company Petition as they are neither directors nor shareholders of the Company. The contention of the Petitioner was that they collectively hold 67.14% is a misrepresentation and is a false statement. 10. It is also contended in the said motion to the application that there is a huge delay and several latches in filing the said Company Petition and further it is seriously contended that the Petitioner has not come to the Court with clean hands. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully perused the application and the replies filed therein and the rejoinder filed by the Petitioner/Respondent in the said case. Both the sides have relied upon the following case laws: I. Cases relied upon by the Applicant/ Respondent (a) Order dated 01.10.2010 by the Hon'ble CLB, Delhi Bench In the case of Dr. (Mrs.) Nirmal Thakkar Vs. Blue Bird Enterprises (P) Ltd. & Ors. (Comp Cas): [2012] 172 COMP. CAS28(CLB) (b) Order dated 10.08.2009 by the Hon'ble CLB, Chennai Bench in the case of PLG Manu & anr. Vs. Shashi Distilleries (P) Ltd. & ors. [2010] 94 CLA 408 (CLB) (c) Order dated 06.05.2010 by the Hon'ble CLB, New Delhi Bench In the case of Ram Gopal Patwari & ors. vs. Patwari Exports (P.) Ltd. & ors. (Comp cas): [2010] 160 COM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and as a result of which an adverse inference can be drawn and the Petition can be dismissed. The contention on the delay and laches in filing the Company Petition cannot be accepted for the reason that the acts of oppression and mismanagement are continuous as it could be seen from the record with respect to delay in filing the Company Petition. 15. This Bench further questioned the Ld. Professional whether the formalities of filing of statutory returns and holding of meeting were complied with by them since they are claiming to be in the management of the company since 1995. The Ld. Professional answered that though they have not filed the returns and fulfilled the formalities, they filed all the forms and complied with the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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