TMI Blog2018 (9) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to establish the act of oppression and mismanagement. In view of the aforegoing discussions, the conclusion drawn by the Tribunal are justified and reasonable. The appellant has failed to establish his case. - Company Appeal(At) No.358 of 2017 - - - Dated:- 27-7-2018 - Mr A.I.S. Cheema, Member (Judicial) And Mr. Balvinder Singh, Member (Technical) For The Appellant : Mr Abhijeet Sinha, Mr. Aditya Shukla, Mr. Akshay Chandna and Mr. Saikat Sarkar, Shri Sahmbo Nandy, Shri Arjit Mazumdar, Advocate For The Respondents : Mr. P.K. Ray, Mr. Dipak Chakraborty, Mr. Ajit Kumar Rari and Mr. Ujjwal Banerjee, Advocates JUDGEMENT BALVINDER SINGH, MEMBER (TECHNICAL) 1. This appeal has been preferred by appellants under Section 421 of the Companies Act, 2013 against the impugned order dated 7th July, 2017 passed by the Hon ble National Company Law Tribunal, Kolkata Bench, Kolkata in C.P. No.426(KB) of 2010. The appellants have sought the relief of setting aside, quashing and setting aside the impugned order dated 7th July, 2017. 2. The brief facts of the case are that 1st respondent is a company registered under the Companies Act, 1956 was incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the authorised share capital of 1st respondent, 12718 shares were allotted on 20.1.2004 and issued to the 2nd, 3rd and 4th respondent. Registered office of the 1st respondent was also changed from 42F, Babu Bagan Lane, Kolkata to 6/23, Poddar Nagar, Kolkata and even the bank account of 1st respondent was changed and there were manipulation of the account and records of the 1st respondent. 5. The appellants filed IA No.231/2018 for bringing on record the legal heirs of 4th and 5th Respondent. The appellants stated that they are aware that the 2nd respondent is the son of 4th respondent and 4th respondent has four daughters but the appellants are not aware about the addresses of the daughters of the 4th respondent. The appellants stated that they have made legal heirs of 4th respondent as party to the appeal. The appellants further stated that 2nd respondent is also the legal heirs of 4th respondent but as 2nd respondent is also a party, therefore, they have not shown it in column of legal heirs of 4th respondent. 6. The appellants stated that the 3rd respondent was co-opted as Additional Director on 30.4.2012 (Page 70 of reply). The appellant stated that 3rd appellant was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h be adjudged null, void and be delivered up and cancelled. g) Allotment of 12,718 shares in favour of the respondent Nos 2, 3 and 4 in relation to 12000, 418 and 300 shares, respectively and all the documents and statutory forms filed in connection therewith the Registrar of Companies or otherwise existing be adjudged null, void and be delivered up and cancelled. h)Opening of bank accounts of the respondent No.1 with United Bank of India, Garia Branch, Kolkata be adjudged null, void and be delivered up and cancelled and the amounts lying thereat be returned to the Respondent No.1. i) Mortgage, if any, in respect of the assets of the respondent No.1 created after 31st March, 2006 be adjudged null, void and be delivered up and cancelled. j) Injunction restraining the respondents, their men, agents or assigns from giving any effect or further effect to the increase in authorised share capital of the Respondent No.1 from ₹ 5,00,000/- to ₹ 15,00,000/- or in respect of allotment of 12,718 shares in favour of the Respondent Nos 2,3 and 4 in the ratio of 12,000, 418 and 300 shares respectively or in respect of change in the registered office of the respondent No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either filed the share certificates nor they had provided any evidence to indicate that they were the shareholders of the company at the material time. However, as the respondents in their reply by way of affidavit had fairly admitted the shareholdings of the petitioners. This Court being equity and considering the equities between the parties, I find that the equity is in favour of the respondents. More so, there is no rebuttal from the petitioner(s) to the factual position explained by the Respondents(s) Rather, it is the conduct of the petitioners as detailed above, which has been prejudicial to the interest of the functioning of the company. Therefore, it would be highly unjust to grant the prayers sought by the petitioners without any cogent proof and substance. 34. Thus, there is no scope to grant any relief to the petitioner. The petition filed by the petitioners is also not maintainable on account of delay and latches as on their own admission they had acquired full knowledge sometime in 2002 itself. 35. Thus the petitioners not only acquiesced the alleged act of oppression and mismanagement, if any, but they have also failed to establish in the face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes of Meeting Page 415, Vol.III). 13. The appellants have stated that failing to provide documents for filing Form 32 does not invalidate the appointment of appellant No.3 as director. 14. The appellants have further stated that the respondent have failed to show that the appellants had any knowledge of the acts complained of and, therefore, it could not be said that they have acquiesced to the actions of the respondents company in as much as the late Sujit Kumar Das was fully incapacitated since 11th May, 2002 upto his death on 21st December, 2007 (Vol I Para XI Pg 24). 15. The appellant has stated that the Tribunal failed to appreciate that the Respondents had filed documents purporting to be minutes, notices and postal receipts belatedly after a period of 4 years when the pleadings in the company petition were already complete and arguments had commenced. (Vol.IV Pg 685 also Page 744 -745). 16. The appellants stated that the Tribunal erred in holding that the purported agreement dated 6th May, 1998 is a concluded transaction as there is no record of giving effect to the alleged agreement, more specifically when the Respondent have themselves initiated arbitration for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that although 3rd appellant was appointed an Additional Director of 1st respondent on 28th October, 2002, but as she failed to submit with the company the necessary papers and documents as were required to be submitted, Form No.32 could not be submitted with the Registrar of Company. 22 We have heard the learned counsel for both the parties and perused the entire record. 23. During the course of arguments the appellants argued that No notice for holding AGM or EOGM was served on the appellants relating to the increase of authorised share capital of 1st respondent from ₹ 5,00,000/- to ₹ 15,00,000/-. In reply the learned counsel appearing on behalf of 1st, 2nd and 3rd Respondents argued that the authorised share capital of 1st respondent was ₹ 5 lacs but paid up capital being ₹ 2,28,200/- and no financial institution or bank was ready and willing to give credit facilities to 1st respondent, which was required by it for proper carrying on its business and development, therefore, it was decided to increase the authorised share capital and all notices were duly served and all the meetings were duly held and minutes of such meeting were duly record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riya Das (3rd respondent) and 300 shares of ₹ 100/- to Smt Anupama Das. Learned counsel for the respondent argued that the funds borrowed from the said company were utilised for the benefit and growth of the 1st respondent. As we have already held in the previous para, the increase in capital of 1st Respondent was justified and the appellants has not expressed their inclination either to subscribe to the additional capital or even pleaded their willingness to acquire the proportionate shares, therefore, it cannot be termed that the allotment was unjustified in the circumstances as explained by Respondents. 25. The appellants further argued that the registered office as well as the bank account of the 1st respondent was changed without his knowledge. It has also been further argued by the appellants that the manipulation in the accounts and records of 1st respondent has been done by 2nd to 5th respondent in connivance with each other. Learned counsel for the respondent argued that Notice dated 5.12.2003 was duly sent to the appellants for change of registered office of 1st respondent. The respondent have shown the postal receipt No.5794 dated 5.12.2003 to prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in spite of no request received from 3rd appellant for granting leave of absence, her leave of absence was granted. Learned counsel further argued that 3rd appellant did not submit DIN as was required under provisions of Section 266D of Companies Act, 1956 resultant to which no DIN 3 could be filed with the ROC which also debarred 1st respondent from filing form No.32. The same was the position in the case of Sh Sujit Kumar Das who also did not file DIN as per law. Learned counsel argued that in view of the above provisions in the Board Meeting held on 2nd December, 2007 (Page 73 of reply) considering about the consecutive absence of both Sujit Kumar Das and 3rd appellant and also their non-filing of DIN, it was resolved that pursuant to provisions of Section 283(1)(g) of the Companies Act, 1956, the position of Directors in the name of Sujit Kumar Das and 3rd appellant be vacated and the same will not be filled up. As admitted by the parties that Shri Sujit Kumar Das was bed ridden and was incapable to perform the duties and was not attending the Board Metetings and that the 3rd appellant only attended three board meetings but did not attend the subsequent consecutive 24 mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for the enforcement of the agreement. Learned counsel further argued that the agreement was subsequently terminated by the consent of the parties and such agreement is no longer binding upon the appellants. Learned counsel also argued that that the 2nd respondent has conveniently relied upon few of the letters issued by Late Sujit Kumar Das and suppressed the other letters issued by him. Learned counsel for the respondents argued that Sh Sujit Kumar Das entered into an agreement dated 6th May, 1998 with 2nd and 3rd Respondent for transfer of 941 shares out of total 1141 shares held by him including the 1st appellant at a total consideration of ₹ 16 lakhs. The Respondents further argued that ₹ 9 lacs were immediately paid by them to Sh Sujit Kumar Das and the balance of ₹ 7lac was to be paid within 36 months. Respondents argued that it was also agreed to by and between the said Sujit Kumar Das and the Respondent No.2 that till full amount is paid, the said 941 shares shall be deemed to be under lien and/or mortgaged with the said Sujit Kumar Dass. We have heard the parties and perused the record including the Agreement dated 6.5.1998. Clause 7 of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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