TMI Blog2018 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to hand over the shares. We agree with the reasons recorded by NCLT in impugned orders. No case is made out for us to interfere in the impugned order in this appeal. In equity and in law we have no reason to interfere in the matter to aid appellant like the present one. - COMPANY APPEAL(AT) NO.219 OF 2018 - - - Dated:- 29-10-2018 - Mr. Balvinder Singh, Member (Technical) And Mr A.I.S.Cheema, Member (Judicial) For The Appellant : Mr. Shreyans Singhvi and Ms Ekta Mehta, Advocates For The Respondents : Mr.Dinesh Kumar Gupta and Mr. Vidit Gupta, Advocates for Respondent JUDGEMENT JUSTICE A.I.S. CHEEMA, MEMBER (JUDICIAL) The appellant, original petitioner, has filed this appeal being aggrieved by the impugned order passed in CP No.15/04/2016 filed in National Company Law Tribunal, New Delhi (NCLT in short) whereby the Company Petition was dismissed on 10th May, 2018. 2. The appellant filed the Company Petition under Section 46 and 56 of the Companies Act, 2013 (Act in short). The dispute relates to 87010 shares held by the appellant in Respondent No.1 Company-M/s Spell Organics Ltd. Respondent No.2, Mr Suresh Kumar Mundhra is brother of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the shareholding of the appellant in the Annual Return for the financial year ended on March 31, 2016. According to the petitioner the respondent company has taken a stand that the petitioner handed over original share certificates to the company as a security for loan alleged to have been advanced to Apsom Turner Pvt Ltd. According to him no document was executed by the petitioner allegedly pledging the original share certificate as security to the respondent Nos. 1 and 2. Consequently he filed a General Diary (Page 158-Annexure P11) with the Police Station on 1.12.2015 making allegations that the Respondent No.2 had committed theft of the share certificate from his house. It was mentioned in the report to the police that :- that after receiving such reply, I got shocked but after recovering from the shock, I realised that the said Share Certificates have been stolen by Suresh Kumar Mundhra in the last week of December, 2014 when he came to Kolkata for attending a family wedding ceremony and visited my residence. It is my firm belief that when Suresh Kumar Mundhra had visited my residence at that time and misusing the relationship in between us, stole away the Share Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to adjudicate the dispute was submitted to the Sole Arbitrator finally award dated 13.02.2015 was pronounced, by adjusting a sum of ₹ 1.2 crores paid by Respondent No.1, further there is a liability of the petitioner of ₹ 34,77,893/- and interest thereon @ 18% per annum. It is not known whether the said liability has been discharged by the petitioner or not and/or order dated 30.07.2014 of the Hon ble High Tribunal of Calcutta restraining the petitioner from selling his shares in respondent No.1 is modified or vacated or not, therefore, the present application is liable to be dismissed. The True copy of Award dated 13.02.2015 is annexed herewith as Annexure R-4. 6. According to the Respondents, they had to discharge the liability of the company in which the appellant is director and his wife is majority shareholder. They pointed out the RTGS payment to the extent of ₹ 1.20 crore which they had to pay, particulars of which are at Page 304 of the appeal. According to the respondents the appellant has no right to claim shares of the company in question without making payment of ₹ 1.2 crores. If this liability is discharged the shares certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity in the absence of a written agreement. Under such circumstances the right to claim the shares or to redeem the pledge cannot be adjudicated by this forum. The pledge of shares necessitates only possession to be handed over. The pledgee has a right to hold on to them as security in the event of bailing out the pledger, till he is duly paid. The respondents submit that they are ready and willing to return the shares upon their claim being satisfied. 8. For such reasons the NCLT found and held that the entitlement of the respondents to recover their claim is already a subject matter of adjudication. It observed that should the suit for recovery be adjudicated in their favour, they would well be within their rights to appropriate the proceeds under the shares in execution proceedings if the pledge is not redeemed. NCLT was of the view that it would be grossly inequitable to direct the respondents to hand over the shares. The NCLT also found that considering the facts of the matters the prayer of the petitioner was beyond the scope of Sections 46 or 56 of the Companies Act, 2013 and declined to give any directions. 9. Aggrieved, the appellant in the appeal is claiming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, alongwith the letter of allotment of securities; Provided that where the instrument of transfer has been lost or the instrument of transfer has not been delivered within the prescribed period, the company may register the transfer on such terms as to indemnity as the Board may think fit. 13. Sub-Section (4) of Section 56 of the Act requires the company to deliver the certificate of shares at the time of incorporation, allotment etc in periods as detailed in the Section. In present matter the shares had been initially delivered to the appellant is not in dispute. Looking to the admitted facts in this matter, there is not dispute regarding the fact that the company had indeed issued shares certificates to the appellant. 14. Duplicate shares certificate can be issued if the certificates issued are proved to have been lost or destroyed as provided in Section 46(2) referred above. This is not the case here. Duplicate share certificates may be issued also if the certificate has been defaced, mutilated or torn and is surrendered with the company. This is also not the matter here. This is not a case to attract contingencies stated in Proviso of Sub-Section (1) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the learned counsel written document was necessary but there is no written document creating the pledge. 18. Learned counsel for the respondent, however, relied on judgement in the matter State of Haryana and others Versus Narvir Singh and Another reported in (2014) 1 Supreme Court Cases 105 which basically relates to mortgage by deposit of title deed and submitted that the judgement of Hon ble Supreme Court shows that a difference has to be made between documents creating right and document which is evidence of handing over of the title deed. 19. Although learned counsel for both sides are making these submissions, we are not entering into the question of deciding whether or not there has been a valid pledge. The fact remains in the present matter that the respondents are in possession of the shares certificates and it is not a case that they have on their own taken any action with regard to the transfer of shares. In the present matter, especially when civil proceedings in the High Court are pending we need not enter into these disputes whether or not the pledge is there. We find that appellant failed to make out case under Section 46 or 56 of the Act and has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
