TMI Blog2019 (10) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of Bagasa Industries P. Ltd., is clearly mentioned as a company holding 1,000 shares in respondent No. 1-company. Since, the annual return as well as the covering letter addressed to the Registrar of Companies, Shillong are more than 30 years old documents this Tribunal did not find any reason to reject the above evidence. The above annual return makes it very clear that 1,000 shares were allotted to Bagasa Industries P. Ltd., even during the life time of the father of the petitioners and the petitioners without knowing the facts nor the affairs of respondent No. 1-company, filed the above petition with all suspicion, presumptions and assumptions on account of inter se disputes between the parties. The petitioners have not placed any evidence before this Tribunal to prove that they have demanded notice of meetings from respondent No. 1-company and in the absence of any proof this Tribunal has no option except to believe that the respondents have sent notices to the petitioners for meetings as they have submitted the copies of the notices to the statutory authorities while filing the annual returns - this Tribunal is of the considered view that the above company petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d affairs of respondent No. 1-company. It is also their contention that respondent No. 2 allotted certain shares to M/s. Bagasa Industries P. Ltd., which is another company floated by respondent No. 2. 4. The petitioners contend that from the records taken from the search at MCA portal, the petitioners have also come to know that the respondents have also defrauded the petitioners and also respondent No. 5 since respondent No. 1-company through respondents Nos. 2 to 4 have created charge over a part of the schedule property of respondent No. 1-company assets without prior approval of all the members of the company. In particular, the petitioners whose names were never reflected in the list of shareholders. The charges were created in the year 2007, 2014 and 2015 and while creating such charges over the company due consent from all the members of the company are required but were not obtained. Till date, one charge of ₹ 1,50,00,000 is still open as on June 8, 2018 which was created on December 24, 2015. The said charge was created against loan availed by Bagasa Industries P. Ltd., represented by respondents Nos. 2 and 3 as its directors, from respondent No. 5 and respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares to respondent No. 2 was without any offer made to the petitioners being the members entitled to participate in the further issue of shares, rights and bonus of respondent No. 1-company and without the consent of all the members of respondent No. 1-company the steps taken by respondent No. 1-company through respondent No. 2 benefiting only one member of the company which is void ab initio and liable to be set aside. 7. The petitioners contends that respondent No. 2 by issuing further shares has raised the paid-up capital of respondent No. 1-company with 4,420 shares of ₹ 100 each, which entitled them to take control over more than 50 per cent. of the shareholding of respondent No. 1-company which was against the interest of the members and respondent No 1-company and as such the said issue of further shares without offer to the members of the deceased holders of shares is illegal, void and liable to be set aside. 8. The petitioners further contend that the objects for which respondent No. 1-company was incorporated by the parents of the petitioners and respondent No. 2 has substantially failed. Respondents Nos. 2 to 4 being one family is completely mismanaging re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years annual returns and the plea of non-receipt of notices by the petitioners is barred by rule of inordinate delay and laches inasmuch as the petitioners remained silent for a long period of 14 (fourteen) years without any action. 14. It is also the contention of the respondents that 4,420 shares of ₹ 100 each were allotted to respondent No. 2 on December 31, 1997 by the board of directors of respondent No. 1-company within its powers as empowered in article 7 of the articles of association of respondent No. 1-company after following due procedure of the Companies Act. The respondents further contends that except routine business of approving the audited accounts and reappointment of auditors, no other business was transacted at the annual general meetings of respondent No. 1-company since 2004 and the respondents have more than 75 per cent. of voting rights at all material time and that being so, the attendance are dissent by the petitioners, if any, would not have made any difference to the resolution approving the audited accounts and reappointment of auditors. 15. The respondents further contend that petitioner No. 1 was never in possession and enjoyment of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 23988 of 2017, judgment dated October 11, 2018. Apart from citing the above two rulings, the respondents also cited the order of the National Company Law Tribunal, Kolkata Bench dated August 3, 2017 rendered in Ravi Rajnish v. Jain Link P. Ltd. [2017] 204 Comp Cas 226 (NCLT), C. A. No. 1231 of 2015 in C. P. No. 251 of 2015 whereunder the Kolkata Bench has dismissed the main company petition filed by the petitioners under section 397/398 of the old Companies Act on the principles of delay and laches in the similar facts and circumstances of the pre sent case on hand. 19. We have carefully gone through the above citations relied upon by both the parties. As far as the order passed by the Mumbai Bench relied upon by the petitioners is concerned, the said order was passed by the Mumbai Bench in an interlocutory application filed by the respondents challenging the main company petition on the ground of barred by limitation . The Mumbai Bench while dismissing the above interlocutory application observed that the main company petition cannot be thrown out of litigation at a preliminary stage. From the above order, we do not know whether the main company petition was allowed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above company and the said company petition was transferred to this Tribunal after establishment of the National Company Law Tribunal and was numbered as T. P. No. 5/397/111A/GB/2016 and the said petition was dismissed for default by this Tribunal on October 6, 2016. Even though, it was averred in the present petition as if the petitioners were taking steps for registration of the above company petition as well as their impleadment in the probate proceedings initiated by respondent No. 2, no steps have been taken by the petitioners to that effect for the reasons best known to them. Nothing prevented the petitioners from initiating necessary legal steps for challenging the actions of respondent No. 2, more so, when respondent No. 2 is acting as the managing director of respondent No. 1-company ever since the death of their parents. 23. The entire averments of the petition clearly disclose that the petitioners have some grievances in respect of allotment of shares owned by their parents in respondent No. 1-company as well as some other companies for which the petitioners have to initiate necessary proceedings for issue of succession certificates in their favour. As seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
