TMI Blog2021 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 deal with issuance of shares to employees under a scheme of employees stock option, subject to special resolution passed by company and subject to such conditions as may be prescribed. Section 62(1)(c) deals with issue of shares to any person. Since the shares have been allotted to Applicants/Petitioners and their nominees as per the Interim Order dated 12.01.2017, the shares so issued must have the compliance of Section 62(1)(c) of the Companies Act, 2013. A reading of the Section 62(1)(c) shows that (a) special resolution has to be passed by the company; and (b) that the price of share as will be determined by valuation report of registered valuer - It is again noticed that the special resolution can be passed only in the AGM or EOGM where all the shareholders will have a say. No such material has been produced or pleaded before this Tribunal that the special resolution has been passed in the AGM or EOGM. Neither any material has been placed before the Tribunal that the fair price has been determined with the approval of the registered valuer. It is noted that the allotment has been done at the face value of ₹ 10/-. In the absence of fair value, it cannot be determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated SARFESI proceedings against the Company for a due amount of ₹ 18.6 crores, which further resulted in filing a case before the then Company Law Board as Company Petition No. 68 of 2015, which was transferred and renumbered as TCP No. 185 of 2016 after the constitution of National Company Law Tribunal, Chennai Bench. The 2nd Respondent and Mr. C.K. Sibi filed an Interim application as C.A. No. 1 of 2016 seeking permission to clear the arrears due to the Federal Bank by infusing fund into the Company and the NCLT Chennai Bench, vide order dated 12.01.2017 directed the Applicants therein to infuse funds into the Company as Share Capital within a reasonable time which shall be appropriated against the dues of the Federal Bank and also directed to issue shares on preferential basis by way of Private placement. Considering the complexity of the procedure to be followed, the Tribunal appointed M/s. Sundaram and Srinivasan Chartered Accountants to go through the statutory records of the Company for conducting Audit from 1st March 2011 and directed to report to the Tribunal about the steps taken within a period of 3 months from the date of receipt of order copy. The order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable on the Principal underlying of the provisions of Section 241 (1) (b) of the Companies Act, 2013. The share allotment has taken place pursuant to the order passed by the NCLT Chennai Bench to settle the principal creditor Federal Bank and the change in the management and control thereafter being vested in the 2nd Respondent who had paid an amount of ₹ 22crores for such settlement cannot be further questioned even in the Company Petition filed under Sections 59 and 62 of the Companies Act,2013.It is further stated that the Power Attorney Holder of the 1st and 2nd Respondents in the present Company Petition is the 3rd Petitioner in TCP 34/KOB/2019 before this Tribunal which is also listed for final hearing. Despite being aware of the entire facts, no challenge was made to the allotment of shares made pursuant to the orders of this Tribunal on 11.07.2017. Moreover, in TCP. No. 34, A.A Paulose was represented by C.K Sibi. It is further stated that allotment made on 11.07.2017 is not one falling within the scope and ambit of the adjudication contemplated under Section 59. It is also stated that as per the Orders dated 12.01.2017 and 18.04.2017 of this Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bi and Mr. C.K. Sibi. Hence they are only benamies of Mr. C.K. Sibi and Mrs. Eva Sibi and are trying to blackmail the Company. A criminal case No. 25474/2019 dated 23.2.2019 has been filed before the First Judicial Magistrate, Emakulam by Baboo K.C. against Mr. Suresh George regarding this forged and fabricated MOU, and the same is pending. 13. At the time when the Interim Orders of NCLT 12.01.2017 was passed Mr. C.K. Vijayan was in control of the Registered Office of the Company and the Respondents had no access to the Registered Office. The Respondent got inducted into the Board only on the basis of the final orders of NCLT on 18.4.2017. The Petitioner is mis-interpreting the Orders of this Tribunal with regard to issue of shares on preferential basis by way or private placement in favour of the applicants and their nominees by stating the Orders of the Tribunal is subject to Rule 13 (g) of Company's Share Capital and Debenture Rules, 2014. The Orders simply meant issue shares to the Applicants or their nominees who have filed the CA 1 of 2016, order dated 12.1.2017. 14. The Petitioner is unnecessarily raising the issue of removal of C.K. Sibi as Managing Director of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of shares had been conducted before allotment in terms of the order dated 20.01.2017. The allotments at face value, carried without valuation of the assets of the company have resulted in dilution of value of shares possessed by the petitioners. Any aggrieved member of the Company can maintain a petition for rectification of register of member before this NCLT as per Section 59 allotment of additional shares to the Respondent No.2 is an entry of his name in the register as contemplated under Section 59. FINDINGS 18. This Tribunal heard the Learned Counsel for the Petitioners and Respondents and perused all the records produced. The Petitioners argued that the Company transferred 1,10,00,000 [One Crore Ten Lakh] equity shares for a face value of ₹ 10 per share. By virtue of the said allotment the aggregate shareholding of the Respondent No.2 increased to 52.86% from less than 4%. No attendance sheet of the meeting held on 25.08.2014 has been produced by Petitioners. Learned counsel for the Respondents further argued that the appellant did not raise any objection to the said transfer of shares which is done with sufficient cause. The only objection is regarding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 62(1)(c) of the Companies Act, 2013 reads as under: - 62. Further issue of share Capital. -- (1) Where at any time, a company having a share capital proposes to increase its subscribed capital by the issue of further shares, such shares shall be offered- (a) to persons who, at the date of the offer, are holders of equity shares of the company in proportion, as nearly as circumstances admit, to the paid-up share capital on those shares by sending a letter of offer subject to the following conditions, namely: - (i) the offer shall be made by notice specifying the number of shares offered and limiting a time not being less than fifteen days and not exceeding thirty days from the date of the offer within which the offer, if not accepted, shall be deemed to have been declined; (ii) unless the articles of the company otherwise provide, the offer aforesaid shall be deemed to include a right exercisable by the person concerned to renounce the shares offered to him or any of them in favour of any other person; and the notice referred to in clause (i) shall contain a statement of this right; (iii) after the expiry of the time specified in the notice aforesaid, or on ..... 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