TMI Blog2021 (4) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition is rejected. - I.A.No.73 of 2019 In T.P.No.26/GB/2016 (C.P.No.80/2000) - - - Dated:- 22-3-2021 - Hon ble Shri H.V. Subba Rao, Member (J) And Hon ble Shri Prasanta Kumar Mohanty, Member (T) None - Petitioner Present in video None - Respondents Conference ORDER [ Per Se : Hon ble Shri Prasanta Kumar Mohanty, Member (T) ] The present application has been filed by the Applicants/Respondents No.1 4 of the Main Petition for deciding the locus standi of the petitioner to maintain TP No.26/2016 (C.P.No.80/2000) without satisfying the requirement of prescription of law as contained in Section 244 of the Companies Act, 2013 (Section 399 of the Companies Act, 1956) which is mandatorily required to maintain the petition under Section 241/242 of the Companies Act, 2013 (397/398 of the Companies Act, 1956). PRAYER In view of the facts mentioned above, the humble petitioners/applicants being the Respondent No.1 and 4 pray for the following relief(s): a) Pass necessary order/orders declaring that the Petitioner has no locus standi to maintain TP No.26/2016 (CP No.80/2000) for not being eligible as per the requirement of prescription of law as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the instant proceeding pending between the parties before the Company Law Board, New Delhi was transferred to the NCLT, Guwahati Bench in the month of December, 2016. 5. It has been stated that after the pending proceedings was transferred to the NCLT, Guwahati Bench, the deceased father of the Petitioner, who happens to be the petitioner of the Company Petition No.80/2000, died on 08.01.2017. On 13.02.2017, the Petitioner filed an application under Rule 53 of the NCLT Rules 2016 seeking substitution of his name in the cause title of original application being C.P.80/2000 as petitioner in place of his deceased father. The Petitioner along with his application has annexed the certificate issued by the Gaon Burah acknowledging the demise and cremation of his father. Furthermore, in accordance with Section 72 of the Companies Act, 2013, the said nomination Form No.SH-13 was shown to be sent to the registered office of the respondent s/applicant s company vide letter dated 04.11.2014 for nominating the petitioner being his son. It was claimed that the Notification form was received by the company and acknowledgement regarding receipt of nomination was issued by one Ratul Saikia v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in place of his deceased father. The Applicant/Respondent No.1 in his reply affidavit has specifically contended that the petitioner has not approached the Tribunal with clean hands and has also failed to establish as to how he has locus standi to continue the proceeding under Section 397 and 398 of the Companies Act, 1956 without being a member/shareholder of the respondent s company and moreover under such circumstances no right to sue survives. The Respondent No.2 in his reply affidavit also has reiterated that the purported nomination was never been communicated to the company during the life of Late Kamakhya Kumar Roy and the same has been manufactured by the petitioner for his illegitimate gain. Furthermore, the fabricated acknowledgment of receipt of nomination in terms of Section 73 of the companies Act, 2013 by one Sri Ratul Saikia, two years after his dismissal from service itself establishes the ill intention of the petitioner. 9. That after fling of the reply affidavit by the respondents, the petitioner sought time to file rejoinder affidavit and accordingly the Learned Tribunal vide order 26.05.2017 granted time to the petitioner to rejoinder affidavit as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 53. Thus the said Rules in no manner can supersede the provisions of the Act. 12. It is stated that the Respondent No.2 has not been permitted to file sur-rejoinder, being aggrieved thereby the respondent No.2 field an application being diarized as 419 dated 04.07.2017 seeking permission to file sur-rejoinder. Although the said application was filed but the same was not listed before the Learned Tribunal and upon enquiring the reason for listing the said application, the Registrar of NCLT vide its letter dated 07.08.2017 addressed to the Respondent No.2 brought to his notice that due to some technical filing defects the application has not been listed. The said letter dated 07.08.2017 was received on 10.08.2017. Accordingly, the said defects were rectified on the same day and rectification has been duly communicated to the Registrar, NCLT, Guwahati Bench. The application thereafter was registered as I.A.36/2017. 13. It is stated that on 12.09.2018, I.A.06/2017 was listed for hearing and during the hearing of I.A.06/2017, the Respondent No.2 prayed before the court to allow him to file sur-rejoinder and to that effect he has also filed an application being registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso dismissed by the learned Tribunal on the same date i.e. 22.12.2017, although this application was for seeking permission to file sur-rejoinder in order to counter the averments made by the petitioner in its rejoinder affidavit and thus the same ought to have been considered before hearing I.A.06/2017. 17. It is submitted that the applicants thereafter approached the Hon ble High Court by filing a Civil Revision Petition numbered as CRP No.118/2018 challenging the Order dated 22.12.2017 passed by the Hon ble Tribunal in I.A.06/2017 arising out of TP No.26/2016 (C.P.No.80/2000) for substitution of the petitioner on the death of applicant, Kamakhya Kumar Roy in C.P.No.80/2000, although he has locus standi to continue the main proceeding without being a Member or shareholder. The Order passed in I.A.36/2017 in I.A.6/2017 for rejecting the application seeking permission to file sur-rejoinder of the respondent No.2 was also impugned before the Hon ble Gauhati High Court. 18. It is stated that the Hon ble High Court, after hearing both the parties, passed Judgment and Order dated 22.01.2019 wherein the Hon ble High Court Court dismissed the revision petition filed by the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application on behalf and for the benefit of all of them. SECTION 244: Right to apply under Section 241 (1) The following members of a company shall have the right to apply under Section 241, namely: - (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than one fifth of the total number of its members: Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation. ─For the purpose of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (2) Where any members of a company are entitled to make an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice or to prevent the abuse of the process of Tribunal. Lastly, it is submitted that the application is filed bonafide and for the ends of justice. 24. One of the he petitioners in this IA and the Respondent No.2 in the original Company Petition, Shri Prabir Kumar Roy, being the Executive Director has filed his Affidavit dated 08.03.2021 stating that (i) During the proceedings before CLB, New Delhi in 2011 an opportunity was given to sort out the issues and differences amicably by CLB, New Delhi and accordingly I had reiterated my offer of including sons of the Petitioner (Late Kamakhya Kumar Roy) and Respondent No.3 (Late Tarun Kumar Roy) namely Shri Sajay Singh and Shri Abhay Kumar Singh in the Board of Directors as Directors and they were to return to Company accounts all revenue of Bogidhola T.E. and Kalyani T. E. and provide bond of future good conduct or I was willing to buy out shareholdings of Petitioner and Respondent No.3 at fair price so they may exit the Company but I was turned down and they did not accept the proposal. (ii) Again in the year 2019 this Hon ble NCLT again provided opportunity to amicably settle all issues and disputes. I again reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at the relevant time, the shareholding of the R-1 company stood as under: Sl. No. Name of the Shareholders No. of Shares held Percentage holding 1. Shri Kamakhya Kumar Roy (who died in the year 2017, thus his son Shri Sajay Kr. Singh was substituted and since was representing before the forum as Petitioner) 90 25% 2. Shri T. K. Roy (who dies in the year 2014, thus his son Shri Abhay Kr. Singh was substituted and since was representing before the forum as Respondent No.3) 90 25% 3. Smt. Prem Kumari Roy (W/O Lt. S. N. Roy) Respondent No.4 90 25% 4. Shri Pramod Kumar Roy (who died on 03.06.1995, but shares were not transmitted to his widow, Smt. Prakashwati Debvi) 90 25% TOTAL 360 100% 5. At no point of time the share str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proceedings, in the year 2010, i.e. on 25.03.2010, the R-2 was allotted 150 shares in contravention of Article 46 of the AOA, i.e., without offering them to the existing shareholders, and therefore, also took away from them their statutory right of first refusal. 11. No resolution was filed in support of allotment of shares and it was done with an intent to exercise absolute control over the company. Thus, the said alleged allotment, position of the shareholding emerged as under: Sl. No. Name of shareholder Before alleged allotment (No.) Before alleged allotment (%) After alleged allotment (No.) After alleged allotment (%) 1 Kamakhya Kr. Roy (Petitioner) 90 25% 90 15.78 2 Pravir Kumar Roy (Respondent No.2) NIL NIL 150 26.32 3 Tarun Kumar Roy(Respondent No.3) 90 25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And the Hon ble Court taking into consideration all aspects and to safeguard the overall interest of the R-1 company and its stakeholders has passed an order on 19/01/11 under the terms That no party shall interfere with the assets of the company except for the normal business of the R1 (Company) , but in complete disregard to the said order the R-2 clandestinely sold off Sunder Talkies, a valuable property of the R-1 located in Unnao in the state of Uttar Pradesh by executing a sale deed against which a Contempt Case No.01/2020 is pending before this Hon ble Court. 16. It is further submitted that even the Balance sheet of the R-1 was manipulated for personal gains of the one branch that is in absolute control of the Management of R-1. In this connection the Petitioner, Late Kamakhya Kumar Roy preferred to file a complaint against the Chartered Account of the R-1, before the Institute of Chartered Accountants of India, New Delhi under Section 21 of the Chartered Accountants Act, 1949 which was numbered as 25-CA(117)/2006. The Disciplinary Committee of the Council found the Chartered Accountant, Shri Surendra Kumar Jain guilty of misconduct. 17. It is in the interest of R-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to participate in the management of the company. 26.3 There were 6 subscribers to the shares of R-1, holding 60 shares each, which come to 360 shares in number. After the death of Debraj Roy, his 60 shares were distributed equally among the remaining 5 subscribers, and therefore subsequently, all of them owned 72 shares each. The widow of Debraj Roy, Late Man Kumari Roy also held 72 shares. At the event of her death, her 72 shares were divided equally among the remaining 4 subscribers. Therefore, 18 shares each were transmitted to the remaining subscribers. Thus subsequently the remaining subscribers (4 in number) owned 90 shares each. Consequentially, each son, held 90 shares. 26.4 Therefore, at the relevant time, the shareholding of the R-1 company stood as under: Sl.No. Name of the Shareholders No. of Shares held Percentage holding 1. Shri Kamakhya Kumar Roy (who died in the year 2017, thus his son Shri Sajay Kr. Singh was substituted and since was representing before the forum as Petitioner) 90 25% 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties had agreed to go for mutual settlement and a Mediation Committee was constituted by this Bench vide Order dated 18.09.2017 and the Mediation Committee was headed by Hon ble Mr. Justice P. G. Agarwal, retired Judge of the Hon ble Gauhati High Court, but the mediation failed for certain reasons. 26.7 Earlier, this Bench has passed the order on 22.12.2017 in IA No.06/2017 allowing the prayer of the Petitioner, Shri Sajay Singh to substitute his name in place of his father as Petitioner. Subsequently, the Petitioner had filed Writ Petition (Civil) before the Hon ble High Court challenging the order of the Tribunal and the Hon ble High Court had declined to interfere with the findings of this Tribunal but liberty was given to the petitioner to approach this Tribunal for raising the question of maintainability or locus standi of the petitioner. 26.8 The Petitioner has also filed an affidavit admitting that Mediation for resolution of the issues has failed. The Petitioner, being a family member, has also admitted that the original Petitioner Late Kamakhya Kumar Roy died in the year 2017 after filing the petition in 2000, and his son Shri Sajay Kr. Singh has filed applic ..... 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