TMI Blog2021 (5) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... fice at Manglia Gram, Indore. It prima facie reflects that the sale deed was executed in favour of the company out of the proceeds receipt by the Company from its shareholders or other stakeholders, and not in favour of any individual/director/shareholder. The instant appeal is bad in the eye of law and is hereby rejected with a cost of ₹ 10,000 for suppression of material facts to be deposited in the Army Welfare Fund. - Co. Appeal No. 32/NCLT/AHM/2020 - - - Dated:- 16-4-2021 - Manorama Kumari, Member (J) And Chocklingram Thirunavukkarasu, Member (T) For the Appellant : B. Maheshwari, Advocate For the Respondents : Vijayesh Atre, Advocate ORDER Manorama Kumari, Member (J) 1. The instant application is filed under Section 252(3) of the Companies Act, 2013. 2. The instant application is filed by the Appellant being one of the shareholder of the Company seeking restoration of the name of the Bhandari Crosfields Limited in the Register of the Companies maintained by the ROC, MP with an appropriate direction to change the status of the Company as Active enabling the Appellant to file the pending financial statutory returns. 3. The fact of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re appeared on behalf of one group of shareholder and on hearing, this tribunal allowed the counsel to file affidavit in reply opposing this application within two weeks'. Accordingly, the learned lawyer appeared on behalf of group of shareholder has filed its objection cum reply, as is apparent from the order dated 05.11.2020. 10. The learned lawyer appeared on behalf of group of shareholder has objected for the restoration of the Company and submitted that the company was incorporated under Companies Act, 1956 as a private limited company by shares on 08.10.1963, under certificate of incorporation no. 971 of 1963 issued by the office of the ROC, MP and subsequently by virtue of Section 43A of the Companies Act, 1956 the company was converted into a public limited company and has also annexed the certificate of incorporation along with the memorandum of association and article of association. 11. It is further submitted that the undisputed paid up share capital of the company is 12,80,000/- divided into 12800 equity share of 100 each out of which the objection as the legal heir of Late Shri Birendra Singh Motilal Bhandari and Smt. Shantibai wife of Shri Birendra Singh Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the shareholders' fund vide registered sale deed dated 17.02.1976. The said sale deed is annexed along with the memo of appeal at page no. 37 to 44. It is further submitted by the learned lawyer of the objector that Dena Bank issued a public notice under Securitization and Reconstruction of Financial Assets and Enforcement Of Security Interest Act, 2002, showing default in the payment of ₹ 12,02,02,764.38 and interest thereon and offered a land owned by the Company for sale. Thereby, seriously prejudiced the interest of the share of the company including the present objector who is also contributory. The said sale notice is annexed as Exhibit R-4 at Page no. 37 dated 12.11.2005. 14. It is further contended by the learned lawyer of the Objector that on 26.04.2007 Dena bank as secured lender moved an IA No. 4359/2007 in Company Petition No. 8 of 1981 seeking leave of the Hon'ble High Court of MP, Indore to sale/transfer the said 8000 square feet of land owned by the Company in accordance with the Securitization and Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 on the ground that the borrowers and the guarantors had submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: The instant matter is pending under defect since 13.12.2018. The Appellant made no endeavour to remove the defect and proceed with the case, as such, the matter was listed on board on 07.08.2019. On 07.08.2019 non appeared on behalf of the Appellant. However, the Appellant was granted 7 days' time to cure the defect but till date neither the defect has been removed nor the Appellant appeared to represent his case. In view of that, the instant Co. Appeal 172/2019 is dismissed for non-prosecution. 18. During the course of arguments, the Appellant argued that memo of appeal can be filed under Order VII Rule 13 of CPC and hence, it may be considered as a fresh application under this provision. For the sake of brevity, Order VII Rule 13 of CPC is reproduced herein below: Order VII Rule 13 of CPC- Where rejection of the plaint does not approve presentation of fresh plaint-the rejection of the plaint on any of the ground herein above mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. However, on perusal of Order VII Rule 11 i.e. rejection of plaint which read as under: Order VII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice by Objector. 21. Under such circumstances, the very arguments so advance by the learned lawyer of the Appellant is not maintainable in any manner under facts and law. That apart, it is a matter of record that one Gopal Polymer and Impex Limited along with 2 ors. have filed a case before the Hon'ble VIII Additional District Judge Indore 67A of 2015, which corroborate the objection so made by the objector. That apart, an application has also been filed before the Hon'ble High Court of MP being No. as Company Petition No. 0881 with a prayer for identifying the mortgage property and leave be granted to the Applicant Bank to sale/transfer the secured asset/mortgage properties of the borrower to recover the dues in accordance with provision of SRFAESI Act, 2002. In the said application an IA has been filed by Dena Bank being IA 4359/2017 seeking leave to sale/transfer the same 8000 square feet of land. It is also matter of record that objector has filed a winding up petition under section 433F under Companies Act before Hon'ble High Court of MP Co. Petition No. 24/2015, which said petition is transferred by the Hon'ble High Court of MP to this Tribunal for passin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
