9911796707
TMI Blog2022 (5) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... of Respondent No. 1 Company be rectified to show the correct shareholding in line in the relief sought for; to order that AGMs held on 30.05.2016 as void, illegal and not binding; to declare that the removal of the petitioner as director is void and illegal; to declare that the existing board including the unauthorized appointment of Respondent No. 4 as void; to punish Respondent Nos. 2 to 4 for the fraud played by them against the Petitioner and to compensate the loss sustained by the Petitioner which is Rs. 1,20,00,000/-; to issue directions to Respondent No. 5 to investigate/inspect the record of Respondent No. 1 Company and prosecute Respondent Nos. 2 to 4 for the fraud played by them. 2. Briefly, the facts as stated in the Petition are as follows: a) The Petitioner is a shareholder of Respondent No. 1 Company and holding 2,40,000 shares i.e., 40% of the issued, subscribed and paid-up capital of Respondent No. 1 Company. b) After disputes arose between the Petitioner and Respondent Nos. 2 to 4, regarding unauthorized removal of the petitioner from his directorship. The Petitioner lodged detailed complaints with Respondent No. 5, Police, Companies Bankers and Vizag Steel Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to time. Respondent No. 2 has continued to function as Managing Director. h) In the whole episode, a company secretary by name, Mr. Anand Kumar Ravada helped the petitioner and became instrumental in filing false and fabricated documents with Respondent No. 5. The Petitioner already lodged a criminal complaint against him. i) Respondent No. 2 gave resolutions dated 10.07.2012 and another resolution dated 15.07.2012 to the IDBI Bank for joint operation of the account by him and the Petitioner, as per which he was shown to have been appointed as a General Manager of the Company. He was made to believe that it was in addition to the Petitioner being appointed as a Director. But it became clear later that Respondent No. 2 did not want to project the Petitioner as Director to the Bank. The Petitioner has been constantly enquiring about the transfer of shares of the existing shareholders to him and his people and his appointment as a Managing Director of the Company, but Respondent No. 2 has been postponing the same. When the Petitioner sensed foul play, Respondent No. 2 filed the appointment of the Petitioner with Respondent No. 5 in DIR-12 only in the year 2014 stating that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in accordance with Rule 35, which is not done by the Petitioner in this case. Section 56 of the Companies Act, 2013 deals with the transfer of shares, according to which, along with the Transfer Deed, share certificates should also be submitted. The Petitioner did not produce any Share Certificates, hence, the question of allotment of shares does not arise. Erroneous mentioning of the name of the Petitioner in the Annual Return which was again filed by the Petitioner by using the digital signature of Respondent No. 2, does not give him a right. The Petitioner was never a shareholder and a member of Respondent No. 1 Company, hence, question of removing his name does not arise. The Petitioner approached the Respondents with a request to purchase 40% stake in Respondent No. 1 Company. Believing him, Respondent No. 2 and Respondent No. 3 agreed to sell 40% stake to the Petitioner. Respondents wanted to appoint Petitioner as Director of Respondent No. 1 Company. Since he did not give consent he was appointed as General Manager to take care of the day to day operations. The Petitioner paid an amount of Rs. 10,00,000/- being part consideration for 40% shares which he agreed to purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and shock the Petitioner misused the digital signature of Respondent No. 2 and filed annual returns showing himself as shareholder, holding 40% shares in Respondent No. 1 Company. When the Petitioner was questioned about the same, he requested the Respondents not to take any action and agreed to leave the Company. Respondent No. 2 issued a notice to Respondent No. 1 for removal of the Petitioner as Director. The Petitioner was informed in the Annual General Meeting on 30.05.2016, that he can hold office only up to 30.09.2014. After exit of the Petitioner, Respondent No. 3 approached Respondent No. 1 Company, requesting to rectify the error crept in the Annual Return showing the Petitioner as holding 40% shares, whereas Respondent No. 3 was the actual shareholder. In support of her claim, she submitted original share certificates. On receipt of the request from Respondent No. 3, a rectified annual return was filed. Later Respondent No. 4 approached Respondent No. 2 with a request to be a part of Respondent No. 1 Company. Respondent Nos. 2 & 3 entered into a Memorandum of Understanding (MoU) with Respondent No. 4 on 29.07.2016 and handed over the Management of Respondent No. 1 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was shown as General Manager. In the said letters, he was permitted to act as joint signatory for operations of the bank accounts, along with Respondent No. 2. After the Petitioner raised hue and cry, Respondent No. 2 intimated Respondent No. 5 through DIR-12, that the Petitioner was appointed as Director with effect from 05.06.2014. Respondent No. 2 got transferred 2,40,000 shares of his mother, to the Petitioner, constituting 40% of the share capital as against the promised 100%. He made the petitioner pay Rs. 20 Lakhs as consideration for the same. When the Petitioner insisted on financials and brought pressure, Respondent No. 2 admitted to have received Rs. 15,43,000/- and confirmed that he appropriated Rs. 12 Lakhs towards consideration for 2,40,000 shares and a balance of Rs. 3,43,000/- as advance for the remaining 3,60,000 shares and received balance of Rs. 12,57,000/- from Respondent No. 1 Company. Later Respondent No. 2, in conspiracy with Respondent No. 4, removed the Petitioner as Director and appointed Respondent No. 4 as Director with effect from 19.09.2016. The Petitioner filed complaints with concerned departments and obtained orders. A criminal complaint is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany, hence the contention of the Respondents that letterheads containing the signature of Respondent No. 2 were given to the Petitioner in order to facilitate the smooth functioning of the Company cannot be dismissed. Hence unless evidence is taken in respect of the contents of the letter dated 10.06.2014, it cannot be resolved, whether the said letter reflects the true facts or not and whether it is issued by Respondent No. 2. As regards the jurisdiction of this Tribunal to decide the issues of fraud, the Counsel for the Respondents relies on the judgement of Supreme Court in Civil Appeal No. 9340/2019 between Aruna Oswal vs. Pankaj Oswal & Ors., wherein according to the facts reflected in the judgment there was a dispute before the Civil Court between the parties therein. It was held by the Supreme Court that the question of right, title and interest is essentially adjudication of civil rights between the parties and it would not be appropriate to entertain parallel proceedings. The Court refrained from deciding the issues therein, considering that it is a civil dispute and cannot be decided in these proceedings, since, the decision would jeopardize the parties' rights and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... register of members under Section 164. Admittedly in this case, the Petitioner does not have Share Certificates. As to why he did not insist for issuance of share certificates is not explained. However, from the admission made by the Respondents, it is clear that Rs. 10,00,000/- was given by the Petitioner. But the contention is that the Petitioner promised to give the remaining amount of Rs. 10,00,000/- later and did not want to take their share certificate till then. All these are highly disputed questions of fact, which cannot be adjudicated by this Tribunal. Hence, this point is answered holding that the Petitioner, as admitted by Respondents No. 1 to 3 has given Rs. 10,00,000/- which can be recovered by filing an appropriate application before appropriate forum. Admittedly, the Share Certificates are in possession of Respondent No. 4. Hence, unless evidence is taken with regard to the contentions raised by either side, no finding can be given with regard to the rights of the Petitioner. In the judgment of the Supreme Court in M/s. Ammonia Supplies Corporation (P) Ltd., Vs. M/s. Modern Plastic Containers Pvt. Ltd. & Others, it was held that any question raised within the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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