2005 (3) TMI 468 - SC - Companies Law

Whether there was any offer to the second appellant as a shareholder to purchase the shares? Whatever offer was made whether under Article 57A or under Article 58 by the two notices, that offer was accepted by the appellant? Whether we should, in exercise of our discretion under section 155, grant the appellant the relief of rectification of the shares as claimed? Held that - weighing in the balance the comparative advantages and disadvantages of granting the appellant the relief of rectification we are of the view that it would not be appropriate at this stage to exercise our discretion to grant the relief of rectification. However, the fact remains that the appellant has been wronged and she is entitled to be compensated. The ends of justice would be met by directing that the appellant should be compensated with an amount of ₹ 3 crores to be paid by the company to the appellant in full and final settlement of the appellant s claims in respect of the 3417 and 93 shares. Additionally, the company will also allot shares to the appellant out of 17,666 shares on par proportionate with the appellant s present shareholding.

Issues Involved:
1. Transfer of 3417 and 93 shares.
2. Right of preemption.
3. Issuance and allotment of 17,666 shares.
4. Validity of Company Petition under Section 155 of the Companies Act, 1956.
5. Compliance with Section 108 of the Companies Act, 1956.
6. Conduct of Board Meetings and adherence to Articles of Association.
7. Remedies and reliefs.

Detailed Analysis:

1. Transfer of 3417 and 93 Shares:
The dispute involves the transfer of 3417 shares from the estate of Dr. Parulekar and 93 shares by respondents. The appellants claimed a right of preemption under Article 57A of the Articles of Association, which was allegedly violated. The learned Single Judge found the transfer of shares to be contrary to the appellants' rights and in violation of Section 108 of the Companies Act and the Articles of Association. The Division Bench, however, held that the violation of Section 108 was a curable irregularity and validated the transfer to the Pawar Group.

2. Right of Preemption:
Article 57A of the Articles of Association provided a preemptive right to Dr. Parulekar or Shanta or their nominee to purchase shares. The appellants accepted the offer to purchase the shares, but the respondents unilaterally fixed a time for payment, which the appellants contested. The appellants argued that there was a concluded contract upon acceptance of the offer, and the respondents could not unilaterally impose a time limit for payment. The Court found that the notices issued were not in compliance with Articles 58 to 63 and that the transfer to the Pawar Group was invalid.

3. Issuance and Allotment of 17,666 Shares:
The issuance of 17,666 shares was resolved at an Annual General Meeting without proper notice, violating Articles 93 and 94 of the Articles of Association. The Division Bench found that the issuance was not justified and was aimed at consolidating control by the Pawar Group. The Court held that the issuance was invalid due to non-compliance with the Articles and the lack of proper notice.

4. Validity of Company Petition under Section 155 of the Companies Act, 1956:
The respondents challenged the maintainability of the petition under Section 155, arguing that complex factual issues were involved, better suited for a civil suit. The Court held that the jurisdiction under Section 155 was appropriate and that the appellants were not precluded from seeking relief under this section despite the pendency of civil suits.

5. Compliance with Section 108 of the Companies Act, 1956:
Section 108 mandates that a transfer of shares must be executed by all joint shareholders. The Court found that the transfer forms were signed by only three of the four executors, making the transfer invalid. The Division Bench's view that this was a curable irregularity was rejected, emphasizing the mandatory nature of compliance with Section 108.

6. Conduct of Board Meetings and Adherence to Articles of Association:
The Board Meeting on 21-9-1985, where the transfer of shares was approved, did not include the transfer on the agenda, violating Article 93. Additionally, the issuance of 17,666 shares was resolved without proper notice, violating Articles 93 and 94. The Court found these actions invalid due to non-compliance with the Articles of Association.

7. Remedies and Reliefs:
The Court acknowledged the significant passage of time and changes in circumstances, including the death of Shanta and the company becoming public. Instead of ordering rectification of the share register, the Court opted for compensation. The company was directed to pay Rs. 3 crores to the appellant and to allot shares proportionate to her current shareholding out of the 17,666 shares. The appellant was also allowed to continue as a Director for her lifetime.

Conclusion:
The Court found multiple violations in the transfer of shares and issuance of new shares, including non-compliance with the Articles of Association and Section 108 of the Companies Act. The appellants' right of preemption was upheld, and the sale to the Pawar Group was invalidated. However, considering the long passage of time and changes in circumstances, the Court opted for compensation rather than rectification, directing the company to pay Rs. 3 crores and allot shares to the appellant.

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