2010 (11) TMI 60 - HC - Companies Law

Appeal under section 10F of the Companies Act 1956 against the order dated 20-11-2007 passed by the Company Law Board Principal Bench New Delhi dismissing the petition filed by the appellant under sections 397 and 398 read with sections 402 and 403 of the Act Held that - Though the learned counsel for the parties have not argued but the finding recorded by the Board that the Court exercising equity jurisdiction cannot ignore the well known maxim of equity that who seeks equity must do equity and who comes into equity must come with clean hands cannot be said to tenable. The Board exercises statutory jurisdiction in terms of sections 397 and 398 of the Act. Therefore prima facie it cannot be said that the Board is the Tribunal of equity jurisdiction. It exercises statutory jurisdiction. Nothing more is required to be said in respect of such finding as well at this stage. In view of the above the order passed by the Board whereby it was held that the petition is not maintainable suffers from patent illegality and cannot be sustained in law. Consequently the impugned order is set aside. The matter is remitted back to the Board for fresh decision on merits in accordance with law.

Summary

Issues Involved:
1. Maintainability of the petition under sections 397 and 398 of the Companies Act, 1956.
2. Allegations of illegal transfer of shares and removal from directorship.
3. Non-disclosure of the Memorandum of Understanding (MoU).
4. Allegations of forgery and fabricated signatures.
5. Delay and laches in filing the petition.
6. Jurisdiction of the Company Law Board (CLB) and its equity jurisdiction.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition:
The appeal was filed under section 10F of the Companies Act, 1956 against the CLB's order dismissing the petition under sections 397 and 398 read with sections 402 and 403. The appellant argued that the Board's finding that the petition was not maintainable due to non-disclosure of the MoU was incorrect. The court found that the non-disclosure of the MoU did not go to the root of the controversy and did not conclusively decide all questions between the parties. Thus, the petition should be considered on merits.

2. Allegations of Illegal Transfer of Shares and Removal from Directorship:
The appellant claimed that the transfer of shares by respondents was illegal and in contravention of the Articles of Association. The appellant also alleged that he was removed from directorship without intimation and that respondents appointed their wives as additional directors to gain majority control. The court noted that the appellant's removal from directorship and the transfer of shares were contested issues that required detailed examination by the competent authority.

3. Non-disclosure of the Memorandum of Understanding (MoU):
The respondents argued that the appellant had concealed the MoU, which was crucial to the case. The MoU was alleged to divide family assets and liabilities among the brothers. The court observed that the MoU did not specifically refer to the transfer of shares in the respondent company and that its non-disclosure was not fatal to the maintainability of the petition. The court held that the relevance of the MoU to the company's affairs required further adjudication.

4. Allegations of Forgery and Fabricated Signatures:
The appellant alleged that the annual returns filed by the respondent company for the year ending March 2001 contained forged signatures. A forensic expert's report supported this claim. The court found prima facie evidence that the appellant's signatures on the annual returns were forged, raising serious questions about the authenticity of the documents relied upon by the respondents.

5. Delay and Laches in Filing the Petition:
The CLB had dismissed the petition partly on the grounds of delay and laches, as the petition was filed in 2004, long after the events in question. The court noted that while the provisions of limitation might not apply, the delay and laches were factors to be considered. However, the court found that these issues did not preclude the petition from being considered on merits.

6. Jurisdiction of the Company Law Board (CLB) and Its Equity Jurisdiction:
The CLB had held that the appellant had not come to the court with clean hands and that the Board, exercising equity jurisdiction, could not ignore this. The court clarified that the CLB exercises statutory jurisdiction under sections 397 and 398 of the Act, not merely equity jurisdiction. Therefore, the Board's finding on this ground was not tenable.

Conclusion:
The court set aside the CLB's order dismissing the petition as not maintainable and remitted the matter back to the CLB for a fresh decision on merits, in accordance with law. The court emphasized that the issues raised, including the relevance of the MoU, allegations of forgery, and the appellant's removal from directorship, required detailed examination.