2013 (6) TMI 883 - Board - Companies Law

Summary

Issues Involved:
1. Maintainability of the petition.
2. Alleged fraud and misrepresentation by the respondents.
3. Locus standi of the petitioners.
4. Non-joinder and mis-joinder of parties.
5. Alleged suppression of material facts by the petitioners.
6. Grounds for investigation u/s 237(b) of the Companies Act, 1956.

Summary:

1. Maintainability of the Petition:
The respondents raised preliminary objections on the maintainability of the petition, arguing that it does not disclose any cause of action, the petitioners have no locus standi, approached the forum with unclean hands, and there is mis-joinder and non-joinder of necessary parties. The petitioners countered by asserting that the investment made by them is undisputed, and the lack of issuance of share certificates justifies their claim. The court found that a cause of action exists and the petition is maintainable.

2. Alleged Fraud and Misrepresentation:
The petitioners alleged that the respondents made false representations to induce them to invest, and the shares were fraudulently transferred without their knowledge. The respondents denied these allegations, stating that the transactions were legitimate and supported by MoUs. The court found that the respondents issued shares at a premium without following due procedure and transferred shares fraudulently, justifying an investigation.

3. Locus Standi of the Petitioners:
The respondents argued that the petitioners have no locus standi as they had denied their title to the shares in a previous suit. The court held that the petitioners, being investors, have the locus to file the petition u/s 237(b) of the Act, supported by cases like *Sofia Busman v. Union of India* and *HSBC (P.) Equity India Ltd. v. Shree Rome Multi Tech Ltd.*

4. Non-joinder and Mis-joinder of Parties:
The respondents claimed that necessary parties like Parshwa Agrico (P.) Ltd. and Mr. K.V. Vishwanathan were not impleaded, and unnecessary parties were included. The court held that in a petition u/s 237(b), only the company and its Board of directors are necessary parties, and since there were allegations against R2 to R9, they were proper parties.

5. Alleged Suppression of Material Facts:
The respondents alleged that the petitioners suppressed material facts, including the insolvency and criminal antecedents of petitioner No. 2. The court found that these facts do not affect the jurisdiction to order an investigation under section 237(b) and rejected this contention.

6. Grounds for Investigation u/s 237(b):
The court found that the business of the R1-company was conducted with the intent to defraud its members and creditors, supported by evidence of fraudulent share transfers and non-compliance with statutory requirements. The court cited cases like *Barium Chemicals Ltd. v. Company Law Board* and *Rohtas Industries Ltd. v. S.D. Agarwal* to justify the need for an investigation.

Order:
(i) The Central Government is directed to investigate the affairs of the company u/s 237(b) of the Act.
(ii) Respondent No. 9 is discharged.
(iii) Parties to bear their own costs.
(iv) All pending CAs disposed of, interim orders vacated.
(v) Copy of the order to be circulated to all concerned.