2016 (12) TMI 1496 - Tri - Companies Law

Petition under section 397 and 398 - maintainability of petition - requisite qualification to file petition u/s 397 and 398 - Held that - Requisite clarification of holding l/10th shareholding is to be seen on the date of presentation of the petition. In this instant case on the date of presentation of the petition, petitioner nos. 1 to 3 were not members of the respondent no. 1 company, who were only transferee of shares and transferor of shares had not authorized the petitioner nos. 1 to 3 to file a petition. Therefore, petitioner nos. 1 to 3 have no right to file and bring a petition under section 397 and 398 of the Act. It is also relevant to mention here that aggregate shareholding of petitioner nos. 1 to 3 only comes to 7.2% of the total shareholding. Therefore, it is clear that they do not fulfil the requisite number to bring a petition under section 397 and 398 of the Act. As regards the petitioner no. 4 holding is concerned, his shareholding, i.e., 7.05% of total shares, cannot be considered for reckoning the requisite number of shares because their name has been struck off w.e.f. 2007. Therefore, on the date of presentation of the petition in 2015 petitioner no. 4 has no legal existence. So they were not authorized to file a petition.

Issues Involved:
1. Maintainability of the petition under Sections 397 and 398 of the Companies Act, 1956.
2. Shareholding requirement under Section 399 of the Companies Act, 1956.
3. Legal status of Petitioner No. 4, Meghdoot Services Limited.
4. Validity of Share Transfer Forms.
5. Application for adding a new party (Lucky Trading Company) to the petition.

Detailed Analysis:

1. Maintainability of the Petition under Sections 397 and 398 of the Companies Act, 1956:
The petitioners contended they held 14.25% of the equity shares in the respondent company, qualifying them to file under Sections 397 and 398. However, the respondents argued that the petitioners did not meet the 10% shareholding requirement under Section 399. The Tribunal noted that only members, not transferees, could file under Sections 397 and 398 unless authorized by a power of attorney from the transferor.

2. Shareholding Requirement under Section 399 of the Companies Act, 1956:
Section 399 stipulates that members holding not less than one-tenth of the issued share capital can file a petition. The Tribunal found that Petitioner Nos. 1 to 3, being transferees and not recorded shareholders, did not meet this requirement. Petitioner No. 4's shareholding was also disputed due to its legal status.

3. Legal Status of Petitioner No. 4, Meghdoot Services Limited:
The respondents argued that Meghdoot Services Limited had been struck off the register in 2007 and was not a legal entity at the time of filing the petition in 2015. The Tribunal confirmed that the company had no legal existence on the petition date, thus invalidating its shareholding for the purpose of the petition.

4. Validity of Share Transfer Forms:
The respondents claimed that the share transfer forms submitted by the petitioners were outdated and not compliant with the Companies Act, 2013. The Tribunal agreed, noting that the forms were not in the prescribed format, and hence the transfers were not registered, rendering the petitioners ineligible to file under Sections 397 and 398.

5. Application for Adding a New Party (Lucky Trading Company):
Lucky Trading Company sought to join the petition, claiming to hold 4.55% of the shares. The Tribunal dismissed this application, stating that the shareholding requirement must be met on the date of the petition's presentation. Adding a new party later would not change the situation, as the shareholding qualification must be satisfied at the time of filing.

Conclusion:
The Tribunal dismissed the petition and the application for adding Lucky Trading Company, citing non-compliance with the shareholding requirements under Section 399 and the lack of legal standing for Petitioner No. 4. The petitioners did not have the requisite shareholding or legal authority to file under Sections 397 and 398, rendering the petition and subsequent applications non-maintainable. There was no order as to costs.

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