2023 (3) TMI 1280 - AT - Companies Law

Oppression and Mismanagement - mismanagement on the part of the R-1 Company and R-2 in particular - reduction in shareholding - wrongful removal of R-5 and R-6 as directors of the R-1 Company - HELD THAT - Even non-members could be transferred shares of the company if it is in the interest of the company. This provision is supported by the list of non-members produced by the Appellant who have been transferred shares of R-1 Company from the year 1987-88 onwards. Significantly, this averment has not been disputed by the Respondents. The rights of a nominee are different from the actual holder of the shares and those of the guardian are not the same as that of the nominee of the shares, in the event that the owner of the shares is deceased. It is quite clear that the Appellant could not have claimed to be holder of the 3890 shares whose nominee was Ms Harsheika Doshi, more so when he does not show in the original company petition how the interests of the minor Ms. Harsheika are being prejudiced by the action of the Respondents. It would be a matter of adjudication though, as the Appellant was relying on the entry in the Register of Members to claim shareholding of 3890 shares by him. Yet it is a fact that he was holder of the 4160 shares till the time of their cancellation, which is also one of the acts of oppression alleged by the Appellant. The ownership of 4160 shares, certainly vests with Mr. Yash Vardhan Mall and the allegation that the Company has not followed the due procedure in cancelling these shares is found to be correct. The plea taken by the R-2 that these shares were awarded on the mistaken notion that Mr. Yash Vardhan Mall is the holder of 3890 shares is also not found to be supported by facts since the transfer of 4160 shares to Yash Vardhan Mall has nowhere been shown to be done in consequence of his holding 3890 shares and moreover Article 30 of the Articles of Associations allows transfer of shares to non-members if it is done in the interest of the company. Therefore, the unilateral cancellation of the 4160 shares, which is alleged to be an oppressive act, is a question open for adjudication. The section 241-242 petition preferred by the Appellant cannot be, therefore, decided at the threshold on the issue of maintainability on the basis of non-ownership of these shares as their illegal cancellation is itself the subject matter of the original company petition C.P. No. 189 of 2015. The issue of maintainability which was raised in the demurrer application C.A. 1755 of 2015 should not have been adjudicated at the threshold to arrive at the main petition s non-maintainability when the issue was itself claimed as an act of oppression - The NCLT, by allowing the demurrer application on the basis on non-ownership of these 4160 shares, and consequently dismissing CP No. 189 of 2015 in a cursory manner without looking at the merits of the various allegations made in the company petition has incorrectly adjudicated both the demurrer application and also C.P. 189 of 2015. The Impugned Order, which allows the demurrer application, is set aside - issue of guardianship of 3890 shares and whether the Appellant was entitled to maintain the original company petition on the basis of these 3890 shares should also be looked at afresh - appeal allowed.

Summary

Issues Involved:
1. Ownership of 3890 shares.
2. Transfer and cancellation of 4160 shares.
3. Maintainability of the original company petition CP No. 189/2015.
4. Allegations of oppression and mismanagement.
5. Removal of Directors R-5 and R-6.

Summary:

Ownership of 3890 Shares:
The Appellant claimed guardianship of minor Ms. Harshieka Doshi, the nominee of 3890 shares held by Smt. Shrutika Doshi, based on a deed of nomination dated 3.1.2013, which was recorded by the company. The Respondents produced a later deed dated 15.1.2013, nominating R-2 as the guardian, which the Appellant alleged to be fabricated. The Tribunal found that the Appellant did not explicitly state his role as a guardian in the original petition, but mentioned it in the appeal memo.

Transfer and Cancellation of 4160 Shares:
The Appellant purchased 4160 shares from R-2, which were registered in the company's Register of Members. However, R-2 later unilaterally cancelled this transfer, claiming it was void and returned the consideration amount. The Tribunal noted that Article 30 of the Articles of Association allowed transfer of shares to non-members if it was in the company's interest. The cancellation was done without sufficient cause or adherence to natural justice principles, making it a potential act of oppression.

Maintainability of the Original Company Petition CP No. 189/2015:
The Respondents argued that the Appellant did not hold the requisite 10% shareholding to file the petition under Section 244 of the Companies Act, 2013. The Tribunal held that the issue of maintainability should not be decided at the threshold when it is intertwined with allegations of oppression and mismanagement. The Tribunal referenced judgments indicating that such issues should be decided together at the final hearing.

Allegations of Oppression and Mismanagement:
The Appellant alleged various acts of oppression and mismanagement, including the wrongful cancellation of 4160 shares and the removal of Directors R-5 and R-6. The Tribunal found that these allegations were not adequately examined on merits by the NCLT, which focused primarily on the maintainability issue.

Removal of Directors R-5 and R-6:
The Appellant challenged the removal of R-5 and R-6 as Directors, claiming it was done without proper notice and in violation of the Articles of Association. The Tribunal noted that the NCLT did not sufficiently address these allegations, and the issue required further examination.

Conclusion:
The Tribunal set aside the Impugned Order, which allowed the demurrer application and dismissed the original company petition without a thorough examination of the merits. The matter was remanded to the NCLT for a fresh adjudication of all issues raised in the original petition, including the guardianship of 3890 shares and the cancellation of 4160 shares. The unilateral cancellation of the 4160 shares was held as null and void. The appeal was allowed with no order as to costs.