2013 (10) TMI 32 - HC - Companies Law

Amendment of written statement - Inclusion of secondary evidence - Transfer of shares - Onus to prove transfer of shares - CLB rejected amendment of written statement - Held that - In the application seeking amendment of the written statement, the appellant herein has referred to facts which are not necessary for the purpose of determining the real question - core issue to be decided in the application was whether there was a transfer of the 23800 equity shares out of 23900 equity shares held by D.K. Jain in favour of C.S. Aggarwal on 28.03.2008. - decision of the CLB that the amendments sought to be made to the written statement are irrelevant to the main controversy and that the facts and circumstances stated in the application and which are sought to be incorporated in the written statement as brief background were already known to both the parties, are findings of facts from which no question of law arose. It is a pre-requisite for the adjudication of an appeal under Section 10F of the Act that the appeal should involve a question of law. The finding of fact cannot also be termed perverse - Decided against petitioner.

Issues Involved:
1. Rejection of the amendment application of the written statement by the Company Law Board (CLB).
2. The burden of proof regarding the transfer of shares.
3. Admissibility and relevance of secondary evidence.
4. Application of Regulation 46 of the CLB Rules versus Order VI, Rule 17 of the Code of Civil Procedure (CPC).
5. Alleged delay tactics by the appellant.

Detailed Analysis:

1. Rejection of the amendment application of the written statement by the CLB:
The CLB rejected the application for amendment of the written statement filed by RPL. The reasons cited include the irrelevance of the factual averments to the core issue of share transfer, lack of affidavits from respondents, inadmissibility of circumstantial evidence, and the timing of the application suggesting a delay tactic. The court concurred with the CLB's decision, noting that the amendments sought were not necessary for determining the real issue.

2. The burden of proof regarding the transfer of shares:
The core issue was whether D.K. Jain transferred 23,800 shares to C.S. Agarwal. The CLB placed the burden of proof on RPL, which failed to produce the original share transfer deed. The court emphasized that the primary evidence should be the transfer deed itself, and RPL's inability to produce it despite being directed to do so by the CLB was a significant failure.

3. Admissibility and relevance of secondary evidence:
RPL argued that it should be allowed to rely on secondary evidence to prove the transfer of shares due to the loss of the original transfer deed. However, the CLB and the court held that circumstantial evidence could not discharge the burden of proof for the share transfer. The court noted that the facts sought to be introduced were already known and irrelevant to the main controversy.

4. Application of Regulation 46 of the CLB Rules versus Order VI, Rule 17 of the CPC:
RPL contended that Regulation 46, which allows for amendments to correct defects or errors, should permit the amendment of the written statement. The court, however, found that the amendments did not fall under the scope of correcting defects or errors and were unnecessary for determining the real issue. The court also highlighted the lack of due diligence by RPL, as required by the proviso to Order VI, Rule 17 of the CPC.

5. Alleged delay tactics by the appellant:
The court agreed with the CLB's characterization of the amendment application as a time-gaining device. The application was filed at a late stage, and the court noted the lack of timely action by RPL to address the issue of the missing transfer deed. The court thus dismissed the appeal and application, imposing costs of Rs. 25,000/- on RPL.

Conclusion:
The court upheld the CLB's decision to reject the amendment application, emphasizing the necessity of primary evidence for the share transfer, the irrelevance of the proposed amendments, and the lack of due diligence by RPL. The appeal and application were dismissed with costs.

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