9911796707
TMI Blog1998 (11) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned single Judge has held that considering the averments in the written statement there is serious dispute between the parties as to whether the shares in favour of appellants were transferred rightly and validly in accordance with section 108 of the Act and that the decision of such a question is clearly beyond the scope of section 397 and/or 398 and the remedy of the party lies in approaching a civil suit. The petition was held not to be maintainable and was accordingly dismissed. 2. The facts in detail have been noticed in the judgment under appeal and we do not think it necessary to again notice herein detailed facts. We would notice only such facts in brief which are necessary to understand the point in issue, namely, the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.34 lakhs. The receipt of Rs. 11.34 lakhs by the respondents is not in dispute. What is, however, disputed is that there was any agreement for transfer of shares. According to respondents only negotiations had taken place between the parties and the price had also not been settled. They say that Rs. 11.34 lakhs were repaid to the appellants, who deny it. However, according to respondents, the appellants did not encash the cheque alleged to have been sent by respondents to them. The fact of the appellants' names being on the register of members as members of the company is not in dispute so also their names being mentioned in the returns filed by the company with the Registrar of Companies as required under the provisions of the Act. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the representation made Radhey Shyam Gupta, the Chartered Accountant filed the said blank signed annual return forms for the period 30-9-1981 and added therein the names of Radhey Shyam Gupta and Sham Sunder Gupta as directors and filed the same with the Registrar of companies without consulting the Managing Director or any other Director of the company in this behalf. Two affidavits dated 9-1-1982 of the Chartered Accountant Mr. J.K. Batra have been filed in support of the aforesaid plea. 6. It would be for the respondents to prove that there was no valid transfer of shares in favour of the appellants. Mr. J.K. Batra may have to be produced by the respondents as a witness during the trial of the company petition. The correctness o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd reliable evidence, if otherwise permissible to be raised as a defence to the company petition. The pleas and allegations in this regard cannot take the place of proof. The same would be the position with regard to the contention that without production of transfer deed, the transfer cannot be registered and if registered the registration would be void. Under these circumstances at the present stage the question as to whether a composite petition under sections 155, 397 and 398 can be filed or not has no relevance for deciding about the maintainability of the petition. 8. It has also been observed in the order under appeal that assuming the appellants are members and their names have been correctly and rightly brought on the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the contention that the prayers sought for in the company petition cannot be granted to the appellants in case they are able to prove the allegations made in the petition. The further plea that the shares cannot be transferred without previous consent of directors and, there- fore, the alleged transfer of shares in favour of appellants would be invalid, again has to be substantiated by the respondents by leading evidence and it is only thereafter the effect of it can be examined by the Court while dealing with the company petition on merits. 9. In view of the aforesaid conclusions it is not necessary to consider various judgments cited by the learned counsel for the respondents in support of the contention that ( i ) the transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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