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TMI Blog2009 (6) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... al to establish the approval of the impugned transfer in favour of the third respondent or acceptance of the resignation of the second respondent from the office of the director. The said findings of fact recorded by the Company Law Board in exercise of its powers in a summary procedure after careful perusal of the same and comparison of the disputed document with that of the admitted document cannot be disputed. The Company Law Board has rightly exercised its power under section 402 of the Companies Act and granted the relief to the second respondent. The third respondent who is the aggrieved person could have come before this Court questioning the correctness of the order but not the appellant and is one more strong circumstance agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner or permit the petitioner to purchase the shares of the second respondent at a value as may be determined by the Bench; and ( vi )To direct division of the assets and liabilities of the company equally between the petitioner and the second respondent. 4. The company court has granted the relief allowing the company petition and further directed the company to rectify the register of members, substituting the name of the second respondent in the place of the third respondent in respect of the impugned shares which shall be done by 30-4-2009 and the letter of registration of the second respondent found to be forged, his cessation from the office of director is set aside and consequently the second respondent stands induct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company and, hence, no petition under section 397 or 398 could have been maintained by him. The finding recorded by the Company Law Board with regard to the alleged signature in the resignation of the second respondent without the aid and assistance of an expert is in contravention of section 73 of the Evidence Act, 1872 and the same is not permissible in law as held by this Court in the case of Smt. P. Aswathamma v. Hotel Sathyaprakash [2001] 2 Kar. LJ 367. In the said judgment, this Court has referred to the judgments of the Supreme Court, Privy Council and the judgments of the Allahabad High Court and this Court in support of the proposition of law that without the assistance of the experts opinion as provided under section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the findings and reasons recorded by the decision of the Supreme Court, learned counsel relies upon the case of M.S.D.C. Radharamanan v. M.S.D. Chandrasekara Raja [2008] 143 Comp. Cas. 97 with reference to the power of the Company Law Board under section 402 in a petition under sections 397 and 398 and further, he also placed reliance upon the decision of the Madras High Court in Shoe Specialities (P.) Ltd. v. Standard Distilleries Breweries (P.) Ltd. [1997] 90 Comp. Cas. 1 . Further, learned counsel placed reliance upon a decision of the Supreme Court in the case of Murarilal v. Stae of Madhya Pradesh AIR 1980 SC 531, regarding the power of the Company Law Board under section 73 of the Evidence Act to compare the disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adings of both the parties and answered point No. 2 which fell for its consideration in favour of second respondent. Further, it has elaborately referred to the facts and also the material evidence placed on record before the Company Law Board. The Company Law Board has examined the same by applying its mind consciously with regard to the allegation of forgery and fabrication of the document of alleged resignation without relegating the parties to the civil court, in view of the fact that the relief sought for by the second respondent is rectification of the register of members of the company can be granted or not. The presiding officer of the Company Law Board has applied his mind and compared the admitted signatures found in the partnersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead of C. Vasudevamurthy which is not at all correct. Therefore, the learned presiding officer of the Company Law Board came to the right conclusion and held it could not be conclusively stated that the share transfer form, letter of undertaking and the letter of resignation do contain the signature of the second respondent and there is no material to establish the approval of the impugned transfer in favour of the third respondent or acceptance of the resignation of the second respondent from the office of the director. The said findings of fact recorded by the Company Law Board in exercise of its powers in a summary procedure after careful perusal of the same and comparison of the disputed document with that of the admitted document canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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