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TMI Blog2010 (10) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... n issue narrated the brief facts. He submitted that the respondents jointly held 10 equity shares of Rs. 100 each of the petitioner-company under Folio No. N41567 pursuant to shares allotted by the petitioner-company in the public issue in the year 1991. The respondents held the said shares under a common share certificate. Thereafter, the respondents requested the petitioner-company to split the said one share certificate issued to them in respect of the said 10 shares into 10 separate share certificates of 1 equity share each. Accordingly, in terms of the Act and the listing agreement with the Stock Exchange, Mumbai, the said share certificate comprising ten shares was split by the petitioner-company into ten separate share certificates of one share each. Thereafter, out of the ten separate share certificates, the respondents under a cover of their letter dated 5-10-1992, forwarded to the petitioner-company eight share certificates and eight transfer deeds. From out of the eight share certificates and eight transfer deeds forwarded by the respondents, the seven share certificates along with seven transfer deeds to the petitioner-company, were for transferring the same from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... names. The respondents thereby sought dishonestly to conceal the fact that the shares were being transferred to one single person and thereby procure illegal gain of additional securities by deceit, thereby cheating the petitioner-company at the cost of other genuine investors. Since the register of members maintained by the petitioner-company showed only one Folio No. 51110, one common dividend warrant for the said seven shares was sent to respondent No. 2 to their registered address in respect of financial years 1992-93 to 2008-09. It is therefore, apparent from their conduct that the transferees mentioned in all the said seven transfer deeds were one and same person, i.e., respondent No. 2 who had accepted the single dividend warrant under Folio No. 51110 all these years without any demur. He further submitted that presently, the respondents hold 360 equity shares of Rs. 10 each of the petitioner-company representing 0.0001 per cent of its total issued and paid-up share capital. The said 360 equity shares are pertinently below the statutory and numerical requirements of section 188 of the Act. The numerical requirement under section 188 of the Act for a valid requisition is such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on 27-7-2002. It is pertinent to note that the hon'ble Metropolitan Magistrate has vide order dated 12-4-2007, framed formal charges against the respondents for having violated the provisions of section 68A of the Companies Act, 1956. Being aggrieved by the aforesaid order dated 9-5-2002, the respondents filed a criminal application, before the hon'ble Bombay High Court being Criminal Application No. 2078 of 2002. The hon'ble Bombay High Court vide its order dated 26-8-2002, rejected the said criminal application and observed that : "This is clearly in violation of the provisions of the Companies Act, 1956, as well as would amount to cheating and fraud and may be even forgery in my view the complaint makes out a prima facie case against the applicants." 5. He further submitted that the respondents have commencing from the financial year 1997-98 also issued several notices under sections 284 and 190 of the Act, primarily for inclusion of a resolution for removal of the chairman Mr. Deepak S. Parekh of the petitioner-company at numerous annual general meetings. On 22-1-1998, respondent No. 1 issued notice under section 284 read with section 190 of the Act, for removal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar purpose (i.e., the statements made in or the reasons given in the notices) for circulating the resolutions, amount to abuse of the right (conferred on the shareholders by section 284 of the Act). We are, therefore, not inclined to interfere under section 10F of the Act, with the impugned direction. For the reasons stated above the appeal fails and deserves to be rejected. Consequently, the appeal is hereby rejected." 6. He further submitted that continuing the series of baseless and unsubstantiated vexatious notices, the respondents have once again issued the impugned notice dated 4-2-2010, containing their intention to move, at the then next annual general meeting of the petitioner-company, a resolution for the removal of Mr. Keki M. Mistry, chairman/vice-chairman of the petitioner-company, under the provisions of section 284 of the Act, inter alia, on the alleged/fictitious ground that he has no time to resolve grievances of the shareholders. Pertinently, till the date thereof, save and except filing the aforesaid comprehensible and frivolous and vexatious applications/pleadings in different courts, for and authorities (all of which have eventually been dismissed/rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the Gujarat High Court order dated 1-2-2010, is very clear that these respondents cannot now "keep on giving notice on the same issues which were mentioned in their notice dated 10-4-2009. However, the respondents could not be prohibited from giving notice seeking removal of any director or chairman on any other issues. This Bench did not restrain the respondents from issuing notice in its earlier order. The petitioner misguided this Bench that the respondents violated the provisions of law. It is submitted that this Bench issue directions to the petitioner to fix new date of annual general meeting and publish a notice issued by the respondents under section 284 of the Act. 8. Heard counsel for the petitioner and the respondent-in-person, perused the pleadings, documents filed in their support. The main issue fell for consideration and need to be addressed whether the respondents are eligible to issue the impugned notice dated 2-4-2010 and whether any case is made out by the petitioner to be interfered by this Bench? Now I deal with the issues. The respondents issued notice dated 2-4-2010, to the board of directors of the petitioner-company which is annexed at exhibit 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also evident that the notice of the respondents also included in the agenda at the annual general meeting held in the year 2001 wherein it is specifically mentioned that "to consider the notice under section 284 of the Companies Act, 1956, received from Mr. Sureshchandra V. Parekh, a shareholder for removal of Mr. Deepak Parekh as director of the Corporation. This Bench while dealing in one of the matters filed by the petitioners against the same respondents observed that the intention to issue notice for removal of Shri Deepak S. Parekh, year after year since 1998 is nothing but the abuse of the provisions of section 284 of the Act. The respondents again issued notice under section 284 dated 10-4-2009, for removal of Mr. Deepakbhai Parekh, director raising issues which are similar to the impugned notice. This Bench in C. P. No. 21 of 2009 filed by the petitioner against the respondents seeking declaration of notice issued by the respondents observed vide its order dated 17-6-2009, that "therefore I also consider the prayer made by the petitioner at 'C' " in their petition and I am of the view that unless the respondents are restrained permanently from sending notices under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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