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TMI Blog2010 (8) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ese petitioners have no one-tenth share capital as mentioned under section 399 of the Companies Act, 1956, hence sought for rejection of the main petition. 2. For the sake of convenience, the applicants are referred to as respondents, the respondents are referred to as petitioners as shown in the main petition. The Companies Act, 1956, is referred hereafter as "the Act". The discussion in this order is limited to the extent required to decide this application. 3. To which the petitioners replied that the shares held in the name of the first and the second petitioners are 37,750 and 15,000 respectively, out of five lakhs shares worth Re. 1 each in the first respondent-company, which is more than 10 per cent. of the shares of the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; thereby now they could not say that their shares were fraudulently shown as transferred by feigning ignorance. 5. To which the petitioners counsel argued that the first and second petitioners together held 10.55 per cent. shareholding in the first respondent-company without even including their shareholding in HUF shares, thereby the first ground taken up by the respondents saying that the petitioners were not qualified for filing this petition, is not tenable. Moreover, the very same income-tax returns these respondents relied upon clearly disclose the first petitioner s shareholding as 37,750 shares, the second petitioner s shareholding as 15,000, thereby the individual shareholding together is more than 10 per cent. out of 5 lakhs i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-company s or not. 8. As to the first point, though the petitioners categorically mentioned the first petitioners shareholding as 37,750 and the second petitioner s shareholding as 15,000 out of 5 lakhs shares of the first respondent-company, the same being evident even in the income-tax returns relied upon by the respondents, it cannot be said that the petitioners are not qualified to file the main petition. Since there is requisite qualification for filing this petition, this petition cannot be dismissed on the allegation of qualification as set out in section 399 of the Act. 9. As to the second point, the petitioners case is that the first respondent-company is a family company comprised of the petitioners, the second responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, thereafter pleaded that their shares were fraudulently shown as transferred, in this situation, this Bench could not hold it as hit by Order6, rule 4 or Order 7, rule 11 or even by Order 12, rule 6 of the CPC simply by seeing the income-tax returns of the petitioners filed by the respondents showing transfer of shares. Moreover, the maintainability of a petition is to be decided on its own strength, but not by taking into consideration a fact put forward by adverse party. Because here petitioners Nos. 1 and 2 say their family members filed income-tax returns of and they did not take cognizance of the details therein, then such fact is also amenable to test of proof. Usually whenever any fact is involved in the preliminary issue raised, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of that citation, that ratio is not applicable to the present case. 12. The respondents counsel relied upon Kamala v. K. T. Eshwara SA [2008] 12 SCC 661, to say that this petition is hit by Order 7, rule 11 of the CPC, when I go through the entire text, I noticed that the honourable Supreme Court allowed the appeal deprecating rejection of the plaint by the courts below holding for invoking this provision, no amount of evidence can be looked into. 13. The respondents counsel relied upon Harshad Chiman Lal Modi v. DLF Universal Ltd. [2005] 7 SCC 791, to say that this petition is to be rejected by the ratio laid in the case supra, when this citation is read, it is noticed that it is an order passed under section 16 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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