9911796707
TMI Blog2013 (10) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse - Decided against petitioner. - CO. Appeal (SB) No. 12 of 2013 - - - Dated:- 22-7-2013 - R.V. EASWAR, J. For the Appellant : Sudhir Nandrajog, Inderjeet Singh and Kamal Ahuja. For the Respondent : Sakal Bhushan. JUDGMENT:- PER : R.V. Easwar The appeal is directed against the order dated 15-2-2013 passed by the Company Law Board ("CLB") in the CA No.89/2012 filed by the appellant herein, rejecting its plea for amendment of the written statement. The application is for stay of the order impugned. 2. Shorn of unnecessary details and company law jargon, the facts are these. C.S. Agarwal and his associates/family members on the one hand and D.K. Jain and his wife Nirmal Jain on the other, joined together and formed a company by name Rockman Projects Limited ("RPL" or "the company"). It was a closely-held company, the shares being held only by these two groups. The company was to do business in an SEZ. Soon disputes arose between the two groups. D.K. Jain filed a petition (CP No.2/(ND)/2011) before the CLB under sections 397 and 398 of the Companies Act, 1956 ("the Act") alleging oppression and mismanagement against C.S. Agarwal and his associates. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. (b) The Application CA No.89/2013 was neither filed by the Respondents No.2 to 6 nor supported by any affidavits on their behalf. (c) The burden of proving the transfer of 23,800 equity shares by P-1 to R-2 could not be discharged by leading circumstantial evidence of the nature sought to be introduced by the amendment but could only be discharged by proving that the Petitioner No.1 did execute a Transfer Deed on 28.03.2008 in favour of Respondent No.2 for adequate consideration. (d) Annexure R-3, i.e. the Agreement to Sell dated 05.02.2007 is between private individuals and does not show that R-1 company was a confirming party to the said Agreement. (e) The facts sought to be amended by CA No.89/2013 were in the knowledge of all the Respondents much prior to the filing of the petition and ought not to be allowed to be incorporated at such a late stage in the counter filed by the Respondents. (f) The crux of the amendment sought to be incorporated already finds place in reply para 1.4 of the response and therefore elaboration thereof is wholly unnecessary. (g) The amendment is solely introduced as a time gaining device on the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the CLB nor was the application for amendment moved within reasonable time; and that in these circumstances, the CLB was right in rejecting the application. It was submitted that Regulation 46 was restrictive and after the insertion of the proviso, even Order VI Rule 17 of the CPC became restrictive by introducing the concept of due diligence. 8. I am convinced that there is no merit in the appeal. The objection of the appellant herein to the maintainability of the company petition filed by the respondent before the CLB was solely on the footing that the respondent did not have the requisite percentage of shareholding under section 399(1)(a) of the Act. In that case, it was for him to adduce evidence in support of its objection. The primary evidence would naturally be the fact that the shares were transferred by D.K. Jain in favour of C.S. Agarwal. This plea was raised in the objection, but RPL could not substantiate it. It was merely its claim that the Bench Officer appointed by the CLB had been shown the original share transfer form and that the said officer had also subscribed his signature on the reverse of the transfer deed form to authenticate it. There was no report subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be amended were irrelevant for deciding the core issue. It has also been held that the burden of proving the transfer cannot be discharged by leading circumstantial evidence of the nature sought to be introduced by the amendment but could only be discharged by adducing direct evidence to prove that D.K. Jain did execute a transfer deed on 28.03.2008 in favour of C.S. Aggarwal for adequate consideration. The reference to an agreement to sell dated 05.02.2007 in the amendment petition has been rightly held to be irrelevant as it was between certain land-owning companies and private individuals and RPL was not a party to the said agreement. The said agreement was between several companies on the one hand and Anjali Bhardwaj and C.S. Agarwal, on the other. The amendment petition also sought to refer to facts which were noticed by the CLB to be in the knowledge of all the respondents much prior to the filing of the petition and therefore cannot be allowed to be incorporated at such a late stage in the counter filed by them to the main petition. The CLB has also characterised the move as a time-gaining device. I am inclined to agree. 10. Regulation 46 of the CLB Regulations, 1991 refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
