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TMI Blog2017 (8) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... P5 & Annexure P6 to the petition and that his shareholding of 46% is evidenced from Form 2 filed by the 1st respondent company dated 30.03.2010 and in view of the above it is claimed by the petitioner that he is competent to file the petition. The thrust of the allegations against the respondents is that: (a) Trying to dispute his shareholding strength of 46% by deliberately manipulating and filing a prior Form 2 dated 15.03.2010 with the Registrar of Companies; (b) Removal of the petitioner from directorship under Section 284 of the 1956 Act; (c) Illegal Allotment of shares to the extent of 96% of the shareholding of the 1st respondent company thereby effectively excluding the petitioner from holding capital in the 1st respondent company despite advance money being paid towards share capital; (d) Filing of conflicting forms dated 15.03.2010 by the respondents as against those filed by the petitioner in relation to allotment of capital in Form 2 dated 30.03.2010 and having the said Form 2 as filed by the respondents being registered but however, having those filed by petitioner kept pending and being categorized as "management dispute"; (e) Sale of immovable properties s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent company, their family members and in their own names. While in relation to Assagao and Chapora Village property, the contribution of the petitioner and his family members were to the extent of 50%. In relation to Siolim and Pernem Highway project, the petitioner and his family members' contribution, it is asserted was to the extent of 40% with 20% of the stake being given to Mr. Narayan Mandrekar and the rest of the 40% being contributed by the 2nd and 4th respondents, either jointly or severally. The petitioner avers that his contribution of the amounts was brought on several dates, both through bank and by way of cash. 5. Based on consensus, the petitioner avers that the original documents in relation to the above four properties were allowed to be retained by the petitioner in view of his 50% contribution for the purchase of the properties and as well as shareholding. Further, papers relating to incorporation of three legal entities including the 1st respondent company and the Memorandum of Understanding establishing his right in relation to the legal entities were also allowed to be retained with the petitioner. After the acquisition of the above properties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected as booking advance including from well-known individuals. In the above circumstances it is claimed by the petitioner that the said projects came to a halt. 7. In the circumstances with a view to restart the project, a developer was identified, who was willing to plough in money into the project, and the petitioner had travelled to Goa in the first week of March 2010. With a view to finalize the deal on 16.03.2010, the petitioner had to meet the developer along with the original documents. Even-though their presence was not required, the 2nd and 4th respondents travelled to Goa on 15.03.2010 and accompanied by them as well as the original documents in relation to the properties and the companies had gone to meet the representative of the developer, as the intended developer wanted to obtain legal opinion in relation to documents after seeing the originals. The said documents were also duly handed over to the representative of the intended developer. However, the deal got frustrated because of the attitude of the 2nd and 4th respondents and in the circumstances, all were forced to return to Delhi along with the original papers on 16.03.2010. It is the specific allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res, is also challenged. 9. The petitioner avers that subsequent to all of the above, under the mediation of a well-known builder in Delhi, an amicable settlement on 20th and 21st June 2010 as between the parties took place, where in it was agreed between the parties that all original documents taken would be returned to the Petitioner, Rs. 60 lakhs would be paid by 2nd respondent along with interest of 24% p.a and that in the respondent no. 1 company from there onwards the shareholding would be 53% to 2nd respondent and 47% to the petitioner. 10. However, after the above compromise, the petitioner contends that the attitude of the 2nd respondent became very oppressive, with the petitioner being removed from the Board of the 1st respondent company under Section 284 of the Companies Act, 1956 on 26.07.2010 without adherence to due process of law. Efforts to retrieve his shareholding by the petitioner also proved futile and it came to the knowledge of the petitioner that the properties belonging to the 1st respondent company at Goa had also been palmed off by the 2nd respondent in collusion with the other respondents by incorporating another company. That the petitioner came to kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s authorized to represent the respondent no. l to execute the Sale Deed dated 07.7.2011 registered in the office of Sub-Registrar of Pernem under No.450, Book-1, Vil. No.405, dated 08.7.2011, and the sale deed dated 07.7.2011, registered in the office Sub-Registrar of Pernem Under No.440 of Book-1, Vol. No.405, dated 08.7.2011 both, executed by Mr. Raj Kumar Mittal may be set aside and quashed and accordingly, order for the rectification of the Register of Company may be made. (5) Restrain permanently the Respondent No. l Company from changing, altering, modifying the capital and Board structure of the Respondent No. l Company without the consent in writing of the Petitioner. (6) Allow the Petitioner to inspect the accounts of the Company on a regular basis. (7) Direct the Respondents to give notice of all meetings of Board of Directors and General Meetings to the Petitioner by registered post. (8) Part with the amount of consideration including cash proportionately to the extent of investment made by the Petitioner with family members at a market value of the land area sold authorized. (9) to appoint a Committee of Managers for the purpose of running the day to day affai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare capital. In the circumstances the shareholding of the petitioner is vehemently denied. It is the contention of the respondents 1 to 4 that there was no agreement of 50% participation by the petitioner in the 1st respondent company nor in relation to the immovable properties purchased and those that have been reflected in the sale deeds and registered in the names of the purchasers is the actual transaction. It is also contended that in relation to some of the sale deeds, the petitioner himself had acted as a witness which in effect vouch safe for the transaction contained in the sale deed itself and not as otherwise contended by the petitioner in the petition. 13. Further the respondents 1 to 4 also contends that entities or persons who are not parties to the proceedings, like M/s. Jackpot Superstructure Private Limited cannot be brought into fray, and the respondents cannot be made to answer averments concerning the same. In whose affairs it is contended by the respondents that they are also not interested, either as a shareholder or in the capacity of a director. In the circumstances all those averments pertaining to these entities should not be considered. It is categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false and frivolous. In the same vein the understanding of return of Rs. 60 lakhs with 24% interest p.a and 47% shareholding to the petitioner by the 2nd respondent has also been denied as false. 16. On the contrary, these respondents contend that all the resolutions passed suo moto by the petitioner are illegal and cannot be acted upon by the petitioner including the allotment made to himself and to others on 30.03.2010. In relation to allegation pertaining to Rangoli Gardens Resorts Private Limited it is contended that the petitioner is neither a director nor a shareholder and hence the allegations are not relevant and it is also contended that all the transactions in relation to the said company have been done by way of cheque payment. In relation Pernam property of 1st respondent company, it is contended that as against the purchase price of Rs. 90 lakhs it was sold for Rs. 1.25 crores all backed by proper resolutions passed which are also annexed to the reply as Annexure XLVI and by way of proper documentation. In any case it is contended that the petitioner was not a director in 2011, he having ceased to be a director on 26.07.2010 itself. All the allegations made by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e points out the close proximity of time in relation to his remittance, either personally or through associates, and the purchase of different properties by the 1st respondent company. Further it is also pointed that the documents for the purchase of properties at Pernem and Solim had been executed by the petitioner as director of the 1st respondent company which clearly evidences his involvement in the affairs of the company and not as otherwise contended by the other respondents. The petitioner vehemently contends that no board meeting took place and no resolution for allotment of shares in favour of the 2nd respondent could have also taken place in view of the fact that on the said day there could not have been any quorum at Delhi in view of 2nd and 3rd respondent separated by distance of nearly 1700 kilometers. The petitioner also, for the purpose of proving that the statement of respondents is false, seeks to rely on the air tickets by which the petitioner and 2nd respondent travelled to Goa on 15.03.2010. In relation to allotment of shares in favour of the petitioner on 30.03.2010, it is submitted by the petitioner that the meeting indeed took place on 30.03.2010 and also den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny delay and laches as contended by the respondents disentitling the petitioner from maintaining the petition? 21. In order to maintain a petition under the provisions of Section 397 as well as Section 398 of the Companies Act, 1956 it is required that the Petitioner satisfies first the requirement of Section 399 of the said Act. For ready reference, the same is extracted below:- "SECTION 399. Right to apply under Sections 397 and 398. (1) The following members of a company shall have the right to apply under section 397 or 398:- (a) In the case of a company having a share capital, not less one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, provided that the applicant or applicants have paid all calls and other sums due on their shares; (b) In the case of a company not having a share capital, not less than one-fifth of the total number of its members. (2) For the purpose of sub-section (1), where any share or shares are held by two or more persons jointly, they shall be counted only as one member. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act if he is a shareholder of the company by virtue of allotment of shares or otherwise and his name appears in the Register of Members, Statutory Returns and Documents maintained and filed by the company. 23. It is required to be seen in the instant case while the petitioner is asserting his right as a shareholder alleged to have been allotted to him along with his associates to maintain the petition, on the other hand the respondents are vehemently disputing his shareholding rights and thereby his right to maintain the petition under Sections 397 and 398 of the Companies Act, 1956. 24. The facts narrated in the earlier paragraphs as culled out from the pleadings of the respective parties as well as perusal of the pleadings and documents clearly shows that the 1st respondent company was incorporated on 18th January 2002 as a private limited company with two subscribers to the Memorandum and Articles Association of the company, they being the 2nd and 3rd respondents respectively subscribing to 5000 equity shares each. Hence it is evident that the petitioner was not involved as a promoter of the company at the time of its incorporation nor was he subscriber to the charter doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as management rights by the respondents by virtue of Memorandum of Understandings entered into between the petitioner and respondents and that in terms of such promise subscription monies were also brought into the 1st respondent company as monies towards subscription of shares. However, the said Memorandum of Understanding, either in original or a copy of it has been produced before us to establish the claim of the petitioner about the promise of equal shareholding and management participation. Specific particulars like date on which the Memorandum of Understanding was entered into and the parties to such a memorandum of understanding as well as the amount of contribution to be brought in by each of the parties is also not specifically pleaded in the petition other than vague statements. Be that as it may, it is the claim of the petitioner that he and his associates had brought in money by way subscription towards shares in tranches based on the requirements of the 1st respondent company in relation to acquisition of the immovable properties as specified. If that were so as a director of the company was it not the responsibility of the petitioner to see that the shares were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been signed between the parties had not been produced before this Tribunal. It is required to be noted that while the former Memorandum of Understandings as alleged to have been entered into between the parties, containing the promise of shareholding as contended by the petitioner and further assuming that the same had been stolen, in the month of March 2010 as alleged, this Tribunal fails to understand as to what prevented the petitioner from filing the Compromise as alleged to have been entered into between the parties in the month of June 2010, well after the alleged incident of March 2010 which document of Compromise or at least a copy of it duly signed by the parties should have been very much available with him. However for reasons best known only to the petitioner the said Compromise made in June 20th-21st of the year 2010 has not been produced. Hence there is a clear lack of material or evidence to support the contentions of the petitioner in relation to promise of participation in the equity as said to have been assured by the respondents in relation to the 1st respondent company. This Tribunal cannot base its conclusions on assumptions and premises founded on mere all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meeting of Board of Directors on 30.03.2010. The petitioner further goes on to state in the rejoinder that during the course of investigation in relation to the FIR filed against Respondent No. 2, said Mr. Narayan Ladu Mandrekar had implicated Respondent No. 2. Since we are not going into the merits of the case, and the limited question here is whether and as to the extent to which credence can be given to Form 2, being the return of allotment based on which the petitioner claims his shareholding and thereby his competency to file the petition. The affidavit of Mr. Narayan Ladu Mandrekar dated 28.12.2011 if taken alone, completely demolishes the stand of the petitioner and if taken as contended by the petitioner along with that of statement made before the police authorities loses its evidentiary value because of approbation and reprobation which also does not help the cause of the petitioner in relation to allotment of shares. It is also pertinent to note that despite having shares allotted to him along with the petitioner, the said Mr. Narayan Ladu Mandrekar has not joined the petitioner nor given consent to the prosecution of this petition nor he has put up any resistance, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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