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TMI Blog2017 (12) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the appeal of the appellant is not maintainable in as much as the appellants have not come to Hon’ble Court with clean hands. The appellants have no right to file the appeal as the appellant was not holding any shares at the time of filing of appeal. The claim of the appellant is based on oral assertions, which is devoid of any force and is inadmissible in evidence - COMPANY APPEAL (AT) NO.174 OF 2017 - - - Dated:- 14-11-2017 - MR. S.J. MUKHOPADHAYA, MR. A.I.S. CHEEMA AND MR. BALVINDER SINGH For The Appellants : Mr. Rakesh Kumar, Mr. P.K. Sachdeva and Mr. Vipin Kumar Yadav For The Respondent : Mr. R.D. Vats and Ms Aastha Gupta Advocates And Mr. Ripu Daman Bhardwaj for ROC JUDGMENT BALVINDER SINGE, MEMBER (TECHNICAL) 1. This appeal has been preferred by the appellants against order dated 04.04.2017 passed by National Company Law Tribunal, Kolkata Bench, Kolkata (hereinafter referred to as the Tribunal ) in CP No. 16/2009 filed under Sections 397, 398, 402, 408 read with 111 of the Companies Act, 1956 alleging oppression, mismanagement against the respondents and illegal removal of appellants from their directorship from the 1st Respondent Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein his brother appellant No. 2 was helping him. The appellant No. 1 also had another company Purvanchal Agro Products Pvt Ltd which was a private company incorporation in 2005. 2nd Respondent is a businessman by profession and is a majority shareholder and director in various privately incorporated companies. 4th Respondent is brother in law of 2nd Respondent and was a close friend to appellant No. 1 for a long time. 5. It is the case of the appellants that the matter in dispute that the appellant was the successful bidder of the auction unit of the factory unit of one Singh Constructions Pvt Ltd conducted by the UPFC on 23.11.2005. The highest bid offered by the appellant No. 1 was of ₹ 49 lacs. The said unit was engaged in the business of Rise Bran oil. The appellant No. 1 did not have the experience of running the said Unit. The Respondent No. 4 who was the common friend of appellant No. 1 and brother in law of the Respondent No.2 had introduced Respondent No. 2 to appellant No. 1. The respondent No.2 had the experience of running the said unit. The understanding was that the said unit would be jointly run by the appellant and the Respondent No.2. The understanding w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd respondent and the appellant had never resigned from the directorship of the 1st respondent company. The appellant further contended that the respondents have committed forgery and illegally acquired the shareholdings of the appellants by showing their resignation from the 1st respondent company. The appellants have further contended that they have not received any consideration for the alleged transfer of their 52% shareholdings; have never resigned from the directorship; compliance certificate filed by 1st respondent company for the year 2007 with the ROC did not indicate any transfer of appellants share in favour of 2nd respondent. The respondents stand regarding the transfer of the shareholding of the appellants in their favour was entirely different in the civil suit filed before the Medenipur, Civil court. The appellant after acquiring the auction unit with much efforts would never transfer their entire shareholdings only on the meagre amount of ₹ 13 lacs which they had paid as earnest money. The director s report file by the respondent itself show that the said auction unit was acquired by them on a very favourable price. The share transfer had taken place on 09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Pvt Ltd would be purchased through the newly formed company, namely 1st respondent. (ii) Equity shares equivalent to ₹ 13 lakhs would be issued in the name of the appellant. (iii) The appellant herein would get their share capital increased but to the extend as desired by UPFC. (iv) The appellant would sign a share transfer form in favour of the 2nd respondent so that after the execution of the sale deed by UPFC, the appellant could be removed from the company after paying off their investment of ₹ 13 lakhs. Up to the execution of sale deed, the appellants would be shown as the director of the company. The appellant agreed to sign duly resignation letter which would be effect upon making payment of sum of ₹ 13 lakhs. On the above clear understanding the respondent infused the amount in the company and then UPFC agreed to execute sale deed. Thereafter the 2nd and 3rd respondent further infused ₹ 9 lakhs in the company, as a sum of ₹ 410111/- had been paid to UPFC on account of interest and also charges expenditure incurred in registration of the sale deed. Thereafter the 2nd and 3rd respondent and the appellant became the shareholder o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal may decide the case on merit. 14. Further vide order dated 08.09.2017 this Appellate Tribunal had directed the parties that As a last chance parties are allowed a week s time to settle the matter, failing which the Appellate Tribunal will decide the case on merits. At last on 5.10.2007 the arguments of the parties were heard and the judgment was reserved. 15. In compliance with our order, the respondent in a written reply had submitted the papers wherein respondent has paid off the sum of ₹ 13 lakhs which was the investment made by the petitioner by account payee cheques which were duly encashed by the appellants without raising any objection in the following manner: Bank Cheque No. Dt. Amount Praveen Singh Axis Bank 504 08.09.2006 ₹ 10 lakh Lalit Singh Axis Bank 505 08.09.2006 ₹ 3 lakh. 16. In the light of the above submissions made by the respondent that the payment has been made and the instrument for transfer of shares having been signed by the appellant, it is only a matter of time when the shares will be transferred from the appellant to the respondent and once the shares have been transferred and have been shown as transferred, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the primary or secondary evidence of the document, no evidence of any oral agreement or statement shall be admitted. Also Section 94 of the Indian Evidence Act, 1872, deals with the exclusion of evidence against application of document of existing facts. This section applies when the execution of the document has been admitted and no vitiating fact has been proved against it. Xxxx 18. It has further been noted that participation of the appellant in the auction of UPFC which was held on 23.11.2005 wherein the appellant appeared to be the highest bidder by depositing ₹ 13 lacs and further in order to comply with the requirement of UPFC for execution of sale deed also formed a company in the name of Purvanchal Kisan Agro Pvt. Ltd. on 17.01.2006. The appellant then approached the respondents for purchasing the auction property and the whole proceeds appear to be an arrangement between the appellants and respondents. The tribunal held that: xxxx Out of the amount of ₹ 38 lakhs, which the petitioners claim to have invested, the ₹ 12 lakhs that was allegedly lent by the Petitioners to the company has no receipt against it, and therefore, the veracity o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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