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TMI Blog2018 (3) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... y submitted by the learned Senior Counsel appearing for the first respondent, the Scheme, as approved by the Court cannot have an application to the person, who was not being issued with even the option form as a fraud has been committed against her. Thus, the abovesaid decision approving the scheme cannot have an application to the case of the first respondent. The concession given by the learned counsel and accepted by the Court has been made applicable to those shareholders, who expressed their desire to obtain shares. Thus, the aforesaid proceedings, as rightly held by the Company Law Board, cannot bind the first respondent. This Court does not find any complicated questions of fact involved. As discussed earlier, there is no dispute on primary facts. Though the proceedings before the Company Law Board is summary in nature, as no complicated questions of fact involved warranting a detailed trial on examination of parties, this Court is unable to accept the submissions made by the learned counsel appearing for the appellant in this regard. Company appeal dismissed. - Company Appeal No.11 of 2016 & CMP No.15986 of 2016 - - - Dated:- 15-3-2018 - M. M. Sundresh, J. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /its Equity Shares to the Company for purchase. The Option Form shall also be available to the Shareholders at such designated location, time and in such manner as may be notified by the Company. The Shareholders shall be entitled to exercise their option to continue to hold their Equity Shares by sending the Option Form to the Company within the period stipulated in the Option Form. 4. An appeal was filed before the Division Bench, wherein a contention was raised that a silence cannot be construed as an offer. While repelling the said contentions and after noting down the fair statement made by the learned counsel for the first respondent, the following order was passed. Regarding question (iii) The principal attack against the scheme sanctioned by the Company Judge is that the scheme treats the silence of shareholders as an offer. It is contended that this is contrary tot he well established principles of transfer of shares. It is also contended that this violates various provisions of various laws such as Companies Act, Depositories Act, and SEBI and NSQL Regulations. On behalf of the company, it was vehemently contended that the Central Government should not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Mr. Chagla further stated that the company has received around 143 complaints alleging that the shareholders have encashed the cheques through inadvertence or error and even those shareholders will be allowed to retain their shares provided they return the money within two months. Further, in respect of shares held by the shareholders who have neither returned the option forms nor encashed the cheques forwarded by the company, Mr. Chagla made the following offer In respect of shares held by the shareholders who have returned the option form and not encashed the cheques forwarded to them by the respondent no. 1 the shares shall be purchased by the respondent and cancelled as per the order of the Company Judge dated 10th April 2002. The respondent company shall keep in trust for such shareholders a sum of ₹ 100 per share plus five debentures of ₹ 10 each to be dealt within the following manner. a) If the share holder is desirous of obtaining the shares, the sum of money and debentures so retained shall be paid over as price of the shares to a seller identified by the respondent who shall transfer to such shareholder an equivalent number of shares as the numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly recorded. She has further informed that she has not received any buyback offer. A specific request has been made to pay the dividend from the year 1996 onwards. 9. Thereafter, on 13.07.2002 Share Proservices informed the first respondent that the request made by her was under consideration. This is with respect to the letter dated 14.06.2002 sent by the first respondent. Thereafter, on 09.11.2002, the said services issued certificates of shares in Sterlite Optical Technologies Limited in favour of the first respondent. 10. Replying to the letter dated 09.11.2002, the first respondent demanded certificates of Sterlite Industries (India) Limited in and by the letter dated 20.10.2003. She sent series of communications to Share Pro-services stating that she did not accept the buyback offer and she should be given the unpaid dividends. The said Services also sought certain documents from the first respondent. 11. In the meanwhile on 29.12.2003, the first respondent gave a complaint to the Assistant General Manager, Investors Service Cell, Mumbai. It was followed by another complaint dated 29.04.2005. The complaint was forwarded to the appellant on 17.05.2006. On 10.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef. Accordingly, I hereby direct the respondents, (a) to rectify the register of members by reinstating the name of the petitioner to an extent of 2911 equity shares and also the bonus shares which was issued from time to time. (b) to issue fresh share certificates to the petitioner within a period of 45 days from the date of receipt of copy of this order to the extent the petitioner is entitled to. (c) the petitioner is entitled to bonus shares issued by the company from time to time. (d) further the petitioner is entitled to dividends on the shares which she is entitled from time to time. With the above directions the CP is disposed of. No orders to to costs. Challenging the same, the present Company Appeal has been filed. 14. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appearing for the first respondent and perused the written submissions. 15. The learned counsel appearing for the appellant would submit that the company petition in C.P.No.1052 of 2010 filed before the Company Law Board ought to have dismissed on the ground of delay and laches. The order passed by the Company Law Board suffers from non-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent was put on notice, received the option form as per approved scheme and the cheque sent. 19. On the contrary, a fraud was committed against the first respondent though not by the appellant, but by some one acted on its behalf, resulting in registration of case in Crime No.57 of 1999 under Sections 406, 420 and 120 of IPC. It is also an admitted fact that the members of the first respondent was fraudulently changed. Hence, as rightly found by the Company Law Board, such a negligence on the part of the appellant cannot enure to its benefit as against the first respondent. The change of address of the first respondent was expressly unauthorised and illegal. The first respondent has taken a consistent stand throughout. It is not, as if, she has made the claim only after seeking escalation of the price of the shares. As rightly submitted by the learned Senior Counsel appearing for the first respondent, the Scheme, as approved by the Court cannot have an application to the person, who was not being issued with even the option form as a fraud has been committed against her. Thus, the abovesaid decision approving the scheme cannot have an application to the case of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal denial by the respondent. 21. Delay and laches is a concept based upon practice and prudence as against law. Thus, a Court has to see as to whether there is actual delay or laches and if so, the party, who caused it and the consequence thereon. The facts narrated above would reveal that the first respondent was constantly pursuing her case. The appellant was also aware of the issue raised by the first respondent. Hence, the decision of this Court relied upon by the learned counsel appearing for the appellant in T.V.SOMASUNDARAM PILLAI V. OFFICIAL LIQUIDATOR, HIGH COURT, MADRAS (O.P.NO.374 of 1953 Company application Nos.289 of 1965 178 of 1966 dated 03.03.1967) is not applicable to the case on hand. 22. It is submitted by the learned counsel for the appellant that it is impossible to give effect to the order of the Company Law Board. The learned Senior Counsel appearing for the first respondent would submit that what is required is necessary entries. As there is a dispute with respect to the date to be reckoned for fixing the value of the shares, this Court is not willing to go into the same. After all, it is for the appellant to satisfy the order passed in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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