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TMI Blog2018 (9) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, we do not find that the Appellant can take any advantage by such a withdrawal. Merely by such withdrawal, the Appellant does not become a shareholder and cannot be heard saying that there was legal increase in the authorized share capital of the Respondent No.1 Company as claimed by him. - Company Appeal (AT) No.341 of 2017 - - - Dated:- 12-7-2018 - Mr. A.I.S. Cheema And Mr. Balvinder Singh, JJ. For The Appellant : Shri Sajiv Sen, Sr. Advocate with Shri Hemant Phalpher, Shri Sagan Ray and Shri Partha Goswami, Advocates For The Respondent : Shri P.K. Mittal, Advocate And Shri Naresh Kumar Joshi, Advocate JUDGEMENT A.I.S. Cheema, J. : 1. The Appellant Original Petitioner in Company Petition 27 (ND) of 2013 has filed this Appeal against dismissal of his Company Petition filed before National Company Law Tribunal, New Delhi, Principal Bench ( NCLT in brief). The petition was filed complaining oppression and mismanagement relying on Sections 397 and 398 of the Companies Act, 1956 ( old Act in brief). The learned NCLT found that the Appellant had failed to establish that he had shareholding in the Respondent No.1 Company and on such basis, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the Respondents put up defence that no shares have been allotted to the Appellant. According to Respondents, the Appellant was not a shareholder in the Company. Respondents relied on affidavit filed by Narain Ladu Mandrekar to counter the allegations made by the Appellant that there was EOGM dated 30th March, 2010 and increase in share capital and allotment of shares. The Respondents accepted that the Appellant had deposited certain monies but claimed that the same were towards unsecured loans and it was shown accordingly in the Financial Statement from 2008 till 2012 and it was not subscription towards share capital. They claimed that there was no agreement to give participation to the Appellant in the Company. The Respondents countered various averments made by the Appellant with regard to transactions relating to properties at Goa. According to the Respondents, equity shares were allotted to Respondent No.2 and the Appellant was aware about it and there was no forgery. On 15.03.2010, Board Meeting took place in the morning and on the same day, Respondent No.2 had left in the afternoon for Goa, and the necessary formalities had been complied with. The allotment was for bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed to be held by him has been produced along with the petition in order to establish that he is in fact having title to the said shares. The piece of evidence on which the petitioner is relying to establish his claim over the 4,65,000 equity shares is based primarily upon Form No.2, namely the return of allotment filed with the Registrar of Companies which is seriously disputed by the respondents as not valid and which has been categorized as Management Dispute by the Registrar of Companies, NCT Haryana, New Delhi. In relation to the said Form No.2 and whether it can be made as a basis by the petitioner for claiming the shares of the 1st respondent company the same is dealt with separately elsewhere in this order particularly in light of the absence of any other document being produced, even though alleged to be in existence, to sustain the claim of the petitioner relating to the ownership of 4,65,000 shares in relation to himself and 2,80,000 shares to his associates in all aggregating to 7,45,000 shares. At the cost of repetition, the onus is on the petitioner to first establish his claim of shareholding in the petitioner company to the satisfaction of this Tribunal, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a shareholder or in any other capacity. 8. Considering this and other reasons as recorded in the Impugned Order, the learned NCLT found that the Appellant failed to show that the petition was maintainable and dismissed the same. It held that the plea that Petitioner was issued shareholding could not be sustained. 9. Judgement of NCLT shows it allowed parties to put up their complete respective cases and referred to the same in Impugned Order but having concluded that shareholding itself was not proved by Appellant and thus did not go into the merits of other issues raised. 10. We have heard learned counsel for the parties. It has been argued by the learned counsel for the Appellant that since 2007 2008, Appellant was investing huge amounts in the Respondent No.1 Company, from which amounts various properties were purchased by the Company. According to the learned counsel, the Appellant was working as Director in the Respondent No.1 Company and in such capacity issued Notice dated 2nd March, 2010 convening Extra Ordinary General Meeting on 30th March, 2010 seeking Resolution to increase share capital. According to the learned counsel, the Respondent No.2 illegally s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meeting or AGM or EGM could be held. The Respondents 2 and 3 were the only shareholder Directors. It is argued that the Appellant illegally showed holding of meeting dated 30th March, 2010 and increase in shareholding and allotment of shares to himself and Narain Ladu Mandrekar. The Appellant who was Director misused his position to submit Form 2 to the ROC but the same has been disputed as there was no Board Meeting. According to the learned counsel, there was no Board Meeting before the alleged Notice dated 2nd March, 2010 was issued and there was no EOGM dated 30th March, 2010 and there was no allocation of shares. It has been argued that pursuant to alleged and purported Board Meeting held on 30th March, 2010, the Appellant claims that there was allotment of 4,65,000 shares to himself although books of accounts of the Company showed that only ₹ 16.50 lakhs were there in the name of the Appellant and ₹ 13 lakhs were there in the name of his wife Mrs. Shalini Dhingra. As such the learned counsel submitted that the Appellant, even if it was to be said that there was increase in share capital, could not have shown 4,65,000 shares allotted to himself. According to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstance in the arguments of the learned counsel for Respondents that it is impossible that the Respondents 2 and 3, the other Directors would support increase of authorized share capital and let the Appellant take away major part of the shares on the same date when already before 30th March, 2010, the Appellant had on 20th March, 2010 filed FIR against these Respondents, copy of which is at Page - 431 with the Reply filed by the Respondents in the Appeal. No Board Meeting deciding to call EOGM and no resolution of EOGM is brought on record. 14. The other document relied on by the Appellant is Form 2, copy of which has been filed with Diary No.2247 at Page 3. Admittedly, this Form was submitted to the ROC by the Appellant himself. This document is being relied on by the Appellant without showing any Resolution of the EOGM permitting increase in the authorized share capital. The Appellant claims that EOGM took place on 30th March, 2010 and Form 2 claims that on the same date, the allotment of shares was made. Form 2 is accompanied by details of shares allotted on 30th March, 2010. Even this has been signed by the Appellant as Director. Admittedly, the ROC did not accept such Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of such withdrawal, Respondent No.2 must be treated to have given up his rival claims against the Appellant. 17. We find that there is no substance in this argument of the learned counsel for the Appellant. We have seen the Order of withdrawal pointed out by the Appellant, copy of which is at Page 1 of Diary No.2247. The Order shows that when CP 62/2014 was taken up, the learned Member of the Company Law board noted that the Petitioner had filed for withdrawal stating that the Company Petition could not be listed due to technical reasons and so he wanted to withdraw the same. The Member (Judicial) of the Company Law Board recorded that since the Company Petition had not been moved before the Bench, the same was being dismissed as withdrawn , giving liberty to the petitioner as permissible under the law . When this withdrawal took place, the Company Petition 27(ND) of 2013 was already pending. If the petition was withdrawn with liberty to the present Respondent No.2, it was the option of the Respondent No.2 to pursue his remedy even by defending the petition which had been filed by the Appellant. Thus, we do not find that the Appellant can take any advantage by such a w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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