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TMI Blog2018 (9) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is a company registered under the Companies Act, 1956 was incorporated on or around 15th day of September, 1989 and having its registered office at Kolkata. 3. 1st appellant is the widow of Sujit Kumar Das(deceased) and 2nd and 3rd appellants are the daughters of Sujit Kumar Das (deceased). 2nd respondent is the son of Ajit Kumar Das (deceased) who was the brother of Sujit Kumar Das (deceased). 3rd respondent is the wife of 2nd respondent. 4th respondent is the mother of 2nd respondent. The shareholding pattern of 1st respondent as on 31st March, 2002 is as under: Late Sujit Kumar 1111 shares Supriya Das(1st appellant) 30 shares Mr. Anjan Kumar Das (2nd respondent) 1111 shares The principal person in charge of the day to day affairs of the 1st respondent was Late Sujit Kumar Das. Late Sujit Kumar Dass suffered a cerebral attack in May, 2002 and was put under medical supervision but he never completely recovered and was rendered incapacitated to participate in the day to day affairs of 1st respondent. Ultimately Sujit Kumar Das died intestate on 21 December, 2007. Upon the death of Sujit Kumar Das, the appellants have 1141 shares (1111 shares of Late Sujit Kumar Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply)and was removed as Director on 2nd December, 2007. In the said Meeting dated 2nd December, 2007, Sujit Kumar Das was also removed as Director. 7. The appellants (legal heirs and successors of Late Sujit Kumar Das) filed Company Petition 426/2010 before the NCLT, Kolkata Bench by invoking various provisions of the Companies Act under Sections 235, 397, 398, 399, 402, 403, 406 and 407 alleging certain acts of oppression and mismanagement in the affairs of the 1st Respondent company and sought various reliefs, but the main reliefs are as below:- a) A Scheme of Administration of the Respondent No.1 be framed having consideration to the following:- i) The petitioners are the majority shareholders of the company and they have the right to take control of the management. ii) Alternatively, the petitioners would have an equal right to participate in the affairs of the company. iii) To reconstitute the Board of Directors of the company in such a manner that the petitioners' rights as majority shareholders are restored. iv) The company's assets and moneys are not utilized for the personal benefit of the respondent Nos 2 to 5 or any of them. The cost and expenses of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of injunction restraining the respondent No.2 from acting as a director of the company. l) The Board of the respondent No.1 be suspended and reconstituted with independent Directors. 8. Respondents filed their reply to the company petition and after hearing the parties the Tribunal passed the following order: "From the record, it reveals that the petitioners are agitating the transactions which were made during the life time of Sujit Kumar Das (since deceased). The petitioners have also failed to prove any ingredient of Sections 397 and 398. No relief under either of the Sections can be granted. If the petitioners/party acquiesced the act of the other side/respondents as in the instant case and on perusal of the record, it is found that the petitioners obtained the certified copies sometime in 2005, when Sujit Kumar Das (now deceased) was alive but since then the petitioners never bothered to agitate any of the alleged act of Respondents. Hence on the count of delay and laches the petition so filed is not maintainable. Some of the shareholders' action fail owing to their own actions which are self-destructive and termed as "unclean hands doctrine" a corollary of the " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that succession cannot be kept in abeyance and the property of the deceased member vest in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of share under Section 109 of the Act. To do substantial justice between the parties, with a view to bringing an end to the matter complained off and to regulate the affairs of the company in future, I hereby direct the respondents to transfer the property in the form of shares left by deceased, Sujit Kumar Das in the company, apart from the shares admitted in the reply." Hence, the petition is hereby disposed of." 9. Being aggrieved by the impugned order dated 7th July, 2017 the appellants have preferred the present appeal stating that the impugned order is illegal and liable to be quashed on the grounds stated. Respondents filed their affidavit in reply to the company appeal and the appellants filed rejoinder to the same. 10. The appellants have stated that No notice for holding AGM or EOGM was served on the appellants relating to the increase of authorised share capital of 1st respondent from Rs. 5,00,000/- to Rs. 15,00,000/-. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and such agreement is no longer binding upon the appellants. It is also stated that the 2nd respondent has conveniently relied upon few of the letters issued by Late Sujit Kumar Das and suppressed the other letters issued by him (Para 2(c) Page 4 of rejoinder). 17. The 1st, 2nd and 3rd respondent have filed their reply. Respondents have stated that the authorised share capital of 1st respondent was Rs. 5 lacs but paid up capital being Rs. 2,28,200/- and no financial institution or bank was ready and willing to give credit facilities to 1st respondent, which was required by it for proper carrying on its business and development, therefore, it was decided to increase the authorised share capital and all notices were duly served and all the meetings were duly held and minutes of such meeting were duly recorded in the relevant minutes book. (Page 697 of Volume IV and Page 78-80 of reply). 18. The Respondents have stated that Notice dated 5.12.2003 was duly sent to the appellants for change of registered office of 1st respondent. The respondents have also attached the postal receipt No.5794 dated 5.12.2003 to prove that the notice was duly sent by registered post to the appellants ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent further argued that the allegation of the appellants is baseless. Learned counsel further argued that if the appellants are so worried about 1st respondent then they had should have offered to infuse the money in the company which they did not offer. We are of the opinion that the interest of the company is paramount. When the company is in need of funds, the steps to increase the capital cannot be termed as unreasonable. As the notices has been given to the appellant and the appellants has not expressed their inclination either to subscribe to the additional capital or even pleaded their willingness to acquire the proportionate shares, if offered, therefore we are satisfied that the action to increase the capital is justified. 24. Learned counsel for the appellants further argued that pursuant to the illegal increase in the authorised share capital of the 1st respondent, 12718 shares were illegally allotted and issued to the 2nd, 3rd and 4th respondent. In reply to this, learned counsel appearing on behalf of the respondents argued that a Meeting of the Board of Directors was called on 20.1.2014 (Page 4 of Additional Affidavit) for which Notice dated 5.1.2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account was duly signed by the appellant No.3 (Page 77 of reply, Annexure B-6 & Page 418-annexure R-9 of Vol.III). Learned counsel for the respondents further argued that the 2nd respondent was given exclusive power and authority to run the Tea Garden and Head Office in the Board Meeting held on 28th October, 2002 in which Sujit Kumar Das was also present. Learned counsel for the Respondents further argued that earlier the registered office was being run from the residence of Mr. Sujit Kumar Das and as he was bed ridden, therefore, it was decided to change the registered office and also the bank account at a convenient place. The appellants have already stated that Sujit Kumar Das suffered a cerebral attack on 11th May, 2002 and was fully incapacitated and bed ridden till his death on 21st December, 2007 and 2nd respondent was given exclusive power and authority to run the Tea Garden and Head Office at his sole discretion in Meeting dated 28th October, 2002 (Page 415 of Vol) in which Sujit Kumar Das was also present. Therefore, 2nd respondent was justified in shifting the registered office and bank account according to his convenience for smooth running of 1st respondent. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sum of Rs. 20000/- p.m. was paid by the 2nd respondent to the appellant out of the funds of the 1st respondent. The same were stopped only in the year 2008 which made the appellants suspect foul play. Learned counsel for the respondent argued that registered office of 1st respondent was at the residence of Sujit Kumar Das, in addition to Director's remuneration at the agreed rate of Rs. 12000/- p.m., a consolidated sum of Rs. 8000/- used to be paid to Sujit Kumar Das on account of rent, electricity and telephone charges totalling a sum of Rs. 20000/- p.m. The remuneration payable to Sujit Kumar Das was made payable during the life time of Sujit Kumar Das, who died on 21st December, 2007, till his removal from directorship. Learned counsel argued with the change of registered office, an amount of Rs. 8000/- which was being paid as rent etc was stopped. The remuneration of Rs. 12000/- on account of Director's remuneration was, however, continued to be paid, the arrears of which was, however, paid to 1st appellant after death of Sujit Kumar Dass. Learned counsel for the respondent argued that inspite of knowledge of the same the appellants have falsely contended and alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant point of time shall be treated as not transferred and the said shares shall be treated as standing in the name of First Party." It is noted that in the agreement it is stated that if Rs. 700001/- or any part amount has not been paid within the stipulated period then the shares in proportionate to the outstanding amount will be treated as not transferred. Since the 2nd respondent has not paid the remaining consideration amount of Rs. 700001/-, therefore, 2nd respondent is not entitled for 412 shares (941- 529 shares). Further, we find that the respondents have complied the orders dated 7.7.2017 of the Tribunal and have sent the shares certificate No.27, 28 and 29 in the name of Sujit Kumar Das to the appellants (Page 103-109 of reply) 29. After hearing the learned counsel for the parties we have come to the conclusion that the appellants have failed to establish the act of oppression and mismanagement. 30. In view of the aforegoing discussions, the conclusion drawn by the Tribunal are justified and reasonable. The appellant has failed to establish his case. The appeal is dismissed. The order dated 7th July, 2017 by the National Company Law Tribunal, Kolkata Bench, Kol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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