9911796707
TMI Blog2018 (12) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... duty bound to send notice of every meeting to the shareholder, therefore, the appellant had a right to receive notice of each and every meeting while she was reflected as shareholder in the company records. Admittedly at last till 2013 even as per Respondents, Appellant was shareholder till 2013, but even till then No notice sent is shown. As established that the shares in the name of appellant have been transferred in the name of 3rd respondent, therefore, the impugned order dated 14.11.2017 passed by the NCLT, Ahmedabad is set aside and the appellant is found to be rightful holder of 200 shares and the shares transferred in the name of 3rd respondent are held illegal. Further we direct the 1st respondent to rectify the register so as to restore the appellant as holder of 200 shares in the 1st respondent company. We set aside the impugned order dated 14.11.2017 of the Tribunal and hold that the appellant is rightful holder of 200 shares. As we hold that the appellant is holder of 200 shares (20% of the capital at that time), it is in the fitness of things that the Tribunal decides the other issues raised for which in Impugned Order Points 6 to 8 were framed, on merits. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request of the appellant. Then the appellant filed a complaint on 12.01.2016 with ROC, Madhya Pradesh recording her objection regarding non-receipt of shares and the apprehension about the disposing the part of the assets held by the company. The ROC vide letter dated 4.2.2016 forwarded the complaint to 1st respondent with direction to resolve the grievance of the appellant. 4. That thereafter the appellant prior to 10.2.2016 came to know from 1st Respondent s ROC record that her 200 shares of 1st respondent were illegally and surreptitiously transferred in the name of 3rd respondent as on 15.3.2013. It is stated that a Board Meeting dated 27.8.2015 of 1st respondent was convened and it was decided to increase the authorised capital of 1st respondent from ₹ 1,00,000/- (1000 shares of ₹ 100/- each) to ₹ 10,00,000/- (10000 shares of ₹ 100/- each). In order to reduce the percentage of shareholding of the appellant, 1st respondent had allotted 9000 shares of ₹ 100/- each in the name of 6th respondent for a sum of ₹ 18,45,500/- The appellant wrote a letter dated 19.7.2016 and intimated ROC that as per the annual returns of 1st respondent, inspecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has preferred the present appeal. Learned counsel for the appellant stated that the Tribunal did not consider that the transfer of shares in year 2013 i.e. on 30.9.2013 is in contravention of Section 36 and 108 of the Companies Act, 1956 and/or Section 56 of the Companies Act, 2013 and is against the Articles 19 and 22 of the Articles of Association of 1st respondent. 8. Learned counsel for the appellant further submitted that the Tribunal erred in calculating the limitation period for filing the Company Petition under Section 59 of the Companies Act, 2013 and holding that there were severe laches and delay on part of the appellant. Learned counsel for the appellant submitted that the Tribunal failed to appreciate that the appellant came to know regarding the illegal transfer of 200 shares only after 10.2.2016 and the Company Petition is filed on 24.11.2016, therefore, the company petition is filed within three years limitation. 9. Learned counsel for the appellant further submitted that the Tribunal failed to appreciate that assuming whilst denying that the shares were indeed transferred even then the MOU was executed between the appellant and 2nd respondent and the shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of knowledge and not from the date of the uploading of the documents by 1st respondent. 16. Learned counsel for the appellant submitted that the MOU was neither made a part of the joint application nor was taken into consideration by the District Judge, Indore while granting the decree of divorce. In fact, the decree of divorce granted only on the basis of the terms and conditions set out in the joint application seeking a decree of divorce of consent. The Tribunal erred in holding that the decree of divorce was granted on the basis of MOU. 17. Learned counsel for the appellant submitted that the Respondents have not given any valid explanation as to why the shares of the appellant were only transferred in 2013 and that too in the name of 3rd respondent who was not a party to the MOU. 18. Learned counsel for the appellant submitted that the appellant never signed any transfer deed and, therefore, she would have no occasion to suspect that her entire shareholding in 1st respondent would be illegally, surreptitiously and clandestinely transferred behind her back. 19. Learned counsel for the appellant submitted that the respondents have intentionally not produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice or other correspondences for more than 15 years from the date of divorce, i.e. 12.01.2001 which ultimately resulting into filing of the petition being Company Petition No.16/2016 before the NCLT, Ahmedabad. 23. Learned counsel for the respondents submitted that the petition is barred by limitation. An application for rectification of register by virtue of Section 433 of the Companies Act, 2013 which makes the Limitation Act, 1963 application to the proceedings under the Act has to be filed at least within three years from the date of registration of the transfer. Learned counsel for the respondents submitted that the information concerning the transfer was in public domain admittedly from 22.10.2013 which should be treated as the date of knowledge of transfer. Learned counsel for respondents further submitted that it is a settled legal position that any party should be deemed to be in knowledge of information which is in public domain or which such party could have discovered by due diligence. Learned counsel for the respondents further submitted that the NCLT has rightly dismissed the petition on account of delay and latches as the appellant for more than 15 years, chose n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Tribunal erred in holding that the period of limitation shall commence from the date when the documents were uploaded on the website of the ROC i.e. 22.10.2013 and the appellant came to know regarding the illegal transfer of 200 shares only after 10.2.2016 and the Company Petition is filed on 24.11.2016 and the petition is filed well within three years Limitation. Learned counsel for the appellant placed reliance on the judgement titled Therm Flow Engeers Vs Bhavesh Narumalani CA (AT) No.159 of 2017, Nirakar Dash Ors Vs Durgapur Bio Garden Private Ltd Ors , Company Appeal (AT) No.208 of 2017; South Asia Human Documentation Centre Pvt Ltd Ors Vs Suhas Chakma Anr CA No.51of 2017 and Smt Nuper Mitra and another Vs Basubani Private Ltd and Others. 29. Learned Counsel appearing on behalf of the Respondents argued that the jurisdiction of the NCLT under Section 59 of the Companies Act, 2013 is summary in nature and cannot and does not involve adjudication of the parties civil rights and/or any other disputed questions of fact. Learned counsel for the respondents further argued that the petition is barred by limitation. Learned counsel for the respondent furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted upon. The Tribunal should have observed this also while dismissing the petition. The Tribunal also held that no application for condonation () ./ of delay has been filed but the same has been argued during the course of arguments. When the appellant has argued for delay in filing the petition and gave sufficient ground that the appellant had approached ROC and 1st respondent then the Tribunal should not have dismissed the petition on technical grounds but should have decided the petition on merits. 31. We also observe that the said shares have been transferred in favour of 3rd respondent and no transfer deed carrying the signature of the appellant has been produced before the NCLT and also before this Appellate Tribunal. Further it has been argued before this Tribunal that the shares have been transferred under Section 56(1) of the Companies Act, 2013. We further observe that the counsel for the respondent has argued that this is a company promoted by Agal Family and 2nd to 6th respondents are family members which means that they have full control on 1st respondent. This position would require fairness is writ large in their action but these respondents have jointly manipul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur view this document has no finality and validity. 33. Learned counsel for the Respondent during the arguments stated that the appellant did not participate in the meetings of 1st respondent and have no right to claim shares certificates. On this issue, we are of the opinion that to participate/attend the meeting of a company is the prerogative of the shareholder. However, the company (here 1st respondent) is duty bound to send notice of every () ./ meeting to the shareholder, therefore, the appellant had a right to receive notice of each and every meeting while she was reflected as shareholder in the company records. Admittedly at last till 2013 even as per Respondents, Appellant was shareholder till 2013, but even till then No notice sent is shown. 34. We further observe that the appellant in his appeal has stated that the respondents have illegally convened a Board Meeting and decided to increase the authorised capital of 1st respondent from ₹ 1,00,000/- (1000 shares of ₹ 100/- each) to ₹ 10,00,000/- (10,000 shares of ₹ 100/- each) and also passed a resolution for increasing the authorized capital of 1st respondent. The appellant has prayed for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
