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TMI Blog2018 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kumar Mundhra is brother of appellant who is managing the Respondent No.1 Company, M/s Spell Organics Ltd. The company petition referred to an earlier Memorandum of Understanding and as to how the family members divided their business, assets and liabilities and how 87010 shares came to the appellant. The shares were reflected in the Annual Returns dated 31st August, 2005 and thereafter. The appellant stated in the company petition that the shares were handed over to him and were in his possession. It is stated that in or around April, 2015 the appellant learnt that original share certificate in respect of 87010 shares of the appellant were lost and/or were untraceable. He recorded a General Diary dated April 20, 2015 with the Shakespeare Sarani, Police Station, Kolkata (Page 101 Annexure-5). Simultaneously he wrote a letter to the Respondent No.1 company (Page 102) on 20.4.2015 informing that the shares certificates under Folio No.S-026 have been lost and were untraceable and made a request for duplicate shares certificate. It is the case that as the company neglected to issue duplicate shares he wrote a letter dated 4th August, 2015 to Respondent No.3, Registrar of Companies, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Share Certificates of 87010 shares of M/s Spell Organics Ltd whose present value would be more than Rs. 1.5 crores." 4. According to the appellant, Respondents failed and neglected to hand over or deliver the original share certificate Folio No.S026 to him. Thus the petition was filed claiming directions to the Respondent No.1 to deliver original share certificates to the petitioner/appellant. 5. Respondent No.1 and 2 appeared before NCLT and claimed that the petitioner is a director in Apsom Turner Pvt Ltd and his wife in 2008 acquired 88.19% equity. The said company obtained loan from Celica Developers Pvt Ltd, and a Corporate Guarantee to secure loan was furnished by the Respondent No.1, and in lieu of the Corporate Guarantee the appellant deposited as security with the Respondent No.1, his share certificates. The appellant had made false complaint to the Police that the shares have been lost and made false claim to ROC as well as the subsequent complaint of theft to Police were all false. The respondents pointed out to the NCLT in their reply that appellant had concealed filing of Civil Suit No. 109/2013 which was filed in the High Court of Calcutta to declare 1/3rd share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents have pointed out the plaint of suit filed by them to recover the Rs. 1.2 crores which they were required to pay under circumstances. 7. The matter was heard by NCLT and by the impugned order NCLT took note of the admitted facts regarding relationship of the parties and that the appellant has held 87010 shares in Respondent No.1 company were not in dispute. The NCLT took note of the fact that the shares had been issued to the petitioner and there is no dispute that he was in possession of the same after the company issued the same. The fact that the appellant was director and his wife had 89.19% (or 88.19%) equity in Apsom Turner Pvt Ltd is not in dispute. It was noticed that the Apsom Turner Pvt Ltd availed loan from Celica Developer Pvt Ltd was also not in dispute. Similarly it was not in dispute that arbitration proceedings took place and the Respondent No.1 and 2 who had given corporate guarantee as well as personal guarantee have paid Rs. 1.2 crores. The NCLT taking note of all these factors observed in para 9 and 10 as under: "9. The point involved in the present petition is short. There is no denial by the petitioner that the respondent No.1 company had offere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant continues to be reflected in the company record as shareholders of these shares. Learned counsel for the appellant relied on the report filed to police on 1.12.2015 where theft has been alleged against Respondent No.2. It is claimed that the appellant has not executed transfer form and the Respondents will not be able to use the shares held by them. It is stated that in the Returns of 2016, after the dispute was raised by appellant, the Respondent have shown encumbrance of pledge in the record. 10. Learned counsel for the Respondent has in arguments reiterated the stand of the respondent taken before NCLT and is supporting the reasoning of the NCLT to add that the appeal deserves to be rejected. 11. Sub-sections (1) and (2) of Section 46 are relevant for decision of the present matter. Sub-section (1) and (2) of Section 46 reads as under: "46. Certificate of Shares- (1) A certificate, issued under the common seal, if any, of the company or signed by two directors or by a director and the Company Secretary, wherever the company has appointed a Company Secretary, specifying the shares held by any person, shall be prima facie evidence of the title of the person to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order that the prayer of the petitioner where he seeks orders to the company to deliver the original share certificates was beyond the scope of Section 46 or Section 56 of the Companies Act, 2013. 15. Vide Diary No.6439 the respondents have filed a copy of the Plaint of Suit CS(OS) No.3169 of 2015 filed by the Respondent No.1 against Apsom Turner Pvt Ltd and the appellant and his wife and others to recover Rs. 1.2 crores. The pleadings give details which have been put up by the respondents in the Civil Court on the Original Civil Jurisdiction of the High Court. In para 23 of the Suit, the respondents have pleaded as under: "That the Plaintiff company is having its registered office at New Delhi, the original shares were handed over by defendant No.2 to the plaintiff for furnishing the Corporate Guarantee in Delhi, the amount of Rs. 1.2 crores was paid by the plaintiff company to M/s Celica Developers Pvt from the plaintiff's accounts maintained at Delhi, and the defendants are liable to reimburse the same at Delhi, the legal notice was also sent from Delhi, thus cause of action arose at New Delhi, therefore, this Hon'ble Court has pecuniary and territorial jurisdiction to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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