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TMI Blog2018 (9) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... the attendance of petitioner in the said meetings as well as the share transfer form together with share certificate along with the reply which had been filed by the respondents. Non-production of required documents - HELD THAT:- A statement is made that all the papers in relation to the first respondent-company including minute books and the Registrar of Companies documents have been lost and in the circumstances no record in relation to the first respondent-company is able to be produced. We are not very much convinced with this explanation given by respondent No. 3 for not providing evidence in relation to the share allotment and share transfer and that the above statement will not absolve respondent No. 3 from producing any shred of evidence in relation to the share transfer of the holding of the petitioner to himself as well as in relation to allotment of shares to respondents Nos. 2 and 4 which acts prima facie has made the petitioner to fall below the threshold limit of 10 per cent. as well as to make him as a non-member, if the acts of the respondents can be sustained of the first respondent-company. In the absence of any proof, the petitioner cannot be shut out under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the petitioner as stated earlier of 2,500 shares, to the account of the second respondent being the father 5,000 shares and to the account of respondent No. 3, being the brother of the petitioner 2,500 shares. Thus, in all the subscribed and paid-up capital was to the extent of 10,000 equity shares. 3. In the application, it is further stated that in relation to the other family owned companies to which a list has been given at page 4 of the application that petitions in relation to acts of oppression and mismanagement are pending and that one of the said petitions has been listed before this Bench of the Tribunal and as well as other Benches situated in New Delhi and in relation to one of the petitions, the same is pending before the National Company Law Tribunal, Allahabad Bench. The petitioner also alleges that even though he is a part of the board and also a member of the first respondent-company however without his knowledge, the third respondent has managed to increase the shareholding strength of respondent No. 2 from 5,000 shares to 4,20,000 shares and has also issued fresh shares of 3,40,000 Nos. to the mother of the petitioner arrayed as respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to consider the application for waiver. 5. It is further contended in the reply of respondent No. 3 that the transfer of shareholding of the petitioner took place in the year 2014 itself and the petitioner being part of the Board since incorporation was well aware of the share transfer and that after a period of 4 years, the petitioner/applicant cannot contend that his hare holding strength has been reduced by way of transfer. It is also contended in the reply that the allotments made to respondents Nos. 2 and 4 being their parents and the increase being sub- stantially in any case, the shareholding strength of the petitioner came down to 0.33 per cent. and that the transfer of shares only took place sub- sequently of the petitioner and in any case is inconsequential. Thus taking into consideration the facts as well the position of law and also in view of alternative remedy available taking into consideration section 58/59 of the Companies Act, 2013, seeking for waiver under section 244 of the Companies Act, 2013 it is contended is not maintainable and thus taking into consideration the contention of the reply, the respondents have stated that the application i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prima facie defeat the claim of the petitioner that he is not a member in the company, the respondents in order to convince this Tribunal, apart from merely stating in the reply that the petitioner is not a member, should have produced minutes of the board meeting wherein the allotment and/or transfer had taken place, the attendance register evidencing the attendance of petitioner in the said meetings as well as the share transfer form together with share certificate along with the reply which had been filed by the respondents. However from a perusal of the reply and documents filed along with the reply it is seen that a contention has been taken by the respondents at paragraph No. 4 of the reply, which is to the following effect : ..Each and every board meeting of the company has been duly notified to all the stake holders and each and every act regarding the affairs of the company has been done with the consent and in the presence of the petitioner. Moreover since the shareholding has been increased in favour of respondent numbers 2 and 4 who are the par ents of the petitioner as well as the respondent ; number 3, there was absolutely no objection to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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