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TMI Blog2019 (8) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... pital holding in the firm was different than the one reflected in the books and that there was a basis for allotment of share in Respondent No.1 proportionate to the profit sharing ratio of the partner in the firm. Appellant does not appear to have questioned the allotment of 100 shares to him for about two and a half years. This is apart from the fact that the Appellant holding only 0.009% shareholding and being the only aggrieved member out of 12 was ineligible to file petition under Section 241 of the Companies Act, 2013. Admittedly, no waiver has been sought and obtained from the Tribunal for filing the petition. In these circumstances, the Appellant cannot be heard to say that the acts complained of constituted oppression and any prejudice was caused to him. The impugned order is a reasoned one and does not suffer from any legal infirmity - appeal dismissed. - Company Appeal (AT) No. 331 of 2018 - - - Dated:- 3-7-2019 - BANSI LAL BHAT J. (Judicial Member) and BALVINDER SINGH Technical Member For Appellant : Mr. Mithun Shashank and Mr. M. V. Mukunda, Advocates. For Respondents : Mr. P. Nagesh and Mr. Dhruv Gupta, Advocates JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sri Vijaya Gayathri Cold Storage Pvt. Ltd. , whose objects were similar and identical with the objects of Sri Gayathri Cold Storages . The assets of the firm were taken over by the Respondent No. 1 Company in terms of resolution dated 24th November, 2014 allegedly passed by Respondent No. 2 to 5 with fraudulent intention. The Appellant claims to have no knowledge about the resolution, nor was a party to the meeting and did not sign the resolution. He further alleged that at the time of takeover the firm was valued at ₹ 1.10 Crore. FIR No.353 of 2017 alleging commission of offence under Section 420 and 465 of IPC came to be registered at Nandigama Police Station, Krishna District in Andhra Pradesh at the instance of Appellant. A takeover agreement dated 26th December, 2014 was entered into between the firm and Respondent No.1 in terms whereof the firm was dissolved and merged into Respondent No.1. Respondent No. 1 allotted 11,00,000 shares to all partners of the erstwhile firm. According to Appellant the allotment of shares was not proportionate to the holding of shares in the partnership firm which is demonstrated as under:- Partner in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 1 Company. Thus the sole grievance of the Appellant requiring consideration is whether the Appellant is entitled to allotment of 23% shareholding in Respondent No. 1 Company as admittedly in the Partnership Deed dated 25th July, 2007 profit sharing ratio of Appellant in the dissolved firm was 23%. The issue for consideration is whether profit sharing ratio can be the basis for allotment of shares in the transferee company viz. Respondent No. 1. 4. The Takeover Agreement dated 26th December, 2014 admittedly executed inter-se the firm and Respondent No. 1 Company reflects the names of the partners of the erstwhile firm with their profit/ loss sharing ratio as well as capital balance as under:- Sl. No. Partner Address Profit/loss Sharing Ratio Capital Balance as on 10.12.2014 (Amt. in Rs.) 1. N Subadhra 6-29, Raithupeta, Nandigama 0.27 58,66.860 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy that the Takeover Agreement stipulated its main object behind takeover for developing the business of the transferor firm drawing the business of transferor firm under the umbrella of a private limited company. As per Terms of Agreement book value of ₹ 10 each i.e. 11,00,000 equity shares were to be allotted to the partners of the firm in proportion to their capital balance in the firm. Since, the Appellant held only 0.01% of the capital ratio he was allotted only 100 shares in Respondent No. 1 Company. Ex-facie this allocation of shares is based on the capital balance ratio as stipulated in the Takeover Agreement. It is indisputable that the capital ratio is the basis for the allocation of the equity shares in the Respondent No. 1 Company. According to Appellant there is nothing on record to show the Appellant had contributed only 0.01% of the capital to the firm. This is countered by the Respondents, who bank upon the admission of Appellant in this regard. It has already been noticed that the Appellant has not assailed the Takeover Agreement. Therefore, he cannot be heard to say that he is relying upon the Takeover Agreement only to the extent of it being a proof of a ..... 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Provided that- (a) all the assets and liabilities of the firm or of the association of persons or body of individuals relating to the business immediately before the succession become the assets and liabilities of the company; (b) all the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of the succession; (c) the partners of the firm do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of allotment of shares in the company; and (d) the aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their shareholding continues to be as such for a period of five years from the date of the succession; (e) the demutualisation or corporatisation of a recognised stock exchange in India is carried out in accordance with a scheme for demutualisation or corporatisation which is approved by the Securities and Exchange Board of India established u ..... 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