9911796707
TMI Blog2019 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... did not find favour with the NCLT. There is no substance in the appeal - appeal dismissed. - Company Appeal (AT) No. 256 of 2017 - - - Dated:- 9-7-2019 - A.I.S. Cheema, J. (Member (J)) and Balvinder Singh, Member (T) For Appellant/Petitioner/Plaintiff: Shaijan C. George, Advocate For Respondents/Defendant: Krishnendu Datta, Prachi Johri, Prachi Wazalwar, Anandh K., Heeena Uichare, Disha Shah and Shruti Iyer, Advocates JUDGMENT 1. The appellant-original petitioner filed Company Petition No. 36/2014 on 15.5.2014 before the Company Law Board, now National Company Law Tribunal (NCLT in short), Mumbai Bench, Mumbai, against the respondents claiming oppression and mismanagement. During the pendency of the company petition, the respondents filed Company Petition No. 1/2016 against the appellant (hereinafter referred to as 'Petitioner') and both the company petitions came to be disposed of by NCLT by the impugned order dated 6th February, 2017. NCLT found the Company Petition filed by the appellant to be not sustainable and the allegations of oppression and mismanagement made were found to be not proved. NCLT held the other Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Secondly annual returns for the financial year 2011-12 and 2012-13 were not filed; c) Thirdly registered office of the company was transferred by the company to the personal name of Respondent No. 2 in the financial year 2007-2008. According to appellant in that year Respondent No. 2 asked him to sign a document to replace/substitute office premises which was given as security for the purpose of enlistment with MES. The office premises was substituted by land of the company at Dighodea. The appellant claims that he did not realise that the office premises was being transferred to Respondent No. 2; d) Fourthly, after fraudulently transferring the property of the company Respondent No. 2 started collecting rent from the company for the premises on pretext that it was rented out to the company. There were not Board Resolutions for such actions; e) Fifthly, from the registered office of the company four partnership firms namely (i) UBC Balaji Port Cane Works (ii) Omni Infrastructure Services (iii) Unibuild Engineers and (iv) Hepta Enterprises are functioning in which other than the appellant the other Directors have interest and the company is bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 5. The Respondent filed reply in the NCLT and after the pleadings were completed NCLT heard both the parties and after referring to the pleadings and arguments the findings were recorded in para 5 to 6.4. NCLT heard both the sides and dismissed the company petition of the appellant as mentioned earlier. 6. We have heard counsel for both sides. At the time of arguments the learned counsel for the appellant submitted that the appellant was director since inception having 24% shareholding. It is argued that Respondent No. 4, Parmod, son of Respondent No. 2 was inducted as director although he held no share in the company. The counsel referred to compilation of documents filed by the appellant after filing of the appeal. The compilation is Diary No. 8649. This was filed after it was realised at the time of arguments on 27.11.2018 that both the sides had not filed copies of document on which they wanted to rely and which were part of the NCLT record. We may mention here that although the appellant made various allegations, the appeal memo did not link the allegations to any annexures so as to make the appeal clear. As such the allegations made in the appeal are gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e executed by Respondent No. 2 who had jointly acquired land alongwith one Mrs. Hema A. Chainani through tripartite agreement from City Industrial Development Corporation of Maharashtra Ltd. having Plot No. G-36 at Belapur, Navi Mumbai which building was constructed and shared with Mrs. Hema A. Chainani. It is stated that by the Agreement Respondent No. 2 decided to transfer, sell his share in the building to the company for ₹ 17,50,000/- and entered into the agreement. Referring to this document it has been argued that actually it was sale and such property came into possession of the company but later on Respondent No. 2 himself executed another Deed of Cancellation of agreement as MD of the company and the agreement was cancelled. The document is at Page 361 (Diary No. 8649). It is argued that the respondents committed such acts on their own without consent of the appellant. The argument is that the deed of cancellation shows that there was passing of consideration when the agreement was entered into and such consideration was then showed as returned in the Deed of Cancellation. Both the Documents are signed by Respondent No. 2 alone in dual capacities. It is argued that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the above chart on the extreme right by hand page numbers as before NCLAT have been added as in appeal, Convenience Compilation. Learned counsel for the respondents has made his submissions and arguments based on the explanations as given above. The particulars given as Event are defence and explanation of Respondents supported by Documents. According to the learned counsel for the Respondents after the explanation to the allegations as made by Appellant in NCLT, the list shows summary of the anti company activities of the petitioner-appellant which were pointed out to the Learned NCLT and cognisance of which was taken by the NCLT so as to reject the claims being made by the appellant. 10. We have heard counsel for both sides and perused the record. It has been argued by Learned Counsel for the appellant that the document dated 9th June, 2005 was actually a Sale Deed which was titled as Agreement to Sale and the properties concerned were of the Company but subsequently the Respondents executed Deed of Cancellation of Agreement dated 19th June, 2008 without Board Resolution and appellant was kept in the dark with regard to such Cancellation of Agreement. At the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the letter is at Page 37 of convenience compilation of respondents. This is dated 1st April, 2009. It enclosed new affidavit incorporating the particulars of movable and immovable property belonging to the Company. The affidavit dated 26th March, 2009 which is also signed by the appellant shows that the appellant and Respondent No. 2 and 3 by this notarised affidavit stated details as to the movable and immovable properties of the company. One list is of movable properties. The other list is of immovable properties which now included only reference to the property at Dighode. We find substance in the argument of Learned Counsel for Respondents that these documents as well as Balance Sheet for period ending 31st March, 2012, copies of which have been filed at Page 38 to 42 with the convenience compilation and which also bear signatures of the appellant did not show the property of G-36, Belapur, Navi Mumbai as the property of the Company and the appellant was aware of it and true purpose why the Agreement to Sale and Cancellation Deed were executed. As in the affidavit of 26th March, 2009 itself the property G-36, Belapur, Navi Mumbai was not included and the appellant never raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had various floors and portions, without Appellant clearly spelling out which portions, floors of the building were in possession of the company, it appears difficult to consider this allegation of the appellant. The respondents in their compilation while dealing with the Explanation of Allegation No. 6 in NCLT, on this count brought on record Service Tax, registrations of the four companies and added that the Respondent No. 1 company was operating from 2nd floor of G-36, Belapur and the four partnerships referred were in other portions. It appears to us that the appellant failed to clearly bring on record the details to show that unconnected partnerships were operating from the premises in possession of the company. There have to be documents more than, service tax registration to show that other partnership firms were actually operating from premises of the company. Referring to merely G-36 by the appellant cannot be said to be sufficient. 13. The other allegation of the appellant is that the Respondent No. 2 had personal bungalow at Kharghar and for that bungalow material and labour at the cost of Respondent No. 1 company was used. We have referred supra to a documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Explanation of Allegation No. 7(A) of the Convenience Compilation. It is argued that regarding the bungalow of Respondent No. 2 at Kharghar it was already completed in 2013 and there is also occupation certificate. The Learned Counsel for the Respondents took us through the documents and pleadings in this regard with the Explanation of Allegation No. 7(A) referred in the compilation of the respondents which was filed before NCLT. 14. Even regarding Allegation of Company resources being used for renovation of property at Kochi belonging to Ms. Anita Pillai, wife of Respondent No. 2, the Respondents have shown documents with the Explanation of Allegation 7(B) which indicate that the company was using that premises for use of the company. It appears that part of the property was converted into office of the company for holding meetings. The address of the bungalow was recorded in Vat Registration form and MES authorities also made correspondence on that address. 15. Then there is allegation of the appellant that the Respondent Company which had itself taken loans from the Banks gave loan of ₹ 24 lakhs to Uni Build Engineers which was related company of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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