9911796707
TMI Blog2001 (9) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... t held 4,339 shares. Thus, the petitioner along with his nominee held 83.29% of the share-holding of the first respondent, whereas the second respondent namely, Heeralal Arora, held 16.71% of the equity share capital. The petitioner and second respondent were directors of the respondent company. Taking advantage of the absence of the petitioner who was a NRI settled at Bangkok, the second respondent, contrary to the provisions of the articles of association of the company and without notice, behind the back of the petitioner, allotted 20,000 shares of the face value of ₹ 10 each in favour of himself and his wife, Smt. Darshan Arora, and his son Sanjeev Kumar arora. Neither the wife nor the son was earlier a member of the company. Nor had their names been approved by the Board of directors. By the further issue of these shares, the majority share-holding of the petitioner has come down to 67.84%. Besides, the petitioner has been totally ousted from the management and control of the respondent company, and has been denied access to the company premises, account books and statutory records despite the fact that he was the Chairman of the Board of directors of the company. Misman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the respondents have challenged the maintainability of the petition on the ground that the same was barred by limitation. Further, it was alleged that the petitioner, in terms of MoU, having received the entire consideration towards the price of his total shareholding including the shareholding of his nominee, has no locus standi to file the petition. It has been further stated that the petitioner was not interested in the affairs of the respondent company and wanted to sell his shares and also desired the personal guarantees given by him to be discharged so that he could withdraw from the company. The respondents not only paid the amount as per the MoU for purchasing his shares, but have also borrowed money from various sources so that the petitioner could be discharged from the guarantees given by him to the Indian Overseas Bank. For the same purpose, the respondent company had to increase its authorised share capital from ₹ 25 lakhs, and the paid up share capital to ₹ 25,36,640 since the same was specifically called for by the Haryana Financial Corporation (HFC) from which loans were taken for payment to the bank. It is alleged that these facts were within the kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the shareholdings was received by the petitioner where such resolution was passed. All these transactions were done behind the back of the petitioner with the motive of defrauding the company and the petitioner who is the majority shareholder. It was further stated that the respondents have shifted the plant and machinery to a new factory from where it is carrying on the business without giving any information to the petitioner. 6. In the reply to this application, respondents have inter alia stated that the property was sold after taking approval from the Board of directors and complying with the provisions of the Act as the company which was running at a loss had to make payments to the bank and HFC. The sale consideration received from the sale of the land, plant and machinery has been reflected in the books of accounts and has been paid in discharge of liability towards HFC and the Indian Overseas Bank. It was denied that the plaint and machinery has been shifted to any new premises which was acquired for the said purpose. It has been further stated that the plant and machinery had become junk and had been disposed of locally. 7. We have heard the learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the assets of the company was concerned, the same was, as per the resolution passed by the Board of directors, notice for which meetings and all earlier meetings were duly sent to the petitioner at his recorded address, but not being interested, the petitioner had not attended the same despite knowledge, nor raised any objection prior to the filing of the present petition. 9. We have carefully considered the respective submissions made by the parties. As regards the question of limitation raised by the respondents for the delay in filing the petition, we are of the view that the same is not legally tenable atleast in the facts of the present case. It is noticed that the respondent company was a closely held private limited company where the parties were related. Some differences having arise, the petitioner and the second respondent who were the main shareholders had entered into a memorandum of understanding (MoU) dated 2.4.1991. It was agreed that the petitioner shall transfer his entire shareholding to the second respondent on receiving a consideration of ₹ 51,50,000 to be paid in five yearly instalments. It is admitted by the petitioner in paragraph 6 of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner's name to be continued in the register of members of the respondent company. We, therefore, do not find any merit in this submission either. 11. On behalf of the petitioner, one of the main grounds raised alleging oppression is on account of the fact that additional shares were allotted to the second respondent as well as his wife and son behind the back of the petitioner, without notice to him and without any resolution being passed to that effect by the Board of directors. According to the petitioners, these allotments were made sometime in the year 1988. In the reply to the petition filed by the respondents, they have annexed as annexure R-1 copy of the minutes of a meeting of the Board of directors held on 21.5.1991 which was chaired by the petitioner. The minutes of the said meeting discloses that it was unanimously resolved to appoint Mr. Sanjeev Arora and Mrs. Darshan Arora (son and wife of the second respondent) as directors of the company and the second respondent was authorised to file the necessary papers in regard thereof with the Registrar of Companies. The petitioner in his rejoinder affidavit has not disputed the authenticity of these minutes. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the basic rights of a shareholder. Though the respondents have denied the said allegation, they have not filed any documents like postal receipts, dispatch registers, etc., to show that notices of the Board meetings and the general meetings were being duly sent to the petitioner even after 2.4.1991 or that he had attended any meetings after 25.5.1991. Only in the reply filed to the application CA 116 of 2000 by which the petitioner was seeking some interim order that the respondents have filed photostat copies of UPCs showing that notices pertaining to the Board meetings dated 14.10.1996, 31.10.1996 and 5.11.1996 were sent to the petitioner. The said certificates show that they were addressed to the petitioner at an address at New Delhi. The fact that the petitioner was residing at Bangkok was not seriously disputed. As a matter of fact, the petitioner has filed copies of letters and fax messages from the second respondent to the petitioner addressed to him at Bangkok. Under the circumstances there appears to be substance in the contention of the petitioner that the said notices assuming that they were sent, were deliberately sent at an address of the petitioner at Delhi knowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land, plant, and machinery of the respondent company have been sold, and as evident from the balance sheet that the payments have been made to discharge the liabilities of the company, it will serve no useful purpose in passing any orders in terms of Section 402 of the Act. That apart, it cannot be lost sight of that as against the claim of the respondents that they had paid full amount as per the MoU; on his own admission, the petitioner has received a sum of ₹ 23,43,750 from the respondents as part consideration for transfer of shares as per the MoU, when the investment of the petitioner in shares of the respondent company was about ₹ 9,88,240 only. As a matter of fact, we had also put to the company as it stood at present by buying out the shares of the second respondents group, but the petitioner was not prepared for the same, obviously, because there was nothing left in the respondent company. 15. In view of the above position, we are not inclined to exercise our equitable jurisdiction and to grant any of the prayers sought by the petitioner. However, as the respondent company has not been dissolved or wound up, therefore, we direct the respondents to send all n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
