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TMI Blog2018 (9) TMI 1966X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Jayant K. Mehta, Ms Pratiksha Sharma, Mr. Ankit Acharya, Mr. Sajat Jain, Advocates For the Respondent : Mr Ratnako Banerjee, Senior advocate, Mr. Shaunak Mitra, Mr. Kunal Godhwani, Advocates and Mr. Manoj Bhantia, CS. JUDGEMENT BALVINDER SINGH, MEMBER (TECHNICAL) 1. These three appeals arise out of impugned Judgement and Order dated 12.7.2017 passed in Company Petition No.49/2016 filed by the Appellants Original Petitioners, under Section 421 of the Companies Act, 2013. 2. The brief facts of the case (Company Appeal (AT) No.274/2017) are that the Goldstar Enclave Pvt Ltd (hereinafter referred to as the Company ) was incorporated on 27th May, 2011 and the original petitioners were promoters and original subscribers to the Memorandum and Articles of Association of the Company. The Company was incorporated to take advantage of a valuable business opportunity of promoting and making construction at Premises No.7E, Nellie Sengupta Sarani at which the well known Globe Cinema Hall in Kolkata was located. The 1st and 2nd appellant put in money into the 1st respondent as share application money and also arranged for funds through companies and entities in the 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty shares of ₹ 10/- each were issued and allotted in favour of the Appellants Nos.1 and 2. Due to allotment of these shares the shareholding the appellants in the company came to be 67.49% and the relevant Form 2 for such allotment was filed with the Registrar of Companies on 5th April, 2013 and was duly certified by the 2nd Respondent himself. The appellants state that the only business of the company was and is dealing with the constructed areas at the Globe premises, 50% of which belong to the company. It is stated that several shops at the said premises were sold to third parties jointly by the company and Dhansri in view of their equal joint share in the same. It is stated that the appellants, original petitioners, and Dhansri (represented by 2nd respondent and one Nitin Jain) signed an allocation sheet for division of the entire premises between Dhansri and the company in February, 2014. It is stated that accordingly large part of Dhansri s share of and in the Globe premises was transferred for valuable consideration in favour of the company in February, 2014 and as a result the appellants came to hold 70% shares approximately in the said premises. 5. It is stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l acts. The appellants state that there was no reason whatsoever for the appellants to suddenly give up their valuable shareholding in the company in favour of complete strangers and outsiders and to resign as directors. The appellants state that in these circumstances the appellants filed Company Petition No.49 of 2016 before the Tribunal under Section 397 and 398 of the Companies Act, 1956 complaining of the aforesaid acts of oppression and mismanagement and seeking appropriate reliefs. Reply were duly filed by the respondents and the rejoinder was filed by the original petitioners. 7. After hearing the parties, the NCLT vide impugned order dated 12th July, 2017 held as follows: i) The cancellation of 9,90,000 shares is held to be invalid and, therefore, the Petitioner s shareholding remains as it was on 15th March, 2013. ii) The transfers of shares of the Appellant Nos 2 and 3 held in the Company were upheld. iii) The removal of the Appellant No.1 as director was held to be null and void and the Respondents were directed to reinstate him as a director of the company. iv) The resignation of P2 and P3 was held to be invalid. v) The alleged appointment of the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents filed the appeal being Company Appeal (AT) No.281/2017 the appellants have sought the following relief: i) Set aside that part of the impugned order dated 12.07.2017 passed by the Hon ble National Company Law Tribunal, Kolkata Bench in C.P. No.49 of 2016 titled as Devinder Singh Shant Ors Vs Goldstar Enclave Pvt Ltd Ors whereby cancellation of 9,90,000 shares is held to be invalid and consequential effect on respondent s shareholding as held vide the said order; ii) Set aside the direction of the impugned order to reinstate Respondent No.1 in the Board of Directors in the Company and set aside that part of the impugned order where resignation of Respondent No.2 and 3 has been held to be invalid. iii) Set aside that part of the impugned order where appointment of the appellant No.1 Deepak Daga, Appellant No.2-Kanak Mal Banthia and appellant No.3 Deepak Kumar Rathi to the Board of Director has been set aside; iv) Set aside that part of the impugned order which directs appointment of Directors subject to the condition that both parties will have proportionate representation in the Board and Management of the appellant. v) Rule Nisi in terms of prayers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity shareholders and the only directors. The appellants further argued that by a deed of conveyance dated 9.7.2011, 1st respondent and another company i.e. Dhansri Abasan Pvt Ltd each acquired 50% undivided share of and in the Globe Cinema Hall premises with the objective to constructing a shopping centre-cum-multiplex. The appellants further argued that 6,65,000 shares of Goldstar held by appellants Nos.2 and 3 have been illegally transferred in favour of 33rd respondent (a company controlled by 2nd respondent). The appellants further contended that the registered office of the company has been illegally shifted. The appellants further argued that the shares of 6th to 32rd Respondent has been illegally transferred to 34th to 37th respondent. The appellants further argued that 33rd respondent did not hold any shares in the Goldsar prior to the alleged transfer and there is a restriction in Article 8(1) for transfer of shares to a non-member unless unanimously approved by the Board of Directors. The appellants argued that they were the only directors at that time and they deny any such transfer. The appellants further argued that as no unanimous approval has been shown, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent submitted that the on 10.6.2013, 2nd appellant and 3rd appellant sold 4,30,000 shares and 2,35,000 shares respectively to 33rd respondent for a total consideration of ₹ 68,50,000/-(Rupees sixty eight lakhs fifty thousand only and ₹ 4500000/- (Rupees Forty five lakhs only) respectively. It is next submitted that pursuant to the said transactions the entire secretarial compliance with respect to transfer of shares were duly carried out by the 1st respondent. 33rd respondent submitted the original shares for transfer supported by share transfer deed and duly witnessed and stamped, Board Meeting dated 31.8.2013 was convened and notice for Board Meeting was issued to 1st to 3rd appellants. The original share certificates were duly endorsed on reverse in favour of 33rd respondent by 1st respondent by approving above transfer on 31.8.2013. Learned counsel further stated that the said share certificates are not in possession of the appellants. 15. Learned counsel for the 1st respondent submitted that Annual Return filed with Form 20B on 15.4.2014 for AGM held on 30.9.2013. An affidavit was filed by Devinder Singh Shant as Director of 1st respondent and 1st appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellants. Learned counsel further submitted that the 33rd respondent have provided inspection of such original share certificate held by them under Section 84 of the Companies Act, 1956 to the appellants on 3.3.2017 and 6.3.2017 as directed by the NCLT, Kolkata. Learned counsel further submitted that 2nd an 3rd appellant were directors of 33rd respondent since the year 2008 and even after the date of the disputed share transfer. This position has been admitted by the appellants on Page 39, 48 of FIR and the appellants have themselves disclosed at the rejoinder to the reply filed by 33rd respondent. 19. Learned counsel for respondent further submitted that the shares were transferred with the approval of the directors of 1st respondent and in accordance with the law. Learned counsel further submitted that it cannot be believed that the directors of 1st respondent contend that they signed the documents of the 1st respondent without looking at the annexures and, therefore, their signatures should be taken to be non-est factum i.e. signature did not carry their mind. Learned counsel for respondent submitted that the appellants could not explain as to why they are not in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the allotment of shares is conclusive proof of issuance of shares and the same is not dependent on any subsequent further acts to perfect the allotment. Learned counsel further submitted that the it was specifically provided in Board Resolution of 15.3.2013 that the money for the allotment be transferred to the share capital account. It was further held that issuance of share certificates and/or entering the name of the allottee in the Register of members is not a condition precedent for an allotment to be effect. Learned counsel for the Respondents submitted that no reason was given for resignation of the Respondents and it is unbelievable that the promoters of the 4th respondent who were the only directors resigned as director without any reason. Learned counsel submitted that it could not be ruled out that certain signed documents might have been in possession of the 1st appellant for compliance of certain formalities and that these documents have been converted into alleged resignation letters. Learned counsel submitted that the resignation letters are forged documents. It is next submitted that Form DIR-12 was filed with ROC only on 9.9.2014 i.e. more than five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir controlling stake. 25. Learned counsel for the 1st appellant submitted that the position of the joint venture which was formed in 2011 is that several shop owners have opened standalone shops after purchasing the same from both the owner companies (1st appellant and DAPL) and invested huge sums for making shopping complex functional. Learned counsel submitted that the 1st appellant is prevented from dealing with the remaining more than 50 shops and food court area, which will render the market operationally unviable, visually unappealing and uninviting in terms of retail attractiveness, low footfall of customers in the absence of food court and till multiplex also becoming full fledged operation. Learned counsel further submitted that the effect is that not only the 1st appellant company is suffering from negative publicity resulting in irreparable loss of goodwill and brand value of the Globe venture, but the 1st appellant is also receiving claims of losses from the stakeholders whose third party rights have been created, are continuing in nature and who are burdening the company with their claim of damages. Learned counsel for the 1st appellant submitted that the group o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.4.2018, the appellants in Company Appeal (AT) No.274/2017 has filed IA No.545 of 2018 stating therein that the following documents have been filed by them which were not part of the Tribunal below. i) Balance Sheet of 33rd respondent filed with ROC for the year 2014-15 (Pages 3810-3819 of Volume No.XIV). 29. Learned counsel appearing on behalf of the appellants in Company Appeal (AT) No.274/2017 argued that the Balance Sheet of the 33rd respondent for the year 2014-15 is extremely relevant for adjudication of appeal. Learned counsel further argued that one of the main grounds of challenge by the appellant in this appeal relates to the failure of NCLT to set aside the illegal transfer of 6,65,000 shares of 1st respondent held by 2nd and 3rd appellant in favour of 33rd respondent which is a company controlled by the 2nd respondent. Learned counsel for the appellants argued that the 2nd respondent had manipulated and fabricated records and documents in support of their allegation that the 2nd and 3rd appellants had purportedly transferred an aggregate of 665000 shares held by them in 1st respondent in favour of 33rd respondent in the Financial Year 2014-15. Learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.561/2018) b) Notice dated 8.3.2013 and Minutes of EOG dated 1.3.2013. (Page No.5 of IA No.561/2018) c) Minutes Board Meeting on 8.4.2013 (Page No.6 of IA No.561/2018) d) Statutory record of Board Meeting dated 31.8.2013 such as Notice dated 23.8.2013, Minutes (Page No.7 of IA No.561/2018). e) Minutes of the Board Meeting dated 2.9.2014 (Page No.8 of IA No.561/2018) f) Extract of Forensic Report with covering letter (Page No.9 and 10 of IA No.561/2018). 31. Learned counsel appearing on behalf of the appellants in Company Appeal (AT) No.281 of 2017 argued that the pleading in support of the said document is sufficiently made before NCLT and it is statutory record of the company. Learned counsel further argued that non-disclosure of the same, despite availability of the same shall prejudice the case of major investors/stakeholders in the company and as an abundant precaution, the said document is sought to be placed on record in the interest of justice for adjudication of the matter. Learned counsel for the appellants argued that since these documents were not placed by original petitioners and is nowhere disputed by them, the R-1 seeks to place the same on record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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