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TMI Blog2020 (8) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... tely, no doubt that the Petition is not maintainable. It is general principle that a Petition is to be thrown out at an initial stage if it is unarguable on the demurrer. The issue of qualification was a mixed question of fact and law and the correct position is required to be ascertained on hearing the parties on merits. Respondent No. 1 and 2 at an initial stage satisfied that they hold 19.38% of the paid up share capital and therefore, they satisfy the requirements under Section 244(1) (a) of the Act. It is however made clear that issue of qualification in the present Petition is a mixed question of fact and law and therefore, the correct position is required to be ascertained on hearing the parties on merits as well - the issue of maintainability of the Petition is still open and it will be decided finally after hearing the parties on merits. Appeal dismissed. - Company Appeal (AT) No. 181 of 2019, Company Appeal (AT) No. 183 of 2019 - - - Dated:- 23-7-2020 - (Justice Jarat Kumar Jain) Member (Judicial), (Balvinder Singh) Member (Technical) And (Dr. Ashok Kumar Mishra) Member (Technical) For the Appellant : Mr. Anuj Tiwari, Mr. Sandeep Bisht, Mr. Shikhar Shrivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by them, except ₹ 90 lakhs and therefore, in terms of Section 244 (1) (a) of the Act, the Petition is not maintainable and is liable to be dismissed. 4. The Respondent No. 1 and 2 stated that they hold 2,32,937 and 87,972 fully paid up shares respectively, representing 14.07% and 5.31 % of the share capital and thus they together hold 19.38% of the paid up share capital of the Appellant Company. For this purpose, they placed reliance on the list of shareholders as on 31.03.2016, financial statements (01.04.2014 to 31.03.2015 01.04.2015 to 31.03.2016) and form PAS-3 (Return of Allotment) under Section 42(8) of the Act, read with Rule 12(1) of the Companies (Prospectus and Allotment of Securities) filed by the Appellant Company before the Registrar of Companies. Thus, they satisfy the requirement under Section 244(1)(a) of the Act. 5. After hearing Learned Counsel for the parties, the Tribunal by the impugned order dated 01.04.2019 rejected the preliminary objection holding that the Appellants have admitted receipt of a sum of ₹ 17.65 crores towards the allotment of shares to the Respondent No. 1 and 2 and against the money the shares were allotted and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , admittedly, the Respondent No. 1 has not made any investment in the Appellant Company. For this purpose, the Appellants placed reliance on an audited Balance Sheet of the Respondent No. 1 Company. 8. Leaned counsel for the Appellants further contended that the Appellants by mistake but in good faith appropriated the sum of ₹ 14.75 crores paid by Respondent No. 1 Company towards the issue of shares and showed Respondent No. 1 and 2 as holder of fully paid up shares of Appellant Company. Such bonafide mistakes in the financial statement of the Company are rectifiable under Section 131 of the Act. Learned Tribunal has erroneously placed reliance on the incorrect entries in the financial statement and on such statements decided the issue of maintainability of the Petition. 9. Learned Counsel for the Appellants pointed out that the Appellants had initiated proceedings under Sections 241 and 242 of the Act, in relation to Cetex Shares which is pending. The Respondent No. 1 and 2 knowing well that except ₹ 90 Lakhs no payment has been made by them for acquisition of the share of the Appellant Company. The Respondents no.1 2 have apprehension that appellant would init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 11.03.2019. 14. Learned counsel for the Respondent No. 1 and 2 further submitted that the notice dated 28.09.2018 issued under Section 8 of the Insolvency and Bankruptcy Code, suffers many infirmities and the notice is defective. So far as, the reply to notice dated 08.10.2018 by Respondent No. 1 and 2 is concerned the sum of ₹ 14.75 Crores has been paid by them to Appellant Company for allotment of shares. 15. Learned Counsel for the Respondent No. 1 and 2 submitted that it is settled law that when at an initial stage the objection in regard to maintainability of the Petition is raised then only the averments in the Company Petition and the documents enclosed thereto are to be looked into and the defense of the Applicant challenging the maintainability of the petition is not to be considered. Learned Tribunal on the basis of the pleading in the Petition and enclosed documents held that the Respondent No. 1 and 2 hold above referred fully paid up shares and they together hold 19.38% of the paid up share capital of the Appellant Company. 16. Learned counsel for the Respondent No. 1 and 2 submitted that by the impugned order dated 01.04.2019 when the Tribunal he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is unarguable on the demurrer. The issue of qualification was a mixed question of fact and law and the correct position is required to be ascertained on hearing the parties on merits. 21. In the light of this preposition of law we have examined the facts of Company Appeal (AT) No. 181 of 2019. Learned Tribunal considered the averments in the Company Petition and documents i.e. list of shareholders, financial statements for relevant years and return of allotment filed by the Appellant Company before Registrar of Companies, in which it is shown that the Respondent No. 1 and 2 hold 2,32,937 and 87,972 fully paid up shares respectively and thus they together hold 19.38% of the paid up share capital of the Appellant Company. Hence, the Tribunal rightly found that the Petition is not hit by Section 244 (1) (a) of the Act. 22. The Appellants have admitted in their preliminary counter dated 28.01.2019 that they have received a total sum of ₹ 17.65 crores. However, for the first time, it is argued before this Appellate Tribunal that ₹ 14.75 crores received against the allotment of Cetex Company Shares and by mistake ₹ 14.75 Crores were appropriated towards the allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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