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TMI Blog2020 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... reign members or debenture-holders residing outside India, for rectification of the register. Therefore, separate Application/Petition has to be filed by the Petitioner, if his shares in the Company is illegally removed from the Register of Company. And filing the instant Petition shows that the Petitioner is admittedly not a shareholder of the Company, as on date of filing the instant Petition - a Petition u/s. 241 of Act, cannot be filed by non-shareholder(s) of a Company. Therefore, if the Petitioner succeeds in the Petition filed u/s. 59 of Act, he can maintain petition u/s. 241 of Act to seek relief u/s. 242 of Act Moreover, mere removal of name of a shareholders in accordance with law, cannot be termed as 'acts of oppression and mismanagement. Therefore, the Petition itself is filed on mis-conceived notion. The Petitioner cannot plead ignorance about the affairs of Company till 2018 when he is alleged to have verified the MCA to know the affairs of Company. He is estopped from raising the disputes with regard to affairs of Company took place long time ago. Therefore, the Petition is also barred by laches and limitation and has not approached the Tribunal with any bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1 Company. (2) Mr. Mazharul Islam (hereinafter referred to as 'Petitioner') together with his brothers i.e. Late Noorul Islam and Mr. Badrul Islam incorporated the Company for setting up a manufacturing business of Brushes. Thus, the Company was incorporated with the name Bangalore Brushes Company (P.) Ltd. on 16-11-1987 with three promoters i.e. the Mr. Mazharul Islam (Petitioner), Late Noorul Islam and Mr. Badrul Islam. The paid up capital of the Company was increased to INR 48,15,000/- during 1987 to 1996 by infusing the additional funds from time to time. That with the infusion of additional funds in the Company, the manufacturing plant was constructed on the said industrial plot. From the date of incorporation, it was a clear understanding between the parties that the industrial plot and the structure thereon is jointly owned by the Petitioner, late Noorul Islam and Badrul Islam. However, the Petitioner was never informed of the facts that late Noorul Islam has made his family Members as the shareholders of the Respondent No. 1 Company. (3) Since Noorul Islam was the elder brother of the Petitioner, he was not questioned during his life time about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Registrar of Companies in 1992 intimating that the Petitioner had resigned from the directorship of the Company though the Petitioner had never signed and submitted any resignation letter. b. The Respondents had illegally transferred the shares of Petitioner to the Respondent Nos. 2 to 7 without execution of share transfer deed. c. The Respondent Nos. 2 to 7 are not allowing the Petitioner to take part in the management of the affairs of the Company. Thus, the Respondent Nos. 2 to 7 has taken over the full control of the management of the Company to the detriment of Petitioner. d. The Respondents has siphoned off the fund of the Company for their personal gain or benefits. Further, the resources of the Company are used for the personal gains of the Respondent Nos. 2 to 7. e. The Respondents are also using the assets like car etc. of the Company for their personal use or benefits which is in detrimental to the interest of Company. (7) It is stated that all the aforesaid acts of the Respondents are illegal, deceitful and fraudulent. The Petitioner had no knowledge of the aforesaid acts. No consent, legal or otherwise, was ever given by the Petitioner to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by Petitioner himself. Since then, the Petitioner had no connection either as a Director or as a shareholder with Respondent No. 1 Company. Such being the case, the Petitioner herein has no right to stake his claim after a span of more than 19 years of the aforesaid transfer and 26 years after resigning from directorship of Company. The following shareholding pattern exist as on the date of filing the above petition:- Si No Name of share holder No of shares % of holding 1 Mr Noorul Islam 24150 50.15% 1 Mr Saba Islam 4000 8.30% 2 Mr Zahoorul Islam 4000 8.30% 3 Mr Waqiful Islam 4000 8.30% 4 Mr Sheik Mahommed Anwer Ul Islam 4000 8.30% 5 Mr Tauqeerul Islam 4000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer deeds in question fails to satisfy provisions of section 108 of the Companies Act, 1956, and the explanation given by the Respondents and the documents produced by them shows that they are sham transactions and thus they are liable to be rejected. (2) It is well settled law that provisions contained in section 108 of the Companies Act, 1956 are mandatory. The Hon'ble Supreme Court has in number of cases held that the prohibition against the transfer without complying with the provisions of section 108 of the Companies Act, 1956 is emphasized by the negative language used in this section. It was further held that the negative language of this provision is worded to emphasis the insistence of compliance with the provisions of the Act. In this regard, he also relied on the judgment passed by the Hon'ble Supreme Court in the case of Mannalal Khetan v. Kedar Nath Khetan [1977] 47 Comp. Cas 185. (3) In view of the above submissions, it is evident that the present transfer of shares of the Petitioner in the Respondent No. 1 Company was done in violation of the provisions of section 108 and therefore the same is null and void. Further, such transfer of shares is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f all the shares held by him was in 2000-01. From the above, it is very clear that the Petition is hopelessly barred by limitation. The Petitioner has not produced the share certificate by virtue of which he claims to be the member of the Company. (3) It is and father (sic.) of Respondents No. 3 to 7. Very conveniently, in order to extract money and misuse the law, he has filed this Petition with ulterior motive and mala fide intention. Further, his contention that he was not aware of anything cannot be believed in view of the fact that all the documents such as Financial Statements, Annual Returns, Form- 32 etc. are all public documents available for everyone to view in the public domain. The Petition has been filed under sections 241, 242 and 59 of the Companies Act, 2013 where, for all purposes, the limitation would be the residuary clause under Article 137 of the Limitation Act, 1963. Therefore, three years had expired way back in 1995 or 2004 for all purposes. Such being the case, it is very clear that the Petitioner is abusing and misusing the process of law and has made allegations to suit his convenience. (4) Further, in support of the contention put forth, the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The petitioner shall at least fourteen days before the date of hearing advertise the petition in accordance with rule 35. (3) Where any objection of any person whose interest is likely to be affected by the proposed petition has been received by the petitioner, it shall serve a copy thereof to the Registrar on or before the date of hearing: Therefore, separate Application/Petition has to be filed by the Petitioner, if his shares in the Company is illegally removed from the Register of Company. And filing the instant Petition shows that the Petitioner is admittedly not a shareholder of the Company, as on date of filing the instant Petition. 9. As stated supra, a Petition u/s. 241 of Act, cannot be filed by non-shareholder(s) of a Company. Therefore, if the Petitioner succeeds in the Petition filed u/s. 59 of Act, he can maintain petition u/s. 241 of Act to seek relief u/s. 242 of Act Moreover, mere removal of name of a shareholders in accordance with law, cannot be termed as 'acts of oppression and mismanagement. Therefore, the Petition itself is filed on mis-conceived notion. 10. So far as merits of case are concerned, as per Article 6 of Articles of Asso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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