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TMI Blog2021 (5) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018 where as they were appointed as Directors on 26.12.2017. As per Section 152(3) of the Companies Act, No person shall be appointed as Director of a company unless he has been allotted the Director Identification Number under Section 154 or any other number under as may be prescribed under Section 153 Hence, the appointment of R4 and R5 as director in the EOGM dated 26.12.2017 is not valid. It is admitted by the petitioner that he has received ₹ 25 lakhs from R4 and ₹ 25 lakhs from R5 as consideration for sale of shares. The Respondents have agreed to transfer the shares to petitioner if ₹ 50 lakhs is repaid. The petitioner is also willing to repay ₹ 50 lakhs. The Petitioner has liberty to repay ₹ 50 lakhs and get back his share certificate. Any transfer shares without Share Transfer Form, is not valid - The Respondent agreed not to Effect the sale of the assets to purchaser (Respondent no 6) and stated that the purchaser is not interested in purchase. It is admitted by the Respondent that the Bank Loan is repaid. In that event the Respondent 1 Company to co-operate and furnish/execute necessary papers/documents for release of the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efs and directions under 241 and section 242 of the Companies Act, 2013, be passed declaring the Extra Ordinary General Meeting held on 26.12.2017 illegal and non-est in the eye of law and consequently declaring appointment R-4 and R-5 as illegal and unfair and rectify the Register of Directors of R-1 Company accordingly and further directing R-9 to remove Form DIR-12 filed in this regard from the documents maintained by the Registrar of Companies, Gujarat Ahmedabad. vi. To declare that the Annual General Meeting purportedly held on 28.09.2018 illegal and void ab initio and the resolutions passed there at shall also be illegal and accordingly R -1 be directed to remove from the minutes book the resolutions, if any, passed thereat and also R-9 be directed to remove from its records pertaining to R-1 Company any documents of any resolution passed and registered with R-9 at the so called Annual General Meeting on 28.09.2018. vii. That appropriate orders, reliefs and directions under 241 and section 242 of the Companies Act, 2013, be passed declaring the board meeting held on 27.10.2018 illegal and consequently all the resolutions passed threat be declared null and void. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minees reducing the petitioners' stake in the shareholding. Though the petitioner was not given notice of meetings during 2017-18 and the petitioner did not attend any meetings, the Form MGT-7 for the financial year 2017-18, showed that the company allegedly held seven Board Meetings on 24.07.2017, 18.08.2017, 11.09.2017, 14.10.2017, 30.10.2017, 01.12.2017 and 23.02.2018 and the petitioner attended all such meetings. Not only the petitioner is shown to have attended these meetings but also the deceased father of the petitioner also. Even notice of the Board Meetings allegedly held on the above dates was not served on the petitioner except for the meeting scheduled on 14.10.2017. Thus, respondents have forged and falsified the statutory records of R-1 company as the information in MGT-7 is based on the records of R1 company. 3. It is submitted by the petitioner that the Form MGT -7 for 2017-18 further mentioned that two EGMs on 17.08.2017 and 26.12.2017 were held and one AGM was held on 30.09.2017 and in all these general meetings the petitioner and his deceased father were shown to have attended. In this way, the respondents manipulated all the records of R1 company. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting scheduled on 03.09.2018 at 11:00 a.m. at the registered office for the approval of financial statements, Board's Report, Auditor's Report, etc. and also for the sale of the two plots at GIDC land and also for convening the Annual General Meeting for the year 2018 wherein under 'special business' approval of members by way of special resolution was to be proposed. Since the sale of land at GIDC threatened the substratum of the company, the petitioner went to the venue of the meeting on 03.09.2018 at 10:45 a.m. No person was available in the factory where the meeting was scheduled to be held. The petitioner waited at the gate of the factory from 10:45 a.m. to 12:30 p.m. and the security personnel told him that the factory was closed on that day and no meeting of any kind whatsoever was to be held and thereafter, left the said premises but surprisingly, received papers showing that R-1 company has held/conducted the said board meeting and the decisions were taken as per the agenda. 8. It is submitted by the learned PCS for the petitioner that, on 07.09.2018 he has received a notice of the Annual General Meeting scheduled on 28.09.2018 in which under 'specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been no change in the management and control of the company that is likely to prejudicially affect the affairs of the company or its members or class of members. The appointment of Directors and allotment of shares made during the year 2017 have been made after following due process of law and necessary approval board of directors and members of Respondent No. 1 Company. It is pertinent to note that no application can be made under section 241(b) in respect of changes in management and control of the company made by the shareholders of the company. The respondent has miserably failed to establish how the changes is likely to be prejudicial to interest of Respondent No. 1 Company or the Petitioner. 11. The Respondent submitted that the Petitioner who claims to be the shareholder has not produced the share certificates on record to show his shareholding. In absence of such proofs the petition is liable to be dismissed. The Petitioner has relied on Form MGT-7 for the Financial Year 2017-18 to establish his shareholding. However, has suppressed the fact of sale of shares by him and delivery of share certificate after 31.03.2018. 12. It is submitted by the Respondent that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right issue. The copy of offer letter given to the Petitioner and his father is already attached as Annexure-A13 on page 249 to page 260 of the petition. The petitioner has failed to subscribe the right issue during October, 2017 is not making allegation regarding legality of the issue after lapse of more than a year. The petitioner does not hold any share in Respondent No. 1 Company and is therefore not entitled to make present application under section 244 of the Companies Act, 2013. It is also pertinent to note that the petition has not been made under Section 58 or 59 of the Companies Act, 2013 and petitioner is not entitled to claim any relief under the said section. It is further clarified that in Balance Sheet in note 1 B of Audited Balance Sheet on page 81 of petition the shareholding of petitioner is inadvertently shown as Nil and an application under section 131 has been filed with Hon'ble NCLT Ahmedabad. The said application is numbered 2/131/NCLT/AHM/2019. The petitioner's shares however have been reduced to Nil on date of petition on account of transfer. 16. It is submitted by the Respondent that the allotment of 2,50,000 shares was made by way of right issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the term loan from Bank of Baroda has already been repaid and the mortgaged property of respondent no. 1 company released by the Bank. 21. It is submitted that Form DIR-12 regarding cessation of Directorship of father of Petitioner was filed late since the death certificate was not received by Respondent No. 1 company. Father of petitioner died on 16.05.2017 as per death certificate on page no 221 of the petition however, copy of the death certificate was given to Respondent no. 1 company vide email dated 27.06.2017 and hence Form DIR-12 was filed thereafter with additional fees. 22. It is further submitted by the Respondent that, as per records of the company the petitioner attended EOGM held on 17.08.2017 for increase of Authorised share capital of Respondent No. 1 Company. The fact has been disclosed in Form MGT-7 (refer Annexure A-16 on page no. 267-284 of the petition) wherein on page no. 271 it has been Stated that the EOGM dated 17.08.2017 was attended by three out of four shareholders. The said EOGM was not attended by father of Petitioner who expired on 16.05.2017. 23. The Respondent submitted that it has been admitted by the petitioner that the Right issue lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard meetings are required to be sent to directors as per address on record. The petitioner is neglected and failed to update his address in DIN particulars inspite of statutory requirement vide Rule 12(1) of the Companies (Appointment and Qualification of Directors) Rules, 2014. Even after DIN KYC the Petitioner address as director is of Bombay under the circumstances the respondents were constrained to send notices at petitioners address at Mumbai. 26. It is submitted by the Respondent that Form MGT-7 has been prepared and filed as per records of the company. The inadvertence in date of notice was accidentals and unintentional and can no way be considered as mismanagement or oppressive to the company or the petitioner. 27. It is submitted by the Respondent that the proof of service of Notice of EOGM dated 26/12/2017 is already attached at page no. 317 of the Petition. The statement made in paragraph 4.21 is a false statement and should not be relied upon. 28. It is further submitted by the Respondent that the notice of board meeting dated 01/12/2017 and EOGM dated 26/12/2017 was duly served on the Petitioner. The copy of the Postal receipt evidencing the same is attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Transfer Deeds. The Petitioner who claims to have decided to return the deposits has not implemented his decision to refund consideration for shares received by him from Respondent No. 4 and Respondent No. 5 or to return Repayment of Unsecured Loan made by Respondent No. 1. 32. It is submitted by the Respondent that the authorised signatory in bank was change by passing resolution at meeting of Board of Directors held on 03/10/2017. The resolution was passed at instance of petitioner who expressed his inability to attend the business of company after death of his father. The petitioner used to sign blank cheques since it was not convenient to attend the business of company and to signs cheques as joint signatory and apprehending the liability he insisted on removing his name as signatory and form for change in signatory. It is the practice of Bank that change in signatory request is entertained on request made all existing signatories. Copy of Board resolution and Bank form signed by petitioner is enclosed herewith and marked as 'Annexure-B'. The petitioner has not demonstrated how action of change in signatory amount to oppression of petitioner who has sole his sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. The sale is being made in transparent manner and name of the proposed purchaser and consideration has been disclosed in the notice of meeting for members approval. The sale is required to be made in interest of respondent number 1 company and petitioner has not justified how it is prejudicial to interest of respondent No. 1 company. iv. The petitioner has not come with clean hands. The petitioner has received consideration for his shares. The Respondent No. 1 company has since 01/04/2018 repaid ₹ 15/- lacs towards unsecured loan of petitioner and balance remaining is ₹ 2,66,000/-. The petitioner has no stake in respondent No. 1 company. Besides petitioner has started competing business in new company Girnari Moulders Private Limited incorporated by him and he has been making false allegations to disturb working of respondent 1 company. v. In view of above submissions it is prayed that the relief sought by petitioner are not justified and petition ought to be dismissed with cost. If the relief sought are granted it will be against the interest of respondent No. 1 company. 35. Heard the counsel for the both sides and perused the documents filed. Only r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed consideration. Hence, the Rights Issue and its allotment by the company is in order. 40. Regarding the allegation of the petitioner, notice was not served on the Petitioner for the Board Meeting dated 01.12.2017 and EOGM dated 26.12.2017, the Respondent Company has not filed any proof for serving the notice or attendance of the Petitioner in the meeting and Respondent no 3 contended that notice was served and postal receipt is attached in page 317 of the petition. But we are not able to see any postal receipt, further the DIN no of R4 and R5 is allotted on 03.01.2018 where as they were appointed as Directors on 26.12.2017. As per Section 152(3) of the Companies Act, No person shall be appointed as Director of a company unless he has been allotted the Director Identification Number under Section 154 or any other number under as may be prescribed under Section 153 Hence, the appointment of R4 and R5 as director in the EOGM dated 26.12.2017 is not valid. 41. It is admitted by the petitioner that he has received ₹ 25 lakhs from R4 and ₹ 25 lakhs from R5 as consideration for sale of shares. The Respondents have agreed to transfer the shares to petitioner if S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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