9911796707
TMI Blog2021 (5) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... ns under 241 and section 242 of the Companies Act, 2013, be passed for the management of R-1 Company and for that purpose, such fit and proper person(s) be appointed as this Hon'ble Tribunal may deem fit as Administrator(s) and/or Special Officer(s) and/or Independent Committee of Management be appointed to carry on the business of and to manage the affairs of R1 Company for such period and on such terms and conditions as this Hon'ble Tribunal may deem fit; iii. That appropriate orders, reliefs and directions under 241 and section 242 of the Companies Act, 2013, be passed against all the respondents that the impugned GIDC plot nos. C1/4727/1 and 2 shall not be sold without the shareholders consent in accordance with section 180 of the Companies Act 2013. iv. That appropriate orders, reliefs and directions under 241 and section 242 of the Companies Act, 2013, be passed declaring the board meeting held on 14.10.2017 illegal and consequently allotment of 2,50,000 equity shares of Rs. 10/- each at par on rights basis to R-2 and R-3 as illegal and void ab initio and to rectify the Register of Members of R-1 Company removing the said allotment of shares and directing R-9 to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer of the impugned Plot namely C1/4727/1 and C1/4727/2 to any third party including R-6 till the disposal of this petition. xiv. To direct R-8 not to release the impugned GIDC plots to R-1 Company unless all the original three directors viz. the Petitioner, R-2 and R-3 give consent in writing for the release of the said asset. xv. To direct R-1 Company to suspend all the rights including the voting rights of 2,50,000 equity shares issued on 14.10.2017 to R-2 and R-3 till the disposal of this petition, xvi. To direct R-1 Company not to consider R-4 and R-5 as the directors of R-1 Company and deprive them of their rights as directors till the disposal of this petition. xvii. To pass such other orders/directions which this Hon'ble Tribunal may deem fit and proper with the facts and circumstances of this case. 2. It is submitted by the petitioner that, at an allegedly held EGM on 17.08.2017, R1 company increased its authorise capital from Rs. 100 lakhs to Rs. 150 lakhs without any information to the petitioner. R1 company allegedly held a board meeting on 11.09.2017 in which rights shares were offered (A 13) to the petitioner and his deceased father and on their failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 Company transferred Rs. 5 lakhs each on 31.03.2018, 06.04.2018 and 19.04.2018, but this payment was for return of the deposits placed by the petitioner in R1 company. Thus, R-4 and R-5 totally transferred Rs. 50 lakhs out of Rs. 95 lakhs within a period of three months. As the petitioner received only Rs. 50 lakhs from the nominees of R-2 against the offered amount of Rs. 95 lakhs, the petitioner did not sign the share transfer deeds. 6. It is submitted by the petitioner that R-3, the son of R-2, met the Petitioner in May, 2018 with some transfer forms for the signature of the petitioner for transfer of his shareholding but the petitioner refused to sign the transfer deeds as the balance consideration of Rs. 45 lakhs was not yet received. The petitioner made it clear in May, 2018 when R-3 met the petitioner that without the receipt of balance of Rs. 45 lakhs, the petitioner would not transfer his shareholding to any other person. The respondents did not pay the balance amount and the deposit of Rs. 50 lakhs from prospective buyers was still lying with the petitioner. 7. It is further submitted that the petitioner accordingly received a notice dated 25.08.2018 on 27.08.2018 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the petitioner has not been so far released. The petitioner through his letter dated 24.09.2018 informed the Board of R-1 company of various acts and omissions of oppression and mismanagement in the affairs of R-1 company. 9. It is further submitted by the Petitioner that, Meanwhile, R-4 started abusing the Petitioner for the non-execution of transfer deeds in- his favour and threatened the petitioner that R-1 company would transfer the shares in the name of R-4 and R-5 without the signature of the petitioner. The petitioner went to the venue of the Annual General Meeting at 11:00 a.m. on 28.09.2018 but was physically prevented from entering upon the premises and denied entry inside the premises. The petitioner tried to convince the other Directors but the other Directors did not come out of their cabin nor listened to the petitioner. The petitioner understood the modus operandi being adopted by the other directors to oust the petitioner and deprive the petitioner of his legal rights as a shareholder and director. The other directors have conspired to sell the properties of R-1 company and to siphon off the funds of R-1 company. 10. In reply the Respondent submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and marked as Annexure-A. 15. It is submitted by the Respondent that the petitioner who was holding 5,00,000 equity shares as on 31.03.2018 (refer page 282 of petition) do not hold any shares on the date of making the petition since the shares have already been transferred from his name. The petitioner has already confirmed receipt of Rs. 50,00,000/- towards consideration for shares and on receipt of consideration has delivered share certificates to the transferee. As stated above the Petitioner has not produced the share certificate to now his shareholding and has suppressed the fact before honourable tribunal, the petitioner has not even challenged the transfer in the petition through as on afterthought has made an attempt to challenge the transfer by filing an application (IA-47) for amendment of petition. Such an afterthought clearly demonstrates ill intentions of the Petitioners to claim the shares for which consideration has been received. The statement as regard illegal issued in is denied since the Petitioner was aware of right issue and was given an offer to subscribe to the right issue. The Copy of offer letter given an offer to subscribe to the right issue. The copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure A-17 Page 285 to 297 of the petition. The notice of Board meeting and general meeting of members in relation to appointment of the Respondent no 4 and Respondent no 5 was sent to the petitioner and the postal receipts for the same are already attached at Page no 317 of the petition. Respondent number 4 and 5 holds 125000 equity shares of company on date of filing of petition. The share have been transferred to his name at meeting of Board of Directors of company held on 27.10.2018 for which notice was send to the petitioner. The postal receipt for dispatch of notice of meeting of Board of Directors held on 27.10.2018 is already attached at page no. 325 of the petition. 19. The Respondent objected that the petitioner has not given any documentary evidence supporting the statements made. The Articles of Association of company also do not have any such clause regarding shareholding and directorship. The fact is that Petitioner has accepted consideration for transfer of shares from Respondent no. 4 and 5. The conduct of the Petitioner itself shows that there was no such agreement or arrangement or understanding. 20. The Respondent submitted that the term loan from Bank of Baroda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shares of petitioner's father was transmitted in name of petitioner on 29.01.2018 after the receipt of request from petitioner. The Board of Directors was not authorised to transmit the shares of petitioner's father in name of the petitioner unless transmission request is received from legal heirs. The offer for the Rights given to the shareholders whose name appears on Register of Members on 12.09.2017. The same is clarified in the letter of offer (refer page no 256 of the petition). The petitioner was free to approach the company or apply for the shares on behalf of his father. It is surprising that the petitioner who did not apply for his rights entitlement is complaining that he was debarred from applying for Rights entitlement of his father. 25. The Respondent contended that the petitioner has stated that the company did not send notice of some Board Meetings. However, the petitioner has not given the details of Board meetings for which notices have not been received and for which notices have not been received. The allegation is vague and not supported by documents. The notices of the Board meetings are required to be sent to directors as per address on record. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced any evidence regarding valuation of Rs. 95,00,000/- by Respondent No. 2.. It has not been denied by the Petitioner that he has offered the shares for transfer; however the Petitioner has failed to justify how the provisions of Article of Association have been complied with. It is submitted that (a) Under Article 15 of Article of Association, the Board of director's act as a agent for member who proposes to transfer the shares and the value of shares is determined in accordance with Article 17 of Article of Association. Besides, (b) Under Article 18 of Articles of Association the any director or secretary of the company is deemed to be appointed as his agent to execute the transfer. The fair value of shares as per balance sheet is below Par since the company has negative reserves. Under the Circumstances the transfer of shares at face value cannot be considered as prejudicial to the interest of the Petitioner. 31. It is further submitted by the Respondent that Article of Association clearly provides for such situation where the Transferor makes default in executing Transfer Deeds. The Petitioner who claims to have decided to return the deposits has not implemented his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of Board resolution dated 11/09/2017. The petitioner has confirmed receipt of offer letter to himself and in name of his deceased father. The offer letter was issued in name of deceased father though there was no request for transmission of shares and petitioner's father was registered owner of shares. The petitioner did not subscribe to the shares. The petitioner cannot term rights issue as illegal only because he did not subscribe. The purpose of Rights issue was to repay the bank loan and make investment in plant and machinery and accordingly Bank of Baroda Loan was repaid and even petitioner has been paid Rs. 15/- lacs towards repayment of his loan, besides company made addition of Rs. 61,09,617/- in fixed assets during year 31/03/2018. Thus rights issue was made to meet funds requirement and not to dilute petitioners share holding. iii. The matter regarding sale of company immovable property is with intention to acquire bigger space and for increasing scale of operation new directors were appointed and funds acquired from them. The sale is being made in transparent manner and name of the proposed purchaser and consideration has been disclosed in the notice of mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied for the Right Issue. 38. Further it is submitted by the petitioner that in Form MGT-7 R1 company has held 7 Board Meetings in 2017-2018 and mentioned that he has attended in all meetings. It is contended by the Petitioner that he has not received notice for any meeting except for the meeting dated 14.10.2017 and he has not attended any meeting. It is to be noted that as per Section 167(1)(b) of the Companies Act, the office of the Director will become vacant if the director is absent in all the meetings of the Board held during a period of 12 months. 39. The notice for the meeting is sent and he is also having knowledge of meeting, the petitioner has received the offer letters for Rights issue and he has not applied for the Rights issue. Further Rights issue was made in October 2017, and he is having the knowledge of Rights issue and its allotment, he filed this petition as an afterthought only in 30.10.2018 on non-receipt of full consideration for sale of the shares as per his version orally agreed 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
