9911796707
TMI Blog2022 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... ly mentioned in the operative portion of the Order it has to be interpreted in its truest sense as NCLT has categorically set aside the Resolution dated 18/02/2014 whereby the authorised share capital was increased. In pursuance of the Resolution having held to be illegal, the allotment of further shares in favour of Respondent-4 was also set aside. Learned Counsel for the Appellant vehemently contended that only Mr. Surjeet Singh and Mr. Prakash Kumar have equal shareholding of 50% each and that Ms. Usha Rani was not at all a shareholder and therefore she does not have the locus standi to move an Application under Sections 241/242 of the Act. The only reference with respect to Ms. Usha Rani/first Respondent being a shareholder is the copy of an Annual Return MGT 7 dated 27/02/2018 wherein it is shown as the Shareholder/Director having 5,000 shares and the list of shares annexed dated 31/03/2018 showing the Applicant as well as M/s. Prowess International Private Ltd. as Directors and shareholders having 5,000 shares and 2,01,00,000/- shares respectively, but the same cannot be relied upon. The contention of the Learned Counsel for the first Respondent, that the last para does not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Usha Rani Jha/the first Respondent preferred C.P. (IB) No. 763/KB/2020 under Sections 241, 242 & 243 of the Act seeking declaration that the Meetings dated 22/04/2020 and 16/05/2020 are null & void and therefore the Resolutions passed therein are illegal. NCLT in the last para of its Order, in C.P. 104/2014, has observed as follows: "…The alleged board meeting was without any notice, though the petitioner no. 1 was director of the company. Therefore, the impugned act comes under the purview of oppression and mismanagement and Board resolution regarding the permission of shares to respondent no. 4 deserves to be set aside…" 3. Subsequently, on an Appeal preferred before this Tribunal, only the interest portion was modified while confirming the Order of the NCLT and as the Petitioner (Ms. Usha Rani) in the Impugned Order did not prefer any Appeal against the Order of this Tribunal, it is submitted that the Petition C.P. (IB) No.-763/KB/2020, filed by her itself is not maintainable. In the Impugned Order, the Order of 11/11/2016 was sought to be interpreted. NCLT has left the issue open with respect to Ms. Usha Rani being a shareholder or not, for being decided afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier by serving copy to the petitioners, and the petitioners are directed to file rejoinder within 2 weeks of receipt of reply affidavit by serving copy to the respondents. III) Parties are at the liberty to mention the petition for listing after the lockdown is lifted. IV) The Registry is directed to send e-mail copies of the order forthwith to all parties." (Emphasis Supplied) 4. Submissions of the Appellant: It is argued that NCLT has failed to appreciate that the first Respondent has failed to prove that she was Member/Shareholder of the Company and therefore the Petition itself was not maintainable. The first Respondent was not entitled for equitable relief under Section 241/242 of the Act as in the written version it is fraudulently stated that she was holding shares in the Company since 2013, while the Company had only two shareholders in 2013 namely the Appellant and the second Respondent Mr. Prakash Kumar, who was holding 50% shares at that point of time. The first Respondent had intentionally uploaded wrong information on the website of the Ministry of Corporate Affairs ('MCA') about the shareholding pattern of the Company. The first Respondent had declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first Respondent is entitled to move the Petition under Sections 242 & 244 of the Act. The first Respondent had proved her shareholding as a prerequisite for maintaining the Application before the NCLT. The allotment of shares was never cancelled and therefore NCLT passed the Interim Order only after being satisfied with the Order dated 20/02/2017 passed by this Tribunal confirming the Order dated 10/11/2016 passed in C.P. 104/2014. 6. Submissions of the Respondents 2 - 4: Counsel for the second and third Respondents submitted that the Appellant filed a Petition C.P. 104/2014 claiming that he was the owner of 50% shares of the Company along with the second Respondent who held the remaining 50% of the shares. It is the allegation of the Appellant that the first Respondent connived with the second Respondent to increase the authorised share capital of the Respondent-3 Company in EOGM dated 18/02/2014 and went on to allot 5,000 shares to the first Respondent and shares of ₹ 2,01,00,000/- to another Company/Respondent No. 4/M/s. Prowess International Pvt. Ltd. against the loan outstanding for equal amount in the Board Meeting dated 18/02/2014 for which no notice was sent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.09.2013 Value of Shares (Rs.) Percentage (%) 1. Mr. Surjeet Singh/Appellant 5000 50,000 50% 2. Mr. Prakash Kumar/Respondent No. 2 5000 50,000 50% Total 10,000 1,00,000/- 100% 8. It is the case of the Appellant that shares were illegally allotted to the first and fourth Respondents and the table of shareholding pattern of the Company at the time of filing CP No. 104/2014 is set out as hereunder: Name of shareholders Date of Transfer/ Allotment Number of share % of shareholding approx.) Remark Mr. Surjeet Singh/Appellant 2.02.13 5000 0.24% Mr. Prakash Kumar/Resp. No. 2 2.02.13 5000 0.24% Ms. Usha Rani Jha/Resp. No. 1 18.02.14 5000 0.24% Impugned Allotment Prowess International Pvt. Ltd./Resp. No. 4 18.02.14 20,10,000 99.25% Impugned Allotment Total 20,25,000 100% 9. It is the main case of the Appellant Mr. Surjeet Singh (the Petitioner in C.P. No. 104/2014), is that Respondents 1 & 2, illegally held a Meeting of the Board of the Company dated 18/02/2014 and issued 20 lakhs shares to Respondent-4 and 5000 shares to the first Respondent herein, thereby reducing the shareholding of Mr. Surjeet Singh, the Appellant herein from 50% to 0.24% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal stands disposed of with aforesaid directions." (Emphasis Supplied) 11. Subsequently, I.A. 827 of 2017 in Company Appeal (AT) No. 31 of 2016 was filed by the Company M/s. Ranchi Metal & Ispat Private Ltd. seeking clarification of the Order which was disposed of by this Tribunal on 17/11/2017 observing as follows: "The appeal was heard on merit and disposed off on 20.02.2017. In the circumstances, interlocutory application for modification of the said order at this belated stage does not arise. Interlocutory application otherwise is also not maintainable. I.A. No. 827/2017 stands disposed off." 12. It is also the case of the Appellant that vide Order dated 18/01/2019 in Contempt Case (AT) No. 01 of 2019 in Company Appeal (AT) No. 31 of 2016, this Tribunal had directed a formal Notice to be issued on the Respondents intimating them that the Tribunal may initiate Contempt Proceedings against the first and second Respondents. In the Order dated 03/09/2019 this Tribunal in Contempt Case (AT) No. 01 of 2019 directed the Contemners/Respondents Mr. Prakash Kumar, Ms. Usha Rani Jha to be present before this Tribunal with their reply for deliberate violation of the Order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Minutes of the Meetings of the Board of Directors of the Company held on 18/02/2014: 17. When the aforenoted Resolution itself is set aside in its totality, merely because the name of the first Respondent was not categorically mentioned in the operative portion of the Order it has to be interpreted in its truest sense as NCLT has categorically set aside the Resolution dated 18/02/2014 whereby the authorised share capital was increased. In pursuance of the Resolution having held to be illegal, the allotment of further shares in favour of Respondent-4 was also set aside. Learned Counsel for the Appellant vehemently contended that only Mr. Surjeet Singh and Mr. Prakash Kumar have equal shareholding of 50% each and that Ms. Usha Rani was not at all a shareholder and therefore she does not have the locus standi to move an Application under Sections 241/242 of the Act. The only reference with respect to Ms. Usha Rani/first Respondent being a shareholder is the copy of an Annual Return MGT - 7 dated 27/02/2018 wherein it is shown as the Shareholder/Director having 5,000 shares and the list of shares annexed dated 31/03/2018 showing the Applicant as well as M/s. Prowess International ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
