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TMI Blog2022 (6) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... statement showing the particulars of the consideration received by the 1st Respondent Company against the allotment of Equity Shares to its members from the date of incorporation (26.07.2010) to the date of order of this Tribunal on 02.01.2020. It appears from the report that on 07.09.2010 Rs. 1.5 crore received was used equally for allotment of equity and preference shares (i.e. Rs. 75 lakhs each). Thus it is clear that the petitioner had made the investment to the Company even though the shares are allotted as equity and preference. It is clear that the petitioner had invested an amount of Rs. 1,50,00,000/- (One Crore Fifty Lakhs Only) in the R1 Company. The petitioner has not subscribed to the Memorandum of Association or admittedly she has not done anything in relation to the R1 Company. The only concern of the petitioner is that the amount invested by her is not transferred into equity shares as promised by the 2nd Respondent - it is seen that the petitioner wants this Tribunal to direct the 2nd Respondent to obey the initial promise made by him while the deposits were made by her. It is clear that the R1 Company was established by the 2nd Respondent with the help and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner as against the allotment of 75,000 6% Non-Cumulative Non-Convertible Preference shares allotted to the Petitioner on 7/9/2010; IV. To set aside the transfer of 75,000 Equity Shares from the Petitioner to the 2nd Respondent that were illegally transferred on 4/4/2011 and consequentially direct the rectification of register of members so as to delete the 75,000 shares from the folio of the 2nd Respondent and restore the 75,000 shares in the folio of the Petitioner; V. To declare that the 2nd and 3rd Respondents are unfit to be directors of the Company and consequentially direct the removal of the 2nd and 3rd Respondents as Directors of the 1st Respondent Company; VI. Appropriate reliefs be passed under and in accordance with Sections 242 of the Companies Act, 2013; VII. Order Costs of and incidental to this Petition be paid by the Respondents 2 and 3; VIII. A Scheme be framed for the management and control of the affairs of the Company and running of operations thereof; IX. Such further order or orders and/or direction or directions be given as to this Hon'ble Tribunal may deem fit and proper; 3. The main object of the R1 Company as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets worth Rs. 2.50 crore. The Petitioner immediately offered her personal properties worth Rs. 2.50 crore in order to enable the Company to obtain the license from the Ministry. At that time also the 2nd Respondent obtained the signatures of the Petitioner in a few more documents stating that the same was required for the purpose of applying for the license from the Ministry and for opening a bank account in the name of the Company. On 24.8.2010 all the necessary documents required for submitting the application for starting the channel were submitted to the Ministry of Information and Broadcasting. 7. The 2nd Respondent confirmed that the license is registered in the name of the Petitioner and the 2nd Respondent. The Authorised Share Capital of the company at the time of incorporation of the Company was Rs. 10 crore, divided into 10,00,000 Equity Shares of Rs. 100/- each and therefore the Petitioner was rest assured that there was only one class of shares i.e., Equity Shares. The Petitioner was legally entitled to 1,50,000 Equity Shares of Rs. 100/- each against Rs. 1.50 crore which was invested by her. Before such investment, the Paid-up share capital was Rs. 1 lakh only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents do not seem to have appointed the Petitioner as a Director formally and filed the form with ROC. The petitioner states that by showing the diaries, the Respondents were cheating her. Apart from that, by not allotting 1,50,000 Equity Shares of Rs. 100/- each, the 2nd and 3rd Respondents also transferred 75,000 Equity Shares of Rs. 100/- each from the name of the Petitioner to the name of the 2nd Respondent. On one hand, the 2nd and 3rd Respondents denied the right of the Petitioner by allotting 85,000 Equity Shares instead of 1,50,000 Equity Shares and on the other hand, illegally transferred 75,000 Equity Shares out of the 1,50,000 Equity Shares allotted to the Petitioner and brought down the Equity percentage of the Petitioner in the Company from 42.64% to 5.01%, which further got reduced to 2.40% by virtue of the issue of additional shares. Copies of Forms 20B have been filed by the 2nd Respondent with ROC, Ernakulam for the years ending 31.03.2011 and 31.03.2012 10. It is also stated that the Petitioner came to know the allotment of Preference Shares in the year 2016 and immediately she lodged a complaint with the Police Department and Crime No. 235/2016 was regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010. The decision of the 1st Respondent Company is applicable to all the investors other than the 2nd and 3rd Respondents, who were the promoters and was to allot shares to them at premium of Rs. 660/- per share. The Petitioner transferred her 75,000 equity shares to the 2nd Respondent on 02.04.2011. The Petitioner was thereafter allotted 10,000 equity shares at a premium of Rs. 650/- All other investors were also accordingly issued equity shares at premium of Rs. 650/- premium including Mr. A.K. Manzoor who had invested amount of nearly Rs. 8,00,00,000/- and had in fact moved this Tribunal by filing Company Petition No. TCP/180/2016 which claim was later settled. These allotments and issues are reflected in the annual reports of the 1st Respondent Company for the year ending 2011 onwards produced along with the Company Petition itself. 14. The learned Senior Counsel for respondents argued that the reliefs claimed in the Company Petition are patently barred by limitation under Section 433 of the Companies Act. The Petitioner has never denied knowledge of the aforesaid issues as well as statutory recordings in the annual reports in the Company Petition or in the Criminal Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments and stated that the Petitioner cannot be permitted to be converted into a majority shareholder when admittedly she has never done anything in or in relation to the R1 Company except the initial investment of Rs. 1,50,00,000/. These Respondents have offered to buy out the Petitioner's shares at a valuation or on payment of interest for her investment of Rs. 1,50,00,000/- whichever is her choice. The entire attempt is only to get a buy out of her shares and not in any manner to assert her rights which as aforementioned are non-existent. Even as of today it is only the untenable offer of the Petitioner to sell her shares at an exorbitant amount that has created a stalemate. These Respondents are willing to buy out the shares of the Petitioner on such terms and conditions as may be deemed fit and proper in accordance with the orders of this Tribunal. 18. Heard the learned counsel Shri A.M. Sridharan, appearing for the Petitioner and Shri Joseph Kodianthara, learned Senior Counsel appearing for the Respondents 1 to 3 through video conferencing. The voluminous pleadings and documents have been carefully perused. Evidence along with the list of events was duly examined and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l directed as under:- Learned counsel for the petitioner is present. Learned counsel for the respondents are represented by a proxy counsel. Both sides stated that they have filed memos suggesting names of chartered accountants. Counsel for the petitioner stated that he has no objection to appointing any one of them. In view of the submission of both parties, this Tribunal appoints M/s. Venkatachalam Aiyer Co., Chartered Accountants, 41/36478, Blue Bird Towers Providence Road, Kochi-18 to look into the books of account of 1st respondent Company and to report whether the 1st respondent company received the money in respect of all the allotment of shares, both equity and preference, from its members especially, the 2nd and 3rd respondents or the 2nd and 3rd respondents utilized someone else money for the allotment of shares to them . 22. Upon the order of this Tribunal the Chartered Accountant submitted the report dated 08.06.2020 stating the following:- As mentioned in the above paragraphs, we asked the management of the 1 respondent company to furnish evidence such as copies of the pay-in-slips obtained from the bank against the deposits of cheques/draft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty shares at a premium of Rs. 650 per share for a value of Rs. 75,00,000/- made on 30.09.2011 to Ms. Laly Joseph. It is also pertinent to consider the submission of the Chartered Accountant that facts or explanations stated in the report, could probably arise due to the non-receipt of the evidence in support of the identity (i.e., name) of the persons involved, from whose account the contributions for allotment of equity shares have been received by the company. 24. This Tribunal also gone through the statement showing the particulars of the consideration received by the 1st Respondent Company against the allotment of Equity Shares to its members from the date of incorporation (26.07.2010) to the date of order of this Tribunal on 02.01.2020. It appears from the report that on 07.09.2010 Rs. 1.5 crore received was used equally for allotment of equity and preference shares (i.e. Rs. 75 lakhs each). Thus it is clear that the petitioner had made the investment to the Company even though the shares are allotted as equity and preference. 25. In the totality of circumstances, it is clear that the petitioner had invested an amount of Rs. 1,50,00,000/- (One Crore Fifty Lakhs Only) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unfair and improper could have arisen only when Company starts its operations. The understanding or promises made between two parties before the incorporation of the company cannot be considered as an oppression and mismanagement in the Company under Section 241-242 of the Companies Act, 2013. 28. Taking into consideration of the facts and circumstances of the present matter it is clear that the R1 Company was established by the 2nd Respondent with the help and investment of the petitioner. It is settled law that when a matter is before NCLT under Section 241-242 irrespective of what parties plead, say, or do, the paramount consideration of the Tribunal is to keep in view what is in the interests of the Company. The interest of the parties is subservient to the interest of the Company. It is necessary for the Tribunal to first consider the interest of the Company. The health of the Company reflects the health of the economy and that is what matters. Hence, this Tribunal finds it appropriate to get a valuation of the shares which may enable the Petitioner to leave the company with fair value and fair interest. We find no restriction on us under the Companies Act to pass such an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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