9911796707
TMI Blog2023 (2) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... . The increase in the Authorised and Paid-up share capital was reduced to its original state. Additional shares issued in favour of Appellant herein / Respondent No. 3 before NCLT was directed to be cancelled and Fresh Annual Returns was directed to be filed with the RoC, Jaipur. The equity of Respondent No. 1 herein / Petitioner and Respondent No. 3 herein / Respondent No. 2 before NCLT was also directed to be restored to that of 50% each. With respect to alleged illegal sale and transaction of the immovable assets of the company was concerned, the same was outside the jurisdiction of the Tribunal. The parties have already invoked the jurisdiction of the civil courts for necessary action. There are no merit in the Appeal to interfere with the order impugned passed by the NCLT. The impugned order dated 20.12.2019 passed by the National Company Law Tribunal (New Delhi Bench) in CP-118(ND)/2013 is hereby affirmed - appeal dismissed. - Company Appeal (AT) No. 183 of 2020 - - - Dated:- 23-2-2023 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Mr. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Ranvir Singh, Mr. Saraswata Mohapatra, Mr. Hans Honey Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equity of petitioner and respondent no. 2 shall be restored to that of 50% each. With respect to alleged illegal sale and transaction of the immovable assets of the company is concerned, the same is outside the jurisdiction of this Tribunal. The parties have already invoked the jurisdiction of the civil courts for necessary action. 10. It would further be expedient to direct the parties to explore a buy in or buy out at valuation of the share of the respondent company as on 31.03.2013. 2. The facts giving rise to the instant Appeal are as follows: i) The Respondent No. 1 incorporated the Respondent No. 2 Company M/s Shrimat Mahavir Buildcon Pvt. Ltd. on 20.12.2004 with 50% ownership with 5000 shares with the other 50% ownership being with one Archana Bhansali holding the remaining 5000 shares with authorized, issued and paid-up capital being Rs. 1,00,000. The Respondent No. 2 company is into sale-purchase and development of land parcels, among other things, as per the objects mentioned in the MoA of the company. ii) The said Archna Bhnansali resigned from the directorship of the Respondent No. 2 company on 15.07.2005 and transferred her 50% ownership to Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity/authorization of company in that regard. The matter was taken up by the board at its meeting dated 28.04.2010 wherein it took cognizance of the same and decided to initiate legal action against said Saharan and in that regard, authorized the Respondent No. 1 to initiate both civil and criminal actions against said Saharan. The next EGM dated 21.06.2010, it was noted that inspite of it being resolved to appoint the Respondent No. 1 to initiate civil and criminal actions against Suresh Saharan, no such action was initiated and in view of the same authorized the Appellant to initiate both civil and criminal actions against said Saharan. It was clear to the Appellant and the other director Respondent no. 3 that the Respondent No. 1 is not keen to act against Saharan and hence he was replaced with the Appellant. Thereafter, the company, acting through Appellant and filed a civil suit being Civil Suit No. 02/2010 in the Court of Ld. Civil Judge, Jaipur seeking a declaration that said sale be declared null and void and thus the sale deed be set aside. vi) Further case is that the Respondent No. 1 sought impleadment in above said suit of company filed against Saharan as a defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2019 merely on account of purported claims of oppression and mismanagement made by the Respondent No. l herein against the appellant while the former was throughout in acquiescence with other directors in the management of the company and thus had approached the tribunal with unclean hands in abuse of the process of law to sub-serve his individual and nefarious interests. The said petition before NCLT was barred by limitation as it was filed well beyond three years from 2008, the year of appointment of the appellant as director, as the Respondent No.1 was not only aware of the appointment throughout but also acquiesced with it at all times, as detailed in the appeal, as further evident from the factum that the registered office of Respondent No.2 company was 12, Raghu Vihar, Maharani Farm, Durgapura, Jaipur-302018, Rajasthan which is the residence of the Appellant and his wife the Respondent No.3. Thus, they were managing the affairs of the company together all along much to the know/edge, consent and acquiescence of the Respondent No. l. The petition being CP-118 (ND)/2013 clearly seems an after-thought relying on mere technicalities without any substance as such and ought to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, did not exist in law on said date of adjudication as it stood removed from the register of companies in view of company being in violation of provisions of Section 248of the Act. Thus, the petition was void and deserved to be dismissed as an abuse of the process of court. 6. It is further submitted that the impugned order needs to be set aside in view of the contumacious conduct of the Respondent No.1 wherein he played fraud on the court and inspite of being throughout complicit in the management of the company and the entire purpose of the company being frustrated resulting in its removal from the register maintained by MCA, abused the process for the court for his own nefarious purpose by alleging purported oppression and mis-management of affairs merely on the ground of improper appointment of the Appellant as a Director, a factum very well known to him since the time of appointment but challenged only in 2013 on legal advice in view of his tensions with fellow directors. This Hon'ble Appellate Tribunal should not condone the conduct of Respondent No.1 in benefiting from his own wrong and order investigation under Section 213 of the Companies Act, 2013 into the affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Additional Session Judge, Jaipur has admitted the fact that there was no meeting of Board of Directors held in presence of Respondent No. 1 and Suresh Saharan, passing the resolution appointing him as Director of the company. Resolution appointing Appellant as Director was solely passed by Respondent No. 3/his wife. It is also stated by Appellant that no documents were attached along with FORM 32 which was submitted before Registrar of Companies. 9. It is further submitted that the acts of oppression and mismanagement as alleged against Appellant and Respondent no. 3 are having continuous effect and therefore, the question of the petition before NCLT being time barred does not arise. In this regard, relied on judgment of Harish Kumar Berry Vs. S. Berry s Automotive Udyog P. Ltd. (2005) 64 CLA 274 (CLB) . Further, in the case of Dankha Devi Agarwal V. Tara Properties (P) Ltd. : AIR 2006 SC 3068 , It has been held by the Hon ble Supreme Court that a decision taken in a meeting without due notice of such meeting for removal or induction would be instance of oppression and mismanagement. 10. It is further submitted that time and again it has observed that where a shareholder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from other things as mentioned in MOA of Respondent No. 2 company. The MOA and AOA of Respondent No.2 Company are already annexed by Respondent No.3 in the reply filed. 14. It is further submitted that Ms. Archana Bhansali resigned from the post of director of Respondent No.2 company in 15.7.2005 and her 50% share was then transferred to Respondent No.3 who was appointed as director along with Mr. Suresh Sharan. Mr. Suresh Sharan was appointed on the instance of Respondent No.1. The copy of Form No. 32 filed by Respondent No. 2 company vide which Respondent No.3 was appointed as Director is already annexed by Respondent No.3 in the reply filed. In 2008 Respondent No.2 company then appointed Appellant as a Non-Executive Director from 15.06.2008 onwards and Form-32 was filed therein to that effect. The said Form No. 32 along with related documents are already annexed by Respondent No.3 in the reply filed. The Respondent No.2 company then went on to increase its authorized share capital from Rs. 1,00,000 to Rs. 2,00,000. The Respondent No.3 held 25% share in the new share capital of Respondent No.2 company. That Respondent No.1 had entered into many different agreements to sell in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iating the merits of the case or without even investigating into the facts of the case. The Respondent No.1 who had opposed Respondent No.2 company before the Tribunal and the Tribunal is being represented herein along with Respondent No.2 by the same set of counsel. The Respondent No.3 is opposing the same. The onus of proof is on Respondent No.1 to show as to under which authority Respondent No.1 and Respondent No.2 company are being represented together. 16. After hearing the parties and going through the pleadings made on behalf of the parties, we are fully in agreement with the reasons returned by the NCLT whereby the appointment of Respondent No. 3, the Appellant herein was set aside in the absence of any documentary proof of his valid appointment. Further, the NCLT held that the Respondent Nos. 1 and 3 only be two directors of the Respondent company. The increase in the Authorised and Paid-up share capital was reduced to its original state. Additional shares issued in favour of Appellant herein / Respondent No. 3 before NCLT was directed to be cancelled and Fresh Annual Returns was directed to be filed with the RoC, Jaipur. The equity of Respondent No. 1 herein / Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
