2019 SCC Online NCLT 12015 in The National Company Law Tribunal

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2019 SCC OnLine NCLT 12015
In the National Company Law Tribunal†

(BEFORE RAJESWARA RAO VITTANALA, MEMBER (JUDICIAL) AND ASHOK KUMAR MISHRA, MEMBER
(TECHNICAL))
D.S. Kumar … Petitioner;

Versus
Jain Projects and Realty Developers Private Limited and Others …
Respondents.
C.P. No. 30 of 2014 (T.P. No. 61 of 2016)‡
Decided on June 28, 2019, [Heard on : 21.12.2016, 17.01.2017, 03.02.2017,
24.03.2017, 02.06.2017, 06.07.2017, 03.08.2017, 29.08.2017, 22.09.2017,
24.10.2017, 27.11.2017, 05.01.2018, 12.02.2018, 07.03.2018, 02.04.2018,
01.06.2018, 21.06.2018, 02.07.2018, 06.08.2018, 03.09.2018, 27.09.2018,
05.11.2018, 30.10.2018, 02.11.2018, 09.11.2018, 04.12.2018, 12.12.2018,
20.12.2018, 04.01.2019, 10.01.2019, 29.03.2019, 12.04.2019, 25.04.2019,
31.05.2019, 07.06.2019]
Advocates who appeared in this case :
Shri A. Murali, Advocate for the Petitioners;
Shri Andre Peter and Shri Jaykumar N.D., Advocates for the Respondents.
The Order of the Court was delivered by
ASHOK KUMAR MISHRA, MEMBER (TECHNICAL):— C.P. No. 30 of 2014 (T.P. No. 61 of
2016) was originally filed by Mr. D.S. Kumar alias D. Sreyamsukumar before the
Hon'ble Company Law Board, Southern Region, Chennai under Sections 111, 235, 397
& 398 read with Sections 402, 403, 542 and other Applicable Provisions of the
Companies Act, 1956 by the Petitioner against the Respondents herein and numbered
as C.P No. 30 of 2014. Consequent upon the establishment of National Company Law
Tribunal Bench at Bengaluru, the said case was transferred to this Tribunal, on
abolition of Company Law Board, Southern Region, Chennai Bench and renumbered it
as T.P No. 61 of 2016, against Jain Projects and Realty Developers Private Limited and
its Directors (Respondents), by seeking relief:
a. declaring that the Petitioner and Respondent No. 2 are the only Shareholders and
Directors of the Company;
b. declaring that the transfer of 500 shares by Respondent No. 2 to Respondent No.
3 is invalid and void ab initio and consequently rectify the register of
shareholders of the 1st Respondent Company to reflect the same;
c. directing Respondent No. 2 to transfer the 500 sharea transferred by him to
Respondent No. 3 to the Petitioner at the same cost at which it was transferred
by Respondent No. 2 to Respondent No. 3;
d. directing to Respondent No. 2 to transfer the remaining 500 shares with him to
the Petitioner at a fair value to be computed by an independent auditor as
appointed by this Hon'ble Court;
e. declaring that Respondent Nos. 3 and 4 are not Directors of the Company and
that any actions taken by them in their capacity as Directors of the Company
shall not bind the Petitioner nor the Company;
f. declaring that the Form 20B's marked herein as Annexure 2, 3, 4 and 5 filed with
the Registrar of Companies are false and fabricated and have been done without
the authorisation of the Company and are hence void ab initio;
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g. declaring that the Form 23AC's marked herein as Annexure 6, 7, 8, 9, 10 and 11

filed with the Registrar of Companies are false and fabricated and have been
done without the authorisation of the Company and are hence void ab initio;
h. declaring that the Form 66's marked as Annexure 12, 13 and 14 filed with the
Registrar of Companies are false and fabricated and have been done without the
authorisation of the Company and are hence void ab initio;
i. declaring that any act done by Respondent Nos. 2 to 4 in relation to the property
of the Company, as described herein above, is without authorisation, ex facie
illegal and void ab initio;
j. declaring a permanent injunction restraining Respondents from dealing with the
property of the Company;
k. declaring that any contract, agreement, arrangement, memorandum or any other
such understanding entered in relation to the property of the Company, as
described herein above, by Respondent Nos. 2 to 4, their men, servants, agents
or any person acting on their behalf, is ex facie illegal and void ab initio;
l. directing Respondent Nos. 2 to 4 to hand over any documents that they may
possess which belongs to either the Petitioner or the Company, including the
details of the digital signature of Respondent No. 2 that has been used to upload
various Forms, any other documents in hard copy, print outs, materials on
compact discs, pen drives, external hard drives and any other such storage
devices; and m. directing an investigation to be made in respect of the various
actions of Respondent Nos. 2 to 4 impugned herein and appoint a fit and proper
person as may be determined by this Tribunal to carry out such investigations
and thereafter pass appropriate orders under Section 406 of the Act of 1956 read
with Schedule XI thereof and accordingly surcharge Respondents Nos. 2 to 4 for
any losses that they may have caused to the Company in execution of their
illegal activities as set out in the petition.
2. The relevant and brief facts of the Petitioner's case, vide the Company Petition
dated 07.04.2014, inter alia, are as follows:
a) The Respondent Company bearing CIN No. U 07010KA2006PLC038171 was
incorporated under the Companies Act, 1956 on 06.01.2006. The main object of
the Company is inter alia “carry on the business of buying, selling, dealing,
owing, leasing, sub-leasing servicing real estate developers, designing, building,
planning, implementing, developing, promoting, managing, contracting,
maintaining, developing apartments, shopping complex, houses, recreation
parks, buildings, warehouses, malls, industrial/business parks, multiplex,
software/biotechnology parks, hotels, resorts, factories, multi storied buildings,
schools, colleges, dams, bridges, canals, power projects, turnkey projects, all
kinds of infrastructure facilities, hydraulic structures, roads, highways, flyovers,
railway lines, satellite towns, airports, runaway's, ports, bridges, traffic
management system, sport complexes, golf course, playgrounds, television
network, tennis court and other related activities.” etc. in accordance with its
Memorandum and Articles of Association.
b) As per the Company Petition the authorised share capital of the Respondent
Company has always been Rs. 25,00,000/- divided into 2,50,000 equity shares
at the face value of Rs. 10/- each. The issued, subscribed and paid up share
capital of the Respondent Company is Rs. 11,00,000/- comprised of 1,10,000
equity shares at the face value of Rs. 10/- each.
c) The Petitioner submits that the Petitioner and Respondent No. 2 are the only
Shareholders of the Company; Respondent No. 2 has purported to transfer
certain shares to Respondent No. 3, which transfer is being impugned in the
present Company Petition and contrary to the Articles of Association of the
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Company. Further, the Petitioner submits that there have been various Forms
that have been unauthorised and allegedly filed by the Company with the
Registrar of Companies which indicate inter alia that:
i. The Respondent No. 3 is also a Shareholder of the Company, when in fact there
is no transfer that was validly done to her;
ii. Respondent No. 3 and 4 are depicted as Additional Directors of the Company
when in fact they were never appointed to such a post. Further, even after lapse
of over 5 years, they continue to be depicted as Additional Directors which is
wholly contrary to the provisions of section 260 of the Act.
d) The Petitioner submits that the Petitioner has all along held 1, 00,000 equity
shares of the face value of Rs. 10/- per share and holds nearly 92% of the issued
share capital of the Company.
e) The Petitioner submits that Respondent No. 4 is an individual whose details are
not known to the Petitioner other than what has been set out in the cause title.’
f) The Petitioner submits that Respondent No. 2, who is acting in collusion with
Respondent Nos. 3 to 4, is acting in a manner which is oppressive of the
Petitioner, prejudicial to the Company, in direct contravention of the Companies
Act, 1956, the Articles of Association of the Company and various precedents laid
down by the Hon'ble Company Law Board and the High Courts in respect of
conduct of affairs of a quasi-partnership such as the Respondent Company. The
Petitioner further submits that it is settled law that as regards quasi-partnership,
any action which affects the shareholding or the management structure is liable
to be interfered with by this Tribunal.
g) The Petitioner submits that since the commencement of the business, the
Petitioner and Respondent No. 2 have been unable to see eye to eye and as such
there have been no Shareholder Meetings or Board Meetings of the Company
since 2006. Further, there have been no appointments of Statutory Auditors of
the Company and consequently, no accounts of the Company have been filed
since the date of its inception.
h) The Petitioner submits that no other Shareholders have been inducted into the
Company since its incorporation and that there has been no change to the
composition of the Board of Directors of the Company as well. The Petitioner and
Respondent No. 2 as the subscribers of the Memorandum of Association and
Articles of Association have always been the only Shareholders and Directors of
the Company.
i) The Petitioner submits that around 10.02.2006, the Company acquired vacant
land bearing Khata No's. 1924/569, 1924/A/570, 1925/571 & 1925/A/571,
situated at B.H. Road, Tumkur - 572102 measuring 22,294 Sq. Ft. The purchase
consideration was Rs. 81,36,000/- plus applicable registration charges and
stamp duty. The Property was purchased for the purpose of developing a
commercial complex. However, due to the dispute between the parties no action
was taken to put up any construction on the said piece of land. It is further
submitted that owing to such disputes between the parties, no Forms in relation
to the Company were filed on the website of the Registrar of Companies,
j) The Petitioner submits that he recently caused a search to be carried out and
discovered a host of Forms, purportedly filed on behalf of the Company for the
years ending 31 March, 2007, 31 March, 2008, 31 March, 2009, 31 March, 2010,
31 March, 2011 and 31 March, 2012. The Petitioner submits that he realised that
the same had been done clandestinely and without his authorization and that the
same has been orchestrated by Respondent No. 2 in collusion with Respondent
Nos. 3 and 4. All of the said forms have been digitally signed by Respondent No.
2, even though there was no board meeting, which authorised him to affix his
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digital signature for filing Forms on behalf of the Company,

k) The Petitioner submits that it is shocking that each of the Forms filed for the
respective financial year's states that the Annual General Meeting of the
Company for each of those years were all stated to have been held on
01.08.2012 though no such meeting was held. No notice was given to the
Petitioner and neither did he attend any such meetings. Further, being one of
two Shareholders, no such meetings could have been held without his presence.
Further, from the Forms filed it is made to appear as if the meetings were called
in the respective years and adjourned sine die and such adjourned meetings
were held on 01.08.2012. That the Petitioner being a majority Shareholder of the
Company did not get any notice of any of the meetings that were proposed to be
held in the respective years. Further, the Petitioner did not attend any of the said
meetings and therefore no decision could have been taken including a decision to
adjourn the said meetings sine die. Furthermore, no meeting was held on
01.08.2012, the Petitioner did not receive notice of any such meeting and he
being one of two Shareholders, no such meeting could have been held. That
there is no basis on which the Annual General Meeting of the Company for the
financial years 31 March, 2007, 31 March, 2008, 31 March, 2009, 31 March,
2010, 31 March, 2011 and 31 March, 2012 were all held on 01.08.2012.
l) The Petitioner submits that Respondent No. 2, has realised that the value of the
Company has now increased substantially since the land belonging to the
Company has also increased its value and with the land being the only asset of
the Company, Respondent No. 2 has hatched this conspiracy to possibly take
over the Company, sell the land and make a quick profit out of the same,
m) The Petitioner submits that each of the Forms have been filed using an alleged
digital signature of Respondent No. 2 and also contain various documents
purportedly signed by Respondent No. 2. That the Board of the Company has not
authorised the usage of the purported digital signature of the Respondent No. 2
and as such the filing of the Forms is ex facie void ab initio.
n) The Petitioner submits that on a perusal of the Form 20B of the Company filed by
Respondent No. 2 for the years ending 31 March, 2008, 31 March, 2009, 31
March, 2010 and 31 March, 2011, it is revealed that:
i. The Petitioner holds 92% of the shareholding of the Company. Therefore, there
could not have been any Shareholders Meeting without notice to the
Petitioner. The Petitioner submits that no notice for a Shareholders Meeting
has ever been received by him. Further, the Petitioner in his capacity as the
Director has never convened a Board Meeting nor has any resolution been
passed at a Board Meeting wherein it is resolved to hold a Shareholders’
Meeting of the Company, much less an Annual General Meeting on
01.08.2012.
ii. The purported transfer of shares from Respondent No. 2 to Respondent No. 3
is ex facie illegal being contrary to the Articles of Association of the Company
as Article 7 of the Articles of Association states that “(i) A share may be
transferred by a member or other person entitled to transfer to any member of
the Company selected by the transferor : but save as aforesaid and save as
otherwise provided by these Articles, hereof no share shall be transferred to a
person who is not a member so long as any member is willing to purchase the
same at its fair value… (iii) The shares in the Company shall not be transferred
except to the person/s selected by the Board of Directors of the Company and
at the price determined as fair value of the shares of the Company.” It is
further submitted that no offer was ever made to the Petitioner and therefore
there is no question of his turning down the offer to acquire the shares being
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offered by Respondent No. 2 and therefore the same could not have been
transferred to Respondent No. 3. Also, the Petitioner being a member of the
Board of Directors has not in any meeting of the board approved of such a
transfer.
iii. It is assumed by the Petitioner that the said transfer would have happened in
the financial year 2006-2007 since, conspicuously, the Form 20B for the
financial year ending 31.03.2007 has not been uploaded by the Respondent
No. 2. Evidently, the said transfer is a sham transaction and has no credence
or correctness in the eyes of law.
iv. The said Form 20B's reveal that the Respondent Nos. 3 and 4 have been
shown as Additional Director of the Company having been appointed on
30.06.2007. Therefore, they would cease to be Directors on the date of the
next Annual General Meeting i.e. 30.09.2008. No Annual General Meeting was
held by such time and therefore they would cease to be Directors by that date.
Hence, the continued reference to Respondent Nos. 3 and 4 as Additional
Directors is ex-facie contrary to the terms of Section 260 of the Companies
Act, 1956 and also Article 15 of the Articles of Association of the Company.
o) The Petitioner submits that similar to Form 20Bs, the Respondent Nos. 2 to 4
have also been instrumental in uploading false and incorrect Form 23AC's of the
Company for the financial years ending 31 March, 2007, 31 March, 2008, 31
March, 2009, 31 March, 2010, 31 March, 2011 and 31 March, 2012. Each of the
said Form 23AC indicates that the annual accounts of the Company have been
audited by the Auditor firm A.S. Bohra and Company, Bangalore. The Petitioner
being a majority Shareholder and also a Director on the Board of the Company
has not at any point of time, passed any resolution either in his capacity as a
Shareholder or Director to appoint much less re-appoint the said A.S. Bohra and
Company, Bangalore as the Statutory Auditor of the Company.
p) The Petitioner submits that any notice to convene an Annual General Meeting
would have to be made at a duly constituted Board Meeting and no such Board
Meeting was held or resolution passed, to convene a Shareholders’ meeting of
the Company. Therefore, each of these notices purporting to call a Shareholders’
Meeting are ex-facie incorrect.
q) The Petitioner submits that in spite of the fact that the Company has not carried
on any business since its inception; from the perusal of Form 23AC of the
Company for the financial years ending 31 March, 2007, 31 March, 2008, 31
March, 2009, 31 March, 2010, 31 March, 2011 and 31 March, 2012 it is clear that
there is a mismatch of figures over the years pertaining to assets and liabilities
of the Company. The figures are wholly contradictory with each other and cannot
be reconciled with each other in any manner whatsoever. Each of these figures is
incorrect and obviously the accounts are being fabricated by the Respondents to
suit their convenience.
r) The Petitioner submits that the Respondent No. 2 has caused the company to file
Form 66's for the financial years ending 31.03.2009, 31 March, 2010, 31 March,
2011 and 31 March, 2012. The Compliance Certificates record that the Annual
General Meeting for the financial years 31 March, 2009, 31 March, 2010 and 31
March, 2011 all were adjourned sine die and held on 01.08.2012. That no
provision in law contemplated that the Annual General Meeting of a company can
be adjourned sine die and conducted on a future date.
s) The Petitioner submits that the compliance certificate purportedly was prepared
and filed by Mr. Gopichand Rohra. However, such appointment could have only
happened at a Board Meeting at which the Petitioner was present, the Petitioner
being one of the two Directors. Therefore, the said Mr. Gopichand Rohra was
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clearly not entitled to issue any Compliance Certificate, t) The Petitioner submits
that the dates of the alleged Board Meetings mentioned in the Compliance
Certificate are false and incorrect and no such Board Meetings were held, u) The
Petitioner submits that the Compliance Certificates filed point out that the
Company has only 2 Members and the said fact is a correct position.
v) The Petitioner submits that the above mentioned actions of Respondent No. 2 are
illegal, arbitrary, oppressive, burdensome, harsh and invalid. It is submitted that
in a quasi partnership unilateral actions taken by one member for reasons that
are wholly collateral and not for the benefit of the Company reeks of oppression.
w) The Petitioner submits that the blatant attempt of Respondent No. 2 to pack the
board with outsiders who are unknown to the Petitioner in what is a quasi
partnership is but obviously an act of oppression. The attempt of the Respondent
No. 2 appears to be only to seize control of the Company so as to achieve his
illegal ends, x) The Petitioner submits that in terms of Article 15(iii) of the
Articles of Association of the Company, the Board of Directors may appoint
Additional and Alternate Directors. Such appointments are subject to the terms
and conditions mentioned in Section 260 and 313 of the Companies Act, 1956.
Section 260 required a person appointed as Additional Director to be confirmed
as a Director in the forthcoming Annual General Meeting and in the event he is
not so confirmed, such Additional Director would automatically vacate office
without any further act or deed.
y) The Petitioner submits that similar acts of oppression and mismanagement may
continue going forward and Respondent No. 2, in collusion with Respondent Nos.
3 to 4, will usurp the control of the Company, remove the Petitioner from
management of the Company, reduce the Petitioner to a minority Shareholder
and deal with the rights that the Company has over the land situated in Tumkur.
z) The Petitioner submits that the present case is a fit case for passing an order of
investigation into the actions of Respondent Nos. 2 to 4.
3. The Respondents have countered the submissions of the Petitioner vide their
counter dated 22.08.2014 contending and rebutting the facts in the Company Petition,
inter alia, as follows:
a) The Respondents deny all the averments, contentions and submissions made by
the Petitioner. The Respondents submit that the present Company Application by
the Petitioner is clearly an abuse of the process of this Tribunal and made with
the malafide intent only to engage the Respondents with prolonged litigation.
b) The Respondents submit that the averments made by the Petitioner in the
Company Petition applies to the Petitioner himself as he was the Shareholder and
Managing Director of the Company since its inception and failed to conduct the
Board Meetings regularly and Shareholders Meeting annually for 6 years
continuously including the appointment of the Statutory Auditors as per the
provisions of law. The Respondents submit that they have not done anything
illegal as the Respondent's sole aim is to save the Company from being declared
as a dormant or inactive Company by the Ministry of Corporate Affairs.
c) The Respondents submit that the emergence of Respondent Nos. 3 and 4 as
Directors of the Company is perfectly in accordance with the provision of law. The
Petitioner remained absent from the activities of the Company and in 2012 the
Respondent No. 2 sent a letter to the Petitioner to convey and conduct the Board
meeting and conduct the activities of the Company in accordance with law. The
said registered notice was returned back unserved. The Respondents then sent a
copy of the of the letter to the Registrar of Companies, Bangalore for intimation
and necessary action, The Registrar of Companies, Bangalore sent a notice to the
Company vide letter dated 12.03.2012 requesting the Company to respond to
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the allegation made by the Respondents. The Company headed by the Petitioner
failed to respond to the notice of the Registrar of Companies. Therefore, in order
to keep the Company as going concern and active, the Respondent called the
Board Meeting on 12.03.2012 at 10 : 00 AM. The notice of the same was sent to
the Petitioner as Director. However, the Meeting was conducted in the absence of
the Petitioner. The Petitioner as Shareholder and Managing Director failed to
conduct the Board Meeting since 2006.
d) The Petitioner failed to file Form DIN-2 and thereby Form DIN-3 could also not
be filed. Hence, the Petitioner ceases to be a Director of the Company by
operation of law. The Respondents were thus forced to appoint two more
Directors namely Respondent Nos. 3 and 4 as Additional Directors in order to
keep the Company in active legal position.
e) The Respondents submit that the Company with its Shareholders’ funds and with
unsecured loan purchased a high value property in the heart of the city of
Tumkur. Huge sums were invested in the said property and the Petitioner did not
bother to act in the manner required under law to restore the confidence of the
Shareholders and Creditors. The Petitioner to this day holds in his custody the
Original Sale Deed of the property which should otherwise be in the custody of
the Company.
f) The Petitioner being a Shareholder and Managing Director of the Company failed
to convene a meeting of the Board of Directors for 6 years and thereby
contravened the provisions of the Companies Act. The Petitioner further
contravened the provisions of the Act by not appointing a Statutory Auditor. It is
submitted that the Petitioner has the time to obtain loan from financial
institutions and banks but not for following the requirements of the Companies
Act.
g) The Petitioner went out of his way to transfer the property rights from the
Company's name to his name without the consent of the Board of Directors.
h) The Respondents admit that there were property issues but that there were no
such disputes among the Directors and Shareholders not to develop the property
into a commercial venture. The Petitioner wanted to grab the property without
development by cheating the Respondents.
i) The Respondents submit that they never objected to the Petitioner conducting
himself to comply with the compliances required under the provisions of the
Companies Act.
j) The Respondents submit that they have not made any financial and structural
changes in the accounts except what has been disclosed in the year immediate
after incorporation. The Respondents have spent from their own pocket for the
payment of the Auditor's Fees, Compliance Fees, filing of Annual Return and
other miscellaneous expenses as the Company did not have any liquid cash
available in its account. The Respondents submit that they took the said
initiative to comply with the statutory requirements or else the Registrar of
Companies would have prosecuted the Directors for non-compliances.
k) The Respondents submit that they have not made or earned income from the
Company except spending from their personal pocket to retain the Company as
active.
l) The Respondents submit that they are ready to convene fresh meetings of the
Director and Shareholder under the supervision of this Tribunal and abide by the
outcome of such proceedings.
m) The Respondents submit that Mr. Ramesh Parmar (Respondent No. 2) had
invested additional amount with the consent and permission of the Petitioner and
with a promise from the Petitioner that the additional money brought in will be
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treated as Share Capital and accordingly equal share certificates will be issued.
The additional money by way of Bank Draft of Bank of Maharashtra, in the name
of Sub-Registrar, Tumkur, on account of Company was utilised by the Company
for registration of the Property. Therefore, the said amount was reflected in the
Books of Accounts of the Company towards the share application money pending
allotment, n) Mrs. Vidya Parmar (Respondent No. 3) had invested as share
money on the day of registration of the property by purchasing a demand draft
from the Bank of Maharashtra for payment of stamp duty in favour of “Sub
Registrar - Tumkur” for registration of property in the name of the Company,
o) Mr. Gauthamchand (Respondent No. 4) had invested Rs. 450,000/- as share
money before the registration of the said property vide a demand draft in the
favour of Respondent No. 1 after being promised share certificates for the same.
4. The Petitioner, in his rejoinder to the objections raised by the Respondents dated
15.09.2015, has inter alia submitted as follows:
a) The Petitioner submits that the Petitioner being a director and majority
shareholder of the Respondent Company is unaware as to the basis on which
Respondent No. 2 is representing the Company as there was n Board Meeting
wherein it was resolved that the Respondent No. 2 would represent the
Company. This fact of the Respondent No. 2 is again an instance of usurpation of
power and authority by Respondent No. 2 in respect of the Company.
b) The Respondents counter ought to be rejected as the same is not in compliance
with the rules in as much as it is not accompanied by an affidavit verifying the
same.
c) The Respondents cannot lie for the fact that Respondent No. 2 has also not taken
any active step whatsoever towards calling for a Shareholders Meeting, much
less appointing an Auditor. The Respondent No. 2 has, when he thought it fit to
ensure him grabbing control of the Respondent Company, convened a Board
Meeting to have Respondent Nos. 3 and 4 appointed as Directors. Respondent
No. 2 is guilty of supressio very suggetstio falsi, inasmuch as it has conveniently
diverted the obligation of administration of the Company on the Petitioner and
sought to paint a picture as if he is a law abiding citizen.
d) The Petitioner submits that the postal acknowledgement cards attached by the
Respondents in their counter showing two acknowledgements signed by Mrs.
Padma Rekha, the wife of the Peititioner, are not signatures of Mrs. Padma Rekha
and are forged signatures. Further, while there were letters that were sent to the
Petitioner, the alleged contents of the same being notices for a board meeting in
2012 is incorrect and denied.
e) The Petitioner submits that the contention of the Respondents in regard to DIN-2
and DIN-3 is baseless inasmuch that mere nonfiling of the same cannot cause a
Director to cease to be Director. Further, the contention of the Respondent No. 2
that he has to appoint Respondent Nos. 3 and 4 to keep the Company alive is
baseless and unwarranted.
f) The Petitioner submits that the Petitioner is well aware of the legal position that
the assets of the Company are not that of its Shareholder and to save the
property from the Respondents the document was in the name of the Petitioner
as a Director of the Company. Further, if it was indeed the intention of the
Petitioner to transfer the property to himself, he would not have disclosed the
existence of the Company.
g) The Petitioner submit that if it was not for a dispute between the Petitioner and
Respondent No. 2, there would be no reason for Respondent No. 2 to sideline the
Petitioner and grab control of the Company using the services of Respondent No.
3 and 4.
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h) The Petitioner submits that it was only owing to the absence of Respondent No. 2
that the Petitioner could not conduct any meetings and this absence was only
owing to the fact that they could not see eye-to-eye.
i) The Petitioner submits that in the Company Petition the Petitioner has set out the
financial juggleries that are being performed in the name of the audit of
accounts. As such, it cannot lie for the Respondents to state that they have not
made any financial changes to the Company.
j) The Petitioner submits that the Petitioner is himself ready and willing to have a
Meeting of the Directors of the Respondent Company.
k) The Petitioner submits that he is and was always ready and willing to acquire the
shares of the Company if the same was offered to him in terms of Article 7 of the
Articles of Association of the Company.
l) The Respondent Nos. 2, 3 and 4 have claimed that they have paid certain
amounts towards stamp duty and registration expenses and also paid certain
monies by way of deposit into the bank account of the Respondent No. 1.
However, none of these alleged amounts find any mention in the bank accounts
of the Respondent Company.
m) The Petitioner submits that the Company had borrowed a sum of Rs. 70 lakhs
from Tumkur Grain Merchants Co-operative Bank on 13.02.2006. The said
amount was taken for discharging consideration in respect of the property
purchased in the name of the Company. The Petitioner has subsequently cleared
the entire loan taken from the Bank. It can clearly be seen from the balance
sheet prepared by the Respondents that the secured loan taken form the Bank
shows a balance of Rs. 1,93,775/- as on 15.04.2008. Thereafter, the sum of Rs.
1,93,775/- was cleared by two payments made on 15.04.2008 and the entire
loan was paid on 15.04.2008.
5. The Respondents have raised objections in their sur-rejoinder dated 24.03.2017,
inter alia, as follows:
a) The Respondents submit that Respondent No. 2 holds 10,000 equity shares of
the Respondent Company.
b) The Respondents submit that the Petitioner has not applied for Director
Identification Number and has not intimated the DIN 2 to the Company or filed
DIN 3 with the Registrar of Companies. This non-compliance by the Petitioner
debars him from acting as a Director of the Company and thus, he has ceased to
be a director of the Company by operation of law.
c) The Respondents submit that neither the Company nor Respondent No. 2 have
removed the Petitioner from the post of the Managing Director or Chairman by
any Board resolution.
d) The Respondents submit that Respondent No. 2 has not transferred any shares
owned by the Petitioner. The Respondent No. 2 has merely transferred his own
shares to his family members. There is no question of raising of new shares or
usurping the shares filed by the Petitioner. Thus, the Company Petition has been
filed by the Petitioner by confabulating facts in a vindictive manner and is
therefore liable to be dismissed with exemplaiy costs.
e) The Respondents submit that the Respondent No. 2 acted only with the intent to
secure and safeguard the interest of the Company.
f) The Respondents submit that the oppression and mismanagement cannot be
attributed to the Respondent Nos. 2 to 4 for the lethargy of the Petitioner or for
non-compliance of the provisions as contemplated under the Companies Act. The
Petitioner has not compelled with statutory requirement since 2007 and hence,
he was not shown as Director in the Ministry of Corporate Affairs (MCA) website.
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Further, once DIN-2 has not been issued, a person automatically ceases to be
the Director.
g) The Respondents submit that there is no doubt that the Petitioner continues to
be a Shareholder of the Company. However, since the Petitioner did not secure
DIN-2, he does not have locus standi as a Managing Director and equally he
cannot make allegations against the Respondent No. 2 merely because
Respondent No. 2 has complied with the requirement of the Act, while the
Petitioner continues without complying.
h) The Respondents submit that the Petitioner has raised personal loan by showing
the property of the Company without any Board Resolution and the same
amounts to an act of clear cheating and is punishable under the Penal Code,
1860. Further, if the Petitioner has no intention to grab the Company's property,
why has the Petitioner not deposited the title deeds till date before this Tribunal.
i) The Respondents submit that the Respondent No. 2 has not done anything as
against the Petitioner and the Petitioner was never thrown out from the Company
by the Respondents. The Petitioner ceased to be a Director for his failure in filing
DIN-2.
j) The Respondents submit that the Respondent No. 2 has followed the procedure
before transferring shares to Respondent Nos. 3 and 4. Further, Respondent No.
2 is entitled to transfer the shares to his family members as there is no bar to
transfer of shares in a Private Limited Company.
k) The Respondents submit that the Petitioner is well aware of the amount spent by
the Respondent No. 4 towards incorporation of the Company and the same
cannot be denied.
l) The Respondents deny the averment that the Petitioner has repaid the loan
amount to the Tumkur Grain Merchants Co-operative Bank on his own efforts.
The Respondent No. 2 also mobilised the amount to discharge the above said
loan. Further, the Petitioner has not mentioned the source of funds for the
purchase of the said property.
m) The Respondents submit that the Respondent No. 2 appointed Respondent Nos.
3 and 4 as Additional Director only to safeguard the interest of the Company.
Further, if Respondent No. 2 had not acted in time, the Company would have
been declared as Dormant Company allowing the Petitioner to misuse the only
asset for his personal benefit.
6. Heard Shri Andre Peter Learned Counsel for the Petitioner and Shri Jaykumar
N.D., Learned Counsel for the Respondents. We have carefully perused the
submissions and materials placed on record by the Petitioner and Respondents.
7. The bone of contention in the present Company Petition vests in the fact that
Respondent No. 2 transferred part of his Shareholding to Respondent Nos. 3 and 4
(whom he claims to be his family members) in violation of the Articles of Association
of the Company and further, proceeded appointed Respondent No. 3 and 4 as
Additional Directors of the Company without the consent of the Petitioner who is the
sole Majority Shareholder (by virtue of owning shares in excess of 90% of the total
paid-up share capital of the Company) and thereby sidelined the Petitioner from the
affairs of the Company in order to take over the sole asset viz. land owned by the
Company.
8. The Respondent No. 2 claims that he was forced to undertake the above action in
order to prevent the Company from being struck-off by the Registrar of Companies as
the Petitioner has not conducted any Meeting for a period of 6 years from the inception
of the Company.
9. As can be seen from the above, this case relates to alleged oppression of a sole
majority shareholder by the minority shareholders. However, before going into the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
merits of the said case, we have prima facie observed from the Counter dated
22.08.2014 filed by the Respondents and the Rejoinder dated 16.09.2015 filed by the
Petitioner that both of them are ready and willing to have a meeting of the Company.
10. It is understandable that the Respondent No. 2 undertook the above mentioned
steps in order to keep the Company alive given the fact that the Petitioner did not
undertake any of the compliances as mandated under the Companies Act, 1956 and
there was a credible threat that the Company would be declared dormant or struck-off
by the Registrar of Companies. Also, the fact that the Respondent No. 2 did not take
active steps to adversely affect the Petitioner's position as the Managing Director and
Chairman of the Board, goes on to show the lack of malqfide intent. Further, the
Petitioner concedes that the sole asset of the Company is currently in his name along
with the Original Deed and also accepts the fact that the assets of the Company are
not that of its Shareholder and to save the property from the Respondents the
document was in the name of the Petitioner as a Director of the Company.
11. Given the above, we are inclined to hold that the primary reason for the dispute
between the parties arise on certain misunderstanding and miscommunications, and
hence, we feel that there is a possibility of the parties settling the issue, if they are
provided with a forum to deliberate the same on. It is vital to mention here that the
Company has not undertaken any substantial business from the date of its
incorporation and there is a need to put it in motion, the reason for which the
Company was envisaged. The dispute between the parties has paralysed the
Administration and ordinary business of the Company.
12. We have perused the provisions of Section 186 of the Companies Act, 1956 and
Section 98 of Companies Act, 2013 and have reproduced the same as under:
Section 186 of the Companies Act, 1956 states as follows:
“Power of Tribunal to Order Meeting to be called
186. (1) If for any reason it is impracticable to call a meeting of a company,
other than an annual general meeting, in any manner in which meetings of the
company may be called, or to hold or conduct the meeting of the company in the
manner prescribed by this Act or the articles, the Tribunal may, either of its own
motion or on the application of any director of the company, or of any member of
the company who would be entitled to vote at the meeting,- (a) order a meeting of
the company to be called, held and conducted in such manner as the Tribunal
thinks fit; and (b) give such ancillary or consequential directions as the Tribunal
thinks expedient, including directions modifying or supplementing in relation to the
calling, holding and conducting of the meeting, the operation of the provisions of
this Act and of the company's articles.
Explanation. -The directions that may be given under this sub-section may
include a direction that one member of the company present in person or by proxy
shall be deemed to constitute a meeting. (2) Any meeting called, held and
conducted in accordance with any such order shall, for all purposes, be deemed to
be a meeting of the company duly called, held and conducted.”
Section 98 of Companies Act, 2013 states as follows:
“Power of Tribunal to call meetings of members, etc.
98. (1) if for any reason it is impracticable to call a meeting of a company, other
than an annual general meeting, in any manner in which meetings of the company
may be called, or to hold or conduct the meeting of the company in the manner
prescribed by this Act or the articles of the company, the Tribunal may, either suo
motu or on the application of any director or member of the company who would be
entitled to vote at the meeting—
(a) order a meeting of the company to be called, held and conducted in such
-----------------------------------------------------------------------------------------------------------------------------------------------------------
manner as the Tribunal/thinks fit; and

(b) give such ancillary or consequential directions as the Tribunal thinks expedient,
including directions modifying or supplementing in relation to the calling, holding
and conducting of the meeting, the operation of the provisions of this Act or
articles of the company:
Provided that such directions may include a direction that one member of the
company present in person or by proxy shall be deemed to constitute a meeting.
(2) Any meeting called, held and conducted in accordance with any order made
under sub-section (1) shall, for all purposes, be deemed to be a meeting of the
company duly called held and conducted.”
13. In Interport Global Logistics Pvt. Ltd. v. Netzland Wireless India Pvt. Ltd., 2016
SCC OnLine NCLT 408, the National Company Law Tribunal, Mumbai Bench made clear
that “while exercising jurisdiction of Section 98 of the Act i.e. “Power of Tribunal to call
meetings of members”, the statute in unambiguous wordings has enacted that
Tribunal may order a meeting to be called, held and conducted to put the Company on
the rails to attend the normal business, but “other than an Annual General Meeting””.
14. Further, Section 397 and 398 of the Companies Act, 1956 read with Section
242 of the Companies Act, 2013 provide that “the Tribunal may, with a view to
bringing to an end the matters complained of, make such order as it thinks fit”.
15. Hence, this Bench is persuaded by the circumstances narrated above to suo
motu invoke the power vested in it by virtue of Section 397 and 398 of the Companies
Act, 1956 read with Section 242 of the Companies Act, 2013 and Section 186 of the
Companies Act, 1956 read with Section 98 of the Companies Act, 2013 and order the
conduct of an Extraordinary General Meeting. Therefore, we order for calling, holding
and conducting of the meeting.
16. It is also hereby held that for the purpose of execution of legal formalities, Mr.
D.S Kumar and Mr. Ramesh Parmar, shall be deemed to constitute a quorum of the
meeting. A meeting so held shall, for the purpose of Sub-section 1 of Section 98, be
deemed to be duly called, held and conducted by the Company.
17. As a result, it is hereby directed to prepare an agenda of the meeting now
authorized and place it before the Chairman on or before 19.07.2019 and after
obtaining the approval conduct the meeting within 21 days’ time i.e., on or before
09.08.2019.
18. We appoint Mr. B.N. Harish, Advocate, practising in the Company matters and
having address at No. 18, Shuklam, 1st Main, 1st Avenue, Near ICICI Bank, Shubh
Enclave, Harlur Road, Off Sarjapur Road, Bangalore - 560102, as Chairman of the
meeting. The Chairman is directed to conduct the meeting in accordance with the
Secretarial procedures read with the provisions - of the Companies Act as applicable.
He is directed to file the Report within seven day of the conclusion of the meeting. The
meeting shall be conducted on or before 09.08.2019 at 10.30 A.M at any convenient
venue to be decided by the Chairman. The remuneration of Chairman for purposes of
approval of the agenda of the meeting and for presiding over as the Chairman of the
said meeting shall be Rs. 50,000/- and the Company is directed to pay his
remuneration at the time of completion of the assignment.
19. At this juncture, we would like to make it clear that in case the remedy
provided by us hereinabove fails to absolve the dispute or resolve the issues existing
between the parties, each of the parties shall have complete liberty to approach this
Tribunal seeking for such directions as may be necessary.
20. C.P. No. 30 of 2014 (T.P. No. 61 of 2016) is disposed of in terms of above
directions. No Order as to cost.
———
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† Bengaluru Bench
‡U/s 111, 235, 397 & 398 read with Sections 402, 403, 542 and other Applicable Provisions of the Companies
Act, 1956
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2019 SCC Online NCLT 12015 in The National Company Law Tribunal

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2019 SCC Online NCLT 12015 in The National Company Law Tribunal

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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Friday, January 14, 2022

2019 SCC OnLine NCLT 12015

In the National Company Law Tribunal†

D.S. Kumar … Petitioner;

g. declaring that the Form 23AC's marked herein as Annexure 6, 7, 8, 9, 10 and 11

digital signature for filing Forms on behalf of the Company,

manner as the Tribunal/thinks fit; and

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