2009 (7) TMI 768 - SC - Companies Law

Hotel Queen Road Conversion to Public Company Confirmed; Hillcrest Realty Entitled to Voting Rights as Preference Shareholder

Ram Parshotam Mittal Versus Hillcrest Realty Sdn. Bhd.

The Supreme Court upheld the Division Bench's decision that Hotel Queen Road had converted into a public company, entitling Hillcrest Realty to voting ... Whether Hotel Queen Road (P.) Ltd., was a private company or a public company? Held that:- SLP dismissed. As for the purpose of disposing of these Special Leave Petitions, we are prima facie of the view that by virtue of the resolutions dated 30-9-2002, Hotel Queen Road had become a public company thereby attracting the provisions of section 87(2)(b) of the Companies Act, 1956, upon the bar under section 90(2) thereof having been lifted. A natural consequence is that in the event dividend had not been declared or paid for a period of two years as far as Hillcrest is concerned, the Explanation to section 87(2)(b) would come into play thereby giving Hillcrest Realty, as a cumulative preference shareholder, the right to vote on every resolution placed before the Company, at any meeting, in keeping with clause (i) of section 87(2)(b) of the aforesaid Act. Issues Involved:1. Interpretation and application of Section 87(2)(b) and Section 90(2) of the Companies Act, 1956.2. Determination of whether Hotel Queen Road (P.) Ltd. converted from a private company to a public company.3. Entitlement of Hillcrest Realty to voting rights as a preference shareholder.4. Allegations of suppression of material facts and fraud by Hotel Queen Road (P.) Ltd.5. Payment of dividends and its impact on voting rights.Detailed Analysis:1. Interpretation and Application of Section 87(2)(b) and Section 90(2) of the Companies Act, 1956:The core issue was whether Hillcrest Realty, as a preference shareholder, was entitled to voting rights under Section 87(2)(b) of the Companies Act, 1956, given the bar under Section 90(2). The Division Bench of the High Court decided on the assumption that Hotel Queen Road (P.) Ltd. had become a public company, thus making Section 87(2)(b) applicable and entitling Hillcrest Realty to voting rights.2. Determination of Whether Hotel Queen Road (P.) Ltd. Converted from a Private Company to a Public Company:The resolutions passed on 30-9-2002 were crucial in determining the status of Hotel Queen Road (P.) Ltd. The first resolution was interpreted as a definitive decision to convert the company into a public company, followed by resolutions that increased the share capital and altered the Articles of Association. The filing of Form No. 23 and a Statement in lieu of Prospectus with the Registrar of Companies supported this conversion. The Supreme Court held that the company had indeed converted into a public company by these resolutions, making the provisions of Section 87(2)(b) applicable.3. Entitlement of Hillcrest Realty to Voting Rights as a Preference Shareholder:Hillcrest Realty claimed voting rights based on the non-payment of dividends for over two years, as stipulated in Section 87(2)(b). The Division Bench agreed, noting that the non-declaration of dividends for two years entitled Hillcrest Realty to vote on every resolution at any meeting of the company. The Supreme Court upheld this view, emphasizing that the legal fiction created by the Explanation to Section 87(2)(b) deemed dividends to be due, irrespective of profits.4. Allegations of Suppression of Material Facts and Fraud by Hotel Queen Road (P.) Ltd.:Hillcrest Realty alleged that Hotel Queen Road (P.) Ltd. had suppressed the resolutions of 30-9-2002 to obtain an injunction. The Division Bench found that the injunction was obtained by suppression of material facts and vacated the interim order. The Supreme Court agreed with the Division Bench's finding of suppression and emphasized that fraud unravels everything, referencing decisions in Lazarus Estates Ltd. v. Beasley and A.V. Papayya Sastry v. Government of Andhra Pradesh.5. Payment of Dividends and Its Impact on Voting Rights:Hotel Queen Road (P.) Ltd. offered to pay the due dividends from private sources, not from profits, to avoid granting voting rights to Hillcrest Realty. The Supreme Court rejected this, citing Section 205 of the Companies Act, which mandates that dividends must be paid out of profits. The Court held that such an offer did not negate the accrued voting rights of Hillcrest Realty.Conclusion:The Supreme Court dismissed the Special Leave Petitions filed by both Hotel Queen Road and Hillcrest Realty, upholding the Division Bench's decision that Hotel Queen Road had converted into a public company and that Hillcrest Realty was entitled to voting rights due to the non-payment of dividends. The Court requested the High Court to expedite the final decision in the suits to resolve the management uncertainty of Hotel Queen Road. The observations made were of a prima facie nature for the disposal of the Special Leave Petitions and should not influence the final decision in the suits.