2015 (6) TMI 428 - Board - Companies Law

Shareholder Rights Upheld in Companies Act Petition: Oppression and Mismanagement Allegations Substantiated

The Board found the petition maintainable under Section 399 of the Companies Act, as the Petitioner was deemed a shareholder due to non-compliance with ... Charges of oppression and mismanagement - Sections 397, 398 read with Section 402 of the Indian Companies Act, 1956 - Reduction in shareholding from 50% to 30% fraudulently - No communication for AGM - Non payment of bonus or dividents - Illegally sale of property belong to company - Diversion / siphoned of company funds - Held that:- As per own admission by the Company, by way of showing the Petitioner's shareholding in the Annual Returns filed until 2012, this fact is very clear that the Petitioner was holding 1950 shares in the Company. It is needless to say that the admission is the best evidence against the party who makes it. In my opinion, the Respondents cannot be allowed to assert the fact that the impugned shares were transferred in favour of the Respondent No. 2 in 1976-77 by way of gift. In addition to the above, it is a well settled law that for a lawful transfer of shares the execution of transfer deeds, as provided in Section 108(1) of the Act, is a must, as held in the case of Manalal Khetan v. Kedar Nath Khetan [1976 (11) TMI 135 - SUPREME COURT OF INDIA]. As regards the limitation, it is an established proposition of law as held in the cases of Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad (dead) through L.Rs [2005 (1) TMI 409 - SUPREME COURT OF INDIA] that an act of oppression is a continuous wrong until it is brought to end by passing an appropriate order. The causes of action lastly arose in his favour in the year 2013 when he came to know that the company has not shown him as a shareholder. Therefore, the petition since is filed well within 3 years, it is well within the limitation. From the narration of the facts by the Respondents as stated in the preceding paras, it is evident that the Respondents have not disputed that the Petitioner initially was holding 50% shares. Subsequently, his shareholding was reduced to 36.1% for the reason that he had become an NRI. It is further admitted that the Petitioner was holding 1950 shares constituting 26.7% shareholding in the Company. However, as discussed hereinbefore, the Respondents have failed to prove the factum of gift of the said number of shares in favour of the Respondent No. 2. Their plea that these shares were gifted by the Petitioner thus has not been proved by the Respondents. Therefore, depriving the Petitioner from his shares with mala fide motive and for no valid reason, in my opinion, amounts to grave act of oppression. It is continuous wrong and is still persisting. In my opinion, this singular act of oppression is enough to grant appropriate reliefs to the Petitioner in this case. Based on the overall discussion above, I have come to the conclusion, in so far as to the allegation of illegal transfer of 1950 shares of the Petitioner in favour of the Respondent No. 2 is concerned, the Petitioner has succeeded to prove the same as an act of oppression. Although, this is a single act, yet looking to the seriousness of gravity the said act of oppression, the effect of which is still persisting, in my view, the Petitioner is entitled to the relief with respect to the impugned shares. The petition, therefore, is disposed. Issues Involved:1. Maintainability of the petition under Section 399 of the Companies Act, 1956.2. Bar of limitation.3. Allegations of oppression and mismanagement.4. Alleged suppression of material facts by the petitioner.5. Validity of share transfer and appointments of directors.6. Siphoning off funds and mismanagement of company assets.7. Non-service of statutory notices for meetings.Issue-Wise Detailed Analysis:1. Maintainability of the Petition under Section 399 of the Companies Act, 1956:The Respondents argued that the Petitioner lacked locus standi to file the petition under Section 399 of the Act, contending that the Petitioner had gifted his shares to Respondent No. 2 and thus was not a shareholder. The Board dismissed this argument, stating that the Petitioner was shown as holding 1950 shares (26.7% of the total paid-up capital) in the Company's Annual Returns until 2012. The compliance with Section 108 of the Act regarding the transfer of shares was mandatory, and since no transfer deeds were produced, the Petitioner was deemed eligible to file the petition.2. Bar of Limitation:The Respondents claimed the petition was barred by the law of limitation, citing that the grievances dated back to 1993 and 2010. The Petitioner argued that the acts of oppression were continuous and ongoing. The Board agreed with the Petitioner, referencing established legal precedents that acts of oppression are continuous wrongs until resolved. The petition was filed within three years of the Petitioner discovering the alleged wrongful acts in 2013, thus within the limitation period.3. Allegations of Oppression and Mismanagement:The Petitioner alleged that Respondent No. 2 unilaterally issued further shares, reducing the Petitioner's shareholding from 50% to 26.7%, appointed directors without following due process, and failed to communicate regarding AGMs, bonuses, and dividends. The Board found that the Petitioner's shareholding was unjustly reduced and that the Respondents failed to provide evidence of the alleged gift of shares. The unilateral actions of Respondent No. 2 were deemed acts of oppression.4. Alleged Suppression of Material Facts by the Petitioner:The Respondents argued that the Petitioner suppressed material facts, particularly his declaration in U.S. bankruptcy proceedings where he did not disclose his shareholding. The Board found the Petitioner's explanation-that he believed the Company was defunct-reasonable. The non-disclosure did not mislead the Board or affect the interim orders, and thus, the objection was rejected.5. Validity of Share Transfer and Appointments of Directors:The Petitioner challenged the appointments of Mr. Mautik Gandhi and Respondent No. 3 as directors, alleging they were made without due process. The Board did not specifically address these appointments but focused on the broader issue of the Petitioner's shareholding and the acts of oppression related to it. The Petitioner's shareholding was to be restored, implying the appointments were part of the oppressive conduct.6. Siphoning Off Funds and Mismanagement of Company Assets:The Petitioner alleged that Respondent No. 2 siphoned off funds to his wife's firm and sold company property at undervalue. The Board noted the absence of M/s Aquarius Impex and M/s Millennium Developers Pvt. Ltd. as parties, thus not adjudicating on these allegations. However, the Board acknowledged the misuse of company resources by Respondent No. 2.7. Non-Service of Statutory Notices for Meetings:The Petitioner alleged he was not served notices for AGMs and other meetings. The Respondents failed to rebut this allegation. The Board held that the Petitioner was denied his statutory rights, further substantiating the claim of oppression.Conclusion and Order:The Board concluded that the Petitioner proved the act of oppression regarding the illegal transfer of his shares. The Company was directed to restore the Petitioner's 1950 shares, issue duplicate share certificates, and serve statutory notices for future meetings. Other reliefs sought by the Petitioner were declined. The petition was disposed of with no order as to costs.