2022 (10) TMI 934 - Tri - Companies Law

Company Petitioners Denied Standing under Companies Act |

Nipha Trade and Commerce Private Ltd. and Ors. Versus Girish Malpani and Ors.

The Tribunal ruled that the Company Petitioners lacked the status of members of the 1st respondent company at the time of filing the Company Petition. As ... Right of the Shareholder / Member of Company - it is alleged that the main petition do not possess the minimum qualification criteria prescribed under Section 244 of the Companies Act for filing the main CP and none of the prayers sought for by the Respondents 1 to 4 falls under the ambit of Section 241 of the Companies Act. Whether the Company Petitioners are not the members of the 1st respondent? - If so, whether the Company Petition filed by them u/s. 241 of the Companies Act is not maintainable under law? HELD THAT:- Since it is settled law that a shareholder who is not a member cannot maintain an application under section 241 of the Companies Act 2013, it is imperative for the company petitioners to establish that they are the members of the 1st respondent Company as on the date of filing this Company Petition. In so far as the case on hand is concerned the Company Petitioners have claimed that the respondents 2 & 3 in Company Petition have agreed to sell Rs. 9,68,500/- fully paid-up equity shares of Rs. 10/- each, aggregating 76.09% of the respondent company to the 1st petitioner under the sale purchase agreement dated 18.05.2010. The mandatory compliances for transfer of such shares, namely, executing share transfer form, entering names of the transferees in the share register and then applying to the company to register the name in place of the previous holder of the share has neither been pleaded nor any record of such actions action been placed. The right of a transferee of a share is only to call upon the company to register his name and no more. No rights arise till such registration takes place. The completion of the transaction by having the name entered in the register of members relates it back to the time when the transfer was first made. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable. Admittedly, no record showing the names of the Company Petitioner in the Registers of the company or pendency of such request before the concerned authority or Tribunal has been placed in the impugned order - the status of the petitioners as members of the respondent Company remains un-established. Being a non-member, the respondents in this IA have no local standi, to maintain a Petition under section 241 of the Companies Act 2013. The Company Petitioners have no local standi to maintain the Petition u/s. 241 of the Companies Act - Application allowed. Issues Involved:1. Maintainability of the main Company Petition.2. Locus standi of the Respondents 2 to 4.3. Compliance with Section 244 of the Companies Act.4. Status of the Petitioners as members of the company.Detailed Analysis:1. Maintainability of the Main Company Petition:The Interlocutory Application was filed questioning the maintainability of the main Company Petition under Sections 241 to 244 of the Companies Act, 2013. The petitioners in the main petition did not possess the minimum qualification criteria prescribed under Section 244 for filing the main CP. The prayers sought by the Respondents 1 to 4 did not fall under the ambit of Section 241 of the Companies Act.2. Locus Standi of the Respondents 2 to 4:The Applicants questioned the locus standi of Respondents 2 to 4, as they were not shareholders or members of ARMPL. The Respondent No. 1, who infused an unsecured loan and was appointed as Additional Director, had disputes leading to the management takeover by Respondent No. 6 & 7. The share purchase agreement signed between Respondent No. 1 and Respondent No. 6 & 7 did not consummate due to non-fulfillment of conditions. Respondent No. 1 filed an FIR, which was closed due to lack of evidence, and approached higher courts, including the Hon'ble Supreme Court of India. Respondent No. 1 to 4 also approached the Hon'ble Addl. Sr. Civil Judge, praying for the declaration of Sale Deeds executed by ARMPL as null and void. The Applicant argued that Respondent No. 1 was abusing the process of the court.3. Compliance with Section 244 of the Companies Act:The Applicant argued that under Section 244(1)(a) of the Companies Act, the applicants should hold at least 10% of the shares of the company. Respondents No. 1 to 4 did not hold any shares in ARMPL. The Applicant also stated that when a petition is filed under Section 241 by more than one party, 'consent in writing' is required from each party, which Respondent No. 1 had not furnished. The assertion by Respondents No. 1 to 4 that they were beneficial owners was not maintainable as the documents produced did not support such an understanding.4. Status of the Petitioners as Members of the Company:The Respondents contended that they became shareholders of Ambience pursuant to a term-sheet dated May 18, 2020, and a Share Purchase Agreement (SPA) dated June 25, 2010. They argued that they had invested significant amounts of money into Ambience, and their shares were held by the Promoters of Ambience on their behalf. They denied various assertions made by the Applicants and stated that they were members in Ambience. The Tribunal referred to Section 241 of the Companies Act, which states that only a member of the company can file an application under this section. The definition of 'member' under Section 2(55) was also cited. The Tribunal noted that the Company Petitioners claimed to be beneficial shareholders with 76.09% interest in the shares of the 1st respondent, based on the Share Purchase Agreement and term sheet. However, the mandatory compliances for the transfer of such shares, such as executing share transfer forms and entering names in the share register, were not pleaded or evidenced.Judgment:The Tribunal concluded that the Company Petitioners were not members of the 1st respondent company as on the date of filing the Company Petition. Since the petitioners did not establish their status as members, they had no locus standi to maintain a petition under Section 241 of the Companies Act, 2013. Consequently, the Interlocutory Application No. 207/2020 was allowed, declaring that the Company Petitioners had no locus standi to maintain the Petition under Section 241 of the Companies Act. The application was allowed with no costs.