TaxTMI 
TaxTMI 
2015 (1) TMI 255
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....f title is not established, it cannot examine the process of obtaining a title. An adjudication of an entitlement to the shares is not within the compass of Section 111 of the Companies Act. A person has a right to be on the register only when there is a valid transfer deed and a share certificate, i.e., where his entitlement to the shares is already established and proved, and where there is then a refusal to enter the name of the petitioner on the register of members. There cannot be a combined application for specific performance and rectification. The right to get shares has to be separately enforced, de hors proceedings under Section 111 of the Companies Act. When that right had been established an application can then be made for rectification. 2. This is the issue to be decided in this company appeal, one that was admitted on 18th March 2013. The appeal is directed against an order dated 14th January 2013. By that order, the Company Law Board directed original respondent Nos. 2 to 4 (the present appellants) to issue the original 7.5 lakh share certificates of Rs. 10/- each in the original 1st respondent company (the 1st appellant here) duly stamped and sealed to the petit....
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.... within the period referred to in sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same. (3) An appeal under sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered to the company. (4) If- (a) the name of any person- (i) is, without sufficient cause, entered in the register of members of a company, or (ii) after having been entered in the register, is without sufficient cause omitted therefrom; or (b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become or ceased to be, a member including a refusal under sub-section (1), the person aggrieved, or any member of the company, or the company, may apply to the Company Law Board for rectification of the register. (5) The Company Law Board, while dealing with an appeal preferred under sub- section (2) or an application made under subsection (4) may, after hearing the part....
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....ight unless any member or members of the company specified in the order acquire the right aforesaid, within such time as may be allowed for the purpose by the order, on payment to the purchaser of the price paid by him therefor or such other sum as the Company Law Board may determine to be a reasonable compensation for the right in all the circumstances of the case. (12) If default is made in complying with any of the provisions of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five hundred rupees for every day during which the default continues. (13) Nothing in this section and section 108, 109 or 110 shall prejudice any power of a private company under its articles to enforce the restrictions contained therein against the right to transfer the shares of such company. (14) In this section "company" means a private company and includes a private company which had become a public company by virtue of section 43A of this Act." 5. Section 111(4) thus operates where the name of a person is incorrectly entered or removed from the register of member or where there is a default of delay in "in en....
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....d their rights as a dominant 75% equity shareholder in the 1st appellant company. What remained to be done was the ministerial or clerical action of rectifying the register. In this view, no question of law sufficient to maintain an appeal under Section 10F of the Companies Act, 1956 arises. The appeal, in Mr. Bharucha's submission, must be dismissed. 9. Having carefully considered the material, and the rival submissions, including the detailed written submissions filed by both sides, I am not persuaded that Mr. Bharucha's formulation of the case is at all tenable. There appears to me to have been, on the part of the Company Law Board, a complete misappreciation and a misunderstanding of the frame, sweep and ambit of Section 111 of the Companies Act. This is a question of law that is, in my view, in itself sufficient to make this appeal maintainable. Further, though it is true that an appeal under section 10F of the Companies Act, 1956 is not in the nature of a first appeal, it is apparent from the submissions of both sides that the appreciation of facts by the Company Law Board is wanting in critical and material aspects. I do realize that the legal term used in such ca....
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....nt services from India, and was willing to provide loans in the form of capital equipment required for Tansun's manufacturing activity. This buy-back agreement was executed on 18th September 2003 though with effect from 1st February 2002. 13. Between 2002 and 2004, Tansun made various advance payments to Advansys. These were utilised by Advansys for acquiring land at Pune, constructing a factory and installing the necessary machinery. All these advance payments were, according to Advansys, later repaid by adjusting them toward the price of exports by Advansys and its associated entities to Tansun. 14. On 13th February 2003, an amount of GBP4000 was transferred by one Copex Management Services Limited ("Copex") to Advansys. Copex claimed to be the company secretary and administrator of the 1st respondent, the original petitioner, Ponds Investment Limited ("Ponds"), a Mauritius-based company said to be wholly controlled or owned (or both) by Rana and Hunjan. 15. As Balwani and Shakuntala on the one hand and Hunjan and Rana on the other had not reached any concluded agreement on the shareholding and valuations of Advansys, Balwani asked Hunjan and Rana about the purpose o....
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....s by then pressurising Hunjan and Rana to produce this share certificate. Balwani responded by saying to Hunjan and Rana that in order to issue the share certificate, the parties would first have to arrive at a share subscription agreement, comply with statutory formalities, and only then could any shares in Advansys be issued to Ponds. On 16th August 2006, Hunjan reminded Balwani about the share certificates, saying that the matter was now urgent. He also says that nothing further could be done in relation to the outstanding payments and other issues between the parties until the share certificate was received. 20. On 17th August 2006, Balwani wrote to Hunjan saying that he had instructed Advansys's chartered accountant for the share certificate. Advansys and Balwani claimed that this was under economic and financial duress, since, by then, Advansys was completely dependent on Tansun for all business support; Tansun had reduced considerably the orders that it placed on Advansys; and Tansun was also either delaying payment of Advansys's past invoices or withholding them altogether. However, Balwani pointed out in his email that there was a procedure that had to be follow....
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....prescribed forms to the Reserve Bank of India. Finally, proof of payment of consideration for these shares was a legal and inescapable requirement. I must note at this stage that although this Share Purchase Agreement was circulated in draft, it is an admitted position that it was never executed. 24. On 2nd March 2007, Balwani received an email from Johnstone, in which Johnstone expressed a concern that Ponds did not have on its record copies of the relevant share certificates. He claimed that Pond's Board of Directors were "demanding sight" of these share certificates. Balwani replied on 9th March 2007 to Johnstone, with a copy to Hunjan and Rana. He clarified that no shares had yet been issued; that were any shares to be issued, this could only be done as on a current date; that Bank's and other regulatory agencies needed to be informed of the issue of the shares; and most importantly, that consideration would need to be shown as having been paid towards these share subscription. A week later, Johnstone emailed Balwani expressing a concern that the shares in Advansys had not been properly issued or allotted. He claimed that it was not necessary to draft or execute a sh....
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....D" to an affidavit in reply dated 20th November 2012 by Balwani to an affidavit in sur-sur-rejoinder by Hunjan. The third page of this reconciliation statement shows that value of six invoices of June 2007 correspond exactly to the remittance of GBP92,500. In his email, Hunjan specifically directed Balwani to apply the remittances only in the manner provided in the reconciliation statement and in no other. Indeed, in rather stentorian tone, he said: "Pankaj, I want you to come back with your agreement/acceptance of my spread sheet by Monday 8th October 2007 latest. You will apply the funds send to you as we direct you to do. You WILL NOT apply the funds any other way." This is a statement that Hunjan is unable to explain at any point subsequent. I do not see how, in light of this, when Balwani applied those funds in precisely the manner indicated in the reconciliation spread sheet and not in "any other way", Hunjan can now turn around and demand precisely that which he first forbade; i.e., that the funds be applied, or be held to have been applied, in a completely different manner. How the Company Law Board could have possibly overlooked this material evidence is inexplicable....
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....nsys. It seems that this stock is still uncollected today. 33. On 7th May 2009, Johnstone wrote to the chartered accountants of Advansys. He expressed what he described as serious concern about "the behaviour of Balwani and his co-director Shakuntala Balwani". He alleged that the Balwanis had intentionally concealed the issue of shares to Ponds on 29th June 2007 in the accounts of Advansys. As we shall see, this is a stand that is of some consequence. In this, Johnstone unequivocally states that the issue of shares was in June 2007 and against the remittance made at that time of GBP92,500. This is in material contradiction to a conflicting case that the share subscription was originally of the GBP4000 remittance made by Copex on 13th February 2003. 34. Advansys's chartered accountants responded on 11th May 2009. They clarified that the amount of GBP92,500 (equivalent to Rs. 78,67,125/-) received from CK Chartered Accountants was not recorded in the Advansys's balance sheet as at 31st March 2008 toward share subscription but as current liabilities, i.e., as advances received against invoices, this being the stated purpose in the FIRC. Advansys's chartered accountan....
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....ny Law Board was nearly nine years after that payment. These dates and time periods will have some consequence while considering the issue of delay and laches. III : Rival Submissions 40. It is on these statement of facts that Mr. Chinoy, learned senior counsel for the appellants, and Mr. Andhyarujina, learned counsel for the appellants who also addressed the Court briefly, framed their submissions. These can, broadly, be summarised thus: (a) The Company Petition filed by Ponds under Section 111 of the Companies Act, 1956 was per se not maintainable. The Company Law Board was not entitled to direct the issuance of shares or share certificates under Section 111(5) of the Companies Act, 1956. The Company Law Board was not, Mr. Chinoy and Mr. Andhyarujina contended, entitled under Section 111 of the Act to adjudicate complex questions of fact as to the entitlement of Ponds to the shares. Proceedings under Section 111 of the Act cannot be used to establish the right of Ponds to become a member of that Company. That right must be established in independent and other proceedings. A proceeding under Section 111 cannot be combined with an action for specific performance. (b) Th....
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....unt was simply not available for adjustment toward invoices. (e) Ponds throughout acted as a majority shareholder and never as a buyer of goods manufactured by Advansys. This, according to Mr. Bharucha, is inter alia established from much of the correspondence which shows that Ponds made payment towards capital expenses, played a role in the deployment of funds for civil works and construction etc. The FIRC statement or certificate issued by HSBC is unreliable. On enquiries made by Ponds, HSBC appears to have confirmed, some three years later, that it has no records available of the SWIFT message from NatWest Bank, the originating Bank, mentioning the purpose of remittance. How the purpose of invoices came to be stated in the FIRC issued by HSBC was, according to Mr. Bharucha, unexplained. That FIRC certificate is, therefore, according to Mr. Bharucha, entirely unreliable. (f) The petition is maintainable under Section 111(4), for, according to Mr. Bharucha a formal share certificate is not a prerequisite to the rectification sought under Section 111(4)(b). The scope of Section 111(4)(b) is much wider than Section 111(1). Section 111(4)(b) includes a refusal under sub-section....
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....mpany Law Board was that the Advansys was bound to issue a proper share certificate under Section 83 read with Section 113 of the Act. In other words, it was an admitted position that no share certificate had till then been issued. The so-called rectification application followed on this application for the issuance of the share certificate. The application before the Company Law Board was, therefore, according to Mr. Chinoy, a combined action for specific performance of an alleged share subscription agreement and an application for rectification. What is not in doubt, says Mr. Chinoy, and I must agree with him, is that the 7.5 lakh shares of Advansys were never actually issued by Advansys to Ponds. 43. Moreover, the frame of the prayers - asking for an issue of the shares - is materially contradictory of the averments, where Ponds claims to be a 'registered shareholder' of Advansys. The petition proceeds on the basis, in at least two places distinctly stated, that Exhibit "D" to the petition is a share certificate issued by Advansys. This does not appear to be correct. Exhibit "D" to the petition is by all accounts is clearly not a share certificate, although it is sign....
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....d 94(2) of the Companies Act, 1956. This, too, has never been done. I cannot see how any share issue could possibly be done in the manner suggested by Ponds. 45. The action before the Company Law Board was brought on the basis of a document that is not a share certificate, devoid of any share transfer or share issuance instrument, and on the basis of an undisclosed, possibly dubious and certainly unspecified agreement for purchase of shares. Any such share purchase agreement, even assuming that the Company Law Board could adjudicate it, would necessarily have to be in express terms. It would have to state the consideration. There is a complete lack of clarity and certainty as to the consideration paid for this so-called "75%" of the equity share holding in Advansys allegedly acquired by Ponds. 46. What lay before the Company Law Board was, therefore, not an application for rectification of the register simpliciter. It was a complex question that required Ponds first to establish whether there was or was not in fact an agreement for purchase of shares, and whether this agreement was proved to exist; proved to have been acted upon and given effect to; and whether, in pursuance ....
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....n 111, after its amendment, is assimilation of old Sections 111 and 155, those principles continue to govern. In paragraph 27, 28, 29, 31 and 32 the Supreme Court said: "27. In other words, in order to qualify for rectification, every procedure as prescribed under the Companies Act before recording the name in the Register of the company has to be stated to have been complied with by the applicant at least that part as required by the Act and assertion of what has not been complied with under the Act and the Rules by the person or authority of the respondent-Company before the applicant claims for the rectification of such Register. The court has to examine on the facts of each case whether an application is for rectification or something else. So field or peripheral jurisdiction of the court under it would be what comes under rectification, not projected claims under the garb of rectification. So far exercising of power for rectification within its field there could be no doubt the court as referred under Section 155 read with Section 2(11) and Section 10, it is the Company Court alone which has exclusive jurisdiction. Similarly, under Section 446, the court refers to the Compa....
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....d and signed document both by the transferor and transferee. Similar is the position under Section 155 of the Indian Companies Act, 1960 that before power is exercised for rectification essential ingredients are to exist. Section 108 gives a mandate to a company not to register transfer of shares unless proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee has been delivered to the company along with certificates relating to the shares. 31. Sub-section (1)(a) of Section 155 refers to a case where the name of any person is without sufficient cause entered or omitted in the Register of Members of a company. The word sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitation under which the court has to exercise its jurisdiction. It cannot be doubted that in spite of exclusiveness to decide all matters pertaining to the rectification it has to act....
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....t should have examined itself to see whether even prima facie what is said is a complicated question or not. Even dispute of fraud, if by a bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. Further on the other hand learned counsel for the respondent totally denies any share having been purchased by the appellant-Company or any amount paid to it. No transfer of any such share was ever approved by the Board of Directors. It is urged that the money even if advanced to Shri V.K. Bhargava by the appellant-Company, if at all, was a private transaction between the two with which the respondent-Company has no concern. So we find there is total denial by the respondent. 32. We have gone through the judgment of the High Court. It has rightly held the law pertaining to the jurisdiction of the court under Section 155 and even referred to some of the documents of the appellant but concluded that since they are disputed and said to be forged hence it directed for seeking....
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....disputed civil right or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member, and if the Court feels such claim does not constitute to be a rectification but instead seeking adjudication of basic pillar, some such facts falling outside rectification, its discretion to send the party to seek its relief before a Civil Court first for the adjudication of such facts has not been taken away from the Court. The Court, therefore, has to find whether the dispute raised is really for rectification or is of such a nature, unless decided first, it would not come within the purview of rectification. It, therefore, follows that the Company Court, in its discretion, may refer the parties to a suit where the issues involved are issues which cannot be appropriately dealt with in a summary jurisdiction. Where the application for rectification cannot be allowed without deciding other complicated questions of law and fact, or serious disputed questions of title, right, etc., are raised, the Company Court may direct the parties to get such matters decided by a Court of competent civil jurisdiction. As we understand the judgment in Ammoni....
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.... of the Companies Act will have to decide many important and complicated questions of law and fact. It will have to consider whether there was in fact a breach of the Regulations which would involve questions relating to interpretation of SEBI Act and the Regulations, the meaning of the word "acquirer", the meaning and import of "acting in concert, and appreciation of facts to reach a conclusion as to whether the defendants were really acting in concert, a decision on the question as to whether in the facts and circumstances, the defendants acquired any title to the shares at all, and a host of other questions which have been raised in the suit. We are of the view that these questions cannot be decided in exercise of summary jurisdiction. The rectification of the register could be ordered only after answering all these questions and, therefore, having regard to the ratio in Ammonia Supplies Corporation Pvt Ltd., these are questions which did not fall within the "peripheral field of rectification" but raised complicated questions of law and fact, and questions of title, which could appropriately be decided only by a Court of competent jurisdiction. They cannot, therefore, be conside....
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....he Smt.Claude-Lila Parulekar (P.) case (supra) Court held that both in Ammonia Supplies Corpn. (P.) Ltd.'s case (supra) and Canara Bank's case (supra), the material before the Courts was sufficient for a resolution of the disputes. That is not the case here. 54. From a reading of these decisions of the Supreme Court, it is possible to deduce a few principles. The first of these is that the Company Law Board is certainly entitled decide any question relating to the title of a party before it in an application to have his name entered into company's register. However, where membership of the applicant in the Company in relation to disputed shares has not yet been established, such a person cannot apply for rectification. That applicant would first have to file a civil suit or take other proceedings to establish his rights in relation to shares and its dispute. The Company Law Board's jurisdiction under Section 111 is of a summary nature. It is, therefore, limited to those cases that can be decided in a summary fashion. Where, therefore, complex questions of fact or disputed questions of title arise, these must be referred to a Civil Court for trial in an appropriat....
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....es. The FIRC is dated 30th June 2007. HSBC's clarification on which Mr. Bharucha places so much reliance is of 8th November 2012, and in this, HSBC only says that it is not able to trace the communication that discloses the purpose of the remittance. Till date, the FIRC has never been amended. I do not think that it is possible to accept to Mr. Bharucha's submission that merely because HSBC is, four years down the road, unable to find the originating document, therefore it must be held that the stated purpose of the remittance is something other than what is stated in the FIRC. Indeed, it appears to me that exactly the reverse should be the case. There does not seem to be any indication in the prior correspondence to explain how this figure of GBP92,500 is actually derived. What that figure actually does achieve is a complete and an explicable match with the reconciliation statement of outstanding invoices. Thus, on the one side, as postulated by Mr. Chinoy, on behalf of Advansys, there is entirely plausible explanation for the remittance. There is the endorsement of the FIRC certificate. The amount can be traced and exactly matched to the invoices in a reconciliation state....
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....lwani a document like a share certificate. This was evidently needed to satisfy their own auditors, Copex. This is the only possible explanation for the several messages and e-mails from Hunjan and Rana saying that this certificate was (a) required for internal purposes only, and (b) that Hunjan did not want Advansys of Balwani to go down "the legal route" or to "upset the apple cart". To this, Mr. Bharucha has no compelling explanation that I am able to discern. Indeed the tenor of the correspondence as a whole seems to indicate that this two Exhibits "C" and "D" were to be used only for these internal purposes of Tansun, Ponds, Hunjan and Rana. There was no agreement to give them any legal effect. Hunjan kept pestering Balwani for the issue of these certificates. He alternately reassured Balwani and Advansys that these were required for internal purposes, while simultaneously threatening a stoppage of financial support should that share certificate not be made available. At no point is there is an agreement between the players in this somewhat sordid drama to comply in a timely and structured fashion with the very many legal requirements and statutory compliances necessary for th....
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....early, there were a very large number of unresolved issues between the parties. 60. There is, I think, a distinction to be drawn at this stage between a document being asked for and given by one party to another to satisfy the latter's audit requirements and queries and an agreement for purchase of shares. The first, i.e., an accommodation or convenience letter of document may have no legal effect whatsoever. It may be the kind of casual, non-binding document that often in the real world of commercial transactions, comes to be exchanged between parties. Acquiring a significant stake in a Company is a different matter altogether. It requires extensive preparation. It demands close adherence to statutory and regulatory norms. It demands compliances at several levels. Most of all it demands complete clarity and a lack of all ambiguity as to certain essential facts: (i) the consideration being paid; (ii) the manner in which that consideration is paid and whether this is subject to any provisions of conditions; (iii) the precise nature of rights sought to be acquired; and (iv) a recorded and demonstrable and unambiguous document that shows how much is being acquired by whom and u....
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....ts to this appeal that since Tansun has provided much amount of money to Advansys for buying land, plant and machinery, that this was also a part of the consideration package for the issue of shares. There is no such pleading in the petition. It is not open to a party to constantly attempt to improve his case in this manner. As against this, there is evidence in the form of buyback agreement dated 1st February 2002 that prima-facie indicates that Tansun would provide loans in the form of capital equipment to Advansys. This explains why Balwani treated the payments from Tansun as loans or advances for manufacturing, and which were latter set off against exports. The buyback agreement also says that the relation between the parties is not that of a joint-venture, a joint undertaking, a partnership or co-ownership. What, therefore, is the material to indicate that the amounts remitted by or on behalf of Ponds, twice, in 2003 and 2007, were towards share subscription or the acquisition of shares in Advansys? I find no material. The entire edifice seems to have constructed around the consequence of a inconvenient or awkward audit query, which itself was result of some internal inconsist....
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....to determine the fair value. Under the erstwhile Controller of Capital Issues ("CCI") Guidelines, the fair value of the shares of Advansys would have been about Rs. 396.40. This is not disputed by Advansys. How, then, Advansys could have claimed to have acquired these shares at a face value of Rs. 10/-, is incomprehensible. 66. There is a material factual error in the Company Law Board's decision where it notes that Advansys being a 100% Export Oriented Unit ("EOU"), it is located in SEEPZ. For any unit located in SEEPZ, a 100% automatic investment is permissible (except for certain prohibited manufacturers such as arms, ammunitions, alcohol, cigarettes, etc.). The material error lies in the fact that while Advansys is a 100% EOU, it is located in Pune. It is not situated in any SEEPZ or any Special Economic Zone. It is only the Development Commissioner who has his office in SEEPZ, Mumbai. When Advansys applied for an industrial license, that application was made to the Development Commissioner at his office at SEEPZ, Mumbai. I cannot fathom how the fact that the office of a statutory authority is located in SEEPZ could also suggest that the unit in question is physically lo....
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....permitted in a case such as this. I have very little doubt that there was no consideration for this so-called agreement at all. Indeed, there was no agreement in the first place. There was, therefore, nothing on which any permission of FEMA could be obtained or, not having been obtained and the provisions of FEMA having been violated could have been compounded. VII : Delay, laches, acquiescence, suppression and bona fides 70. As I have noted, there is no explanation for Ponds' delay in approaching the Company Law Board. Reckoned from the 2007 foreign exchange remittance, the delay is of over five years; if taken from the 2003 remittance, it is over nine years. The emails of 31st March 2009 from Hunjan and 7th May 2009 from Johnstone make it clear that at least from 2009, two years after the June 2007 remittance, to the knowledge of Hunjan, Rana, Johnstone and Ponds, no shares had been issued. Yet Ponds did nothing till 2012. Even computed from the last of the 2009 dates, 7th May 2009, the delay is of over three years. There is no explanation at all for this delay. Why the Company Law Board thought it unnecessary to call for an explanation of this delay and, correspondingl....
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....e dealt with the issue of delay. He said that 2012 was the first time since 2009, when he had a stroke, that he visited India to attend to this litigation. He then filed an affidavit in sur-sur-rejoinder on 30th October 2012. In this he attempted to explain several discrepancies as "typographical errors", including the description of Mathuradas as a director and shareholder of Ponds, but more importantly, now admitting that between 2009 and 2012, he visited India several times. He claimed that the date of 2009 in his affidavit in rejoinder was a typographical error for 2011. He admitted to having visited India more than once. He was here on five occasions in 2010 and also again in 2012. 74. This makes matters even worse on the question of delay and laches. If Hunjan was in India in 2010, and more than once, there is certainly no explanation for the delay in filing this petition. How this issue could have been seen in favour of Ponds is baffling. There is absolutely no basis for the Company Law Board's finding that there was delay in approaching it. Hunjan's affidavits shown him to be an Ananias in every respect; no credence whatever could be given to a single word. VI....
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....said to be required for internal purposes. This was said not once but repeatedly. The correspondence from Johnstone indicates that he, as a relatively late entrant, could not understand how the initial remittance of Copex of GBP4000 could have been shown as towards share subscription. This is the entire genesis of these two documents. That is the only purpose for which they were issued, i.e., to suit the respondents' internal auditing and accounting purposes. Mr. Bharucha's argument glissades over all these factors, every one of which is of his clients' own making. It is also not without significance that the first draft of these documents emanated from Hunjan, was sent to Balwani, who filled it in having been by then totally subjugated and bent to the financial and commercial will of Tansun, Hunjan and Rana, and sent it back to Johnstone for "approval", with a copy of Hunjan. All of this is in the context of Hunjan's repeated statements that the share certificates were needed "for internal purposes", without "upsetting the apple cart". That is something that is never satisfactorily explained, and it lies at the core of the dispute. IX : Cross Objections 77. P....