TaxTMI 
TaxTMI 
2016 (10) TMI 1100
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....tion preferred by Appellants/ Petitioners was dismissed as not-maintainable. 2. The relevant facts as detailed and placed on record by the appellants are as follows: - The 1st respondent Crystal Thermotech Limited & Others (hereinafter referred to as "Company") was incorporated on 31st October 2013 under the Companies Act 1956. At that stage the appellants subscribed 28.57% of shares in the 1st respondent Company and also a Director of the company. The grievance of the appellants is that without any notice to the appellants, without their consent and knowledge, on 11th February 2014, the respondents made additional allotment to outsider i.e. M/S Jupiter Goods Private Limited reducing the joint share value of the appellants below 10%. 3. The further case of the appellants is that similar illegal additional allotment of shares were made in favour of outsiders or others on 1st March 2014, 25th March 2014 and 29th March 2014 without notice to the appellants and without their consent and knowledge. They came to know of illegal allotment of shares, additional shares to outside company a....
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....fore the then Company Law Board, Kolkata, in May 2016 alleging Oppression and Mismanagement by the respondents. It was pointed out that the cause of action took place since 11th February 2014 when allotment of shares were made in favour of M/S Jupiter Goods Private Limited of which the appellants came to know only on 30th April 2014 from audited Balance Sheet. 9. The respondents on appearance filed one Company Application under Section 399 of the Companies Act, 1956 questioning the maintainability of the Company Petition on the ground that the share value of the appellants as on the date of filing i.e. May 2016 was less than 10%. 10. According to the respondents the authorised share capital of the company was Rs. 15,00,00,000 divided into 1,50,00,000 equity shares of Rs. 10/- each and issued and subscribed share capital of the Company was Rs. 15,00,00,000 divided into 1,50,00,000 equity shares of Rs. 10/- each. The appellants jointly hold 4,50,000 equity shares in the 1st respondent Company which is equal to 3% Of the total shareholding. Before the Company Law Board, they placed reliance o....
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....s which was deposited by appellants with M/S Jupiter Goods Private Limited. Learned Counsel for the respondents while contended that there is a delay coupled with acquiescence the appellants having accepted the subsequent shares in May 2015, their claim is barred by principle of estoppel having received the subsequent shares without any objection. 15. Learned Counsel for the respondents also relied on Supreme Court decision in 'Bhagwati Developers Private Limited' wherein the Supreme Court while dealing with the case under Section 397 of the 1956 Act held that the date of filing is the crucial date to decide whether the appellant had minimum 10% of the share capital to maintain the petition under Section 397. 16. Having heard the parties we are not inclined to dismiss the appeal on the ground of delay or acquiescence nor on the ground of estoppel as none of those grounds were taken by the respondents before the Tribunal. The Tribunal has also not dismissed the Company Petition on such ground(s). The only ground for which Tribunal has dismissed the Petition is non- maintainability ....
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....ject of the suits for which there is no prescribed period of limitation. As per the said provisions any suit for which no period of limitation is provided, the period of limitation will be 3 years from the date when the right to sue accrue. 22. In the present case, the right to sue accrued to the appellants on 11th February 2014 and the petition was filed in April 2016. Therefore, the said petition was well within the period of limitation. 23. In this appeal the main grievance of the appellants is that the respondents have brought down their shareholding below 1/10th of the total shareholding of the company by oppression and mismanagement. 24. The question arises for consideration in the present case is where a shareholder/member of a Company alleges Oppression and Mismanagement by Directors in bringing down his shareholding below 1/10th of shareholding, whether such petition under Section 397 and 398 of the Companies Act 1956 can be dismissed as not maintainable on the ground that shareholding of the petitioner is below 1/10th of the shareholding on the date of filing of the petition. &n....
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....ate when the applicants were required to satisfy the requirements under Section 399 of the Companies Act 1956. In the said case the Supreme Court while held that it is not necessary that the applicant(s) must hold the same individually, but such a winding-up petition can be filed after obtaining the consent of other shareholders, so as to made the requirement of having an aggregate of 10% out of the total shareholding. 27. A shareholder/ member or group of shareholder/ members without and notice or information cannot visualize or presume that his/their share(s) will be brought down to their disadvantage, which arriounts to oppression and mismanagement. On such anticipation or presumption no petition under Sec 397 or 398 of the Companies Act, 1956 can be filed. Such aggrieved shareholder(s)/ member(s) can file the petition under Section 397 & 398 of the Companies Act 1956 only after cause of action has taken place. If that be so, the day on which a petition under Section 397 and 398 is filed by a shareholder/ member, whose shareholding has been brought down below the requirement of havi....