TaxTMI 
TaxTMI 
2017 (9) TMI 536
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....ted, on 21st July, 2005, Authorised share capital of the first respondent company is Rs. 1.75.00.000/- divided into 17,50,000 equity shares of Rs. 10/- each. Issued, subscribed and paid-up share capital of the first respondent company is Rs. 1,75,00,000/- divided into 17,50,000 equity shares of Rs. 10/- each. Registered office of the first respondent company is situated at Plot No. 263 to 266, GIDC, Sachin, Distt. Surat. 3. Main objects of the company is to carry on the business as manufacturers, traders, spinners, weavers, processors, importers, exporters, agents and dealers in natural and synthetics and man-made fibre cloth and yarns and cotton, jute etc. as stated in Memorandum of Association. 4. Petitioner No. 1 was appointed as Director of the first respondent company by way of Special Resolution passed by shareholders in Extraordinary General Meeting convened on 16th September, 2010. 5. Shareholding of the petitioners 1 to 3 in the first respondent company is as follows: - Sr. No. Petitioner No. of equity shares held % 01 Petitioner No. 1 1,38,895 7.94 02 Petitioner No. 2 1,00,000 5.71 03 Petitioner No. 3 3,44,380 19.68....
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....4 is the son of respondent No. 2. Respondent No. 4 is having 1,11,111 equity shares in the first respondent company. Respondent No. 4 was appointed as Director in the Extraordinary General Meeting held on 17.12.2012. 12. Respondent Nos. 5 to 9 sold their entire shareholding in the first respondent company aggregating 17,50,000 equity shares at a price of Rs. 18/- per share to petitioner No. 1 and Respondent No. 2 and their respective family members/associate companies. 13. Immediately after takeover of the first respondent company by petitioner No. 1 and respondent No. 2 from respondents No. 6 to 9, the following steps were taken by petitioner No. 1 and respondent No. 2. 14. Petitioner No. 1 and respondent No. 2 filed application dated 06.04.2011 before respondent No. 10 for substituting their names as Directors in the place of respondent Nos. 5 to 8. The said application was also signed by respondents No. 5 to 8. Immediately after take over, petitioner No. 1 and respondent No. 2 paid-up the entire dues of Sutex Co-operative Bank Ltd., Surat. 15. After discharging the dues of Sutex Co-operative Bank Ltd., petitioner No. 1 and respondent No. 2 took fresh term loan and ca....
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....respondent company in all or any of the documents or representation to Government/semi-government/departments and to sell transfer and rent the property of the first respondent company. 19. On 07.09.2012 Sutex Co-operative Bank Ltd. sent a notice to the first respondent company addressed to petitioner No. 1 and respondent No. 2 to make payment of outstanding amount of Rs. 2,99,30,674/- in account No. 834177 and Rs. 17,88,499.72 in account No. 300139 within ten days from the date of receipt of notice failing which the bank would be constrained to sell the land and adjust the sale proceeds against the amount due from the first respondent company. 20. Respondent No. 2 without sending notice to the petitioner No. 1 purportedly convened Extra-ordinary General Meeting of the members of the first respondent company on 17.12.2012 at the registered office of the company at Surat to authorise respondent No. 3 as guarantor to make repayment of the loan from his own account or through any other persons' account to create pari pasu charge in favour of respondent No. 3; to authorise respondent No. 2 to enter into any agreement or to execute any MoU or such other documents as may be nec....
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....land should only be released in his presence. In spite of specific request made by petitioner No. 1 to respondent No. 10 by letter dated 21.02.2013, requesting respondent No. 10 not to transfer the said plot of land in favour of anyone without his physical presence, respondent No. 10, by letter dated 28.03.2013 informed petitioner No. 1 that the names of the following directors of the first respondent company are appearing in terms of order dated 05.01.2006: - (i) Anandkumar Bhartiya (ii) Ramniranjan Agarwal (iii) Pankajkumar Agarwal (iv) Banwarilal Saraiya 26. Respondent No. 10 further confirmed that as per the Board Resolution of the first respondent company, the plot of land was transferred in the name of respondent No. 3. Respondent No. 10 further informed that a deed of assignment has been executed and the same has been registered by paying proper stamp duty. Respondent No. 10 informed that request of petitioner No. 1 cannot be considered for deferring the transfer of plot of land in favour of respondent No. 3. Respondent No. 10 asked petitioner, to file appropriate proceedings before any court or any other forum. Petitioner No. 1 alleged....
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....nd conducting any meeting in absence of petitioner No. 1 etc. 31. Respondents No. 1, 2 and 4 resisted this petition on the ground that this petition is barred by principle of Res Judicata, since the Civil Suit No. 131/13 on the file of Senior Civil Judge, Surat filed by petitioner No. 1 is pending and further on the ground that petitioner No. 1 filed Special Civil Application No. 7735/2013 on the file of High Court of Gujarat. 32. Respondents No. 1, 2 and 4 pleaded that respondent No. 2 has been appointed as Additional Director of the first respondent company on 29.07.2010. Petitioner No. 1 had never objected for the appointment of respondent No. 2 as Director. Petitioner No. 1 along with respondent No. 2 have signed number of resolutions of Board Meetings, resolutions of General Meetings, various bank documents, balance sheets, vouchers and other documents. After more than two and a half years, the petitioners raised dispute regarding appointment of respondent No. 2 as Director of the first respondent company and it shows that these allegations are with ulterior motive of the petitioners. Provisions of the Companies Act, 1956 require at least two Directors to run a private l....
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....the sale proceed was credited to Sutex Co-operative Bank Ltd. and reduced debt liability of the first respondent company. In the above said MOU, first respondent company gives the right to respondent No. 3 guarantor to transfer or sell the company's all movable and immovable assets to clear the liability of outstanding amount of Bank loan and Directors will not take any objection against the Bank and respondent No. 3. 38. The first respondent company had given power of attorney to Sutex Co-operative Bank Ltd. to sell property of the company and recover the loan outstanding amount but the bank could not sell the property. Then respondent No. 2 and petitioner No. 1, Directors of the first respondent company requested respondent No. 3 to pay outstanding amount to the bank and accordingly respondent No.3 paid the amount to the bank. 39. On 07.09.2012 Sutex Co-operative Bank Ltd. again addressed a demand notice to petitioner No. 1, respondent No.2 and Respondent No. 3. Immediately after receiving second letter from Sutex Co-op. Bank Ltd., respondent No. 2 and petitioner No. 1 called a Board Meeting on 14.09.2012 and passed a resolution giving power to Sutex Co-op. Bank Ltd. to....
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....ndents 1, 2 and 4 that by virtue of Board Resolution dated 01.08.2012 respondent No. 2 was given authority to sell, transfer and rent the property of the first respondent company. By virtue of said resolution, respondent No. 2, on behalf of the first respondent company and respondent No. 3 entered into MoU dated 15.02.2013 to transfer the said plot of land in the name of respondent No. 3 and obtain authority letter from the retired Directors of the first respondent company i.e. respondents No. 5 to 8 on whose name GIDC plot was registered earlier. 41. Respondents Nos. 6 to 9 and respondent No. 2 have requested GIDC along with documents to transfer said plot of land to respondent No. 3. First respondent company vide letter dated 15.02.2013 requested respondent No. 10 for cancellation of form submitted by the petitioner No. 1 and respondent No. 2 on 06.04.2011 on the ground that no further action was taken by the petitioner No. 1 and respondent No. 2. Respondents No. 2 did not obtain signature of petitioner No. 1 on the said letter because respondent No. 2 was authorised to sign on behalf of the first respondent company by resolution dated 01.08.2012. 42. After submission of al....
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....financial mess, petitioner No. 1 chose to claim that transfer of assets was a conspiracy. 49. Respondents No. 6 to 9 filed separate reply stating that they have no comments about the forgery in the resolution dated 01.08.2012, about illegal and fraudulent holding of EOGM dated 17.12.2012 and about illegal appointment of respondent No. 4 as director of the first respondent company. 50. Respondents No. 6 to 9 have no comments on the change of auditors that took place in the Annual General Meeting on 30.09.2011 by which date they were not shareholders of the company. Respondents No. 6 to 9 stated that they never connived with any of the directors of the first respondent company. 51. Respondents No. 6 to 9 denied the allegation that they along with Respondent No. 2 sent a letter dated 15.02.2013 to Respondent No. 10 to cancel earlier application dated 06.04.2011 illegally and fraudulently and with intent to usurp the land. Respondents No. 6 to 9 state they are duty bound by the MOU dated 16.11.2010, signed the letter dated 15.02.2013. Petitioners never informed respondents No. 6 to 9 that disputes were there between directors regarding GIDC land. Petitioners never asked respon....
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....he dues of the said bank with intention to grab the land of the first respondent company worth Rs. 9 to 10 crores for a sum of Rs. 2,43,13,881/-. 56. Heard arguments of counsels appearing for the petitioners and respondents. 57. Basing on the pleadings of both the sides and rival submissions, the following points emerge for determination in this petition. (1) Whether continuation of Pradeep Kumar Binani i.e. respondent No. 2 as director of the first respondent company from 01.10.2010 is illegal and invalid. (2) Whether Board resolution dated 01.08.2012 was passed by forging signature of petitioner No.1 (3) Whether EOGM dated 17.12.2012 was validly conducted (4) Whether MOU dated 15.02.2013 based on the resolution of the Board of Directors dated 01.08.2012 is valid and binding on the petitioner. (5) Whether deed of conveyance and agreement dated 04.03.2013 between respondent Nos. 5 to 8 and respondent No. 3 is valid and binding on the petitioners. (6) Whether the action of respondent No. 10 in rejecting the letter dated 06.04.2011 and acting on the letter dated 15.02.2013 and transfer of plot Nos. 263 to 266 is valid and bi....
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.... one of the guarantors for the loan availed by the first respondent company from Sutex Co-operative Bank. 62. In this background now it has to be seen what controversies are within the jurisdiction of this Tribunal and what controversies are outside the jurisdiction of this Tribunal. 63. Although aim of the petitioner is to invalidate transfer of plot Nos. 263 to 266 to respondent No. 3, he has challenged only certain resolutions passed or purported to have been passed in the conduct of the affairs of the first respondent company and thereby sought to invoke jurisdiction of this Company Tribunal. 64. Point No. 1 Petitioner has pleaded that continuation of respondent No. 2 as Director of the first respondent company after 30.09.2010 is illegal in view of section 260 of the Companies Act, 1956. 65. There is no doubt about the fact that respondent No. 2 was appointed as Additional Director of the first respondent company in the Board meeting dated 29.07.2010 u/s 260 of the Companies Act, 1956. It is the contention of the learned Company Secretary appearing for the petitioner that in the notice which is issued in respect of Annual General Meeting held on 30.09.2010 there....
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....tioner No. 1, respondent No. 2 has been shown as one of the Directors of the first respondent company. (9) In the FIR filed by petitioner No. 1 with Sachin police station on 20.04.2013, respondent No. 2 is shown as one of the Directors of the first respondent company. (10) In form No. 20-B of Annual Return of the first respondent company made upto 30.09.2011 was signed by respondent No. 2 in the capacity as Director of the first respondent company and the same has been certified by Company Secretary. (11) In page No. 240 of the petition, petitioner No. 1 and respondent No. 2 has signed as Directors which relates to reconciliation of the number of shares and amount outstanding at the beginning and at the end of the reporting period i.e. assessment year 2012-13. (12) Specimen application to GIDC has been signed by respondent No. 2 and petitioner No. 1 as Directors of the first respondent company. (13) Form No. 17 satisfaction of charge filed on 13.04.2011 is signed by respondent No. 2 as Director of the first respondent company. (14) Form No. 8 which is for creation of charge dated 15.03.2011 is signed by respondent No. 2 as Direc....
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.... not help him in any way in a petition under section 397 and 398 of Companies Act, 1956. Point no. 2. 68. It is the case of the petitioner that his signature on the Board Resolution dated 01.08.2012 was forged. In order to appreciate the material on record on this point, it is necessary to note that the Board of Directors of the first respondent company passed resolution dated 19.01.2011 signed by petitioner No. 1 and respondent No. 2 in their capacity as Directors of the first respondent company. In that resolution also it was resolved to make an application to Sutex Co- operative Bank Ltd. for sanction of term loan against hypothecation of plant and machinery etc. and for that purpose authorisation to sign papers and documents and complete formalities as required in that connection was given to respondent No. 2 (page 310 of petition). The said Resolution has not been disputed by the petitioners. 69. Before 01.08.2012 i.e. after sale of plant and machinery there was no activity in the first respondent company except to close the balance business transactions of the company. In that direction the Board of Directors had their meeting on 01.08.2012 and resolved to authorise ....
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.... 11.12.2012 and notice of such Board Meeting was given to petitioner No. 1. Therefore, resolution passed in the EOGM dated 17.12.2012 cannot be held to be legal. Point No. 4 72. Respondent No. 2 is described as sole authorised Director of the first respondent company by Board Resolution dated 01.08.2012. The MOU dated 15.02.2013 enables Respondent No. 3 to discharge outstanding loan amount due to Sutex Co- operative Bank and thereby get the plots transferred in his name. Basis for the said MOU is resolution of Board of Directors dated 01.08.2012. It is the said resolution that authorised respondent No. 2 to act on behalf of the first respondent company as sole authorised Director. No doubt petitioner pleads that signature appearing on the resolution dated 01.08.2012 is not his signature and has been forged. It is already observed by this Tribunal that the issue of forgery has to be decided in the Criminal Court or Civil Court. So long as such issue is decided in favour of the petitioner No. 1 it cannot be said that the MOU is illegal. 73. In the case on hand there is more than one MOU. The first MOU dated 16.11.2010 is between the respondents No. 6 to 9 on one hand and pet....
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....of the guarantor. In that meeting it is further resolved that, first preference should be given to the guarantor to pay the loan amount and if guarantors accept and repays the loan amount then property i.e. plot No. 263 to 266 of GIDC, Sachin, Dist. Surat should be transferred to the guarantor's name. This resolution is signed by petitioner No. 1 and respondent No. 2. On the same date, power of attorney was also given by the first respondent company to the Branch In-charge Manager of the bank authorising him to sell the plots No. 263 to 266 of the first respondent company. The said general power of attorney is also signed by petitioner No. 1 and respondent No.2. In the petition also, petitioner admitted that the first respondent company gave power of attorney to sell the plots. In the petition, petitioner did not choose to dispute about the resolution of the Board of Directors dated 15.10.2012. What is disputed by the petitioner is resolution dated 01.08.2012 and the EOGM resolution dated 17.12.2012 and letter dated 15.02.2013 given to respondent No. 10. Petitioner also chose to challenge the provisional order of respondent No. 10 dated 21.02.2013 and final order passed by resp....