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2017 (10) TMI 1133
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....as 50% partners in in the first respondent company subject to payment of Rs. 180.00 lacs by the petitioners to the first respondent company. The mode of payment agreed between the petitioners and respondents No. 2 to 4 is as follows: - (i) Within 1.5 to 2 months Rs. 100.00 lacs were required to be paid; (ii) Rs. 40.00 lacs to be paid out of share of profit for the year ended on 31.03.2011 and so on; (iii) Rs. 40,00 lacs after one year Over and above what has been stated above (iv) interest free loan of Rs. 20.00 lacs repayable after two years within a period of 1.5 to 2 months (v) Rs. 150.00 lacs as letter of credit facility from Citi Bank (vi) Equal participation in the equity holding of both petitioners and respondents in the R1 company. 02. As agreed between the parties on 17th January, 2010, authorised share capital of the first respondent company was increased from Rs. 50.00 lacs to Rs. 75.00 lacs in order to accommodate the issue of further shares to the petitioners. Between 12th January, 2010 and 18th January, 2010 petitioners have issued cheques for Rs. 32,98,500/- towards the share application money fo....
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....h Patel to visit the office of the first respondent company to verify the accounts of the company but he was not permitted to enter the premises of the office. On 26.07.2010, petitioner No. 1 was also not allowed to enter premises of the first respondent company for verification of accounts, but on much insistence he was permitted to enter the premises. The said incident was reported to Halol Police. In the Police Station, respondent No. 2 agreed to permit petitioner No. 1 to enter into office of the first respondent company only if petitioner No. 1 signs cheques towards payment of salary of workers. Petitioner No. 1 agreed for the same. Petitioner No. 1 again came back with those cheques but respondent No. 2 did not turn up. On 29.07.2010, Mr. Mahesh Patel went to respondent No. 2 with signed cheques and an authority letter on behalf of petitioner No. 1 but respondent No. 2 refused to accept the cheques and asked Mahesh Patel to check out the mails sent by respondent No. 2. On 29.07.2010 in the evening one truck was loaded with the goods such as table, chairs, cupboards, etc. from the premises of first respondent company. Representative of the petitioners Mr. Mahesh Patel gave a r....
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.... control of the first respondent company and to investigate the affairs of the first respondent company for siphoning of funds (5) To compensate for undue hardship faced by them from the respondents. 06. Second respondent who is Managing Director of the first respondent company and having been authorised by respondents No. 3 to 5, filed the reply. 07. It is plea of the respondents that the disputes between petitioners and respondents arisen out of mutual understanding that came into existence on 17.01.2010 and therefore it is beyond the scope of this Tribunal and cannot be enforced nor its breach does not give any cause of action to file a petition under Sections 397 and 398 of the Companies Act, 1956. Petitioners cannot seek any specific performance of the private agreement came to be in existence through some understanding between the parties on 17.01.2010. Mere lack of confidence among two group of shareholders cannot be called as an act of oppression. Petitioner No. 7 is not a shareholder of the first respondent company and he joined in the petition and it amounts to mis-joinder and on that ground alone petition is liable to be dismissed. It is the version of the....
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....r of allotment was made on 11.03.2012 and submitted to Registrar of Companies, Gujarat State. 09. Out of Rs. 100.00 lacs paid by the petitioners, Rs. 31.00 lacs have been adjusted against share application money and balance Rs. 69.00 lacs is lying in the credit of the petitioners as unsecured loan. As per the agreement one of the Directors among petitioners have to sign the cheques after verifying the invoices, vouchers etc. and only those cheques which was signed by the petitioner group were allowed to be signed by one of the Directors of respondent group shareholders. Since June, 2010 Mr. Ravindra Mehta, (Petitioner No. 3) did not return the cheques sent for his signature and as a result the first respondent company could not make payment towards the salary of staff and also towards payment of provident fund, ESIC etc. In order to facilitate the timely payment towards salary, electricity bills, PF contribution etc. the first respondent company opened another bank account in the name of the first respondent company for a short period. Further it is stated that petitioners No. 1, 2, 4 and 6 were appointed as Additional Directors and their period ended by 20.09.2010 on which date....
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..... 63,98,500/- divided into 6,39,850 equity shares of Rs. 10/- each as disclosed in the balance sheet dated 31.03.2010. It is stated by the Respondents that, in terms of the understanding Petitioners No. 1 to 6 were eligible and entitled to have 50% of the share capital of the first respondent company but petitioners were not inclined to subscribe for further 19,843 equity shares issued to the petitioners, on their persistent demand, were aimed to acknowledge the entitlement and the same do not have any legal force /value because they do not represent any securities created by the first respondent company in accordance with law. Petitioners have paid total amount of Rs. 2,08,99,250/- as under: Sr. No. As per MoU Actual investment made by petitioners Remarks 01 Rs. 100.00 lacs immediately within 1.5 to 2 months Rs. 100.00 lacs within 2 months On time 02 Rs. 40.00 lacs after one year Rs. 40.00 lacs - NA 03 Rs. 40.00 lacs from the profit portion of petitioners of subsequent years Rs. 40.00 lacs - NA 04 Rs. 20.00 lacs immediately (interest free loan and repayable after two years) Rs. 20.00 lacs - after 2 months On....
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....012 to 2014. 14. In the sub-rejoinder it is stated that it is for the petitioners to verify the criteria of Citi Bank before committing to arrange working capital for the first respondent company from the bank. In fact petitioner pressurises respondents to discontinue working capital facilities which were enjoyed by the first respondent company from State Bank of India stating that they would arrange credit facilities from Citi Bank. 15. It is stated in the affidavit in reply filed by the petitioners that in the Annual General Meeting held on 30.09.2014 respondents have not considered 19,843 equity shares of the petitioner for the purpose of voting by poll. The share certificate number 87 for 4921 equity shares issued to Mr. Ravindra U. Mehta (petitioner No. 4) and certificate number 88 of 14922 to Mr. Vikesh I Patel (petitioner No. 2) were not considered by respondents for the purpose of voting held by respondents No. 2 and 3 and thereby deprived the rights of voting of the petitioner. It is stated in the affidavit filed by the petitioners that ordinary resolutions were not passed with requisite majority as mentioned in Section 114 of the Companies Act, 2013. 16. Admitted....
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....hat they have invested only Rs. 32, 98, 500/- in the first respondent company. Even according to the respondents, petitioners have invested Rs. 100.00 lacs out of Rs. 180.00 lacs and out of it Rs. 31.00 lacs have been adjusted towards share application money and balance amount of Rs. 69.00 lacs is lying in the credit of petitioner as unsecured loan. In order to allot shares, it is not only payment of share application money but there must be submission of share application form. A perusal of annexure "H" attached to the reply show that the share applications are there only for allotment of 3,10,000 shares and accordingly 3,10,000 shares were allotted to the petitioner. It is alleged by the petitioners that although the share certificates were issued to them for the remaining 19850 shares, they were not shown in the return filed with the Registrar of Companies and those shares do not bear seal of the company. For this, explanation given by the respondents is that, for the record purpose on insistence by the petitioners, certificates in respect of 19850 shares were given without seal and authority of the company. This allotment of shares took place on 11.03.2010. Petitioners are alle....
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....eived as income tax refund and those amounts were paid to the creditors of the first respondent company. Respondents filed annexure "D", certificate of the Chartered Accountant. From the correspondence between State Bank of India and Dhanlaxmi Bank, it appears that, State Bank of India also asked Dhanlaxmi Bank to freeze the account of the first respondent company and accordingly, Dhanlaxmi Bank freezed the account. 20. Therefore, the action of the respondents to open a bank account in the name of the first respondent company without consent of petitioners, is an act which should not have happened. Mere opening a bank account of the company in another bank itself per se (sic) an act of oppression unless and until it is shown the funds of the first respondent company is not (sic) siphoned by the respondents into their personal accounts and to use for their personal purpose. In this angle no evidence is forthcoming from the petitioners. In the Chartered Accountants' certificate it is certified that all the transactions done through Dhanlaxmi Bank are exclusively for the business activity of the first respondent company. 21. Admittedly, petitioners 1, 2, 4 and 6 were appointed a....