TaxTMI 
TaxTMI 
2017 (12) TMI 831
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.... this petition are as follows: - 03. Agal family, during 1987, promoted the first respondent company. Petitioner is wife of 2nd respondent till their marriage was dissolved by decree of divorce on 12.01.2001. Agal family consist of five major members including the petitioner till she was divorced. The first respondent company is a family company. There is no dispute about the fact that originally petitioner and respondents No. 2 to 5 were holding 200 shares each in the first respondent company. Authorised capital of the company was Rs. 1.00 lac divided into 1000 shares of Rs. 100/- each till it was increased to Rs. 10.00 lacs on 27.08.2015. 04. According to the petitioner, she acquired 200 shares in the first respondent company from her own personal savings and, therefore, even after dissolution of marriage on 12.01.2001 shares of the petitioner continued to be registered in the name of the petitioner in the records of the first respondent company. But, on 15.03.2013 the first respondent company illegally and fraudulently transferred 200 shares of the petitioner in the name of respondent No. 3 and, thereafter, removed name of the petitioner from the register of the first resp....
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....ares in the name of respondent No. 3. 07. Petitioner with the assistance of authorised representative downloaded various forms filed by the first respondent company with the Registrar of Companies, MP from 2011 to 2016. Form No. 32 filed by the respondents with the Registrar of Companies MP on 27.01.2011 shows that respondent No. 2 had resigned from the Board of the first respondent company and respondent No. 3 and 6 were appointed as Directors of the first respondent company. Form No. 18 filed by the first respondent company disclose registered office of the first respondent company was shifted to the present address. Form No. 20B filed by the first respondent company with the MCA for the year ended 31.03.2013 for AGM dated 30.09.2013 disclose that 200 shares of the petitioner were transferred on 15.03.2013 in the name of respondent No. 3. Form No. SH-7 filed by the first respondent company with the Registrar of Companies, MP disclose that an alleged EOGM was held on 27.08.2015 wherein authorised share capital of the first respondent company was increased from Rs. 1.00 lac to Rs. 10.00 lacs. 08. First respondent company allotted 9000 shares to respondent No. 6 without offeri....
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....duce original share certificate to show that the shares were purchased by her from her own funds. Respondents also pleaded that petition is barred by limitation. Respondents pleaded that the petitioner approached the Tribunal with uncleaned hands. According to the respondents, petitioner is not residing in Hyderabad and residing in New Delhi having married to Mr. Niranjan Maheshwari. Respondents denied the allegations that the authorised share capital was illegally and unauthorizedly increased and shares were allotted to respondent No. 6 illegally and unauthorizedly. According to respondents, petitioner intentionally not filed annexures to MOU along with the petition. On perusal of part B of Annexure I of MOU it is evident that petitioner parted with the said 200 shares of the first respondent company and that is why petitioner did not raise any grievance in respect of 200 shares for about 15 years. Petitioner handed over share certificate and other items mentioned in the list of items to be transferred to respondent No. 2 on 29.06.2000. 12. According to the respondents, since the petitioner ceased to be a shareholder from the date of MOU, there is no need to issue notice of AGM....
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....and ongoing disturbance due to the separation of her son and daughter in law she could not either present the same to the company for transfer on time or preserve the transfer deed. Respondent No. 3 in her letter dated 08.02.2013 has also given indemnity for effecting the transfer of shares in her name. Along with additional affidavit, respondents filed resolution of the Board of Directors dated 15.03.2013 whereby it was resolved to transfer the shares of petitioner to respondent No. 3. 15. In response to the additional affidavit, petitioner filed further affidavit wherein it is stated that the pleas taken in the affidavit by the first respondent company have not been taken in the reply and therefore they are not entitled to take such pleas and such please cannot be taken into consideration. Petitioner also pleaded that the letters filed along with additional affidavit of the first respondent company are nothing but concoction. 16. Basing on the pleadings of both the parties the following points emerge for determination in this case. (1) Whether the composite application for rectification of the name of the petitioner in the register of members of the first responden....
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....action to less than l/10th of the total number of members of the company or removed the rival faction from the register of members. In such cases where allegation of oppression and mismanagement is inexplicably intertwined with the issue of maintainability of the petition under Section 399 of the Act, a composite petition has to be held as maintainable. To ask a petitioner to file two separate petitions in such circumstances would not only be unfair but would also result in unnecessary delay." 19. In that decision Hon'ble Delhi High Court also referred to the decision in Ved Prakash v. Iron Traders (P.) Ltd. [1961] 31 Comp. Cas. 122 (Punj. & Har.) and observed that composite petition under Section 111A read with Sections 397/398 of the Act is not maintainable in any circumstances. On the other hand, Hon'ble Delhi High Court observed that in case of Ved Prakash (supra) a separate petition for rectification of Register of Members had been dismissed. 20. In the same decision Hon'ble Delhi High Court referred to the judgement of the Hon'ble Gujarat High Court in Gulabrai Kalidas Naik's (supra) and held that it is not in all cases that a composite petition under Section 155 (now S....
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.... view distinguishing the decision of Hon'ble Supreme Court in Bhagwati Developers (P.) Ltd. and Rajamundrly Electric Supply Corporation Ltd. 25. The grievance of the petitioner in this case is that her 200 shares in the first respondent company have been illegally transferred on 15.03.2013 although she has not signed any share transfer form. Petitioner further allege that respondents might have forged her signature on the transfer deed. Therefore, petitioner is questioning the transfer of her shares in the first respondent company and thereby she, is asking the relief of rectification of Register of Members. Petitioner has also alleged certain acts of oppression and mismanagement in the nature of increasing authorised share capital, allotment of 9000 shares to respondent No. 6, siphoning of funds etc and such acts made petitioner to file this composite petition. In view of the aforesaid decisions relied upon by'-,learned counsel for the petitioner, prayer for rectification of the register of members in order to include the name of petitioner as a shareholder and reliefs under Section 397 and 398 of the Companies Act, 1956 can be made at a time. Petitioner in this case is questio....
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....te petition under section 59 of the Companies Act and section 241 and 242 of the Companies Act, 2013 is three years and it starts running when the right to file the petition accrues. Therefore, crucial aspect in this case is when the right to sue apply accrues for the petitioner. The first and foremost contention of the petitioner is that she had no knowledge of the transfer of her shares till 10.02.2016 on which date the first respondent company wrote a letter to the Registrar of Companies and which letter was forwarded to petitioner by the Registrar of Companies on 10.08.2016. 32. It is the contention of the learned counsel appearing for the respondents that annual return of the first respondent company for the year ended 31.03.2013 was filed on 22.10.2013, it was available on the website of MCA and, therefore, 22.10.2013 onwards petitioner had got knowledge of transfer of her shares and period of limitation starts running from that date. 33. On this aspect learned counsel appearing for the respondents relied upon the decision in Smt. Dilboo v. Smt. Dhanraj [2000] 7 SCC 702 and contended that the date on which annual return was placed on the website of ROC is deemed knowled....
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....ted the company to provide share certificates to her. Therefore, what is pending before ROC is a request made by the petitioner to order investigation against the first respondent company. ROC by his letter dated 04.02.2016 forwarded the complaint of the petitioner dated 12.01.2016 to the first respondent company. Petitioner in her letter dated 19.07.2016 for the first time requested ROC to restore her shareholding in the first respondent company with necessary corrections in the Register of Members. First respondent company by letter dated 10.02.2016 informed ROC stating that by virtue of family settlement dated 29.06.2000, after receiving valuable consideration from her husband, she transferred all her claims including her shares and handed over her share certificate to Respondent No. 2. ROC by letter dated 10.08.2016 forwarded the letter of the first respondent company dated 10.02.2016 to the petitioner. Petitioner again by letter dated 10.10.2016 filed a complaint with ROC for rectification of Register of Members under Sections 58 and 59 of the Companies Act, 2013. ROC by letter dated 27.10.2016 informed petitioner that he has no jurisdiction for adjudication of the dispute rai....
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....this case. ROC cannot be treated as a "court" within the meaning of Article 14 of the Limitation Act, 1963. 39. Another decision relied upon by learned council for the petitioner on this aspect is of Shripal Jain v. Torrent Pharmacenticals Ltd. [1995] Supp (4) SCC 590. In that decision, Hon'ble Supreme Court gave direction to the Registrar of Companies to hold an inquiry under Section 84(4) of the Companies Act read with the Companies (Issue of Share Certificates) Rules, 1960 and take a decision himself in the matter. A reading of the aforesaid judgements disclose that the question involved is of issuance of duplicate share certificates. 40. Section 84 of the Companies Act deals with certificate of shares. Sub section 4 of Section 84 deals with issuance of duplicate certificates or renewal of share certificate. The provision corresponding to Section 84 of the Companies Act, 1956 is Section 46 of the Companies Act, 2013. Section 46(1) of the Companies Act, 2013 says that a certificate, issued under the common seal of the company, specifying the shares held by any person, shall be prima facie evidence of the title of the person to such shares. Section 46(2) deals with issuance ....
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....n the part of the Government officials in preparing the appeals can be attributed to the state and thereby suffer the public interest. Supreme Court of India held that if the appeals brought by Government are lost for such defaults, no person is individually affected, but what, in ultimate analysis, suffers is public interest. Hon'ble Supreme Court also further held that implicit in the very nature of Government functioning is procedural delay incidental to the decision making process. Therefore, Supreme Court of India refused to interfere with the order of Hon'ble High Court of Karnataka in condoning the delay in filing appeals by Land Acquisition Officers. 46. In the case on hand, no application is filed seeking condonation of delay in filing the composite petition. There is no prayer in the composite petition seeking condonation of delay. It is only during the course of arguments plea of condonation of delay has been raised. 47. It may be said that in a court of equity a separate application to condone the delay is not necessary, but, at the same time at least there must be a prayer by the petitioner to condone the delay in the main petition giving reasons for the delay. H....
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....es. The delay of nearly fifteen years in not raising any issue in respect of her shareholding in the first respondent company goes to show that the petitioner abandoned her shares in the first respondent company, since the petitioner and her husband entered into MOU at the time of taking divorce. The petitioner, for the first time asking for share certificate on 24.08.2015 goes to show that she did not choose to exercise rights for her shares for fifteen years. Petitioner also did not choose to participate in the affairs of the first respondent company for nearly 15 years. All of a sudden, in the year 2015, petitioner made a claim for her shares stating that the transfer is invalid and further stating that her signatures were forged in the transfer deeds. Therefore, keeping these facts in mind, it cannot be said that there are sufficient reasons to condone the delay. The exercise of giving a complaint to ROC on 10.10.2016 on the ground that she has no knowledge about the transfer of shares till such date is nothing but a pretext to cover up the latches and to prove that the petition is within the limitation period. This kind of exercise cannot be approved by court of equity by cond....