TaxTMI 
TaxTMI 
2018 (2) TMI 1683
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.... in relation to the 15000 shares in question and all benefits such as rights, bonus etc., that have accrued thereupon since the date of purchase, inter alia, among other prayers; c. An Order be made for cancellation of all purported allotment made relating to the purported issue and allotment of share of the Company in favour of the various persons mentioned hereinabove. 2. The Petitioners state that, P2 purchased two lakh shares of R1 Company from ICICI Bank on 29-1-2010 and R1 Company registered the same in the name of P2 on 1-1-2011. Thereafter, P2 sought details and clarifications on the Balance Sheet after inspection of records with ROC, to which, there was no answer from R1 Company, on 30-3-2011, R1 Company conducted Extra Ordinary General Meeting without notice to the Petitioners, wherein the authorised share capital of R1 Company was increased from Rs. Five cores to Fifteen crores, the Board of Directors of R1 Company was authorised to borrow up to Rs. 75 crores and to create security by way of mortgage and/or charge thereby making funds available to the Board of Directors for illegal disposal of the same without knowledge and consent of the Petitioner, further R1 Compan....
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....hat P2 is the holding two lakh shares of R1 Company, which accounts for only 2.72% of the subscribed capital of R1, the statutory register of Members does not show P1 and P3 to P11 as shareholders, that R1 Company in the Board meeting held on 9-2-2011 decided to call EGM on 30-3-2011, in pursuance of it, EGM notice was despatched to all the shareholders including P2 by ordinary post as required under section 53 of the Companies Act, 1956. R1 Company filed Form-23 along with notice for EGM with ROC. In the meeting held on the date aforementioned, the shareholders approved the increase of share capital, allotment of shares, allotment of optionally convertible debentures and compulsorily convertible debentures. The Respondents submits that as per section 108A of Companies Act, 1956 the Company shall not register transfer of shares unless proper instrument of transfer duly stamped and executed is submitted to the Company and in this transfer documents, the adhesive stamps were not cancelled which tantamounts to be deemed unstamped as provided under section 12(2) of Indian Stamps Act, 1899 which leads to non-compliance of Section 108A of the Companies Act, 1956 and hence the request for....
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.... on 1/1/2011. P2 by letter dt. 25/1/2011 sought details and clarifications on the Balance Sheet from R1 Company and there was no response from R1 Company. 7. As on 30/9/2010, R1 Company's subscribed capital was Rs. 4,09,95,150 divided into 40,99,515 shares of Rs. 10 each and held by 232 members. 8. It has been said that P2 Company sold 15,000 shares out of two lakh shares held by it, to 15 persons, 1000 shares each, including P1 and P3 to P11. The said sale of shares as stated by the Petitioner, took place on 16-9-2011 and registration of transfer of shares is still pending with R1 Company. As on the date of filing this Company Petition, there were only 32 registered shareholders in R1. The Respondents contention is that since the stamps affixed on the share transfer form is not duly cancelled as required under section 12 of the Indian Stamp Act, the transfer instrument is not in order and hence there is in violation of section 108 of Companies Act, 1956, therefore the shares are not transferred in the name of P1 and P3 to P11. 9. Section 12 of the Indian Stamp Act, 1899 provides as below: "(1) (a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which....
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....s stated that P1 in his capacity of Director in P2, in order to circumvent Section 399 of Companies Act, 1956, created a make believe transfer of shares of R1 Company in favour of his own minor son, minor daughter, wife and other companies controlled by him. 14. From the above discussion, it is clear that the P1, P3 to P11 are not the registered holders of shares in R1 company and hence the logical conclusion will be that they are not members of the company and the petition is hit by section 399(1)(a) and hence this Tribunal comes to a conclusion that the petition is not maintainable. Point No. 2 :- Since it was held that the petitioners are not entitled to file this petition the second point does not deserves to be considered. However, this Bench made an attempt to find out, even in a situation where the Petitioners are entitled to file this petition whether they will succeed on merits. 15. The Petitioners raised the following issues in support of their claim of oppression and mismanagement in the R1 Company. (1) Refusal to register transfer of shares (2) Holding of Extra Ordinary General Meeting on 30-3-2011 without notice to the Petitioners. (3) Increase of authorised a....
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....e being no substantial change in the performance of the company nor have any expansion plans which requires capital, for which the Respondent submit that the EGM dated 30-3-2011 was called only after issuing of notice to all the shareholders by ordinary post as required under section 53(1) of the Companies Act, 1956. Though Form 23 was filed along with notice to the Registrar of Companies on 28-04-2011. The company has not received any specific intimation under section 53(2a) along with money to send notice in any other manner. On the back drop of these facts, this Tribunal is of the view that sending of notice of EGM by ordinary post is a proper compliance of section 53(1) of the Companies Act, 1956 and the Petitioners' contention that there is no proper service of notice to them cannot hold water and there is no irregularity in the conduct of the EGM. Further it is to be noted that P2 is holding only 4.88% of the shareholding and it is a foregone conclusion that even if he has attended the meeting the resolutions would have been through despite his presence in view of his 4.88% shareholding. 20. The Petitioners have contended that there has been no substantial change in the perf....