TaxTMI 
TaxTMI 
2018 (9) TMI 336
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....n. Hence this appeal. 2. A brief reference needs to be made to the rival cases put up by the parties. 3. The Appellant (Original Petitioner) filed the Company Petition claiming irregularities, illegalities, mismanagement and oppression on the part of Respondents 2 to 4 in the Company - Respondent No.1. The Appellant claimed that Respondent Company was incorporated in 2002. He was appointed as Director on 18th February, 2008. There was illegal allotment of shares to the extent of 2,40,000 of Rs. 10/- each to Respondent No.2 on 15.03.2010 in complete derogation of basic tenets of law, it is claimed. He claimed that he had submitted complaint of theft dated 20th March, 2010 of documents including Memorandum of Understanding to the Goa Police which documents had been stolen from his luggage at the Dabolin Airport. According to him on 30th March, 2010, there was increase in authorized share capital of the Company from Rs. 25 lakhs to Rs. 100 lakhs and on the same date he was allotted 7,45,000 equity shares of Rs. 10/- each against share application money which had already been received by the Company since 2007 - 2008. One Shri Narain Ladu Mandrekar was appointed Additional Director o....
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....tment of March, 2010 could not be challenged after delay of 3 years. The Respondents claimed that the removal of the Appellant from the post of Director was after complying with the necessary provisions. 5. The record as well as the impugned order show that the learned NCLT gave opportunity to both sides to put up their complete cases and even referred to the rival claims in details but keeping in view provisions of Section 399 of the old Act, framed following issues for consideration:- "i) Whether the Petitioner satisfies the requirement of Section 399 of the Companies Act, 1956 in order to maintain the petition under Sections 397 and 398 read with Section 399 of the Companies Act, 1956? ii) If the answer to the above is affirmative whether under the facts and circumstances of the case the principles of partnership can be applied in order to sustain the petition as contended by the petitioner? iii) Whether the petition suffers from any delay and laches as contended by the respondents disentitling the petitioner from maintaining the petition?" 6. The learned NCLT considered the concerned provisions and observed in Para - 24:- "24. The facts narrated in the earlier para....
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....y the petitioner in his petition." [Emphasis supplied] 7. The learned NCLT then dealt with the claim of the Appellant that there was a Memorandum of Understanding and that he was promised equal shareholding as well as management rights. NCLT observed that the Memorandum of Understanding in original or copy had not been produced. This is being found fault with by the Appellant by referring to document at Page - 1339 of Volume 7 in the Appeal to say that it was before the learned NCLT. The learned NCLT observed in Para - 28 as under:- "28. Thus in the absence of any prima facie evidence to sustain the plea of the petitioner in relation to the shareholding in the 1st respondent company and to corroborate the plea of equal participation and shareholding of the petitioner, the only document which is required to be considered in relation to shareholding is the Form 2 as filed with the Registrar of Companies, NCT of Delhi & Haryana by the petitioner himself and which has been categorized by the said authority as under "Management Dispute". The consistent refrain of the petitioner in the entire petition has been that as between himself and the second respondent there was an understan....
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....lotment of additional 2,40,000 equity shares to himself although on the same date he travelled to Goa also. It is claimed that at Goa Airport, Respondents 2 to 4 had committed theft of original title deeds and other documents from the luggage of the Appellant and FIR was filed. The learned counsel submitted that on 30th March, 2010 in view of the Notice dated 2nd March, 2010, EOGM was held and authorized share capital was increased and 4,65,000 equity shares were allotted to the Appellant, 1,20,000 equity shares in favour of Anant Containers Pvt. Ltd. which is Company owned by the Appellant and 1,60,000 equity shares were allotted in favour of Narain Ladu Mandrekar. Form 2 was submitted to ROC in this regard. The learned counsel referred to copy of Form 2 which was submitted. The copy has been filed with Diary No.2247 at Page - 3. The learned counsel submitted that subsequently on 4th June, 2010, Respondent No.2 allegedly conducted Board Meeting and allotted 7,50,000 equity shares to himself and M/s. Kanica Metals Pvt. Ltd., a company owned by him. It has been argued that the Resolution passed to remove the Appellant as Director was also illegal. The learned counsel referred to the....
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.... had not been contributed. It has been argued that the Appellant without any Board Meeting filed Form 32 with ROC showing appointment of Shri Narain Ladu Mandrekar as Additional Director and his own designation as MD with the effect from 01.04.2010. Even regarding the alleged EOGM, the learned counsel submitted that to call EOGM, there has to be authorization of the Board and on 2nd March, 2010, there were only Respondents 2 and 3 shareholder Directors and there is no material to show that they had joined any such Board Meeting to call EOGM. The Unilateral Act of Appellant issuing Notice dated 2nd March, 2010 (Page - 427 Diary No.2752) cannot be said to be legal. Without the authorized share capital increasing legally, there could not have been any such allotment of shares on 30th March, 2010. 12. The learned counsel for the Respondents referred to Page - 1339 relied on by the Appellant to claim that it was only a page having mere scribbling made by the Appellant and cannot be said to be any agreement as such. The page does not bear any date and no terms and conditions have been written down. Mere scribblings cannot be relied on. 13. We have heard parties on respective claims. Bu....
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....nly 2 other Directors were the Respondents and the Respondents deny any such meetings and the Appellant fails to show any attendance sheet or Board Resolution or Resolutions passed in EOGM, merely brandishing From 2 signed by himself is not enough for the Appellant. This is poor attempt of a non-member Director to give himself shares that did not exist as the EOGM also could not be proved. The learned NCLT has rightly discussed the material on record and concluded that the Appellant failed to show that he had shareholding in the Company. 15. The counsel for the Appellant argued that to maintain the petition, it was sufficient for the Appellant to show that From 2 had been submitted and the Appellant could not have been non-suited only on the basis that Form 2 was disputed. We find that the learned NCLT did not dismiss the petition at primary stage but complete hearing was given to the parties after taking on record rival pleadings and hearing and only when the learned NCLT found that basic shareholding itself is not established, it did not go into the merits of other contentions. We do not find any fault with this approach of the learned NCLT. 16. It has been then argued by the l....