TaxTMI 
TaxTMI 
2017 (12) TMI 1598
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....e Annual Return filed for the year 2006 as null and void. b. To declare the impugned Allotment of shares made on 30.09.2015 and 26.11.2016 as null and void. c. To declare the impugned Board Meeting held on 30.09.2015 as null and void. d. To declare the impugned Board Meeting held on 31.10.2016 as null and void. e. To declare the impugned Extra-ordinary General Meeting held on26.11.2016 as null and void. f. To declare the impugned Board Meeting held on 26.11.2016 as null and void. g. To declare the impugned appointment of Mr. Mallesham Mekala as Additional Director as null and void. h. To direct the Respondents 2, 3 and 4 to sell their shares to thePetitioner by fixing a fair value by appointing a valuer. i. To declare Annual Return filed for the period ended 31.03.2016 as null and void. 2. Brief facts, leading to the filing present petition, which are relevant to the issue in question, are as follows: 1) M/s. SRP LOGISTICS PRIVATE LIMITED (hereinafter referred to as the "Company") was Incorporated as a Private Limited Company on 28.05.2003, under the provisions of the Companies Act, 1956. The present Authorised Capital of the Company is Rs. 40,00....
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.... Percentage of shares 1 Proddaturi Malathi 42,875 4,28,750 14.29% Total 42,875 4,28,750 14.29% f) Shareholding details of Respondents group (after impugned allotments dated 30.09.2015 and 26.11.2016) is as under S. No Shareholder Name No. of Shares of each Amount Percentage of shares 1 Sekhar Pendam 2,08,615 20,86,150 69.51% 2 Salalitha Parsha 48,510 4,85,100 16.17% 3 Mallesham Mekala 100 1,000 0.03% Total 2,57,225 25,72,250 85.71% 4) As on the date of Incorporation of the Company, the following were the First Directors: S No Name Designation Date of Appointment 1 Sekhar Pendam Managing Director 28.05.2003 2 Proddaturi Malathi Director 28.05.2003 i. Later on, the constitution of the Board of Directors was as follows: S No Name Designation Date of Appointment 1 Sekhar Pendam Managing Director 28.05.2003 2 Proddaturi Malathi Director 28.05.2003 3 Salalitha Parsha Director 24.10.2003 5) The impugned Board Meeting was held on 31.10.2016 for issue of Notice of Ext....
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.... and general meetings, register of members, Register of Directors, register of Director shareholding, register of transfers, register of allotment, etc. However, it is alleged that Respondent No. 2 has not acceded to the request made by the petitioner and has continued to behave differently and the business of the company has been run for his personal benefits and there are occasions where the Respondent No. 2 has transferred/encashed several amounts from the Company. The Respondent No. 2 has not furnished bank statements to the petitioner in spite of several requests. The Respondent No. 2 has unilaterally operating the Bank Accounts of the Respondent No. 1 Company with his single signature as authorised signatory. Since the conduct of Respondent No. 2 is prejudicial to the interest of the Respondent No. 1 Company and to the Petitioner, it is need of the hour to change the authorised signatory for operation of bank accounts jointly with the petitioner. 10) It is stated that the petitioner has received a notice dated 04.03.2017 with regard to conducting of Board Meeting on 15.03.2017. The petitioner has made certain objections vide her letter dated 11.03.2017 with regard to condu....
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....017, which is going to be conducted on 10.04.2017 with an agenda to transact the business for removal of Mrs. Proddaturi Malathi, the Petitioner, from the office of the Director of the Company and to regularise services of Addll Director Mr. Mallesham Mekala (Respondent No. 4) as Director of the Respondent No.1 company. The business contemplated in the proposed Extra-ordinary General Meeting dated 10.04.2017 was against the provisions of the Companies Act, 2013. The regularisation of the appointment of Mr.Mallesham Mekala from the Additional Director to Director is in sheer violation of the provisions of Section 161 (1) of the Companies Act, 2013. 12) It is contended that the Petitioner has also approached the Registrar of Companies with a Complaint as soon as the notice for the Board Meeting dated 04.03.2017 is received by the Petitioner. It was advised by the office of the Registrar of Companies that the Petitioner has to file an electronic Investor Complaint Form for a speedy Redressal of the complaint. Accordingly, as advised, the Petitioner has filed the complaint in the electronic form with the Registrar of Companies. No reply has been received so far till the date of this....
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.... to be dismissed. 2) The Company was incorporated in 2003 and it is engaged in the Customs Clearance, Freight Forwarding, Logistics and Transportation. To carry out the activities of the company a Customs Broker License issued by Govt. of India is must. Without this Custom Broker License, company would not be able to carry on its main objects. The respondent No 2 has successfully cleared the written examination of the Customs and Central Exercise and got License No. 07 of 2003. Only the second respondent is competent to transact the business of Company and the petitioner is not qualified to work as custom house agent. It is asserted it is only second respondent, who is instrumental in running the affairs of Company. 3) It is contented that Petitioner has drawn remuneration of Rs. 5,40,000/-each for year 2014-15 & 2015-16. Annual Returns are not routine matter and they are prima facie evidence as per Section 95 of the Act. The petitioner herself uploading all annual returns, now cannot belatedly feign the ignorance of the contents thereof and she is prevented from the challenging the same. It is stated that transfer request from Respondent No. 5 was noted by the Company in ....
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....elevant proceedings in question of Board Meetings are not all tenable. In this regard, the respondents relied upon para 24 of rejoinder filed before NCLAT , which reads as under: "24....It is submitted that mere lacuna on the part of the appellant, if any, in raising objection at the time of the Meeting dated 30^th September, 2015, cannot amount to sanction of the unlawful and illegal conduct of the Respondents in conducting the said Meeting. " 6) It is stated that list of allotees contains all the three Directors of the Company, who are also 100% shareholders of the Company got shares allotted by merely converting the pending share application money that was lying in the books of accounts and were allotted by way of unanimous resolution passed by the Board of Directors (and also 100% shareholders of the company). The Balance sheet for year 2014-15, which clearly discloses a sum of Rs. 8,42,601/- was pending as share application money and this balance sheet was also authenticated by petitioner herself. The Ministry of Corporate Affairs vide its notification No. G.S.R. 241 (E) dated 31.03.2015 has directed the companies to complete the share allotments with respect to share....
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....006 also did not indicate the transfer of shares during year 2005 and 2006. The original documents have to be called for verification. He has stated with good faith and general practice, the Petitioner has signed on some papers on the behest of the Respondent No. 2 who has misused signature for some other purpose. As per balance sheet made as on 31.03.2015, share application money was Rs. 8,42,601/-. Whereas 10,00,000/- shares of Rs. 10/- each worth of Rs. 10,00,000/were allotted and this allotment is in excess of Rs. 1,57,399/-. Therefore, the said allotment is against the provisions of the Companies Act, 2013. He has further contended that the Respondents acted contrary to the Notification vide GSR 241 (E) dated 31-03-2015 issued by Ministry of Corporate Affairs (Notification) where in it was notified that the shares against which the allotment was pending as on 31-03-2015 were required to be allotted by 1^st June,2015. The Company shall by 1^st June,2015 either return such amounts to the persons from whom they were received or allot shares. A perusal of the documents on record demonstrates that Respondents effected the allotment of shares on 30^th September,2015. Furthermo....
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....ef petitioner is entitled for 9. The basic facts which are relevant to the issue, and not in dispute are as follows: 1) SRP logistics limited was Incorporated on 20 May 2003 and its main are to carry on business in customs clearing forwarding cargo handling import, export service et cetera as per the Constitution of the company, the regulations contained in table year of the schedule of the companies act 1956 in so far as they are applicable to a private company shall apply to the company. 2) The Company is a private limited company within the meaning of section 3 (1) (iii) of the company's act 1956. The right of transferor of shares is restricted and prohibits any invitation or acceptance of deposits from persons other than its members/directors or their relatives. The initial authorized share capital of the Company is 5,00,000/- divided into 50,000 equity shares of Rs. 10 each as per article 3(a). As per Article 4, shares will be under the control of the directors who may are a allot or otherwise dispose of the same or any of them to such persons, either at premium or at par or a discount and at such times as directors may think fit and with the power to issue any sh....
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....s also estopped from questioning it. Moreover, it is admitted position that the petitioner has participated in the annual general body meeting and also the Board of Directors meeting held on 30 September 2015, during which all previous proceedings, apart from current proceedings were duly approved. The petitioner, in his rejoinder filed in reply to the counter filed by the respondent Nos. 1 & 2 dated 16 November 2017, under paragraph 5, has again admitted that the petitioner has signed some papers on the best of respondent No. 2 but they were misused by the respondent No. 2. Therefore, the allegation cannot be accepted and it is an afterthought. 6) On direction of the Tribunal, the Respondent has produced all original records relating to issue in question. We have carefully perused all proceedings. Crucial documents to be scrutinized are the proceedings of meetings of Annual General Body Meeting and Board of Directors meeting held on 30 September 2015 in which the petitioner has admittedly participated. The minutes of AGM held on 30 September 2015 has recorded that both the petitioner as well as the respondent No 2 were present. During these proceedings, it was resolved to incre....
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....ctively. 9) We have compared the signatures of the petitioner, which are available on the admitted signatures of the petitioner on the proceedings leading to allotment of shares on 30^th September, 2015 with that of other signatures of petitioner on the disputed documents in question. We found that there is no iota of doubt that the petitioner signatures are one and the same, and it requires no further examination like sending the document for forensic examination etc as contended by the petitioner. The Hon'ble Supreme Court in Sukhvinder Singh and ors Vs. state of Punjabi has interalia held that Courts can compare signatures of parties. Moreover by accepting additional shares by the petitioner by virtue of impugned proceedings dated 30 September 2015, it is not at all tenable to question those proceedings on frivolous grounds. We have no doubt to come to a conclusion that the petitioner having participated in the proceedings, cannot subsequently raise any dispute for the proceedings, which have been taken strictly in accordance with law. It is also relevant to point out here only the petitioner and the second respondent are two shareholders available in the Company and othe....
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....f asked in the present Company petition are answered below: 1) So far as to declare impugned transfer of shares from P. Rama Krishna is concerned, as discussed supra, the petitioner has no locus standi to question it on a number of grounds and he is admittedly one among three promoter of the Company and thus he is aware of about his shares and transfer in the Company. The minutes of Board of Directors held on 24^th October, 2003 in which the second respondent and petitioner attended, has unanimously passed resolution appointing Ms. Salalitha Parsha (Respondent No. 3) as Director of the Company wef 24.10.03 with authorization to the second respondent to take all necessary action to appoint her. Subsequently, the Board of Directors at its meeting held on 4^th April, 2005, in which,, the petitioner, respondent Nos. 2 & 3 present has interalia passed resolution at item No. 3 as "The Chairman informed that Proddaturi Ramakrishna holding 10 shares in the Company as given notice that he is desires to transfer all his shares to any person identified by the Company at a price of Rs. 10/-. After a brief discussion, it was decided to accept the transfer request and said shares may be trans....
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....resolutions were passed to give effect to the resolutions. "RESOLVED that steps be taken to comply with the resolution passed for increase in authorized capital of the Company from Rs. 5,00,000/-, divided into 50,000 equity shares of Rs. 10/- each to Rs. 15,00,000/- divided into 1,50,000 equity shares of Rs. 10/-each. It is further resolved that Sri P. Shekar, Director of the Company be and is hereby authorized to sign in physical or digitally the various statutory forms and documents as and when required to effect the above." 3) It is not in dispute, that in pursuant to the above resolution, shares have been allotted to the petitioner, Respondent No.2 and Respondent No. 3, (Pendam Shekar-33,620 shares, Proddaturi Malathi-17,880 shares and Pendam Salalitha -48,510 shares) at the nominal value of Rs. 10/- each. It is also not in dispute that the share application money of Rs. 8,42,601/- was pending allotment of shares and the same was also reflected in the balance sheet as on 31.03.2015. All the above meetings were attended by the petitioner and also signed in the attendance register. The Ministry of Corporate Affairs Notification dated 31.03.2015 has interalia directed to all....
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....r the purpose of enabling it to pass orders in the petition or application. (2) Without prejudice to sub-rule (1), the Bench may, for the purpose of inquiry or investigation, as the case may be, admit such documentary and other mode of recordings in electronic form including emails, books of accounts, book or paper, written communications, statements, contracts, electroniccertificates and such other similar mode of transactions as may legally be permitted to take into account of those as admissible as evidence under the relevant laws. By perusal of pleadings of both parties and records of Company, we are not persuaded to sent disputed documents for forensic examination. Signatures of petitioner are substantially tallying with admitted signature with corroborated evidence like petitioner has signed some papers, accepting allotment of shares etc as discussed supra. 5) So far as contention raised before the Hon'ble NCLAT with regard to removal of petitioner, who is nominated as life time Director, is concerned, as discussed supra, theCompany is ultimately governed by provisions of Companies Act, 1956/2013 and the Memorandum and Articles of Association of Company cannot ha....
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.... unless they had been passed by a specified majority or otherwise in some particular manner; and all resolutions or agreements which effectively bind such class of members though not agreed to by all those members; (e) resolutions passed by a company according consent to the exercise by its Board of directors of any of the powers under clause (a) and clause (c) of sub-section (1) of section 180; (f) resolutions requiring a company to be wound up voluntarily passed in pursuance of section 304; (g) resolutions passed in pursuance of sub-section (3) of section 179; and (h) any other resolution or agreement as may be prescribed and placed in the public domain.Section 115 of the Companies Act, 2013, which is relevant in the instant case is extracted below for ready reference:: "Resolution requiring special notice. 115. Where, by any provision contained in this Act or in the articles of a company, special notice is required of any resolution, notice of the intention to move such resolution shall be given to the company by such number of members holding not less than one per cent of total voting power or holding shares on which such aggregate s....
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....to be aggrieved, the Tribunal is satisfied that the rights conferred by this sub-section are being abused to secure needless publicity for defamatory matter; and the Tribunal may order the company's costs on the application to be paid in whole or in part by the director notwithstanding that he is not a party to it. (5) vacancy created by the removal of a director under this section may, if he had been appointed by the company in general meeting or by the Board, be filled by the appointment of another director in his place at the meeting at which he is removed, provided special notice of the intended appointment has been given under sub-section(2). (6) A director so appointed shall hold office till the date of up to which his predecessor would have held office if he had not been removed. (7) If the vacancy is not filled under sub-section (5), it may be filled as a casual vacancy in accordance with the provisions of this Act: Provided that the director who was removed from office shall not be re-appointed as a director by the Board of Directors. (8) Nothing in this section shall be taken- (a) as depriving a person removed under this section of any compensa....