TaxTMI 
TaxTMI 
2018 (10) TMI 118
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....n 397, 398 and 402 of the Companies Act, 1956 ('old Act' in brief) claiming oppression and mismanagement on the part of Respondents in the Company - Respondent No.1. 2. The learned NCLT after hearing the matter dismissed the Company Petition and hence, the present appeal by the original Petitioners. 3. The Appellants claimed that the Respondent No.1 Company was incorporated in 1980 with the object of running a hotel at Paradeep in Odisha by founder Directors and shareholders - Shri Antarjyami Pattnaik, Shri Shyam Charan Pattnaik and Smt. Reeta Mohanty. The Appellant No.1 took over the business of Respondent No.1 Company subsequently. He was appointed Managing Director on 2nd July, 1997. The Appellants along with deceased Smt. Padmini Rath were holding 647 equity shares comprising 77.29% of the total paid up share capital of the Company. The total paid up share capital was of Rs. 8,37,000/- divided into 837 equity shares of Rs. 1,000/- each. The Appellant No.1 was based in Cuttack and Respondent No.2 was based in Paradeep. Respondent No.2 (main contesting Respondent - hereafter referred as 'Respondent') was invited by the Appellant No.1 (hereafter, also referred as 'Appellant'....
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....ompany from Rs. 12 lakhs to Rs. 62 lakhs in EOGM called within 6 days of Notice dated 6th March, 2012, on 12th March, 2012. On 27.03.2012, Respondent No.2 filed Form 5 with Registrar of Companies with altered Memorandum of Association. From the increased share capital, Respondent No.2 allotted 1862 shares to the Appellant No.1 and 2422 shares to himself. According to the Appellant there was no need to increase the authorised share capital. There was no need for the Appellant No.1 to resign as Managing Director. It is claimed that Notices of alleged Board Meetings were not given to Appellant No.1 and Notice of EOGM was also not given to the members and Respondent No.2 along with Respondent No.3 who is associated with Respondent No.2 acted in oppressive manner and have mismanaged the Company. 5. It is case of the Appellants that the learned NCLT did not properly appreciated the facts of the matter and wrongly dismissed the Company Petition. 6. We have perused the Appeal and its annexures including counter affidavit filed by the Respondents 1 and 2. We have heard counsel for both sides. 7. The learned counsel for the Appellants referred to the defence of the Respondent No.2 t....
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.... to EOGM dated 12.03.2012. Learned counsel for the Appellants claimed that the Respondent No.2 had shown the allotment of shares to Appellant No.1 only to give colour of legality to the increased share capital. 9. The learned counsel for Respondent Nos.1 and 2 submitted that on record there is copy of Board Meeting Resolution dated 6th March, 2012 (Annexure A-7 Page - 173) which authorizes Respondent No.2, to issue Notice for EOGM in order to increase the authorized share capital. At that time, the Appellant No.1 was the Managing Director of the Company. It is claimed that the Form No.2 is relating to allocation of shares after increase of the share capital. The list of allottees bears the signatures of the Appellant No.1 as well as Respondent No.2. The counsel referred to the document at Page - 210 of the Appeal for the list. It has been further argued by the learned counsel for the Respondents 1 and 2 that the Balance Sheets of the Company for the Financial Year 2011 - 2012 were also signed by the Appellant No.1 as Managing Director and R.C. Pratap for Pratap & Co. Auditors had also signed the Balance Sheet which showed the change in share capital between the figures at the en....
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.... returned to the Respondent No.2. Annexure A/14 is thus bearing an undisputed signature of Appellant No.1 though the contents are disputed. Then there is Annexure A-6 (Page 172 of the Appeal Paper Book) which is extract of the Board Resolution dated 6th March, 2012, which shows Resolution relating to increase in authorized share capital subject to approval by the General Meeting and authorizing Respondent No.2 to issue Notice for calling EOGM. According to the Respondents, this document is signed by the Appellant No.1. The Notice of EOGM (Annexure A-7 - Page 173) (It may be noted that the Index has errors compared with the actual documents in the Appeal Paper Book as in the Index, the Notice is shown as at Annexure A-8) was signed by Respondent No.2 along with Explanatory Statement as can be seen at Page - 174. The extract of Resolution taken in EOGM is at Page - 175 marked as A-9. Counsel for the Respondents referred to Annexure A-12 Form 20B and stated that if the signature below the Annual Return which is at Page - 206 of Appeal is seen, it is clear that the Appellant No.1 was aware and party to the increase in share capital and distribution of the shares on increase. Although t....
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.... as Managing Director. 13. Sub-Rule (3) of Rule 43 of the National Company Law Tribunal Rules, 2016 reads as under: "(3) Where any party preferring or contesting a petition of oppression and mismanagement raises the issue of forgery or fabrication of any statutory records, then it shall be at liberty to move an appropriate application for forensic examination and the Bench hearing the matter may, for reasons to be recorded, either allow the application and send the disputed records for opinion of Central Forensic Science Laboratory at the cost of the party alleging fabrication of records, or dismiss such application." 14. Last para of the impugned order reads as follows: "That apart, vide order passed in the instant case on January 04th, 2017, February 06th, 2017 and March 03rd, 2017 the petitioner was given three consecutive opportunities to file an application to testify the genuineness of the signature of petition no.1 so that the documents pertaining to admitted signature and disputed one be sent to the Central Forensic Science Laboratory but the petitioner didn't file any application in this regard despite the plea taken in his pleading. Thus, it shows ....