2019 (1) TMI 870

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....ibunal and the same was dismissed vide order dated 24.5.2017. Being aggrieved by the order dated 24.5.2017 of the Appellate Tribunal the appellant filed Civil Appeal No.9100/2017 before the Hon'ble Supreme Court of India. The Civil Appeal was heard by the Hon'ble Supreme Court of India and vide order 21.7.2017 remanded the matter and permitted the parties to argue the matter on merits. 3. On receiving the orders dated 21.7.2017 of the Hon'ble Supreme Court of India, the matter was listed, parties were given opportunity to argue and submit their written synopsis and lastly the matter was reserved for judgement. 4. The brief facts of the case are that 1st appellant was incorporated on 3.11.1999 with the main object of carrying on business of travel and tourism, hotels and resorts and it was converted into a public limited company on 4.8.2000. 2nd appellant, 1st respondent, 2nd respondent and Late Mr. Thampi Krishna, all four brothers, were the first directors of 1st appellant. As per Article 15(b) of the Articles of Association that all the first directors shall be permanent directors, not liable to retired by rotation. 2nd appellant was appointed the Chairman and Late Mr. Tham....

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....he 2nd respondent by fraudulent means as nothing reflects from the annual returns as to how the shares of Respondent-2 have been increased and the shares of Petitioner-2 have been decreased. It is a closely held public limited company. Nothing is reflected from the annual returns for the year 2011-12 filed by the 1st respondent company signed by 2nd Respondent (available at Page 199 to 210) Besides this, the other allegations are with regard to illegal appointment of Shalini Vijayan (R3) and Subhash Vasudevan (R7) as Directors on 2.8.2011 which has not been regularised as per Section 257 of the Companies Act, 1956. Hence they ceased to be the Directors on 30.9.2011. Even R7 in his counter filed on 16.11.2015 disputed his appointment as Director. 3. It has been alleged by the petitioners that Saira Thampi (R4) has also been appointed illegally as Director on 27.3.2012 for which no Board resolution was passed. There are allegations of forged resignation letters of C.K. Sibi (P1) and Baboo C.K. (P2) who have illegally been removed from the Board on 7.6.2012. It is further alleged in the company petitions that there is illegal transmission of 3,452,825 shares on 29.3.2012, of ....

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....3, R4, R5 and R6 from the post of Directors by declaring their appoints as illegal and appoint Petitioners 1 and 2 as Directors of R1 company and P1 shall discharge the functions of the Chairman and Managing Director of the 1st respondent company; We remove R2 from the post of the Chairman of the company. However, he shall perform the functions of the Director of 1st respondent company; (b) We also set aside the transmission of shares of late Thampi Krishna to Mrs Saira Thambi (R4) and direct the company to enter the names of all the legal heirs of the deceased Thampi Krishna equally including Mrs Saira Thampi . (c) We also cancel the illegal transfer of shares from Baboo K.C. (Petitioner-2) to C.K. Vijayan (Respondent-2) as being totally forged and fabricated and direct the 1st respondent company to rectify the register by restoring the name of Petitioner-2 and his shareholding pattern as was existing on 30.09.2010. Besides the above, the Petitioner-1/Petitioner-2 are directed to file the copy of INC 28 which shall be registered by the Registrar of Companies concerned within 30 days from the date of passing this order. Accordingly, the Company Petition T....

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....nt and 2nd respondent as on 30.9.2011 and 29.9.2012 which is as under: Name of Shareholder As per AR of 2012 As on 29.9.2012 As per AR of 2011 As on 30.09.2011 C.K. Vijayan (R-2) now 2nd appellant 4280486 4014600 Baboo K.C. (P-2) now 2nd respondent 445664 561550 Hari Thekkethill - 125000 Sudha Hari - 25000 Learned counsel for the respondent submitted that the shareholding pattern of 2nd respondent has been decreased by 115886 shares from 30.9.2011 to 29.9.2012 whereas the shareholding pattern of 2nd appellant has increased from by 265886 shares from 30.9.2011 to 29.9.2012. Learned counsel for the respondents explained that the break up of 265886 shares is that the 2nd appellant got transferred 150000 shares of Hari Thekkethill and Sudha Hari and the remaining 115886 shares has been added. Learned counsel for respondents further stated that the shareholding of 2nd respondent has been decreased by 115886 shares from 30.9.2011 and the shareholding of 2nd appellant has been increased by 115886 shares from 30.9.2011. 11. We have heard the learned counsel for both the parties. We are not satisfied with the version of learned counsel for ....

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....lant without adopting proper procedure. We are in agreement with the directions given by NCLT on this issue to enter the names of all the legal heirs of the deceased Thampi Krishna equally including 4th appellant. 15. The other issue raised by the appellants is that the NCLT has wrongly appointed 1st and 2nd respondent as director and also wrongly removed 3rd to 5th appellant and 5th original respondent from the directorship of the company. The appellants submitted that 3rd appellant was appointed as a director on 2.8.2011 in the presence of 1st respondent. The appellant submitted that 4th appellant was legally appointed as a Director on 27.3.2012 which was in public domain and known to public at large. The appellant further submitted that 5th original respondent was a very highly qualified person and known figure in the hospitality industry. 5th original respondent was appointed as a director but later on he resigned during the pendency of the company petition and he is not party to the present appeal. The appellants further submitted that 5th appellant was legally appointed as a Director as per the Memorandum of Association. 16. Learned counsel for the respondent drew our a....