TaxTMI 
TaxTMI 
2019 (5) TMI 1635
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....16 vide which the NCLT has held that there are not acts of oppression and mismanagement and disposed of the petition. 2. The brief facts of the case are that the 1st respondent company was incorporated in the name of Aman Prints Pvt Ltd on 8.3.1995 and its name was changed to Supriya Prints Pvt Ltd on 21.7.2005. The authorised, issued, subscribed and paid up capital of the 1st respondent company is Rs. 1,75,00,000/- divided into 17,50,000 Equity Shares of Rs. 10/- each. The appellants are collectively holding 5,83,275 Equity shares constituting 33.33% share capital in the 1st Respondent. 1st respondent company was promoted by Shri Natverlal R Giliwala and Shri Manish N.Giliwala. 5th and 9th Respondent took over the 1st respondent and were appointed as Directors of the company on 26.5.2005. 5th Respondent resigned as Director of 1st respondent on 10.11.2007. 3. 1st appellant was appointed as Director of 1st respondent on 16.9.2010. 2nd respondent was appointed as Additional Director on 28.7.2010 and 2nd respondent vacated his office as Director of 1st respondent w.e.f. 1.10.2010 as his appointment was not regularized by the Members of 1st respondent at the AGM held on 30.9.201....
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.... respondent being directors/guarantors of 1st respondent. On receipt of demand notice form the Bank, 1st appellant and 2nd respondent executed a Power of Attorney dated 15.10.2012 in favour of Shri Chetan Chandrakantbhai Mehta, Branch Incharge of Bank authorising the Bank to sell the property of 1st respondent situated at Sachin, Surat as the company had already sold its machineries and hand discontinued manufacturing operations. 1st respondent continued to pay instalment and interest to the Bank and 1st respondent had a Fixed Deposit Receipt with the Bank and the said FDR was also credited in loan account of 1st respondent and the Loan Account balance was reduced to Rs. 2,43,13,881/- (Page 15, Para 15 of appeal). It is stated that after executing Power of Attorney to the Bank there was no pressure from the bank and the 1st respondent was continuously paying the instalments. 8. It is stated that the Respondent Nos 5 to 8 executed an Authority Letter dated 15.2.2013 (Page 177) in favour of Mr. Jaibhagwan Gupta on the basis of purported Board Meeting of 1st respondent dated 12.8.2010 authorising him to sign deeds, documents, and papers required in connection with transfer of immov....
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.... to direct respondents No.2 and 4 to restrain from in any manner dealing with the affairs of the first respondent company, its funds entering into any agreement and conducting any meeting in absence of petitioner No.1 etc. 11. Reply was filed by Respondent No.1, 2 and 4 stating that the petition is barred by principle of Res Judicata, since the Civil Suit No.131/13 is pending and on the ground that appellant No.1 filed Special Civil Application No.7735/2013 on the file of High Court of Gujarat. It was also stated that 2nd respondent was appointed as Additional Director and the appellant No.1 never objected for the appointment of 2nd Respondent as Director. It was stated that the EOGM was held and convened on 17.12.2012 in accordance with Articles of Association of the Company. It is also stated that the loan was taken from the Bank and no other person was ready to give bank guarantee, therefore, 3rd respondent gave his personal guarantee for the term loan and cash credit sanctioned by the Bank. It is also stated that the appellant has not produced any evidence that his signatures was forged by 3rd respondent in the Resolution passed by the Board of Directors on 1.8.2012. It is a....
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....ai Bhagwan Gupta as Authorised person of R5 to R8 who resigned on 15.1.2011 (Volume 5- Page 214-223). 15. It is stated by the appellant that R10 was requested vide letter dated 15.2.2013 (Page 184 of Vol1) by ex-directors R6,7,8,9 and present director R2 to cancel the application form for transfer of plots and stated that new form is being submitted. It is stated that the appellant No.1 had written a letter dated 21.2.2013 (Page 228 of Vol 2) to 10th Respondent requesting him not to transfer the said plot of 1st respondent without his physical presence. It is stated that the 10th Respondent replied vide letter dated 22.2.2013 (Page 229 of Vol) that it is none of the business of Appellant No.1 to stop the transfer of plot. 10th respondent also stated that a resolution dated 1.8.2012 (Page 334 Vol 2) duly signed by Appellant No.1. Appellant No.1 sought these documents from 10th respondent but the same was denied and then appellant No.1 sought these documents RTI and the same were supplied but by then the final order was passed by 10th Respondent on 28.3.2013 and the property was transferred in the name of 3rd respondent. 16. The appellant stated that the transfer application si....
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....This MOU was acted upon for sale of machineries and contents of MOU not disputed by appellant. 20. It is stated that land of 1st respondent leased by 10th respondent was not transferred by mutating the names of appellant and 2nd respondent since mortgage loan was not discharged by appellant and 2nd respondent. 10th respondent has filed affidavit before High Court (In Appeals Page No.351 to 374). 21. It is stated that Board resolution dated 17.7.2012 passed for appellant being in charge of accounts, audit etc. Board resolution dated 1.8.2012 passed authorising 2nd respondent for bank transactions including for discharge of loans, transfer of 1st respondent property etc. Board resolution dated 14.9.2012 passed for disposal of 1st respondent land for discharge of outstanding loans to bank. It is stated that Board Resolution dated 15.10.2012 (Page 340) was passed as the business activities was stopped and loan is not repaid then in such case if guarantor repays the loan then the legal rights of the property would transfer to him. It is next stated that full payment of outstanding loans to bank was made by 3rd respondent on 19.2.2013 and thereafter on 21.2.2013 the appellant start....
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....eing given to the Bank for recovery of the loan amount, first preference should be given to 3rd respondent as a guarantor to pay the loan amount and if 3rd respondent accepts and repays the loan amount then the property should be transferred in favour of 3rd respondent. It is next stated as the Bank failed to locate a best buyer for the said property, pursuant to the request made by appellant and 2nd respondent, 3rd respondent recouped all his resources and gathered a sum of Rs. 2,46,13,881/- and repaid the said outstanding loan on 19.2.2013 which was outstanding to Bank. It is stated that after payment of entire loan to the Bank on 19.2.2013, the appellant started objecting and writing to Bank, 10th respondent and filing civil suit in Gujarat High Court. 25. It is stated that the appellant was only interest in the immoveable property of 1st respondent acquired by 3rd respondent would be evident from the submissions made by the appellant before Hon'ble Company Law Board, recorded in the order dated 19.5.2014 that 1st appellant who was present in person on 15.5.2014 undertook to pay the dues together with up to date interest to 3rd respondent which he has paid to the Bank subject....
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...., the authority letter was got signed from them in terms of the MOU dated 16.11.2010. Further 1st appellant became director of 1st respondent on 16.9.2010, therefore, he cannot state that the Board Resolution dated 12.8.2010 is a forged and illegal document. Therefore, the Deed of conveyance dated 4.3.2013 in favour of 3rd respondent was signed by Mr. Jai Bhagwan Gupta on the basis of Resolution dated 12.8.2010 as he was authorised by 5th to 8th Respondent, as in the books of GIDC the names of the erstwhile directors were on record and only they could sign the conveyance deed. It is to be noted that Board of Directors take a decision through Resolutions and the decisions could be taken by the Board of Directors to authorise any body not necessarily the Member of the Board of Directors so that follow up action on the Board Resolution can be taken to logical conclusion. Once decision to dispose off the property has been taken by the Board and in terms of MOU ex-Directors has already agreed to cooperate in the matter for transfer of property. In the light of the decision taken by Board, that the application signed by the ex-Directors can not be termed as illegal. 30. The appellant ....
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....e statement of 10th respondent in letter dated 22.2.2013 that the name of 1st appellant is not considered is an illegal statement. 34. Learned counsel for the Respondent argued that 5th to 8th respondent signed the transfer application form on 6.4.2011. These respondents resigned on 15.1.2011. 1st appellant and 2nd respondent could not take any steps for transfer of plot in favour of 1st appellant and 2nd respondent with 10th respondent because 1st respondent was in heavy losses and 10th respondent's transfer fee and Registry charges was approx. Rs. 20 lakhs. Respondent further argued that the loss in 2011-12 was Rs. 1,21,73,888/- and 1st appellant was in the management of the affairs of 1st respondent and no steps were taken by 1st appellant to arrange for the transfer fees. 35. We have heard the parties on this issue. It is not disputed that the 1st appellant was in the management of the affairs of 1st respondent and, during the year 2011, 1st respondent was in heavy losses. It is for both the 1st appellant and 2nd respondent to take steps for transfer of plot in their names. We observe that both are liable for not transferring the plot in their names. 36. Appellant argu....
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....r the parties. We observe that the Resolution dated 14.9.2012 at Page 338 Vol 2 is duly signed by 1st appellant. In the light of 1st appellant's signature on Board Resolution it cannot be said that this is a forged document, is not convincing. 42. Appellant argued that the Resolution dated 15.10.2012 is forged. It further argued that the Bank did not accept the said Resolution and asked 2nd respondent to withdraw the Resolution. The said Resolution was withdrawn by 2nd Respondent on 17.10.2012 as accepted by 2nd Respondent in the letter given by 2nd Respondent to 10th Respondent. 43. Learned counsel for the Respondent argued that the Resolution dated 15.10.2012 is not forged as it was given to Bank by 1st appellant and 2nd respondent. Learned counsel for the Respondent further argued that 1st appellant in his rejoinder (Addl. Documents by 2nd Respondent, Diary No.3729, Pg67, para 38) confirms the passing of the Board Resolution dated 15.10.2012 and also admits the power of attorney dated 15.10.2012 to sell the land. Counsel further argued that the Resolution accepted by 1st appellant gives the right to the bank to transfer the property for recovery of the loan and first prefe....