AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 1966
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....rs to the Memorandum and Articles of Association of the Company. The Company was incorporated to take advantage of a valuable business opportunity of promoting and making construction at Premises No.7E, Nellie Sengupta Sarani at which the well known Globe Cinema Hall in Kolkata was located. The 1st and 2nd appellant put in money into the 1st respondent as share application money and also arranged for funds through companies and entities in the 1st respondent for the purpose of acquiring 50% of the said Globe Cinema hall. It was also agreed between 1st appellant and Late Meghraj Daga that balance 50% undivided interest will be acquired through a company by the name of Dhansri Abasan Pvt Ltd which was in the control of Late Meghraj Daga and one Jain family. 3. The original petitioners were very close to one Mr. M.R.Daga who was their Chartered Accountant and was also their trusted financial advisor as well as their statutory auditor. The 1st appellant (original 1st petitioner) had involved M.R. Daga in the project regarding the Globe premises and it was agreed between them that they would be equal joint venture partners in the project. It was also agreed that 50% of the Globe prem....
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....sented by 2nd respondent and one Nitin Jain) signed an allocation sheet for division of the entire premises between Dhansri and the company in February, 2014. It is stated that accordingly large part of Dhansri's share of and in the Globe premises was transferred for valuable consideration in favour of the company in February, 2014 and as a result the appellants came to hold 70% shares approximately in the said premises. 5. It is stated that the appellants were shocked to learn after returning from an overseas vacation, in the first week of October, 2014, that 2nd Respondent had purported to take several wrongful and illegal steps in an attempt to oust the appellants from management of the company and to reduce the appellants to a minority shareholder in the company. The appellants were shocked to see the following wrongful, illegal and oppressive acts of 2nd respondent who was acting in collusion and conspiracy with some of the other Respondents: i) The allotment of 9,90,000 shares made in favour of Appellant No.1 and Appellant No.2 on 15th March, 2013 had allegedly been cancelled. ii) 4,30,000 shares held by Appellant No.2 in the company and 2,35,000 shares h....
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....cellation of 9,90,000 shares is held to be invalid and, therefore, the Petitioner's shareholding remains as it was on 15th March, 2013. ii) The transfers of shares of the Appellant Nos 2 and 3 held in the Company were upheld. iii) The removal of the Appellant No.1 as director was held to be null and void and the Respondents were directed to reinstate him as a director of the company. iv) The resignation of P2 and P3 was held to be invalid. v) The alleged appointment of the Respondent Nos 2 to 5 as directors of the Company were set aside as such alleged appointments were made in violation of the statutory norms. vi) The Respondents were directed to file requisite forms with the Registrar of Companies, West Bengal as per the Companies Act, 2013 and the relevant rules thereunder. vii) The Respondents were given liberty to appoint directors after following due procedure under law subject to the condition that the parties would have proportionate representation on the Board and in management of the company in terms of their shareholding. 8. Being aggrieved by the said impugned order dated 12th July, 2017 the appellants (original p....
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....t aside that part of the impugned order where resignation of Respondent No.2 and 3 has been held to be invalid. iii) Set aside that part of the impugned order where appointment of the appellant No.1 -Deepak Daga, Appellant No.2-Kanak Mal Banthia and appellant No.3 Deepak Kumar Rathi to the Board of Director has been set aside; iv) Set aside that part of the impugned order which directs appointment of Directors subject to the condition that both parties will have proportionate representation in the Board and Management of the appellant. v) Rule Nisi in terms of prayers above; vi) Rule so issued be made absolute on hearing the parties and/perusing the cause that may be shown; vii) Partial stay of operation of that part of the said impugned order in terms of prayers made in para (i-iv) above till the disposal of the instant appeal viii) Ad-interim orders in terms of the prayers above; ix) Costs of and incidental to this petition be cost in the cause; x) such other and/or further order/orders be passed as to this Hon'ble Court may deem fit and proper. 10. The original 1st respondent filed the third appeal being ....
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.... The appellants further contended that the registered office of the company has been illegally shifted. The appellants further argued that the shares of 6th to 32rd Respondent has been illegally transferred to 34th to 37th respondent. The appellants further argued that 33rd respondent did not hold any shares in the Goldsar prior to the alleged transfer and there is a restriction in Article 8(1) for transfer of shares to a non-member unless unanimously approved by the Board of Directors. The appellants argued that they were the only directors at that time and they deny any such transfer. The appellants further argued that as no unanimous approval has been shown, therefore, the transfer would be nullity and void being violation of Article 8(1). The appellants further argued that no consideration for transfer of such shares has been paid by 33rd respondent. The appellants further argued that the purported consideration shown for a sum of Rs. 45 lacs to appellant No.2 and Rs. 23.5 lacs to appellant No.3 was actually return of loans earlier given by the said appellants to 33rd respondent as is appearing in the Bank statement of 33rd respondent and balance sheet of 33rd respondent for th....
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....transfer supported by share transfer deed and duly witnessed and stamped, Board Meeting dated 31.8.2013 was convened and notice for Board Meeting was issued to 1st to 3rd appellants. The original share certificates were duly endorsed on reverse in favour of 33rd respondent by 1st respondent by approving above transfer on 31.8.2013. Learned counsel further stated that the said share certificates are not in possession of the appellants. 15. Learned counsel for the 1st respondent submitted that Annual Return filed with Form 20B on 15.4.2014 for AGM held on 30.9.2013. An affidavit was filed by Devinder Singh Shant as Director of 1st respondent and 1st appellant confirming shareholding in Annual return and filed with ROC as correct. Balance Sheet as on 31.3.2014 was duly signed by 1st appellant and 2nd and 4th respondent. Learned counsel further submitted that 2nd an 3rd appellant were directors of 33rd respondent on the date of the share transfer. 16. Learned counsel for the 1st respondent further submitted that the transfer of 732000 shares by 7th, 10th, 11th, 12th, 14th, 17th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th and 29th respondent to 34th to 37th respondent of 1st respond....
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....elves disclosed at the rejoinder to the reply filed by 33rd respondent. 19. Learned counsel for respondent further submitted that the shares were transferred with the approval of the directors of 1st respondent and in accordance with the law. Learned counsel further submitted that it cannot be believed that the directors of 1st respondent contend that they signed the documents of the 1st respondent without looking at the annexures and, therefore, their signatures should be taken to be non-est factum i.e. signature did not carry their mind. Learned counsel for respondent submitted that the appellants could not explain as to why they are not in possession of 665000 shares and 990000 shares which is the subject matter of dispute. COMPANY APPEAL (AT) NO.281 OF 2017 20. Learned counsel for the appellants in above Appeal submitted that they have invested an amount of Rs. 9,47,00,000/- (Rupees Nine Crores forty seven lakhs only) in 4th respondent and whereas the Respondents contribution is only to the extent of Rs. 97,66,000/- (Rupees ninety seven lakhs sixty six thousand only). The appellants submitted that they were holding 84% shares in the 4th respondent and after the impugne....
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.... the Respondents submitted that no reason was given for resignation of the Respondents and it is unbelievable that the promoters of the 4th respondent who were the only directors resigned as director without any reason. Learned counsel submitted that it could not be ruled out that certain signed documents might have been in possession of the 1st appellant for compliance of certain formalities and that these documents have been converted into alleged resignation letters. Learned counsel submitted that the resignation letters are forged documents. It is next submitted that Form DIR-12 was filed with ROC only on 9.9.2014 i.e. more than five months after alleged resignation of 2nd and 3rd Respondents as Directors. Learned counsel submitted that the explanation given by 1st appellant that time was need to understanding filing requirements under the new Companies Act is unbelievable and absurd and 1st appellant is a practicing Chartered Accountant. 23. Learned counsel for the 1st to 3rd Respondent submitted that the NCLT has given its findings at page 27 of the impugned order that the Respondent was illegally removed from the directorship of the 4th Respondent. Learned counsel further....
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....nviting in terms of retail attractiveness, low footfall of customers in the absence of food court and till multiplex also becoming full fledged operation. Learned counsel further submitted that the effect is that not only the 1st appellant company is suffering from negative publicity resulting in irreparable loss of goodwill and brand value of the 'Globe' venture, but the 1st appellant is also receiving claims of losses from the stakeholders whose third party rights have been created, are continuing in nature and who are burdening the company with their claim of damages. Learned counsel for the 1st appellant submitted that the group of members of the appellant company, excluding Respondents, was the highest contributory of the capital of the company and it was due to their efforts that the kind of fund arranged were infused and used in the appellant company. Learned counsel for 1st appellant submitted that the Tribunal erred in not appreciating the peculiarities of the instant case and partly allowed the Company Petition filed by the Respondents to the grave detriment of the company and without considering the long term loss which is likely to be caused to the Company if the Respon....
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....ther argued that one of the main grounds of challenge by the appellant in this appeal relates to the failure of NCLT to set aside the illegal transfer of 6,65,000 shares of 1st respondent held by 2nd and 3rd appellant in favour of 33rd respondent which is a company controlled by the 2nd respondent. Learned counsel for the appellants argued that the 2nd respondent had manipulated and fabricated records and documents in support of their allegation that the 2nd and 3rd appellants had purportedly transferred an aggregate of 665000 shares held by them in 1st respondent in favour of 33rd respondent in the Financial Year 2014-15. Learned counsel further argued that such transfer never took place and such transfer in any event have been in violation of Article 8 of the Articles of Association of 1st respondent and would thereby be rendered null and void. Learned counsel for the appellant argued that the transfer of shares by 2nd and 3rd appellant in favour of 33rd respondent is a false and afterthought allegation is that no consideration was paid by 33rd respondent for any such alleged transfer of shares. Learned counsel for the appellants further argued that the amount paid by 33rd respon....
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....f of the appellants in Company Appeal (AT) No.281 of 2017 argued that the pleading in support of the said document is sufficiently made before NCLT and it is statutory record of the company. Learned counsel further argued that non-disclosure of the same, despite availability of the same shall prejudice the case of major investors/stakeholders in the company and as an abundant precaution, the said document is sought to be placed on record in the interest of justice for adjudication of the matter. Learned counsel for the appellants argued that since these documents were not placed by original petitioners and is nowhere disputed by them, the R-1 seeks to place the same on record to highlight invalid procedure followed for convening the meeting where the petitioners were the only parties present to take the unilateral decision to illegally allot 990000 shares to themselves to the prejudice of the other stakeholders. Learned counsel for the appellants argued the respondents for the first time in CA 274/2017 challenged the transfer of 2,10,000 shares on the ground that the same is in violation of Clause 8 of the Articles of Association. Learned counsel for the appellants argued that if t....