2020 (12) TMI 372

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....relevant to the issue in question, are as follows: (1) M/s. Bangalore Brush Company (P.) Ltd. (hereinafter referred to as Company) was incorporated on 16th November, 1987 under the provisions of Companies Act, 1956, having its registered office at No. 11, II Floor, 11th Main Road, Jayanagar IV Block, Bengaluru- 560011 with CIN: U85110KA1987PTC008735. Its Authorised Share Capital is Rs. 30,00,000 divided into 30,000 equity shares of Rs. 100 each. And its paid-up capital is Rs. 9,000/- divided equally among three promoters as follows:   Promoter No of Shares Subscribed 1 Mazharul Islam 30 (of INR 100/- each) 2 Badrul Islam 30 (of INR 100/- each) 3 Noorul Islam 30 (of INR 100/- each) Total   90 (of INR 100/- each) Thus, as on the date of incorporation, the Petitioner was holding 30 shares of INR 100/- each of the Respondent No. 1 Company, which constitutes 33.33% of shareholding of the Respondent No. 1 Company. (2) Mr. Mazharul Islam (hereinafter referred to as 'Petitioner') together with his brothers i.e. Late Noorul Islam and Mr. Badrul Islam incorporated the Company for setting up a manufactur....

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....ompany to their personal accounts and to the accounts of their family members and relatives. (5) The Petitioner, through inspection of the records of Registrar of Companies, Karnataka, has come to know that Respondent has submitted a Form No. 32 to the Registrar of Companies, Karnataka, in the year 1992 informing that the Petitioner had resigned from the directorship of the Respondent Company. That this illegal Form alleging the removal of Petitioner as a Directors of the Company is a clear manifestation of the illegalities committed by the Respondents to oppress the Petitioner and to mismanage the Company for their personal benefits. (6) At the cost of the repetition, the various acts of the Respondent Nos. 2 to 7 as constituting Oppression and Mismanagement can be summarized as under: a. Illegal removal of the Petitioner from directorship of the Company without following the provisions of the Companies Act, 1956. The Respondents has filed Form-32 with the Registrar of Companies in 1992 intimating that the Petitioner had resigned from the directorship of the Company though the Petitioner had never signed and submitted any resignation letter. b. ....

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....ed in any of the general meetings of the Company. However, after the death of Mr. Noorul Islam in 2016, in order to make unlawful and illegal claim and to arm-twist the Respondents, the Petitioner herein has filed this Petition with an ulterior motive and mala-fide intention. (2) The Petitioner has not produced any document or proof of evidence in support of the claims or allegations made by him in this Petition. The Petitioner herein gave his resignation on 10-6-1992 and the same was accepted by the Board of Directors in the Board Meeting held on 15-6-1992. This is evident from the resignation letter and Board minutes held on 15-6-1992. The Petitioner, who was holding 8000 shares in the Company has transferred 3000 shares to Mr. Nporul Islam, 4000 shares of Zahoorul Islam and remaining 1000 shares were transferred to Ms. Afifa Noorul Islam in the year 2000-01. This is evident from the share transfer deeds which is executed by Petitioner, the Board Minutes and the Annual returns of the year 2000 submitted by Petitioner himself. Since then, the Petitioner had no connection either as a Director or as a shareholder with Respondent No. 1 Company. Such being the case, the Petit....

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....i Mukesh Yadav, learned Counsel for the Petitioner, and Shri S. Vivekananda learned Counsel for the Respondents. We have carefully perused the pleadings of both the Parties and the extant provisions of the Companies Act, 2013, and the Rules made thereunder, and the Law on the issue. 5. Shri Mukesh Yadav, learned Counsel for the Respondents, after arguing the case, has also filed Written Arguments dated 2-3-2020 by inter alia contending as follows: (1) The transfer deeds in question fails to satisfy provisions of section 108 of the Companies Act, 1956, and the explanation given by the Respondents and the documents produced by them shows that they are sham transactions and thus they are liable to be rejected. (2) It is well settled law that provisions contained in section 108 of the Companies Act, 1956 are mandatory. The Hon'ble Supreme Court has in number of cases held that the prohibition against the transfer without complying with the provisions of section 108 of the Companies Act, 1956 is emphasized by the negative language used in this section. It was further held that the negative language of this provision is worded to emphasis the insistence of compli....

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....e present case, the Petitioner is not a member of the Company as on the date of filing this instant Petition. (2) The Petition is hopelessly barred by limitation. The Petitioner has approached the Tribunal after a span of more than 26 years contending that the resignation letter has been fabricated. Further, after a gap of 18 years, the Petitioner approached this Tribunal contending that share transfer deeds are fabricated. The resignation letter was given in 1992 and the transfer of all the shares held by him was in 2000-01. From the above, it is very clear that the Petition is hopelessly barred by limitation. The Petitioner has not produced the share certificate by virtue of which he claims to be the member of the Company. (3) It is and father (sic.) of Respondents No. 3 to 7. Very conveniently, in order to extract money and misuse the law, he has filed this Petition with ulterior motive and mala fide intention. Further, his contention that he was not aware of anything cannot be believed in view of the fact that all the documents such as Financial Statements, Annual Returns, Form- 32 etc. are all public documents available for everyone to view in the public doma....

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....er sections 58 and 59.- Rule 70(1) reads that "The appeals against the refusal for registration of transfer or transmission of securities under section 58 or for rectification of register of members under section 59 shall be made to the Tribunal by way of a petition in Form No. NCLT 1 and shall be accompanied by such documents as are mentioned in Annexure B: (1) Provided that a copy of the appeal shall be served on the concerned company at its registered office immediately after filing of the petition with the Tribunal. (2) The petitioner shall at least fourteen days before the date of hearing advertise the petition in accordance with rule 35. (3) Where any objection of any person whose interest is likely to be affected by the proposed petition has been received by the petitioner, it shall serve a copy thereof to the Registrar on or before the date of hearing: Therefore, separate Application/Petition has to be filed by the Petitioner, if his shares in the Company is illegally removed from the Register of Company. And filing the instant Petition shows that the Petitioner is admittedly not a shareholder of the Company, as on date of filing the instant Pe....