TaxTMI 
TaxTMI 
2020 (1) TMI 1407
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....nch of NCLT (hereinafter referred as 'Tribunal'). We have taken the case on record of NCLT, Kochi Bench and renumbered as TCP No. 04/ KOB/ 2019. 2. The above petition filed under Sections 241,242 of the Companies Act, 2013 (in short 'the Act') by the petitioners together constitute more than 1/10th of the total members of the Respondent No.1 Company and hence satisfies the condition prescribed under Section 244 of the Act for maintaining a petition under relevant provisions. 3. In relation to the 1st Respondent Company, namely The City Theatres Pvt Limited, that the Company was incorporated on 25.04.1949 under the provisions of the Travancore Companies Act, IX of 1114 as a private Limited Company having its registered office at New Theatres Building, P. Subramaniam Road, Thampanoor, Thiruvananthapuram-695014, Kerala. The said company it is averred was promoted and incorporated by one Mr. P Subramoniam (now deceased) and Mr. S. Kumaraswamy with the main objects as reflected in the Memorandum of Association of the Company to the following effect: - * To carry on the business of proprietors or managers of theatres, places and halls studios and cinematographic shows and ....
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....Thiruvananthapuram 695024 ("Sree Karthikeya Theatre"). 5. During that period, a mini theatre was also constructed under the name Sree Visakh on land owned by the Respondent Company adjoining Sree Kumar Theatre within the Sree Kumar Theatre complex funded by Respondent No.1 Company. 6. The management of the Respondent No.1 Company was taken over by Respondent Nos. 4,5 and 6 after the demise of Mr. P Subramoniam. It is evident from the records that Respondent No.4 was appointed as Managing Director and Respondent Nos. 5 and 6 were appointed as Directors on 25.03.1975. The Petitioners at that time did not have any interest in the shareholding of the Respondent Company and therefore are unaware of the manner in which the shares held by Mr. P Subramoniam were transferred to or acquired by his children. (i.e. Respondent Nos.2to7) 7. Since 1997, the Board of Directors comprise of Respondent Nos.2 to 7 and this board remained unchanged. Therefore, it is a family held company with the legal heirs of Mr. P Subramoniam owning the entire equity holding and board seats of the Respondent No.1 Company between 1978 and 2017, the Respondent Nos. 2 to 7 diluted their direct equity holding i....
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....s; h. misrepresenting details of the assets of the respondent to its auditors; i. breaching the terms of Articles of Association. 12. The Sree Visakh Theatre was built in the land adjoining to Sreekumar theatre Complex, therefore is an asset of the Respondent No.1 Company. Despite Sree Visakh Theatre being an asset of the Respondent Company, the revenues generated from the theatre are not been recorded. Respondent Nos.2 and 4 are illegally and unlawfully siphoning off the revenues generating from Sree Vishak Theatre under the pretext that the ownership of the theatre was transferred to Respondent No.2 and 4 by late Mr. Subramaniom. It is also submitted that assuming but admitting to the transfer of ownership of Sree Visakh Theatre to Respondent Nos.2 and 4, there exist no contractual agreement between the two Theatres to carry the common facilities and spaces. And also, large parts of income generated from the Respondent Company is siphoned off thereby reducing the profit share of the other shareholders. 13. Similarly, the Merry Land studio is a film making and record studio a common property included in the common asset is in a dilapidated state due to lack....
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....ng the letter, Respondent No.3 has required petitioner No.2 to post the details of her current address to which notices would be served from the next meeting onwards as reflected in (Annexure 9). 17. The petitioners also stated that the request made by them to access the Register of Members, Register of Directors, detailed asset wise profit and loss statement for the last 5 years, Register of assets and the charges created on the assets have remained unanswered and all the records were in the custody of the Respondent No.2. 18. The petitioners also contended that the financial statement of Respondent No.1 Company for the year 2015-2016 states that a loan was given for Rs.12,00,000/- (Rupees Twelve Lakhs Only) to one of the Directors, which is not declared by the Director as a related party transaction. 19. It is also stated that the remuneration for the Board of Directors by way of a Board Resolution unilaterally increased their salaries from Rs.50,240/- to Rs.1,00,000/- per month without any basis. Therefore, imparting high remuneration to Directors reduces the dividend payable to the shareholders. 20. The petitioners also stated that the restriction on the transfer of....
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....eeking for the following reliefs: a. Removing the Respondent Nos.2 and 4 as the Managing Directors of the Respondent Company due to their fraudulent oppressive mis managerial and deceptive acts in respect of the Respondent company. b. Re-appointing and reconstituting the Board of directors of the Respondent Company in a manner to represent the interest of all shareholders of the Respondent Company; c. Directing the Respondents to submit on monthly basis, an asset wise income and expenditure statement of the Respondent Company to the petitioners and /or to this Hon'ble Tribunal; d. Directing the Respondents to produce the physical title deeds of the all the fixed assets of the Respondent Company; e. Directing Respondent No.2 and 4 to render accounts of Sree Visakh Theatre with effect from 04.10.1978; f. Appointing a commissioner/ investigator to investigate the affairs of the Respondent Company including but not limited to determination of the fixed assets of the Respondent Company and submit a report with regard to affairs and operations of Respondent Company. g. Directing the Respondents to [provide the petitioners acc....
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.... in 2015) with company's own fund i.e. Rs.6.97 crores as evident from the fixed assets table column of balance sheet for the FY 2014-2015 of the Company. The Company has already submitted applications before the Corporation of Trivandrum for a similar renovation and modernisation after securing approval from AGM. The Respondents also contended that the Respondent No.2 never exercised unfettered powers in the company, as all the decisions are taken by consensus or majority in the Board after discussions only. The company is circulating all information related to the business and working of the company is provided in the balance sheet and profit and loss account which is circulated among the shareholders. The Respondents also shown tabular form of the progressive financial data as follows: FINANCIAL YEAR TOTAL REVENUE INCLUDING OTHER INCOME IN Rs. PROFITS IN RS. DIVIDEND DECLARED 2012-2013 5,07,25,909/- 42,15,993/- 150% 2013-2014 4,27,52,248/- 44,06,832/- 150% 2014-2015 4,84,29,899/- 60,15,0900/- 180% 2015-2016 9,53,39,516/- 1,53,08,080/- 200% 2016-2017 10,47,19,694/- 2,73,37,343/- 200% The Respondents further....
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....owever, the petitioners as shareholders have limited rights and cannot usurp for themselves the prerogative of the Board of Directors. Therefore, all information that the Respondent Company is bound to provide to shareholders will be provided. 25. In relation to allegation in the petition that the company does not provide with the notice of AGM, it is contented by the said Respondents that the allegations made are unsubstantiated. Notices for all the AGM in all the years mentioned herein have been sent to the petitioners in the address as provided to the Registered office of the Company. And notice for the AGM held on 28.09.2016 was delivered to the Petitioner No.2 to her address provided to the Registered office of the Company, it is not the case of the petitioners that they did not present in the AGM. The sanction of loan amount to one of the Directors in the financial year 2015-2016 is evident from the minutes of the Board Meeting and reflected in the financial statements of the company. The salary arrangement was increased to Rs. 40,000/- per month in 2017 from Rs. 30,000/- per month in 2013, apart from other allowances for travelling, medical etc. 26. The Respondents fur....
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....company. It is also submitted that the Respondents have admitted that the premises of Merry Land Studio are used for their personal businesses and no proof is furnished that the rent has been paid to the Company for the said use. 30. The Petitioners further contended that the auditors have clearly stated that they cannot verify the correctness of the title deeds of the immovable properties since they were not provided with the same. It is also stated that signing the attendance register does not prove that notices were sent in compliance with the provisions of the Companies Act. Again, it is submitted that participating in the AGM does not vitiate the fact that no notice was received by the petitioner No.2. Further the Respondents have failed to respond to the averment that the letter dated 08.10.2016 was refused by the Respondent Company. 31. The Petitioners again stated that the Respondents have once again responded vaguely to the averments of the petitioners. The mere fact that the petitioners have access to the minutes of the AGM dated 29.02.2012 does not prove that they had access to the statutory registers maintain by the company registers as is their right. It is also ....
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....pect to transfer of 600 shares of Respondent No.7 to L. Priyadarshini as invalid; i. Declaring as null and void and setting aside all share transfer of 650 shares from Late. Mr. Subramaniom Shakthidar to Remya Nandini and Mrs. Rajkumari Kylas on 29.09.2015; It can be noted that the reliefs have sought in respect of L. Priyadarshini, Mrs. Ramya Nandhini and Mrs. Rajkumari Kylas and yet they have not been impleaded as parties to the petition. Thus, the petition deserves to be dismissed for non-joinder of necessary and proper parties. 36. The main issue in the instant petition is regarding the transfer of 600 shares held by Respondent No.7 in February 2016 and the Board of Directors approved the transfer in accordance with the Articles of Association in a meeting held on 11.03.2016, as there is no beneficial interest in the shares held by the Respondent No.7. in any case it is also not the case of the petitioners that such interest has been notified either in accordance with the relevant provisions of the Companies Act 1956 or the Companies Act 2013. 37. The following are the reply to the allegation raised by the petitioners against the Respondent No.6: The Petiti....
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....e following issues are framed for consideration: (i) The jurisdiction under Section 241/242 of the Companies Act 2013 being that of an equitable jurisdiction whether the parties have approached this tribunal invoking the equitable jurisdiction with clean hands?; (ii) if not, whether the petition is liable to be dismissed on this ground?; and (iii) Whether the alleged transfer of shares done violates AoA of the Respondent No.1 Company? 41. To arrive at a decision on the above points, we have considered the following issues raised by the Petitioners in their averments: 1. IN REGARD TO SREE VISAKH THEATRE: We have gone through the records and the counter in detail and observed that Sree Visakh Theatre was constructed during the period 1976-1978 by Respondent Nos.2 and 4. The Petitioners became shareholders of the Respondent No.1 Company in the year 2009, long after Sree Visakh Theatre was constructed. From the Records before us it is observed that Sree Visakh theatre run by R2 and R4 as a partnership firm approved by the Board of Directors of the R1 Company and ratified by the AGM. The Petitioners alleged that the revenues of Sree Visakh theatre are....
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....nts whenever they are using Merry Land Studio facilities. Further the records before us have not showed any such allegation by any of the shareholder/director on the affairs of Merry Land Studios after 2012. As such we are not willing to accept the contention of the petitioners on this issue. 3. IN REGARD TO SREEKUMAR THEATRE: The Petitioners further alleged that the private businesses run by Respondent Nos.8 to 10 are being operated without any contractual agreement and no lease or license payments are received by the Respondent No.1 Company. In this also, no documentary evidence was produced by petitioners to prove their allegation. The Counsel for the Respondents stated that the allegation is completely false and that the R8 to R10 are not using the Sree Kumar theatre facilities for their personal businesses. Further, the counsel for the respondents also stated that Saran Creations is a serial production house and its shooting and other activities are held in different locations. Respondent No.9 is not connected to Visakh Outdoors, which is actually owned by Respondent No.2. Respondent No.10 is not in occupation of any part of Sree Kumar theatre. In this issue also, we hav....
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....nt the factual financial performance of the Respondent No.1 Company. 6. IN REGARD TO SHARE TRANSFER: As regard to transfer of shares by Respondent No.1 Company the petitioners have claimed that transfer of 650 shares of late Subramoniam Shakthidar who passed away on 15.05.2015 was wrongfully transferred to his wife and legal heirs in contravention of AoA. And 600 shares transferred from Respondent No.7 to L. Priyadarshini without any approval by the Board of Directors of the Respondent No.1 Company and resolution pertaining to such transfer was never tabled for approval at the meeting of the Board of Directors on 11.03.2016. According to the AoA, the transfer of shares should be as under: "No transfer of any shares in the capital of the company to any person not already a member of the company or personal representative of a member or beneficiary under the will of a member shall be made of recognised by the company. The directors may without assigning any reason decline to give their sanction to any transfer and may suspend the registration of transfers during the fourteen days immediately preceding the ordinary general meeting in each year" On a plain reading of ....