TaxTMI 
TaxTMI 
2022 (4) TMI 313
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....onal Company Law Tribunal, Kolkata Bench, Kolkata), Sh. Surjeet Singh one of the Directors of M/s. Ranchi Metal and Ispat Private Limited, preferred this Appeal under Section 421 of the Companies Act, 2013, (hereinafter referred to as 'The Act'). 2. Briefly put, the Appellant herein has challenged in C.P. No. 104/2014, the allotment of shares to Respondents 1 & 4 made in a Board Meeting held on 18/02/2014. In the said Petition, C.P. No. 104/2014, NCLT has held that the Board Meeting dated 18/02/2014 was without mandatory notice to the Appellant herein, who is one of the Directors, and therefore the Resolution passed in the said Meeting allotting the shares was invalid. Ms. Usha Rani Jha/the first Respondent preferred C.P. (IB) No. 763/KB/2020 under Sections 241, 242 & 243 of the Act seeking declaration that the Meetings dated 22/04/2020 and 16/05/2020 are null & void and therefore the Resolutions passed therein are illegal. NCLT in the last para of its Order, in C.P. 104/2014, has observed as follows: "...The alleged board meeting was without any notice, though the petitioner no. 1 was director of the company. Therefore, the impugned act comes under the purview of oppre....
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.... till the clarification is obtained, it is fair and just to safeguard the only one property held by R-1. Accordingly we are of the opinion that a status quo in regard to the landed property is to be passed till the petition is finally heard. 18. In the result we are inclined to pass an order of status quo pending final hearing of the maintainability of the petition upon the following orders: I) The parties are directed to maintain status quo till the date of final hearing of the petition after listing it upon lifting the lockdown; II) The parties to file reply/rejoinder affidavits, if any within four weeks or immediately within one week after lifting of lock down whichever comes earlier by serving copy to the petitioners, and the petitioners are directed to file rejoinder within 2 weeks of receipt of reply affidavit by serving copy to the respondents. III) Parties are at the liberty to mention the petition for listing after the lockdown is lifted. IV) The Registry is directed to send e-mail copies of the order forthwith to all parties." (Emphasis Supplied) 4. Submissions of the Appellant: It is argued that NCLT has f....
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....in. NCLT has wrongly observed that the maintainability Application cannot be heard until the clarification of the operating part of the Judgement under challenge is obtained. Since the Impugned Petition was preferred against NCLT Judgement dated 10/11/2016 and this Tribunal passed Judgement dated 20/02/2017 and Contempt Case in the said Appeal is also pending, only this Tribunal requires to clarify the bona fide omission in the operating part of the Judgement and pass appropriate Orders. 5. Submissions of the first Respondent: Learned Counsel submitted that this Tribunal vide Order dated 20/02/2017 upheld the shareholding of the Respondent and Order dated 10/11/2016 had only set aside the increase in the authorised share capital of the fourth Respondent and hence the first Respondent is entitled to move the Petition under Sections 242 & 244 of the Act. The first Respondent had proved her shareholding as a prerequisite for maintaining the Application before the NCLT. The allotment of shares was never cancelled and therefore NCLT passed the Interim Order only after being satisfied with the Order dated 20/02/2017 passed by this Tribunal confirming the Ord....
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....en decided earlier. It is further submitted that it is trite that a party is bound to bring forward his whole case in respect of the matter in issue and cannot abstain from replying or giving up any ground which is in controversy and for consideration before a Court and afterwards make it a cause of action for a fresh suit. Constructive res judicata is an 'artificial form of res judicata'. It provides that if a plea could have been taken by a party in a proceeding between him and his opponent he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. Assessment : 7. For better understanding of the case on hand, the shareholding pattern as per the Annual Return dated 30/09/2013 is detailed as hereunder: Sl. No. Name No. of shares as on 30.09.2013 Value of Shares (Rs.) Percentage (%) 1. Mr. Surjeet Singh/Appellant 5000 50,000 50% 2. Mr. Prakash Kumar/Respondent No. 2 5000 50,000 50% Total 10,000 1,00,000/- 100% 8. It is the case of the Appellant that shares were illegally allotted to the first and fourth Respondents and th....
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....company." (Emphasis Supplied) 10. On an Appeal preferred this Tribunal vide Order dated 20/02/2017 upheld the Order of NCLT with a limited modification of interest percentage and observed as follows: "25. The Ld. Tribunal has noticed that no notice was served on the Respondents, and no EGM held to allot shares in favour of the 4th Appellant. The respondent had no knowledge, and in the result the share of Respondent/Petitioner had reduced. 26. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 10th November, 2016. However, in the facts and circumstances of the case, we direct the respondent and the other directors and the company to refund the amount of Rs. 2,01,00,000/- (Rs. Two Crore One Lakh only) with 18% per annum simple interest to the 4th appellant within one month. The Registrar of Companies will ensure such payment. 27. The order passed by Tribunal dated 10th November 2016 stands modified to the extent above. The appeal stands disposed of with aforesaid directions." (Emphasis Supplied) 11. Subsequently, I.A. 827 of 2017 in Company Appeal (AT) No. 31 of 2016 was filed by the Company M/s....
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....forenoted ratio, NCLT has categorically observed that the Respondents have failed to prove that the notice of the Board Meeting for increasing the authorised share capital and the allotment of shares to Respondent-4 was served on the Petitioner/Appellant herein who happens to be a Director of the Company. Without any Notice to one of the Directors, i.e., in his absence if any decision is taken by the Board of Directors, that will not be binding. NCLT has set aside the Board Resolution dated 18/02/2014 for increase in authorised share capital and in pursuance of that, the allotment of further shares in favour of Respondent-4 was set aside. 15. The basic point for consideration in this Appeal is whether the shares allotted to Smt. Usha Rani in the Board Meeting dated 18/02/2014 still hold good and whether she continues to be the shareholder as the last para of the Order does not mention the subject party/i.e., the first Respondent/Ms. Usha Rani. 16. At this juncture, this Tribunal finds it relevant to reproduce the extract of the Minutes of the Meetings of the Board of Directors of the Company held on 18/02/2014: 17. When the aforenoted Resolution itself is set aside in its ....
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....ned Board Resolution dated 18.02.2014 for increase in authorised share capital and in pursuance of that, allotment of further shares in favour of Respondent No. 4 is hereby set aside. The Application money to Respondent No. 4 to be refunded by the Respondent No. 1 Company'. It has to be read in totality. These findings that there were no substantial grounds to increase the authorised share capital; that the Meeting was held in the absence of any Notice to the Director/Appellant herein; and hence the Board Resolution dated 18/12/2014 is set aside, have attained finality in the absence of any Appeal preferred against the Order of this Tribunal. Hence, the argument of the Counsel for the first Respondent that though the 18/02/2014 Resolution has been set aside, it does not pertain to the first Respondent cannot be sustained. 19. For all the aforegoing reasons, this Appeal is disposed of with the clarification that in the light of the Resolution dated 18/02/2014, having been set aside and having attained finality pertains to the setting aside of the allotment of shares to the first Respondent/Ms. Usha Rani also. In view of this clarification, the matter is remitted back to the NCLT ....