TaxTMI 
TaxTMI 
2025 (5) TMI 269
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....av Rajasthan Coop Hsg. Society, Senapati Bapat Road, Pune-16. 4. The Respondent No. 1, Winterpark Developers Private Limited is a company was incorporated on 11.11.1987 having registered office at 5, KrishnaKunj 64/3, Erandwana, Pune which, in fact, is office of the Petitioner since 1981. 5. The Respondent No. 2, Shri Surendra Pal Jaswant Lal Barara is the legal heir of Shri Y J Barara, the First Director of the Respondent No. 1 Company. 6. The Respondent No.3, Shri Rajkumar Navalmal Gandhi, Respondent No. 7, 8 & 10 are legal heirs of Shri N S Gandhi, the First Director of the Respondent No. 1 Company. 7. The Respondent No. 4, Shri Bhagwan V Pedawar, Respondent No. 2 and Respondent No. 3 were appointed as additional director on 10.09.2003, and Respondent No. 5 Shri. Pritam Sagane was appointed as additional director on 06.07.2004. Submissions by the Petitioner: 8. The Petitioner submits that Mr. N.S. Gandhi along with the Petitioners were the subscribers to the Memorandum and Articles of Association of the Respondent No.1 company, each holding one share of Rs. 100/-. The initial directors of Respondent No.1 Company were Mr. N.S. Gandhi and Mr. Y.J. Barara (First D....
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....d the Petitioner to withdraw the Earlier Petition with a liberty to file a new petition. 11. It is further submitted by the Petitioner that following the issuance of the abovesaid order, the Petitioner conducted a search of Respondent No.1's records at the Registrar of Companies, Pune (ROC) through Mr. Govind Krishnarao Patil, Company Secretary (ACS 10408 and CP 5934). As a result of the search conducted on 02.03.2009, Mr. Patil issued two Search Reports. On the basis of above Search Reports and after assessing the information supplied therein certain acts and omissions of the Respondents emerged. Consequent to it, the following averments are submitted without prejudice and, wherever the context so requires, in the alternative one another: a. Re: Registered office: Form No.18 was filed at the office of ROC on behalf of the Respondent No.1 Company on 04.11.1987 wherein the Registered office of the Respondent No. I Company continues till date to be shown as "5 Krishnakunj, Erandawane, Pune" ("Premises"), however the premises is till date exclusively owned and in possession of the Petitioner ever since the incorporation of the Respondent No.1 Company. It is submitted t....
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....hem had the legal authority to sign these forms since they were not directors or additional directors at the time they signed or submitted the forms as on the date on such Form was signed or submitted at the office of the concerned ROC. Therefore, the appointment of Respondent Nos. 2 and 3 is void ab initio. Even assuming, without admitting, that the appointments of Respondent Nos. 2 & 3 as additional directors were legally valid, the AGM on 29.09.2003, conducted under the notice issued by Respondent No. 2 on 02.09.2003, should have confirmed their appointment as regular directors. However, neither of them was appointed as a regular director in any subsequent AGM, and no Form No. 32 was filed with the ROC regarding such appointments. After the death of the First Directors, Respondent No.1 Company has not had a duly constituted Board of Directors, and as a result, all actions taken by Respondent Nos. 1, 2, and 3 including the appointment of directors, holding of board meetings and AGMs, appointment of auditors, and filing of annual returns and balance sheets are void and ineffective in law. The Petitioner draws attention of the Tribunal to the notice issued by Resp....
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....Annual Return, showed a paid-up capital of Rs. 200/-, but the Share Application Money was noted as Rs. 60,000/-. From 31.03.1992 to 31.03.2001, the Balance Sheet and Annual Returns continued to show the same paid-up capital, shareholding, and share application money. The Balance Sheets and Annual Returns for the years ending 31.03.1992 to 31.03.1999 were filed at the office of the ROC on 21.08.2000. Additional filings for 31.03.2000 were made on 17.06.2002, and for 31.03.2001, they were filed on 20.06.2002. These filings continued to show the same share capital and shareholding as in previous years. On 05.04.2002, Form No.2 was filed (which was signed on 13.11.2002 and filed with the ROC on 03.12.2002 by Mr. Y.J. Barara), showing the issuance of 598 additional equity shares to various shareholders, valued at Rs. 100/- each. These shares were allegedly allotted to various shareholders, including 89 shares to the Petitioner. The Balance Sheet for the year 31.03.2002, filed on 18.11.2002, continued to show the company's paid-up capital as Rs. 200/- but indicated an increase in Share Application Money to Rs. 59,800/- (from Rs. 60,000/- in previous years). The....
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.... for lands at Pimpri Waghire ("said Land"). Instead, the First Directors used the funds to provide interest-free loans to individuals to buy agricultural lands from the Rathi family. Some receipts and sale deeds are provided as evidence of this misuse. The purchasers, rather than entering into agreements with the Respondent No.1 Company, entered into Agreements for Sale with the First Directors or their nominees, despite the funds being provided by the company. These actions clearly violated the intended purpose of the investments and reflected misfeasance by the First Directors. Additionally, these transactions were not recorded in the company's financial statements from 1988 to 2002, including balance sheets filed between 1991 and 2005. The First Directors misused the investors' funds for personal transactions, violating the intended purpose of the investment. Furthermore, the paramount question is that how the First Directors could have utilized the investment of the investors for giving loans and that too on an interest free basis. On this basis alone, the loans, the sale deeds and agreements for sale of the said Lands/Plots are liable to be declared void, illegal and not b....
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....1. The petitioner further submits that even from the face of the record it is apparent that the Development Agreements (in addition to those which, though not produced herein, have, nevertheless been executed, inter alia, by the Respondent No.1 company to and in favour of the Respondent No.6) were not executed in the interest of the Company and/or its shareholders. 22. The petitioner further submits that since the appointment of the Respondent Nos.2, 3, 4 & 6 is ex-facie vitiated and illegal, that by itself is one single wrongful act which is leading to a continuous course of oppression against the shareholders. 23. The petitioner further submits that the company was incorporated with the understanding that the Petitioner and Mr. N.S. Gandhi would hold equal shares. However, the issuance of 598 additional shares, without the Petitioner's consent, resulted in the Petitioner becoming a minority shareholder. This was further compounded by the issuance of shares to Mr. Y.J. Barara and other Barara family members, disturbing the initial shareholding pattern of the Gandhi family. The issuance of these shares was done without following proper procedures, such as holding a General Me....
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....Mr. N.S Gandhi, Mr. Y.G Barara weren't residents of Pune while the registered address of the company was of Pune thus the registered office of Respondent No. 1 was maintained at the Petitioners address and all the records of the Company was maintained therein. It is reported by the Respondent that the rent, telephone bill and other charges were diligently paid by Respondent No. 1 to the Agasti Corporation as Agasti Corporation raised debit notes for the same. 29. It is further submitted by the Respondent that several meetings were convened from 1987 to 1988, however the Respondent is not in possession of records but certain handwritten minutes have been placed to evidence the actual understanding amongst the parties. During the meeting held on 08.04.1988, post certain discussions it was decided that the Petitioner doesn't have to take approval from Mr. Barara for executing the work of the Company, which indicates that the Petitioner was the main person instrumental in the organization, setting up, management and functioning of the Company. 30. The Respondent No. 5 further submitted that, during the meeting of August 1987, the Petitioner, being aware of the fact that the Land ....
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....dhakisan Mahadu Shirsath; (ix) Dropadabai Mahadu Shirsath; (x) Shobha Dattatraya Pote; (xi) Kamal Vishnu Bade;(xii)Rambhau Daulati Ghare; (xiii) Shahaji Waman Ghare; and (xiv) Ramdas Bhaurao Avad, respectively under individual undertakings. These undertaking were all signed by the Petitioners. 34. It is further stated that on 12.08.1989, the Petitioner has addressed a letter to the Directors of the Company claiming reimbursement of certain expenditure stating that some miscellaneous office works has been carried on by him since April 1988 to July 1989. The said letter has been signed by him as a Director of the Company. During 1994, the Company had decided to dispose of the Lands. Accordingly, a meeting of the Company was held on 18.03.1994 (minutes of which were prepared by the Petitioner in his hand-writing and is also signed by him) wherein the Petitioner informed the Company as to how the Lands of the Company can be disposed of and that the same could be used for residential purposes or for building a hotel or resort or electronic industry or any other non-polluting industry. It explicitly records that "6. Mr. N. S. Gandhi and Mr. Yogendra Barara are directors of Company & w....
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....uted amongst the persons entitled thereto. 38. The Respondent No. 5 submitted that during the meeting held on 01.02.2004, the Petitioner informed the Company in detail, what actions are required to be taken for the sale of the Lands and about the sequence of events to be followed along with the amount of consideration that the nominees would receive at each stage. The Petitioner has also taken the authority from the Company to open bank accounts in his own name with all power relating thereto. It is submitted that vide letter dated 02.12.2005 addressed by the PGCT to Dr. Rajkumar Gandhi ("Respondent No.3"), PGCT had explained the consideration received by Respondent No.3 from the sale of the Plots, and amounts paid to PGCT, income tax payable on the consideration and the amounts now payable by the said Respondent No.3 to PGCT, thus evidencing that the Petitioner has received the consideration and benefit from the sale of the Plots. 39. The Respondent No. 5 stated that the Respondent no.3 had obtained an Indemnity Bond from the Petitioner as a Trustee of the PGCT regarding the Power of Attorney provided by the nominees at the request of the Petitioner about 08.02.2006 which st....
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....to the Tribunal for the sole purpose of obtaining orders namely; (a) That the Petitioner was required to be allotted shares equivalent to his investment of Rs. 4.5 lakhs; (b) That the said shares were not issued to him: (c) That the Petitioner was wrongly shown as the holder of 90 equity shares; (d) That the registered office of the Respondent No. 1 Company since its incorporation is situated at the premises exclusively belonging to him without his knowledge; (e) That from 1988, a sum of Rs. 31,00,000/- was invested in Respondent No.1 Company on an assurance given by the First Directors; (f) That the same would be utilised for procuring development rights of land admeasuring 61,600 sq. mtrs. at Taluka Haveli, Pune, (g) That the said amount was illegally used to provide interest free loans to various individuals to purchase lands from the Rathi family (h) That the First Directors could not have utilised the investments of the investor for giving interest free loans; (i) That the funds of the Respondent No.1 Company have been misappropriated; (j) That Respondent Nos.2 & 3 have illegally usurped ....
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....s invested/ deposited by the petitioners and other investors. c) Non-convening of the General meetings; Irregular allotment of further shares to Y J Barara and NS Gandhi, and other non- compliances. 44. The Respondents No. 5 has placed on record certain handwritten documents which were drawn on 23.08.1987 and 05.10.1987. These documents clearly evidence that the three groups had agreed to form a company with a paid-up capital of Rupees 60,000/- owned equally by each group, which thereafter came to be formed as Respondent No. 1, wherein Shri Y J Barrara and Shri N S Gandhi were agreed as First directors and the Petitioners was to take up the registration job. The Petitioner and N S Gandhi jointly were forming a group and each of them was to collect 4.5 lakhs to be utilised to acquire the land for development thereof. The Document 05.10.1987 duly signed by the petitioner records the composition of shareholding of each group and of persons in that group. It clearly shows that while NS Gandhi group was to hold shares worth Rs. 20,000/-, out of which the Petitioner was to hold shares worth Rs. 6060/-. Further, the document dated 20.12.1987, states two alternatives for paymen....
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....the part of said land was sold by Respondent No. 1 to 4 to respondent No. 6 at the rate of Rs. 190/- per sq. ft. as against of Rs. 450/- per sq. ft and even that sale consideration was not paid in full. The Ld. Counsel for Respondent No. 5 also took us to clause 4 of one development agreement executed by Shri. Suhas Pannalal Bafna nominee of the Petitioner, which reads as follows: " ...The owner has represented to the developers that while purchasing the said plot, the owner had taken a loan from the Consenting party and as by way of security for the aforesaid loan the owner agreed to sell the said plot to the Consenting party vide an agreement executed in favour of the Consenting party at or for the price and on the terms and conditions therein contained. However, the aforesaid agreement was mutually cancelled by the owner and Consenting party herein orally and the Consenting party restored the vacant possession of the said plot to the owner herein subject to the payment of Rs. 50,000/- (Rupees Fifty Thousand Only) as lumpsum consideration of the loan towards the full and final satisfaction of the loan and interest thereon to the Consenting party and the Consenting party ....
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....o far as this charge is concerned it must be held that there is a singular lack of particulars, much less of proof, and no heed should be paid to such sweeping charges... " 49. In the case of S.P Chengalvaraya Naidu vs Jagannath 1994 SCC (1) 1, the Hon'ble Supreme Court held that "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party." 50. The jurisdiction of this Tribunal under Section 241/242 of the Companies Act, 2013 is an equitable jurisdiction. It was held in case of Jiwan Mehta v. Emmbros Metals P. Ltd. 2007 SCC Online CLB 71 that "It is a settled proposition of law that the conduct of the parties is a very relevant factor to be considered in the equitable proceedings under Sections 397/398 of Companies Act, 2013. In Sri Kanta Datta Narasimharaja Wadiyar v. Venkateshwar Real Estates Private Ltd. (1991) 3 Co. LJ 336 (Karn) : (1991) 72 Comp Cas. 211 (Karn), it was held that the petitioner seeking equitable relief must come with clean ....