CP No. 18 of 2007. Case: Aman Goel and Another Vs Eileentech Communications (I) (P.) Ltd. and Others. Company Law Board

Case Number:CP No. 18 of 2007
Party Name:Aman Goel and Another Vs Eileentech Communications (I) (P.) Ltd. and Others
Counsel:For Appellant: Nishant Ravi and Ms. Gurkamal and For Respondents: Jitender Verma, Mayank Yadav, Manmohan Garg, Praveen K. Mittal, Abhishek Mittal, R.K. Sharma and Ajay Gupta
Judges:Vimla Yadav, Member
Issue:Company Law
Citation:2013 (114) CLA 393 (CLB)
Judgement Date:May 23, 2012
Court:Company Law Board
 
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Order:

Vimla Yadav, Member, (Principal Bench, New Delhi)

  1. In this order I am considering CP No. 18 of 2007 filed by the petitioners in the affairs of the R-1-company namely Eileentech Communications (i) P. Ltd. and others. The petitioner's case is that the. R-1-company was incorporated on 10th January, 2005 by transferring the business of 3G Communication a partnership firm which was started in 2004 comprising of the petitioners Aman Goel, Abhishek Mittal and two more persons namely Gaurav Suri and Amit Vaid, and on 20th December, 2004 R-2, Manmohan Garg who approached the petitioners was inducted as a partner and a fresh partnership deed was executed. The name finally approved as Eileentech Communications P. Ltd., was coined by the petitioners. Shareholding of the petitioners is 20 per cent each, i.e., 40 per cent, the petitioner No. 1 has 2,000 shares and petitioner No. 2 also has 2,000 shares, i.e., 4,000 shares out of total admitted shareholding of 10,000 shares. After incorporation account opened in PNB, Shalimar Bagh was to be operated jointly by the petitioners and respondents. The respondents froze the account and opened a new account without the knowledge and without any Board meeting. The petitioner's case is that they hold 2000 shares each of the respondent-company, the shareholding of the petitioners at the time of incorporation as such was 20 per cent each, the petitioners were admittedly the subscribers of the memorandum of the respondent-company. Subscribers to the memorandum are deemed to have agreed to become members of the company and upon its registration, they are required to be entered as members in its register of members per section 41(1) of the Act, all money payable by any member to the company under the memorandum is a debt due from him to the company as provided in section 36(2) of the Act, there is no time-limit prescribed in the statute for the payment of subscription-money. Form 2 is not to be filed with Registrar of Companies ('RoC') in case of subscription shares, as per opinion given by Expert Advisory Committee of ICAI-vol. XI-p.222: "the unpaid amount towards shares subscriber by the subscribers of the memorandum of association should be considered as subscribed and paid-up-capital, therefore, on incorporation, the subscribers of the memorandum of association become members." It was farther contended that the respondent No. 2 was looking after the compliance of the statutory formalities and mala fidely and deliberately did not file Form 2 with respect to the petitioners shareholding; no details of the alleged investment made by the respondents have been placed before the CLB despite directions of the same by the CLB along with the details of the cheques handed over to them by the petitioners during the pendency of the petition, hence, adverse inference as such has to be drawn against the respondents. It was pointed out by the counsel for the petitioners that they have invested over Rs. 14 lakh in the respondent-company in cash as well as by way of cheques. My attention was drawn to the payment of: (i) Rs. 2,00,000 paid from the account of Sh. Aman Goel, the petitioner No. 1 vide cheque No. 128070 drawn on ICICI Bank, University Road, DU North Campus on 5th August, 2005; (ii) Rs. 1,95,000 paid from the account of Sh. Gaurav Suri vide cheque No. 542714 drawn on ICICI Bank, University Road, DU North Campus on 17th August, 2005 and it was contended that the respondents mala fidely and in premeditated manner threw out the petitioners from the respondent-company due to which the petitioners were constrained to open another company, however no client of the respondent No. 1-company was retained by the petitioners as the intentions of the petitioners were all along honest and bona fide.

  2. It was pointed out that there were five directors in the company, i.e., both the petitioners and Manmohan Garg, Vikas Garg and Trishna Garg, Gaurav Suri, Abhishek Mittal and Aman Goel stated to be first directors of the company.

  3. The petitioners have also challenged the increase in shareholding from 1 lac to 3.90 lacs. It was pointed out that the respondents allotted further shares which were never offered to the petitioners and no notice of any meeting in which the shares were allegedly allotted was given to the petitioners. Moreover, the respondents have not brought the additional money for alleged additional shares.

  4. It was argued by the counsel for the petitioners that no notice of the meeting on 3rd February, 2006 was given. As per R-2 no director except him was present and R-2 unilaterally called an EGM stating that there is a deadlock in the functioning of the Board. EGM was allegedly fixed for 25th February, 2006 at 11 AM, there was no quorum, 21 days clear notice was not given.

  5. It was argued that in a meeting of Board of directors dated 3rd February, 2006 no EGM could have been called for...

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