Company Petition No. 11 of 2013. Case: B. Subitha Kumar Vs El-Shaddai Biologicals Ltd. and Ors.. Company Law Board

Case Number:Company Petition No. 11 of 2013
Party Name:B. Subitha Kumar Vs El-Shaddai Biologicals Ltd. and Ors.
Counsel:For Appellant: Cibi Vishnu and For Respondents: K. Ramasamy
Judges:Kanthi Narahari, Member (J)
Issue:Code of Criminal Procedure, 1973 (CrPC) - Section 482; Companies Act, 1956 - Sections 111, 111A, 206A
Citation:2015 (190) CompCas 601 (CLB)
Judgement Date:March 20, 2015
Court:Company Law Board
 
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Order:

Kanthi Narahari, Member (J), (Chennai Bench)

  1. The present petition is filed under section 111A of the Companies Act, 1956, praying this Bench to direct respondent No. 1 company to rectify its register of members by inclusion of the petitioner's name as a shareholder to the extent of 5,600 equity shares and delete the name of the second respondent in respect of those shares and also consequentially direct the inclusion of the petitioner's name as a shareholder to the extent of 11,200 equity shares issued as bonus shares on March 20, 2010 and delete the name of the second respondent in respect of those bonus shares. Shri Cibi Vishnu, learned counsel appeared for the petitioner submitted that the petitioner was initially allotted 1,400 equity shares of Rs. 100 each and the same is evidenced by a share certificate annexed as annexure 5, to this petition, the petitioner was also further allotted shares on various dates and eventually came to hold 5,600 equity shares of Rs. 100 each in the first respondent and the same is evidenced by the list of allottees as on September 30, 2009, filed along with Form 20B made up to the annual general meeting held on September 30, 2009, filed by the first respondent (annexure 6). It would be pertinent to mention that the petitioner was issued with a share certificate with regard to 1,400 equity shares and that even this share certificate has not been issued in terms of the applicable provisions of law. The petitioner submits that he held 5,600 equity shares in the first respondent and his wife (Mrs. S. Sridevi) is also a shareholder of the first respondent and held 20,400 equity shares of Rs. 100 each and the same is evidenced by the list of allottees as on September 30, 2009, filed along with Form 20B made up to the annual general meeting held on September 30, 2009, filed by the first respondent (annexure 6) and this combined shareholding of the petitioner and his wife is 26,000 equity-shares of Rs. 100 each in the first respondent represents 26 per cent of the paid-up capital of the first respondent, and this significant shareholding of more than 25 per cent is of significance with relation to special resolutions. The petitioner submits that differences arose between the promoters of the first respondent in the year 2010, and after discussions it was agreed that the petitioner, his wife, and another promoter named Mr. Muthu Krishnan would sell their combined shareholding of 60,000 equity shares of Rs. 100 each (the petitioner and his wife 26,000 equity shares, and Mr. Muthu Krishnan and family 34,000 equity shares of Rs. 100 each) and the petitioner was to receive a consideration of Rs. 70,00,000 from the second respondent and this understanding, inter alia, was reduced to writing in the form of an "memorandum of understanding" and was executed on April 2, 2010 (annexure 7) and was executed by the petitioner, the respondent, and the aforementioned Mr. Muthu Krishnan. The petitioner submits that the second respondent failed to honour his commitments under the aforementioned "memorandum of understanding" dated April 2, 2010 and the petitioner nor his wife have till date received any consideration from the second respondent nor have they executed any share transfer deed in favour of the second respondent. The petitioner submits that in July 2012 he was shocked to learn that the entire shareholding of himself and his wife had been illegally transferred. The petitioner submits that from the documents/forms filed by the first respondent at the behest of the second respondent, the petitioner to his shock and surprise learnt that his entire shareholding of 5,600 equity shares has been illegally shown to have been transferred to the second respondent herein. Form 20B made up to the annual general meeting held on May 31, 2010 and uploaded on the MCA website on June 24, 2010 (annexure 12) reveals that the petitioner had purportedly transferred his entire shareholding of 5,600 equity shares of Rs. 100 each to the second respondent on February 25, 2010. It is pertinent to mention that the aforementioned "memorandum of understanding" (annexure 7) is dated and was executed on April 2, 2010, wherein the second respondent had agreed to buy the entire shareholding of the petitioner and his wife for a consideration of Rs. 70,00,000. It is further reiterated that the petitioner has not received any consideration from the second respondent or his nominee for the purported transfer of the petitioner's 5,600 equity shares of Rs. 100 each in the first respondent, nor has the petitioner executed any share transfer deed (Form 7B) with regard to the 5,600 equity shares held by the petitioner in the first respondent. Thus the petitioner's entire shareholding of 5,600 equity shares of Rs. 100 each in the first respondent has been illegally transferred to the second respondent, such illegal transfer ought to be set aside and consequentially the register of members of the first respondent ought to be rectified. The petitioner submits that he had lodged a complaint regarding the cheating, criminal breach of trust, forgery, and criminal conspiracy committed by the second respondent and his family members upon the petitioner and his wife with the police authorities (Economic Offences Wing) on July 26, 2012 and had also approached the hon'ble High Court of Madras under section 482 of the Code of Criminal Procedure, 1973 (annexures 15 and 16) and the complaint is being currently investigated...

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