C.P. No. 74 (ND) of 2010. Case: Baleshwar Sharma Vs Anirva Developers P. Ltd.. Company Law Board
| Case Number | C.P. No. 74 (ND) of 2010 |
| Counsel | For Appellant: Geeta Luthra, Rohit Kumar and Narendra Goyal and For Respondents: Abhinav Vasisht, Vibhu Bakhru, Senior Advocates and P. Nagesh, Rajat Arora and A.K. Sinha |
| Judges | D.R. Deshmukh, J. (Chairman) |
| Issue | Companies Act, 1956 - Sections 397, 398, 402, 403 |
| Citation | 2014 (187) CompCas 233 (CLB) |
| Judgement Date | April 28, 2014 |
| Court | Company Law Board |
Order:
D.R. Deshmukh, J. (Chairman), (Principal Bench)
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The present petition C.P. No. 74(ND) of 2010 is a glaring example of the grossest abuse of process and fraud practiced on this Board by respondent No. 3 and forum shopping by the petitioner to somehow acquire title for M/s. Anirva Developers P. Ltd. (henceforth the company) over its only asset, being the only purpose for its formation. The company was incorporated on June 14, 2007, with its registered office at 59, A/2, Kalusarai, New Delhi-110 016. The main purpose for the incorporation of the company was to acquire title over land admeasuring approximately 1,33,325 sq. metres in old Goa being Plot No. D-3, forming part of property known as Mallans admeasuring 68,325 sq. metres belonging to Mr. R.C.P. Navelcar and Plot No. D-1 also forming part of property known as Mallans admeasuring 65,000 sq. metres situated in Bainguinim, Tiswadi Taluka under survey No. 26/2 part of the said village under the jurisdiction of village Panchayat of Se (old Goa) (henceforth the property) for a total sale consideration of Rs. 35 crores. The petitioner, who is shown by the respondents, as a property broker/agent and respondent No. 2, Mr. Nageshwar Pandey an advocate both invested Rs. 50,000 each to contribute to the authorised share capital of rupees one lakh of the company divided into 10,000 equity shares of Rs. 10 each and shared equally the equity of the company, i.e., 5,000 shares each. The articles and memorandum of association of the company show the petitioner and respondent No. 2 as the initial subscribers to the authorised and fully paid-up share capital of the company. Prior to the said incorporation a memorandum of understanding had been executed between the petitioner and respondent No. 2 on June 5, 2007, recording that respondent No. 2 had entered into an agreement to purchase the property from Shri Ravinder Navelcar and Mr. Mahesh R.P. Navelcar both residents of Goa and a sum of Rs. 3.95 crores had been paid by the petitioner to respondent No. 2 and that a partnership firm shall be formed, between them and a sale deed of the property shall be got executed in the name of the said partnership firm only. As the petition unfolds the petitioner and respondent No. 2 decided instead to incorporate the company as it would be more congenial for facilitating obtaining of loans from banks, financial institutions or outside parties. According to respondent No. 2 the petitioner did not advance any money to respondent No. 1 company.
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Since the document (annexure P3) dated June 5, 2007, recorded a cash payment of Rs. 3.95 crores by the petitioner to respondent No. 2, on March 21, 2013, I directed the petitioner to swear an affidavit to that effect and to file his income-tax return to show that such payment was reflected in his income-tax return for the said year. On May 21, 2013, the petitioner filed an affidavit that the said transaction was not reflected in his income-tax return as he had secured an advance of Rs. 2.40 crores from his friend Mr. Mukesh Kumar and Rs. 1.91 crores from another friend Mr. Pawan Kumar. The date of the said advance was not mentioned in the affidavit. Affidavits of Mr. Mukesh Kumar and Mr. Pawan Kumar were also not filed. I am, therefore, of the considered view that the said transaction of payment of Rs. 3.95 crores by the petitioner to respondent No. 2 is a transaction not recognised under law. Another important fact which emerges from perusal of the pleadings is that respondents Nos. 3 to 8 have categorically denied the payment of Rs. 3.95 crores by the petitioner to Mr. R.C.P. Navelcar. The petitioner has placed strong reliance on the memorandum of understanding dated June 5, 2007, to substantiate payment of Rs. 3.95 crores by him to Mr. Nageshwar Pandey, respondent No. 2 in cash towards his contribution for the purchase of the property. Any such transaction was between the petitioner and...
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