T.P. Nos. 74-A/2016, 74-B/2016, 74-C/2016, TP No. 74/397-398/NCLT/AHM/2016 (New) and CA Nos. 202/2014, 306/2014, 10/2015, CP No. 35/397-398/CLB/MB/2014 (Old). Case: Bhikhubhai J. Patel and Ors. Vs Hetshri Dairy Pvt. Ltd. and Ors.. Company Law Board
| Case Number | T.P. Nos. 74-A/2016, 74-B/2016, 74-C/2016, TP No. 74/397-398/NCLT/AHM/2016 (New) and CA Nos. 202/2014, 306/2014, 10/2015, CP No. 35/397-398/CLB/MB/2014 (Old) |
| Counsel | For Appellant: Dhiren Dave, Adv. and For Respondents: Kunjal Dalal, Adv. |
| Judges | Bikki Raveendra Babu, Member (J) |
| Issue | Company Law |
| Judgement Date | April 05, 2017 |
| Court | Company Law Board |
Order:
Bikki Raveendra Babu, Member (J), (Ahmedabad Bench)
Learned PCS Mr. Dhiren Dave present for Petitioner. None present for Respondents.
Order pronounced in open Court. Vide separate sheet.
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Hetshri Dairy Pvt. Ltd., hereinafter called as the first respondent company, was registered under the Companies Act, 1956 on 20th September, 1996 having registered office at Bhavnagar.
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Petitioners 1 and 2 are shareholders in the first respondent company. According to petitioners 1 and 2 they are having 2600 shares and 2500 shares respectively, each of the value of Rs. 100/- each.
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It is the case of the petitioners that, paid up share capital of the company is Rs. 25,00,000/- divided into 25000 equity shares of Rs. 100/- each.
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It is the case of the petitioners that, on 23rd August, 2007 respondents 2 and 3 were appointed as additional directors in the first respondent company and they were never regularised as directors and due to their oppressive acts and mismanagement they were removed from directorship with effect from 12.10.2000.
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Petitioner No. 1 also filed police complaint against respondents 2 and 3 for their misbehaviour and arrogant approach. Therefore, as a part of compromise formula, the first respondent company was given on rent, but respondents 2 and 3 sold away entire plant, machinery and other immovable assets of the first respondent company of the value of Rs. 1.00 crore.
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On 27th July, 2011, Dy. Collector, Valsad District issued notice to respondent 1 and the first petitioner for payment of stamp duty. Respondents 2 and 3 concocted documents and falsely represented themselves as Chairman and Director of the company before the office of the Deputy Collector and collected original documents of the company. First petitioner also filed police complaint with local police station regarding forged and false documents created by respondents 2 and 3. Second respondent got published in local newspaper claiming her to be sole owner of the first respondent company. The first petitioner also made a publication in local newspaper cautioning the public at large not to deal with respondents 2 and 3 in respect of the property of the first respondent company. Respondents 2 and 3 also filed false documents with the Registrar of Companies showing false paid up capital, false shareholders, false registered office in support of earlier documents filed and registered with the Registrar of Companies.
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According to the petitioners, the first respondent company is liable to be wound up. Respondents 2 and 3 be prevented from acting as directors.
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Petitioners have prayed for the following reliefs:-
(a) to direct respondents 2 and 3 not to act as directors and shareholders of the first respondent company.
(b) all records filed by respondents 2 and 3 subsequent to their removal as directors be removed from the records of the Registrar of Companies.
(c) To direct respondents 2 and 3 to handover the original documents of land they collected from the Stamp Duty Office.
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Second respondent filed reply dated 4th October, 2014. Case of the respondents, as can be seen from the averments made in the reply of second respondent in brief as follows:-
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Paid up share capital of the first respondent company is Rs. 23,00,700/- divided into 23,007 equity shares of Rs. 100/- each. Audited balance sheet of the first respondent company as on 31st March, 2001 confirms the same. According to the records of the Registrar of Companies also, the paid up share capital of the company is Rs. 23,00,700/-. It is stated by the respondents that, the petitioners deliberately made a wrong statement regarding share capital of the first respondent company and the first petitioner is not a director of the first respondent company. The first petitioner is holding only 271 equity shares in the first respondent company and the second petitioner is having only 250 equity shares in the first respondent company. First petitioner ceased to be a director of first respondent company from 14th March 2001 and annual return for the year 2000 is confirming the aforesaid position.
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It is the case of the respondents that, petitioners are not having ten percent of the paid up capital in the first respondent company and, therefore, they are not eligible to file this petition. According to respondents, the petitioners have filed fraudulent form 2 for return of allotment. In para 9, page 4 of the reply filed by the original petitioners in CA No. 202 of 2014 (TP 74-A/2016) it is stated that, in the annexure giving details of shares allotted, by oversight, instead of number of shares, face value of total shares have been stated. According to the respondents, as per the said admission, petitioners 1 and 2 are entitled for 260 shares and 250 shares respectively and they do not hold 2600 and 2500 shares respectively.
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It is stated by the respondents that, form 32 for removal of respondent 2 and 3 is fraudulently filed by the petitioner. Form No. 2 says that respondents 2 and 3 stand removed as on 12th October, 2000 but it was filed on 26th February, 2001. It is also stated that no extra...
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