C.A. No. 142 of 2009 in C.P. No. 3 (Kol) of 2009. Case: Biman Behari Sen and Ors. Vs Descon Ltd. and Ors.. Company Law Board
| Case Number | C.A. No. 142 of 2009 in C.P. No. 3 (Kol) of 2009 |
| Judges | B.S.V. Prakash Kumar, Judicial Member |
| Issue | Company Law |
| Judgement Date | June 30, 2010 |
| Court | Company Law Board |
Order:
B.S.V. Prakash Kumar, Judicial Member, (Kolkata Bench)
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Heard.
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It is an application filed by the Respondents assailing the maintainability of Company Petition No. 3 of 2008 filed by one Biman Bihari Sen and others as Petitioners under Section 397/398 of the Companies Act, 1956, before this Company Law Board for want of qualified number mentioned in Sub-section (1) of Section 398 and Sub-section (3) of Section 399.
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It is pertinent to mention brief averments of the main petition before dealing with the application filed challenging the maintainability of the petition supra. The Respondents/Petitioners filed the main petition along with the consent of other shareholders in the company by filing the consent letters of the other shareholders numbering 113 (annexure) out of 385 shareholders of the company. In the said petition, the Petitioners averred that the second Respondent in the petition, i.e., the managing director of the first Respondent-company, i.e., DESCON Ltd., has been siphoning off the funds in various ways including acquisition of two flats in his name from the assets of the company at a low price, thereafter spending the first Respondent-company's money for renovation of the house, the second Respondent purchased and now was trying to sell away the shares of DESCON in Dishergarh Power Supply Corporation Ltd. The petition further discloses that the first Respondent promoted a wholly owned subsidiary namely, DESCON (UK) Ltd., by spending a lot of money from this company without showing it in the balance-sheet or auditor's report but shown the expenses in the minutes dated June 1, 2004, annexed as F and also a tour report to foreign country annexed as G, which is also not shown in the balance-sheet of the company and the second Respondent and one Mr. Soumen Roy continuing as directors of the UK company is also not reflected in the company's annual report and balance-sheet. In view of the same, the Petitioners sought for appointment of a special officer, an independent auditor, a committee to supervise the proceedings on the affairs of the company and temporary injunction by way of interim relief restraining Respondents Nos. 2 to 4 from exercising any voting rights in respect of the first Respondent-company's shares in DPSC Ltd.
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Over which the present Applicants filed this application on the ground that three Petitioners in the main petition are holding only 0.21 per cent, shareholding in the company, the consent said to have been obtained from the other shareholders is not intelligible consent, the number being short to the requisite number under Section 399 and also by saying some of the shareholders' signatures are forged by the Petitioners in the main petition, some of them are undated without any particulars. It is also further alleged that these Petitioners are nothing but the...
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