CP No. 51/2011. Case: Nitesh C. Patel and Another Vs Onaex Natura (P.) Ltd. and Others. Company Law Board
| Case Number | CP No. 51/2011 |
| Counsel | For Appellant: Jay Savla and Prantik Majumdar and For Respondents: M.B. Kasodekar and Ajay M. Antarkar |
| Judges | Vimla Yadav, Member |
| Issue | Company Law |
| Citation | 2013 (114) CLA 409 (CLB) |
| Judgement Date | August 14, 2012 |
| Court | Company Law Board |
Order:
Vimla Yadav, Member
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Company Application No. 222 of 2011 has been filed by the petitioners in Company Petition No. 51 of 2011 filed under section 397/398 of the Companies Act, 1956 ('the Act') complaining of various acts of oppression and mismanagement by R-2 and 3. The applicants have sought to implead ingenious Engineering (P.) Ltd. as R-4 in the company petition; to allow the applicant to amend para 3 and include paras '9(q)' to '9(jj)' in the company petition, and to amend the prayer clause of the petition in para 10 accordingly; pending hearing and disposal of the present application, passing of an order and/or direction restraining respondents and/or Engenious Engineering (P.) Ltd., from acting in pursuance/furtherance of purported resolution dated 30th September, 2010 increasing the authorised share capital to 5 crore purportedly passed in the annual general meeting ('AGM') of 30th September, 2010 and purported allotment of 5,25,000 shares. It is noted that CA 222/11 has been filed pursuant to the liberty granted by the CLB vide its order dated 19th October, 2011 whereby CA No. 174 seeking impleadment of R-4 and amendment of CP accordingly had been permitted to be withdrawn with liberty to file a fresh application. The applicant's case is that R-2 and 3, with mala fide intention to defeat the rights of the petitioners, issued and circulated a Notice dated 22nd June, 2011 of meeting of the Board of directors of the respondent No. 1-company which was scheduled to be held on 7th July, 2011 to validate their unauthorised allotments by seeking to apprise the Board of alleged allotments of 5,25,000 shares to Engenious Engineering (P.) Ltd. and further also to approve the alleged allotment of shares to the shareholders for the alleged investment made by them during the period 30th October, 2010-31st March, 2011. As there was already a status quo order by the CLB in respect of the shareholding, immediately on receipt of the said email dated 22nd June 2011, the applicants, petitioners vide their advocate's letter dated 25th June, 2011, addressed to respondent No. 3, Director of respondent No. 1-company, replied and objected to the agenda for the scheduled meeting of the Board of directors. It was pointed out the purported allotment of 5,25,000 shares in favour of Engenious Engineering (P.) Ltd. in the purported meeting held on 29th October, 2011 was illegal and an attempt to create false record after service of advance notice of the filing of the company petition pointing out to the respondents' reply to the application wherein they have deliberately not referred to Notice of Board of directors dated 22nd June, 2011 nor of the alleged meeting which was earlier scheduled to be hold on 7th July, 2011. It was argued that the purpose of allotment of fresh shares to the exclusion of the petitioners has been done with a view to upset the existing shareholding and as per settled law, such an allotment is oppressive to the petitioners and hence deserves to be set aside and held null and void and not binding on the petitioners as well as on the respondent No. 1-company. It was argued that since the events have unfolded now, the impleadment of Engenious Engineering P. Ltd. and accordingly amendment of the C.P. is sought to challenge the increase in the authorised share capital of respondent No. 1-company from Rs. 1 crore to Rs. 5 crore, and to challenge allotment of 5,25,000 equity shares to EEPL and seek consequential reliefs.
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To support their contentions, the applicants relied upon the case law in Ashok Mittal v. Uniworth Resorts Ltd. [2008] 86 CLA 185. (CLB):[2008] 4 Comp LJ 327; Sampath Kumar v. Ayyakanny [2002] 7 SSC 559, Rajesh Kumar Aggarwal v. K.K. Modi [2006] 4 SSC 385; Revajeetu Builders & Developers v. Narayanaswamy & Sons [2009] 10 SCC 84 and Surender Kumar Sharma v. Makhan Singh [2009] 10 SCC 626.
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In reply, the respondents took preliminary objections pointing out that the signature of petitioner No. 1 on main petition, on rejoinder and on company application do not prima facie match at all. It was prayed that to decide the authenticity of the same it be referred to forensic experts before considering any other contents of the said application. Further, it was pointed out that the application on behalf of the petitioners is undated and petitioner no...
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