CP No. 26(ND) of 2013. Case: Porta Breeza Hotels (P.) Ltd. and Others Vs Fahed Abdul Rahman Ali Alkhamiri and Others. Company Law Board

Case NumberCP No. 26(ND) of 2013
CounselFor Appellant: Satvik Varma and Yogendra Jain and For Respondents: Rajnish Sinha, Ms. Vatika Seth and P. Nagesh
JudgesDhan Raj, Member
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 156(3), 190, 200, 438; Companies Act, 1956 - Sections 235, 235, 236, 237, 235, 236, 237, 238, 239, 240, 241, 242, 235(1), 235(2), 237, 237(b), 242, 243, 246, 397, 398, 399; Indian Penal Code (45 of 1860) (IPC) - Sections 120B, 191, 192, 34, 380, 409, 427, 441, 442, 445, 463, 471
Citation2013 (116) CLA 142 (CLB)
Judgement DateJune 28, 2013
CourtCompany Law Board


Dhan Raj, Member, (Northern Region Bench, New Delhi)

  1. In this case, the petition was filed by the petitioners alleging irregularities in the affairs of the company with the prayer to appoint an inspector for investigating the affairs of the company under the provisions of section 235 of the Companies Act, 1956 ('the Act') and also, to declare the filings and transactions done by the respondents with the statutory authorities and others as null and void. As per petition, Mr. Amaan Sachdev (P-1) and Mr. Aneel Sachdev (P-2) are holding in total 10,000 equity shares of Rs. 10 each of the company and thereby, the petitioners are holding 100 per cent of the total voting power of the company and, hence, the petition is maintainable in terms of the provisions of section 235(1) of the Act. Precisely speaking, while inspecting the records of the company electronically with the office of Registrar of Companies ('RoC'), Delhi and Haryana, the petitioners have come to know that the respondents have filed various E-forms with the RoC without obtaining any approval from the Board and shareholders of the company. In this regard, the following instances have been highlighted in the petition:

    (i) Respondent No. 1 filed E-form 32 for the appointment of R-2 as executive director with effect from 30th April, 2005 on 20th August, 2010 using digital signature of respondent No. 1 and pre-certification of the e-Form has been maliciously done by Shri Ishtpal Singh (respondent No. 4). It has also been stated that on perusal of annual E-fling Form 23AC for the financial year 31st March, 2005, if was noted that notice attached to the E-form did not specify special business separately for appointment of new directors and explanatory statement was also not attached therewith. Further, the notice of annual general meeting ('AGM') appears to have been despatched on 15th April, 2005 and AGM was held on 30th April, 2005 which means that meeting has been held at a shorter notice. It has also been stated that such meeting at shorter notice requires the consent of 100 per cent shareholders and the petitioner Nos. 1 and 2 being shareholders of the company have never accorded their consent and thereby, the said AGM was invalid and any appointment will have no legal effect thereby making the fraudulent appointment null and void.

    (ii) Respondent No. 1 filed E-form 32 with respect to resignation of petitioner Nos. 2 and 3 from the post of director of the company with effect from 1st May, 2012 on their own motion which has been pre-certified by respondent No. 7 (Mr. Avinash Gupta). However, the petitioner Nos. 2 and 3 have never tendered their resignation from the company but the respondents have maliciously filed the resolution of the company.

    (iii) The company never convened any extraordinary general meeting ('EGM') to increase the authorised share capital of the company. However, as per the inspection done on the online portal of Ministry of Corporate Affairs, it was found that e-Form 5 has been filed for increase in authorised share capital of the company from Rs. 1,00,000 to Rs. 1,40,00,000 and the same has been approved by the RoC. The said e-Form has been filed using digital signature of respondent 1 and the same has been pre-certified by the respondent No. 4. Since as on that date, only petitioner Nos. 1 and 2 were members of the company, the EGM could not have been convened and held without their presence and serving of notice to them. In fact, no notice of EGM was ever served on the members of the company. Further, e-Form 5 as available with RoC, Delhi does not contain a copy of the same. Further, respondent No. 1 had been fraudulently appointed as director on 30th April, 2005, though, R-4 has pre-certified the e-Form 32 filed for this appointment.

    (iv) Respondent Nos. 1 and 2 have, after fraudulently increasing the authorised share capital of the company filed return of allotment on various dates allotting shares to companies of Kuwait. All the return of allotments are irregular as inward remittances have been received as other inward remittances and certificate of the same has been submitted to the Bank by the company.

    (v) The respondents have fraudulently changed the registered office of the company three times. Besides, Professionals have also pre-certified e-Forms without carrying due diligence. Presently, as per records available on online Portal of the Ministry of Corporate Affairs, the registered office is appearing to be situated at "D1/4 Ganga Triveni Apartments Sector-9, Rohini, Delhi-110085."

    In addition, there are several errors in e-Forms filed with RoC, Delhi and Haryana which makes inference that all the filings done are fraudulent and fabricated one. Professionals and fraudulently inducted Directors have jointly conspired against the petitioners to take away their rightful interest from the company and the very first filing made by the respondents is for appointment of respondent Nos. 1 and 2 as directors in the company. Further, audited accounts attached to the e-Form have been signed by persons who are not directors of the company as on date of signing, in addition, some irregularities have also been pointed out in compliance certificates and balance sheets for the years 2005, 2006, 2007, 2008, 2009, 2010 and 2011.

    In the reply, respondent-company No. 12 has stated that the petitioners have failed to pass the threshold and mandatory requirement as laid down under provisions of section 235 of the Act. As the petitioners do not qualify under any provisions of section 235 of the Act, the present petition is not maintainable. Further, it has been submitted that the nature of allegation of purported illegal removal and illegal allotment of shares are per-se grievances to be addressed under sections 397 and 398 of the Act. The respondent No. 12 company advocate has mentioned that the respondent-company was incorporated by the petitioners for and on behalf of Al Futtooh Investments and its associates and the issued share capital was contributed by the petitioner No. 1 and 2 on behalf of Al Futtooh Investments and its associates. The fact that the respondent No. 12-company had been incorporated for and on behalf of Al Futtooh investments and its associates is substantiated by the fact that even in the bills/charges raised by the petitioner No. 1, it has been substantiated by him that the initial amount of Rs. 1,00,000 was contributed by the petitioner Nos. 1 and 2 on behalf of Al Futtooh Investments and its associates and the said amount was included in the total payments done to the petitioner No. 3...

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