C.P. No. 84 of 2005. Case: R.P. Rungta (HUF) and Others Vs Dharni Pharma P. Ltd. and Others. Company Law Board
| Case Number | C.P. No. 84 of 2005 |
| Counsel | For Appellant: Sanjay Maria and For Respondents: Arun Saxena, for the first and second respondents |
| Judges | Smt. Vimla Yadav (Member) |
| Issue | Companies Act, 1956 - Sections 10E, 41(2), 108, 111, 283(1), 397, 298, 402, 409; Evidence Act, 1872 - Sections 58, 115; Code of Civil Procedure (CPC) - Order 8 Rule 5 - Order 12 Rule 6 |
| Citation | 2012 (109) CLA 49, 2012 (171) CompCas 209 (CLB) |
| Judgement Date | August 26, 2011 |
| Court | Company Law Board |
Order:
Smt. Vimla Yadav (Member), (Principal Bench)
1. In this order I am considering Company Petition No. 84 of 2005 filed by the petitioners against the respondents (respondent No. 1 company namely M/s. Dharni Pharma P. Ltd. and others) under sections 397, 398, 402 and 409 read with section 111 of the Companies Act, 1956, alleging oppression and mismanagement and hence seeking setting aside the illegal and fraudulent transfer of 20,000 shares held by petitioner No. 1 and 7,300 shares held by petitioner No. 4 in respondent No. 1 company; rectification of the register of members' accordingly in respect of petitioners Nos. 1, 3 and 4; direction for a thorough investigation to be conducted into the affairs of the company; superseding the presently constituted board of respondent No. 1 company; appointment of an administrator to take charge of the books, business, management, papers, records and documents of respondent No. 1 company; direction for an extraordinary general meeting to be held under a chairman appointed by the Company Law Board, etc. Respondent No. 1 company namely M/s. Dharni Pharma P. Ltd. was incorporated on January 19, 1996, to carry on business of the chemists, druggist, importers, exporters, manufacturers and otherwise deal in pharmaceutical, medical, chemical industrial and other preparation and articles compounds, drugs and dealers in chemical, surgical and scientific apparatus and materials, to carry on the business of vialling, bottling, packing, repacking, manufacturing and processing of capsules, syrups, tablets, aerosols and ointment and also to deal in all kinds of medicines, pharmaceutical products, chemicals and drugs, etc. Respondent No. 1 company has its registered office at E-4, Pradhan Marg, Malviya Nagar, Jaipur-302 017. The authorised capital of the company is Rs. 11,00,000 divided into 1,10,000 equity shares of Rs. 10 each. The subscribed capital of the company as per the annual return filed for the year 2003 was Rs. 11,00,000.
2. The petitioners' case is that their group are shareholders holding 67,400 equity shares representing 67.40 per cent. of the total 1,00,000 equity shares of respondent No. 1 company. Respondent No. 2 and others are shareholders holding 32,600 equity shares representing 32.60 per cent, of the total shareholding of respondent No. 1 company. Respondent No. 2 has wrongfully deleted/transferred 27,300 equity shares held by petitioners Nos. 1 and 4 and shown the said equity shares held by respondent No. 2 (7,300 shares) and respondent No. 3 (20,000 shares) in annual return of 2003 and 2004. The respondents have wrongfully not transferred 20,000 equity shares held by petitioner No. 3 and shown the said equity shares as held by Shri Sushil Kumar Periwal (5,000 shares), Shri Ravindra Kumar Periwal (5,000 shares) and Radiant Projects P. Ltd. (10,000 shares) in the annual return of 2001 and 2002. Even the said shares were further shown as held by respondent No. 2 in annual return of 2003 and 2004. As a result of manipulation of records, the shareholding of the petitioners was illegally reduced to 20,100 equity shares representing 20.10 per cent. of the total 1,00,000 equity shares of respondent No. 1 company on the contrary the shareholding of the respondents was allegedly increased to 79,900 equity shares representing 79.90 per cent. of the total shareholding of respondent No. 1 company. It was pointed out that there are three respondents in the present petition and respondent No. 2 alone has filed the reply to the present petition and has tried to justify the manipulated shareholding of respondent No. 1 company, respondent No. 3 has not filed any reply or affidavit in support of the alleged shareholding in her name. Respondent No. 1 company filed an affidavit dated November 22, 2010, to adopt the reply of respondent No. 2.
3. It was pointed out that the Company Law Board had passed interim order dated July 13, 2004, granting status quo in respect of shareholding of RMC Med Ltd. which has prompted respondent No. 2 to delete the abovesaid equity shares by the petitioners which nefarious act has converted the shareholding of the petitioners into minority. The annual returns 1999, 2000, 2001 and 2002 of respondent No. 1 duly signed by respondent No. 2 clearly show that the petitioners were holding 47,300 equity shares representing 47.30 of the total shareholding of respondent No. 1. company. In addition, Hadoti Cement Ltd. (now Roadco India P. Ltd. after amalgamation), is also a shareholder holding 20,000 equity shares purchased from R. K. Periwal (5,000 shares), S. K. Periwal (5,000 shares) and Radiant Projects P. Ltd. representing 20 per cent. of the total shareholding of respondent No. 1 company which is deliberately not transferred and not shown in the annual returns. The petitioners have produced the contract of sale for purchase of equity shares as documentary evidence in support of purchase of equity shares of respondent No. 1 company by petitioner No. 2. The balance-sheet as on March 31, 2000 of petitioner No. 3 which clearly shows the investment of 20,000 equity shares in respondent No. 1 company and the said balance-sheet is duly signed by respondent No. 2 and petitioner No. 1. It was contended that on the contrary, the respondents have failed to produce any cogent evidence in support of their contention that the said equity shares were held by the petitioners. The petitioners have filed an FIR against respondent No. 2 and others for theft of original share certificates and enquiry report clearly shows that the equity shares in question were purchased by the petitioners from other shareholders. Petitioner No. 1 has filed FIR against respondent No. 2 and others for theft of securities including equity shares held by the petitioners before the Police Station, Jaipur, and the police has filed enquiry report before the Additional Chief Judicial Magistrate, Jaipur vindicating the averments of the petitioners in the present petition. Respondent No. 2 has failed to produce any statutory registers and/or records of respondent No. 1 company including for the alleged deletion/ addition of shareholding in the present petition from the year 1999 to 2004 at the time of filing the reply. It was argued that petitioner No. 1 has produced the copy of invoice dated August 16,1999 for purchase of 20,000 equity shares. It was argued that respondent No. 2 has no legitimate right to question the validity of the said contract, its price and other factors as he is not privy to the contract between the sellers and the petitioners. It was also argued that the sellers have never denied the said contracts at any time. It was argued that the respondents have failed to produce any corroborative evidence in respect of purchase of 27,300 equity shares from the petitioners by respondents Nos. 2 and 3. Even the respondents failed to produce the transfer deeds, the minutes of the board meeting and the register of members of respondent No. 1 company.
4. It was argued here that the respondents have filed the annual return of respondent No. 1 company for the years 1999, 2000, 2001, 2002, 2003 and 2004 signed by the same respondent No. 2 who have shown totally different positions of shareholding in annual return 2003 and 2004 without showing any transfer of shares in the said annual return 2003 and 2004. The list of shareholders shown in the annual return 2003 and 2004 is forged and fabricated and deserves to be rectified. My attention was drawn to the petitioners having produced the balance-sheet of petitioner No. 3 for the year ended March 31, 2000, which under the heading Schedule 9 "investment" clearly shows 20,000 equity shares held in respondent No. 1 company. It was argued that the said balance-sheet of the year 2000 has been duly signed by respondent No. 2 along with petitioner No. 1 and the respondents including respondent No. 2 are estopped from alleging to the contrary.
5. It was argued that the respondents including respondent No. 2 had never sent notice of the shareholders meetings of respondent No. 1 company to the petitioners.
6. Respondent No. 1 company has filed the annual returns 1999, 2000, 2002 duly signed by respondent No. 2 with the Registrar of Companies which show the shareholding of the petitioners holding 47,300 equity shares representing 47.30 per cent, of the total shareholding of respondent No. 1 company. However, 20,000 equity share purchased by petitioner No. 3 and transferred are deliberately not shown in the said annual returns for the years 1999 to 2004 duly signed by respondent No. 2 himself. Therefore, the respondents are estopped from alleging that petitioners Nos. 1 and 4 are not the shareholders of respondent No. 1 company.
7. It was contended that the respondents have wrongfully not transferred 20,000 equity shares held by petitioner No. 3 and shown the said equity shares as held by Shri Sushil Kumar Periwal (5,000 shares), Shri Ravindra Kumar Periwal (5,000 shares) and Radiant Projects P. Ltd. (10,000 shares) in the annual return of 2001 and 2002. Even the said shares were further shown as held by respondent No. 2 in the annual return of 2003 and 2004. It was argued that respondent No. 2 has produced copy of income-tax return for t was argued that assessment years 2000-2001 and 2001-2002 respectfully of respondent No. 3 and has made frivolous and bald allegation that petitioner No. 1 had to pay the amount of Rs. 2,12,889 to respondent No. 3 and petitioner No. 1 had sold his 20,000 equity shares to respondent No. 3 and outstanding was reduced to 12,889 it was argued that respondent No. 2 has failed to produce any documentary evidence in support of his frivolous and baseless allegations. It was argued that how can respondent No. 3 transfer 20,000 equity shares in her name which stand in the name of petitioner No. 1 without any transfer deed and delivery of original share certificate (s). It was argued that respondent No. 2 has failed...
To continue reading
Request your trial