National Company Law Appellate Tribunal
South Asia Human Documentation Centre ... vs Suhas Chakma & Anr on 17 April, 2017
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NI AW DELHE Company Appeals (AT) No3t of 207 IN THE MATTER OF: Sauth Asia Human Rights Documentation Centre Pvt Ltd & Or. .Appellants Va Suhas Chakma & Aur .» Respondents
Present: Shri Ashok Agarwal with Mr. Anuj Kapoor, Advocates for the Appellants.
Shri Nitesh Kumar Singh with Ms Neha, Advacates for Respondent Nid LPOG 2017. This appeal has been preferred by the appellants againat the order fhe ated 21.11.2016 passed by the National Company Law Tribunal, New Dethi Bench (hereinafier referred to as the "Tribunal') in Company Petition No4iND) args.
The } Respondent, Suhas Chakma fled the petition under Sections 397 and 398 yead with Section [11 of the Companies Act, 1956 before the erstwhile Cempany Law Beard alleging oppression and mismanagement by the appellanis'respondents, It was alleged that the respondent legally transferred 1° respondent' s/petitioner's shares to 2° respondent. The [* respondent/petitioner prayed to declare the transfer of petitioner's share in favour of 2° respondent as illegal, null and void and for restoration af his shares and for consequential rectification of register of the members ofthe company, The Tribunal after hearing the parties and on perusal afthe record came to the conclusion that transfer of shares of 1" respandent'petitioner in favour of 2° respondent as fraudulent ard sham.
The appellant has challenged the impugned arder mainly on the ground that the finding of the TNbunal that the transfer of shares of 1S Respondent in favour af 2° Respondent as fraudulent is not based an record and is perverse. Learned Counsel appearing on behalf of the appellant submitted that number of evidence were brought on record, including Annual Return Aled with the Registrar of Companies, to show that the 90% share of the 1* respondent/petitioner was transferred in favour of the 2 respondent as hack as in May, 2003. Rois further contended that inspite af the knewwledge the [° respondent/petitioner never assailed the transfer in favour of the 2 respondent and moved before the Tribunal after long delay. According to the appellants, Annual Returns fled with the Registrar of Companies are documents supposed to be known to all the sharchelders, and inspite of thre knowledge of the same the 1' respondent never challenged the same.
Learned Counsel for the 1" respondent/petitioner opposed the stand taken by the appellant. The 2° respondent, Mr. Vittal Ran, in whose fievour R was alleged that the shares were fraudulently transferred has not appsared to oppose the judgement.
We have heard the Learned Counsel! for the partics and perused the recerd, From the impugned order, we find that the Learned Tribunal discussing af from relevant portion of the judgement a8 quoted below:
"The detail af the respandents and the aversients contained fy the counter are to the following effect and are material for the adjudication on this pornt:~ "The pefitinver teeferred fis shares velneturily fo Mr Fittal Ran, Le. Re pondlei No.2 Rerein and recetved a consideration of Rs. 30 O00" fn cash. if is submitted Mat he rransjer of the shares fed been done property By the Respondent No. and recorded in the books it the ordinary ee af Ausiness. Befage a private Nenied closely held corgsanpy with Avo ahareliodders, the Respondent company aher G2 neniod oF. Seven Kears of "the fanafer af Me shores, fas not} preserped the sa sid recerds ay Nowas for rey sired ao wader ay statute to maintain the sane for certain sumder af pears. Hence, the afferpt of the Petitioner to saw claim righés dosed on the some and ther too after an wnexedained delay of abou Ave Pears is clearly ausconceived and deserves Ne consigenanicnn ° Again in para era G28 of page ¥ @ respanide rus as @ rower fo peffioner . alle '2 errs) paragraph 6.28 relating to the fraudulent and Nlegal t ay shares of Mie petitioner, i is averre d as follows:
"That the contents of cor responding Dard are rong and denies it is entvnited' (har the Petitioner hea volumtartiy @ansyerred Ais sharcholding in the Respondent Nai to Mp. Vi i Rao, the Respondent No.2. iis denies that x:
there das bees any fobifeation of Nie re scordls or Bat ie same has nor heen done with dee sole infention and Purpose yf defrauding the petitioner ar to desy Aim Als rights ax the § shareholder of the company ar io gef consequential! comfral over the coprpany 'y affairs, mamigcmen!, ete. Lf iy denied Mat te conduct of the Rexpandents is prima fake mata fide, frandwent or appressive on the Petitioner ar the the Petitioner continues to hold S0% shares af the campiany: Thet the coments of Me Preliminary Objections and Subsnissions are retierated herein © From ee: above it a elear ihe f he syhste? Hate the x scape wiih "He "e produc fon of f shares PP ar aed the § specified share cenifcatew ener of "allow and rather had pied to te ake shedter under fhe Provisic 283 af the Campunies dct, 1956 and the Companies P ' we ane Disposal of Recarus) Rules 2866 to conte: ed that She shares dad Seen done propery by fhe Besp re recorded in the ordinary cowrse of business and (hart Dc sxpany being a private company, did Rar have ones 10 preserve documents ether Gran those reguired by law fo be so preserved by ne ery Rejurns in Pe oh ation a the t rinifer ¢ af shares oft the oatinioner fo i at 8 St ON a ee ORES: bf oop doe yed sy 8 i Pees ee AR ee SERRE > respondent, paniicuarfy when Ne said ¢ eyes ane wader $ ~ chalierge, we are of fhe view Mat the 6 sspondents h have nog for the follawing reasons:
2.
7K seek I fo pel, in al Prone _ the denna! Retwens on wited & ~ fre aaver 4 ther manele fory records fc ext of oie ake ity share y the petitioner ¥ ° th we Oy "nmual Re PPPS, * despite eine at COT UIT PF OXS fo give the actual date of transfer and & hence eno oF sredence at all nan Be giv fvern to the demual Returns ay a descument evidencing the share mares as claimed by the respondents. &) Neither the "shar e fra creer form duly execuied & respon and the share verti in foveur af 'the 2 ~ € seen sad fo be suber Niled a share fransfe ae form 4 ay mandate y under ihe provtnte nag:
? alfatrent wh the ? FE espesnede fens fo demonstrt ae . sonchusiv ERERS OF shore fransfer, winely furces uy te raw ay aefeerse against the respondents about the gansier of shares af Ne e petitioner as claimed by ther, By yen Gg trough | he freee wferee fee Me afy hs :
ae ta, CONST tet aren of Rs SO 00G% as is ee exiracted in the poragragihs ghove Ou aay Rider wit dated a& GF Sars We CLS subseguenty has resitedd # fs Phe pseris CHUN SPGIQINORIS 3 eee fone, thereby ree sulring ERPS beationt eaned re soMadtion en fie part of tre 2° respondent, re sndering the entire fransaction oF freasfer of shares sel esvior and as 3 a r malay Je and ulterior motiy iy Ne praoy pr ae ed | for fhe parent of + of the alleged Rs S event fou a a iy tthe same bad been aii DP pen prod ced abvionsly mere red by ve Fespondendts, A articudarly in the sham done :
Me x ave docw fideed iranyferred' 3 val re ble consideration is an fe are really apoalied &y the attitude ay ?
"
fe claiming thar in the absence af any siatafory : 3 Fee ' dose 5, Sa Sees, sypeg te DROMISTONS, 'the Ere FAO required to) PNG De PELE WIAT PECORES when the company is a private Hevied company [ke ao ONAN Z f proving the share erage bower ap, doer OF orowiale fhe aefuel date of inangyye x x whyed iy af the ows making of the respondents thenwelves, Hence iy ihe absen oe of a date af transaction alewed by the respondents to schon Nie copumencement of fAree vear period. the date of dneavledpe Aecames material and in the instant case it is camended by fhe petitioner Naat fe heoane anvare fhat Ae fox sor heen shower as a shorefiolder, only from Ne meant 'December, 2008 and that ante in Pebrwary 200) o. eved legal and fraudulent transfers, afer perusing tine ea! returns dase cor inspection. The r esponedé ents Rove nat "
te he rebut Mhrowe sh any dacuaerntary svide shan i : e the gnnwal penurns dave been soeulonty led it should be ime puted that the pelifiener had the knowledge of the Mandan af fare ERY ansper ie #08 nhs and Fierce shoals £ 7) BY = REFRILE 'blot 2o AISSSLSSILS LLLP APE EA ddd ddd rbbdddefedyn pe san ghar in the absence of car definite ¢ fare af at even in thelr own record, nane(y fhe for the shape Pec fransaction refls Ben, annual retura or jor thot mater ay rightly contend fed by the
2. RSHENONEP EVEN ER phe pleadings, the date oF knowledge Aecones material jor the purpose of reckoning the period ay f Himnitation and since Ge petitioner hay bewr Filed within < date of kreaele age he de the year 200° and. aes the PASTS ais andy @ c cont 'ani of the earlier CP 6? af 20h told that the petition has been filed within ihe pestad oF fanttation and hence wmrotnnoinadie. "
a In view of the specific and well reasoned judgement given by the Tribunal and in absence of any specific date of transfer of shares in favour of 2°° respondent, we find ne ground to imerfore w qth the impugned judgement. The appeal 18 dismissed. However, in the frets and clrournstances there shall be no order ag £o coat, Clustice SJ. Mukhopadhays) Chairperson (Mr. Balvinder Singh} Member (Technical) bre