Company Law Board
Mausumi Bhattacharjee vs Anghaila Housing Pvt. Ltd., Sh. Sudhir ... on 25 May, 2004
ORDER
K.C. Ganjwal, Member
1. This is a company petition No. 70/2003 filed by Ms. Mausumi Bhattacharjee chairperson and Managing Director of the respondent company under Section 397/398 and other applicable provision of the Companies Act, 1956 against M/s. Anghalia Housing Pvt. Ltd. as Respondent No. 1 Shri Sudhir Gupta, Respondent No. 2 Shri Naresh Kumar, Respondent No. 3, Shri Ram Saran Singh, Respondent No. 4 and Ms. Kusum Lata, Respondent No. 5. The brief facts of the case is that M/s. Anghalia Housing Pvt. Ltd. Respondent No. 1 company was incorporated on 22.1.70 as a private limited company with the ROC, NCT of Delhi and Haryana. The Regd. Office of the company is situated at 55, Vidyut Nikunj Apartment, 112 Patparganj, Delhi-92. In the present petition the petitioner has firstly challenged the purported change of Regd. Office of the company from Vidyut Nikunj Apartment, Patparganj, Delhi-92 to 2-B-24, Hauz Kaus, New Delhi and relevant from No. 18 dated 16.5.2002 filed with the office of the ROC, NCT of Delhi and Haryana, New Delhi.
2. The authorized share capital of the respondent company is Rs. 5,00,000 (Rupees five lakhs only divided into 5000 equity shares of Rs. 100/- each. The paid up share capital of the company is Rs. 3,22,600 divided into 3226 equity shares of Rs. 100 each. The petitioner holds 2330 equity shares of Rs. 100 each in her name forming more than 72% of the validly issued share capital of the company. The petitioner further holds 500 equity shares in the names of her associates. Therefore, the petitioner holding more than 88% of the validly issued share capital of the company as such is eligible to file this petition under Section 397 and 398 of the Companies Act, 1956. The main object of the company for which it was incorporated are contained in Memorandum and Articles of Association of the company which briefly state to carry on the business of establishing housing colonies and to acquire and develop and turn to account any land into suitable plot of rent/sell the plots to the public for building houses, bungalows, colonies etc along with some other objects of the company as mentioned in Memorandum and Articles of Association of the company.
3. The petitioner has secondly challenged the purported illegal allotment of 4604 equity shares of Rs. 100 each by the said respondents as per the purported form No. 2 dated 20.1.03 filed with the office of ROC, NCT of Delhi and Haryana. The third issue in the petition is the resignation of the petitioner from the directorship of the Respondent company.
4. The learned counsel for petitioner Mr. Varinder Ganda submitted:- The company owns a plot of land at Dehra Dun. This plot was notified as a forest land in 1969 by the then Govt. of Uttar Pradesh, which was challenged by the respondent company in the High Court of Allahabad in petition No. 2160 of 1970. The High Court of Allahabad decided matter in the favour of the company in 1974. The Govt. of UP went for an appeal before the Hon'ble Supreme Court of India and the case was decided in the favour of the respondent company in 1975. However, the Govt. of UP and subsequently the Govt. of Uttaranchal again notified the area as forest land in 1996. Meanwhile the petitioner was appointed as director of the company wef 1.11.1997 and the company, through the petitioner objected to this notification before the forest settlement officer, Dehra Dun. The petitioner represented cases before Forest Settlement Officer and District Judge as Managing Director of the respondent company. The petitioner has filed the present petition against Respondent No. 2 Shri Sudhir Gupta, Respondent No. 3 Shri Naresh Kumar, Respondent No. 4 Shri Ram Saran Singh and Respondent No. 5 Ms. Kusum Lata Challenging the purported resignation of Ms. Mausumi Bhattacharjee, on 26.9.2001 and purported appointment of Respondent No. 3 to 5 as directors w.e.f. 26.9.2001. The petitioner has also challenged allotment of 4604 equity shares to Respondent No. 3 to 5 on 19.5.2002 and also shifting of the Regd. Office.
5. The learned counsel for petitioner further submitted that the petitioner was appointed as director wef 1.11.97 and Form 32 was accordingly filed with the ROC, NCT of Delhi and Haryana. The Regd. Office of the company was shifted to 55 Vidyut Nikunj, 112 Patparganj, Delhi and form 18 was also filed with the ROC, Delhi. The petitioner was appointed as MD wef 4.5.2001 and Form 25C was field with ROC. The respondent No. 2 Shri Sudhir Gupta was appointed as director on 6.9.89 as ceased to be director wef 4.10.99. A notice to this effect was also given in the newspaper "Rashtriya Sahara dated 28.2.2001". The appointment of Respondent No. 3 Shri Naresh Kumar and R-5 Ms. Kusum Lata whose appointment as director has been challenged by the petitioner alongwith the allotments of shares to them. The learned counsel for petitioner also pointed out the purported allotment of 4604 equity shares on 19.8.2002 required to be filed in Form No. 2 within 30 years was actually filed after delay of 5 months. The Respondent No. 2 Shri Sudhir Gupta denied his signatures in Form 32 as he had already resigned on 4.10.99. The purported resignation of the petitioner w.e.f. 26.9.2001 was also filed after delay of 9 months on 1.5.2002 and Shri Sudhir Gupta Respondent No. 2 denied the signature in Form 32 as he had already resigned on 4.10.1999. Similarly the purported appointment of Respondent No. 3 to 5 as directors was actually filed on 16.5.2002, after a delay of about 6 months.
6. Despite repeated opportunity provided to Respondents No. 3 and 5 could not submit an appropriate proof or identify of their respective identities. The Respondent No. 3 filed a copy of duplicate driving licence without signatures of issuing authority. Similarly an affidavit filed by Respondent No. 3 had illegible signatures of SDM. Respondent No. 3 made a statement that Respondent No. 5 lives in Meerut and necessary papers would be filed from the office of Housing Board, Meerut but no such papers were ever filed.
7. The learned counsel for the petitioner further submitted that the cluster of manipulated documents filed with the ROC and placed before this Board have only been created to mislead this Board with a view to create apparently a complicated situation where the matter would be disposed of as a civil matter. The petitioners submitted that Respondent No. 3 filed a writ petition No. 507 (CM)/B/03 before the High Court of Uttaranchal at Nainital questioning the petitioner position as MD. The Hon'ble High Court of Uttaranchal vide order dated 31.12.2003 observed as under:-
"Let the matter be decided by CLB. If any decision of the CLB is received, the appeal No. 78 of 2003 shall be decided."
8. Accordingly the learned counsel petitioners prayed that the claims made by respondents and the interveners be dismissed and the prayers be allowed as made in the petition regarding vacation of directorship by Ms. Mausumi Bhattacharjee, illegal appointment of Respondent No. 3 to file and shifting of Registered Office of the company from 55, Vidyut Nikunj Apartment to 112, Parparganj, Delhi 2B-24 Hauz Kaus, Delhi by respondent in the purported form No. 18 filed on 16.5.2002 before the ROC, NCT of Delhi & Haryana.
9. The petitioner also prayed to declare that purported illegal allotment of 4604 equity shares of Rs. 100 be declared invalid, null and void. In this case number of different documents have been filed by various parties. The petitioner was allowed to publish the order of this Board as public notice to restrain respondents from entering into any contract or agreement in respect of assets and properties and not to create any third party rights till the final disposal of the case. During the course of hearing the learned counsel for Respondent No. 1 and 3 sought permission on 13.11.2003 to withdraw the case. As the authorized representative of respondents 1 and 3 had withdrawn from the case and none was present in spite of notice, the case was listed for ex-parte hearing on the next date of hearing i.e. 22.2.2003 In order to appreciate the claims of the parties the Regional Director, Kanpur and ROC Delhi were directed to submit a status report regarding shareholding and directorship of the Respondent on 20.1.2004, the new counsel appeared for Respondent No. 3 and Respondent No. 5 and directions to file reply to the main petition was given on the next date of hearing i.e. 6.2.2004. When the case came up for hearing on 9.3.2002, it was found that some other advocate had filed application for interventioning the case. The petitioners were directed to supply copy of the petition and the case was listed for hearing on 11.3.04. Thereafter, the learned counsel for Respondents as well as intervener were heard. The arguments was completed on 5.4.2004 and parties were requested to submit written submissions, if any. The petitioner and intervener have submitted their written submissions. In this back ground of this case, I now proceed to examine the averments made by learned counsels of respondents.
10. The learned counsels for the Respondent No. 1 (Anghalia Housing Pvt. Ltd.) has filed written submissions also. He has submitted his arguments in two parts namely, (1) on the issue of maintainability of the petition and (2) factual controversy raised by the petitioner. The learned counsel has submitted that for orders to be passed under Section 397 of the Companies Act, 1956 granting relief against oppression, the petitioner has to satisfactorily make out that the affairs of the company are being conducted in a manner oppressive to her and had also that the facts of the case justify the making of winding up orders on the ground that it is just and equitable that the company should be wound up but the making of such an order would unfairly prejudice the member. In support to the above submission the respondent No. 1 has relied on the case of Punjab High Court in the matter of Thakur Hotel (Simla Company Pvt. Ltd.) and the facts relating to judgment read as under:-
"An order under Section 397 of the Companies Act, 1956 granting relief against oppression on the application of some of the members of the company can be made by the court only if the court is satisfied, that the company's affairs are being conducted in a manner oppressive to any member or members, and, secondly, that the facts of the case are such that it would be "just and equitable" to make an order for winding up of the company, but the making of such an order would unfairly prejudice the members. Unless both these conditions are satisfied an order under Section 397 should not be made. The word "oppressive" in this context means unjust, harsh or tyrannical."
11. The learned counsel has further submitted that a past and concluded transactions cannot be set aside in a petition under Section 397 of the Companies Act as the petitioner has tried to do so in the instant petition because her letter of resignation dated 1.8.2001 duly considered by the respondent company and subsequently submitted before the Registrar cannot be set aside as prayed for by the petitioner.
12. Regarding actual controversy raised by the petitioner in the instant petition, the learned counsel submits that reading of the prayers clauses unquestionably connotes that the petitioner seeks a relief in the nature of declaration to the various effects which in fact is neither considerable nor adjudicatable under Section 397 and 398 of the Companies Act, 1956. He has further submitted that the letter dated 1.8.2001 field by the petitioner which she has disputed in her petition that the said letter contained forged signatures and was not signed by her. The learned counsel submitted that the petitioner at no time had been appointed or looked after the affairs of the company but in fact the petitioner fabricated certain documents claiming her to be director of the company but when confronted tendered the resignation but by means of instant petition has disputed the validity and genuineness of this document which is neither disputable nor validly thereof is questionable in the instant petition. He further submitted that there is no ground for oppression or mismanagement and the documents are not genuine/admissible peace of evidence. The learned counsel for respondent submitted that the truth and reality is that the company is managed by Shri Tarun Bhardwaj, MD of the company alongwith Shri Sudhir Gupta for which the relevant documents annexed to the reply of Respondent No. 1 are self speaking evidence. Accordingly the submissions was made on the issue of maintainability of the petition that the petition should be dismissed.
13. In the reply to the petition on behalf of Respondent No. 1 Shri Tarun Bhardwaj who claims to be Managing Director of Respondent company M/s. Anghalia Housing Pvt. Ltd has relied on the Board Meeting called 19.7.2003 wherein it was resolved that Mr. Tarun Bhardwaj, Director is hereby appointed as Managing Director. The explanatory statement indicates that it came to the notice of Board of company that an ex director Ms. Mausami Bhattacharjee, who inspired of having resigned as director of the company is representing the company by posing herself as a director and Board of Director authorizes Shri Tarun Bhardwaj to take up this mater with ROC, Company Law Board etc. as she has ceased to be director wef 26.9.2001. Number of documents have been filed by various persons with ROC, NCT of Delhi and Haryana. However, in the present context of averments of R-1 it is seen that the notice for Board Meeting as well as copy of the Board Meetings held on 19.7.2003 appointing Shri Tarun Bhardwaj have been signed by Mr. Sudhir Gupta as Chairman of the Board of the company in all papers. There is no other person present in the Board Meeting. To rely on these documents will depend on the averments made by Shri Sudhir Gupta who is Respondent No. 2 in this petition.
14. I now proceed to discuss the averments made by Respondent No. 2 to Shri Sudhir Gupta in this petition. Respondent No. 2 Mr. Sudhir Gupta has filed his reply by way of affidavit. He was present in person in the court and affirmed that he stands by the contents of the affidavit filed by him before this Board in this petition dated 7.10.2003. Shri Sudhir Gupta has submitted that he has been a director of Respondent company M/s. Anghalia Housing Pvt. Ltd. from 6.3.1989 to 4.10.99 and he has no connection whosoever with the affairs of the company after 4.10.99. He has further submitted the best of his knowledge and belief, he has not signed the said forms and documents but his signatures have been forged. However, he is suffering from disease of Manic (acute depression, low blood pressure and TB) and doctors have advised him to take sedatives and other anti depression medicines on regular interval. He has submitted that his signatures on purported documents which are mentioned below may have been obtained under the influence of such sedatives/medicines that as soon as he came to know about such forms purportedly signed by him with the office of Registrar of Company, NCT of Delhi and Haryana, New Delhi, he made a retraction and gave an affidavit on 29.3.2003 and 21.3.2003 reiterating his retraction. He submitted that he stands by the contents of both these affidavits and the purported forms filed with the office of Registrar of Companies, NCT of Delhi and Haryana have not been filed by him:-
(a) "Form No. 18 dated 16.5.2002 in respect of the purported change of registered office of the Respondent No. 1 company from 55, Vidyut Nikunj Apartment, 112, Patparganj, Delhi-110092 to B-24, Hauz Khas, New Delhi.
(b) Form No. 32 dated 16.5.2002 in respect of the appointment of Shri Naresh Kumar, Respondent No. 3, Shri Ram Saran Singh. Respondent No. 4 and Smt. Kusum Lata, Respondent No. 5 and resignation of Ms. Mausumi Bhattacharjee, petitioner w.e.f. 26.9.2001 as Directors of the Respondent No. 1 company and
(c) Form No. 2 dated 20.1.2003 in respect of the purported illegal allotment of 4.604 (Four thousand six hundred and Four only) equity shares of Rs. 100/- (Rupees hundred only) each to the respondent (3, 4 and 5)."
15. Mr. Sudhir Gupta further submitted through his affidavit that the petitioner Ms. Mausumi Bhattacharjee is in total control of the affairs of the company holding 94% of the shareholding in the company as on 30.9.2003 and Respondent Nos. 3, 4 and 5 are not connected to the affairs of the company in any manner and the forms mentioned above submitted to ROC, NCT of Delhi and Haryana may be cancelled and declared null and void.
16. Mr. Naresh Kumar, son of Shri Sham Lal Respondent No. 3 in this petition has filed his reply as well as application with affidavits. Interestingly during the course of hearing this case the authorized representative of Respondent No. 1 and 3 withdrew themselves from the case on 28.11.2003. The other advocate appeared on 20.1.2004 on behalf of Respondent No. 3 requested for two weeks time to file their reply which was granted. The Respondent No. 3 did not file his reply on next two dates of hearing. However, the replies file by Respondent No. 3 on 20.2.2004 is on record. The learned counsel for Respondent No. 3 submitted that the petitioner resigned from the directorship of the company resigned voluntarily/on her own, she was also well aware that on the same date, Respondent No. 1 to 5 namely, Shri Naresh Kumar, Shri Ram Saran Singh and Mrs. Kusum Lata were appointed the directors of respondent company by the then director of the company namely, Shri Sudhir Gupta, (Respondent No. 2). All these informations were duly filed in the office of the Registrar of the Company, NCT of Delhi and Haryana. The Respondent No. 3 has specifically mentioned that the petitioner as such by her own act and conduct has estopped/debarred herself from filing the present petition to challenge her own voluntary resignation given by her and also to challenge various other appointments including that of Respondent No. 3 to 5 which were not only initiated/accepted by herself but were facilitated by her and were done at her behest and with her consent and as such the petitioner is estopped and has no locus-standi to file the present position before the Company law board. It was further submitted that lately Shri Jyoti Prasad Aggarwal was the father of Shri Damodar Prasad Gupta. Respondent No. 2 Shri Sudhir Gupta is the son of Shri Damodar Prasad Gupta who acquired 129 acres of land which was valuable piece of land situated near Dehradun. It was with the object to establish a modern housing colony near Dehradun and he thought it to be a fit and very viable project. This land of the family of late Shri Jyoti Prasad, succeeded by Shri Damodar Prasad and then Shri Sudhir Gupta was restored to respondent company vide the decision of the Hon'ble Supreme Court dated 27.11.75 and 21.3.2003 which have been placed on record by Respondent No. 3. The Hon'ble Supreme Court in their judgment of 11.11.75 had stated in para as under:
"-----In our judgment the High Court was right in holding that the land in question is not covered by the notification dated September 1, 1969 and in quashing the order of the collector dated March 22, 1970. We may, however observe that if the housing scheme is not fully implemented with a reasonable time from today and actual utilization of the land by full and complete implementation of the housing scheme is unnecessarily delayed then it will be open to the Government to take further steps for the application of the provisions of the Act to the land in question or any portion thereof in accordance with law."
17. The learned counsel further submitted that the only reason of filing the present petition by the petitioner is the greed and desired to grab the company so that she can usurp the land of the company and appropriate to herself. Moreover the present position is not only grossly related but has been filed malafide with ulterior objects to control and land. It is also mentioned that the land in question was released by Forest Deptt. vide order 21.3.2003. The petitioner was no where and she had ceased to be director of the company of her own volition in Sept. 2001. Later on the forest deptt. of Uttaranchal filed an appeal against the order dated 21.3.2003 before the District Judge, Dehradun being the appellate authority wherein the company was impleaded as a party but since the name of Ms. Mausami Bhattacharjee appeared in the order dated 21.3.2003. The forest Deptt. impleaded the company through Ms. Mausami Bhattacharjee. The Respondent No. 3 further submitted that he applied in the court of District Judge, Dehradun to be impleaded as a party in his right as a director of the company and also on behalf of the company but the said application was rejected by the learned district judge, Dehradun vide order dated 6.12.2003 against this order the Respondent No. 3 again went to High Court of Uttaranchal in C.P. No. 1224 of 2003. Wherein the High Court of Uttaranchal at Nainital observed that the question involved is as to whether the resignation of Ms. Mausumi Bhattacharjee is genuine or not and this being a question of fact cannot be resolved by way of writ petition under Article 2276/227 of the Constitution of India. Since the matter is already sub-judice before the Company Law Board, it will be in the interest of justice that the matter be heard by the Company Law Board and disposed of. The respondent has mentioned that in view of various orders dated 21.3.2003, 29.5.2003, writ petition No. 507 of 2003, writ petition No. 1224 of 2003 and the orders passed in writ petition would go to reveal that the Respondent No. 3 namely, Shri Naresh Kumar has been pursuing the mater on his own behalf as director of the respondent company. The present petition on behalf of the petitioner is misconceived, not maintainable and as such be dismissed summarily. The respondents have also denied that Shri Sudhir Gupta had forged the signatures on any alleged letter purported to have been signed by the petitioner to show her resignation as director of the company or that Shri Sudhir Gupta fraudulently signed Form No. 32 or that Shri Sudhir Gupta was not the director of the company on that day and had ceased to be the director of the company w.e.f. 04.10.99. The alleged affidavit being attributed to Shri Sudhir Gupta dated 29.3.2003 and 21.5.2003 alleged to have been filed with the ROC are not admitted by the Respondent No. 3. It is denied that the signatures of the petitioner on the letter of resignation have been forged. Rather the petitioner resigned on her own and gave the letter of resignation. It is also denied that the alleged allotment of shares to Respondent No. 3 to 5 is illegal and unlawful. It is also submitted that the Registered Office of the company was lawfully shifted by the lawful management of the company to B-4 Haus Kauz, Delhi as per Form No. 18 as accepted by the ROC, NCT of Delhi and Haryana. The allotment of 4604 equity shares of respondent No. 3 to 5 are lawful and the prayer of the petitioner is wholly groundless and is to be dismissed. The allegations of the petitioner that she had not resigned from the directorship of the company vide letter dated 1.8.2001 w.e.f. from 26.9.2001 are false. Accordingly, the Respondent No. 3 submitted that the petitioner is not entitled to any relief prayed in the petition and merits dismissal with special cost.
18. I may mention here that the arguments on the case had been closed on 5.4.2004 by the learned counsels of both sides pending writing of the judgment. The Respondent No. 3 again approached Hon'ble High Court of Uttaranchal at Nainital by filing a review petition No. 1450 of 2004 in writ petition No. 1224 of 2003 and the Hon'ble High Court in their order 17.4.2004 has observed as under:-
"-----Basically, it is a question of non-maintainability of the Company petition before the Company Law Board. This is open for the review petitioners to raise this objection before the Company Law Board and the Company Law Board shall decide the maintainability of the Company petition then shall proceed further.-----
-----The review petition is disposed of accordingly.-----
19. Based on above order of Hon'ble Court of Uttaranchal, I have already passed an order dated -----on the maintainability of company petition No. 78/2003. Now I proceed to pass the detailed order on the facts and law of the petition is question.
20. The learned counsel for Respondent No. 4 has filed an application on 15.4.2004 under Section 9 of Companies Act, 1956 in which he has mentioned that Respondent No. 4/applicant never received any summons of the notice in respect of this petition from this Board and he came to know about the proceedings in company petition No. 70/2003 that the matter was listed for hearing on 5.4.2004. He immediately engaged the counsel to represent him so that appropriate prayer could be made before the court and an opportunity could be sought from the court to contest the case after obtaining the complete paperwork of the petition. The Respondent No. 1 was not served through any court notice. The petitioner also did not bring it to the knowledge of the court that Respondent No. 4 had infact being left out without service. The irreparable loss shall be suffered by the Respondent No. 4 if the judgment is pronounced without giving a fair and reasonable opportunity to the Respondent No. 4. In this context I have gone through the papers and order sheets and a copy of hand written letter by Shri Ram Saran Singh dated 25.7.2003 which had been filed by the petitioner in the court on 28.11.03 alongwith service of the document sent to Respondent No. 4 on 1.8.2003 under which a copy of the petition had already been sent to him from August 2003 till the case was finally heard and closed the arguments of learned counsels of both the sides on 5.4.2004 and orders had been reserved. The Respondents No. 4 has filed the above said application on 15.2.2004.
21. From the records it is seen that the petition had been duly served on Respondent No. 4 as early as in August 2003 but he chose not to participate in the proceedings till the arguments were completed. I am afraid that the purpose of filing this application at this belated stage is nothing but to reopen and delay the case on one or the other pretext when the case has been finally heard and order was reserved on 5.4.2004 after hearing Learned Counsel of both sides who participated in the case. Since the respondent is an old man of the age of 71 years as per his affidavit I am taking lenient view of not taking any legal action against him under Section 628 of the Companies Act, 1956 for filing a wrong affidavit when he had already received a copy of the petition sent by petitioner on 1.8.2003. The petitioner had filed the documents of service of sending him petition by speed post in the court which has been taken on records on 28.11.03. As the Respondent No. 4 did not participate in the proceedings inspite of notice till the end of the case for last one year, I do not intend to give him any further time and his defence is struck off accordingly.
22. The Learned Counsel for Respondent No. 5 submitted that petitioner has alleged the commission of illegal and oppressive acts, mainly on resignation of the petitioner, alleged illegal appointment of Respondent No. 3 to 5 as directors of the company, purported allotment of 4604 equity shares of 100 each of Respondent No. 3 to 5 and shifting of Registered office from Patparganj to Hauz Khas. The petition filed by the petitioner Under Section 397/398 of the Companies Act, 1956 is utterly misconceived and bad in law and fails to make any case under the said section. The petitioner is therefore not entitled to any reliefs. The petitioner has not filed the petition with clean hand but with the sole motive of harassing the respondents for seeking relief from this Board under the provision of Section 397/398 to which she is not entitled to. The petitioner has alleged a number of irregularities and incidents of forgery. The petitioner has already approached the police authority by filing a criminal application against Respondent No. 2 and the matter is being investigated by the police. The petitioner has also allegedly filed complaints with the Regional Director, Deptt. of Company Affairs at Kanpur and ROC, NCT of Delhi and Haryana while taking action against Respondents for filing of certain forms allegedly containing misstatement. The petitioner has approached the company Law Board even before the outcome of any finding on the application so made by her. The petitioner seems intend on choosing different and independent modes and approaching the authorities having jurisdiction under the criminal as well as the Civil Acts for seeking similar type of relief. The petitioner has approached the company law Board setting aside Form No. 32. Form No. 2 & Form No. 18 etc which is not within the ambit of powers conferred by laws on the Company Law Board Under Section 397 & 398. The action of the petitioner are in the nature of blackmail on the Respondents. Petitioner has alleged in the petition the mismanagement of the Respondent company of which Sh. Apurba Sharma is also allegedly a director who has not been impleaded as a party either as petitioner or as respondent. Hence it is a case of non joinder of the proper property. The Respondent Company as per the provision of the Act and Articles of Association is controlled y the Board of the Directors under whose supervision, the Managing Director or the Directors functions. The petitioner who claim to be the Managing Director cum chairperson of the Respondent Company also claims to be the members of Board of Director alongwith Sh. Apurva Sharma another director. Therefore, the petitioner should have filed the petition for seeking relief under Section 397 & 398 against the management. Whereas the petition has chosen the option to exclude Sh. Apurva Sharma from being impleaded since the petitioner never wanted any action to be taken against the management of the company. If the petitioner is aggrieved by the filing of false forms as alleged then the proper course for the petitioner would be to move the appropriate civil court having jurisdiction over the matter and not disguise her grievances as oppression and mismanagement to oblique and ulterior motives. The petitioner has illegally filed a copy of Article of Association thereby incorporating the Clauses 9, 12, 14 & 16 mainly to support her claim to be the sole owner and manager of the affairs of the company. Whereas the documents is false, fabricated and altered without the consent of the shareholders. The petitioner has filed false and frivolous form No. 2 showing therein an allotment of 500 shares to herself and other associates. There is no share application money credited to the account of the Respondent Company nor any Board meeting was ever held on 24.3.2003. In fact the petitioner had already resigned from the Board of Directors of the Respondent Company w.e.f. 26.9.01 and hence no right, authority or power to allot any share to company to herself or her associates.
23. It was further submitted on behalf of res. No. 5 that petitioner has alleged that Mr. Sudhir Gupta has resigned from the directorship of the Respondent Company w.e.f. 4.10.99. It is interesting to note that form No. 32 in respect of the said resignation of Mr. Sudhir Gupta is dated 5.12.2000, while the same was registered on 17.3.2003. Hence the form No. 32 in respect of the alleged resignation of Mr. Sudhir Gupta was filed in the year 2003 i.e. three years after the date of his alleged resignation. Moreover the petitioner was not a director of the Respondent Company having resigned from the directorship w.e.f. 26.9.2001, on which date Respondent No. 3 to 5 were also appointed as Director. Sh. Sudhir Gupta, Respondent No. has not resigned on 4.10.99 whereas he actually resigned on 30.7.2002. Respondent No. 5 filed a copy of the letter purported to be signed by Sh. Sudhir Gupta. It is also submitted that petitioner has filed the said false and forged form No. 32 showing that Sh. Sudhir Gupta was not a director of the company on 26.9.01 i.e. the date w.e.f. which she had resigned and Respondent No. 3 to 5 were appointed, and in respect of which Form No. 32 as filed by Sh. Gupta, which is totally contrary to the factual position. The petitioner has not right to challenge the said appointments of Respondent No. 3 to 5 nor can she now retract from her resignation. The res. Company only own only single asset, a vast piece of land which originally belonged to grandfather of Sh. Sudhir Gupta Respondent No. 2. The said land was transferred to DLF which in turn transferred to Respondent company on its incorporation. The land has been a subject matter of a litigation with the government which has been all along been attended to by the family of Late Sh. Jyoti Prasad Gupta including Mr. Sudhir Gupta. The petitioner has had no role to play in the said litigation to protect the interest of the company in its sole asset. The land was notified as a reserved forest and right of the company over the land was vacated by a Govt. notification. The forest Settlement Officer, Dehradun vide his order dated 21.3.2003 released land measuring 404.567 hectares in favour of the Respondents company. Then only petitioner realized that the company has got some back portion of its land and she is now retracting from her resignation and has filed this petition with obvious intention of usurping the land. The said release order dated 21.3.2003 was recalled by the forest department on 29.5.2003. The petitioner did not take any step to challenge the said order of recall in fact it was Respondent No. 3 who was filed a Civil Writ No. 507(M/B) of 2003 on behalf of Respondent Company against the said recall order and the Hon'ble High Court of Uttaranchal stayed the operation of the said recall order dated 29.5.2003. The said matter is subjudice. As regard the allotment of 4604 shares. It was submitted that the same was legal and valid and the said form No. 2 was presented by Respondent No. 3 Sh. Naresh Kumar who was validly appointed Director of the Res. Company. Any allegation of the petitioner to the contrary is baseless and totally incorrect. Although the objects of the Respondent company is set out in the Article of Association are not disputed but the Clauses 9, 12, 14 & 16 of the Articles of Association filed by the petitioner have never been validly incorporated in the Article of association of the Respondent Company and are denied. No special resolution have ever been passed for the amendment of the Articles of Association and inclusion clause which give wide and sweeping powers of the management of the company to the petitioner. The Articles as submitted by the petitioner are denied as incorrect and fabricated. Further submitted that Respondent reserves the right to take appropriate action against the petitioner for incorporating the above said clauses in the Article of the Respondent company without the same having been validly amended in a legally convened EGM.
24. The Learned Counsel further submitted that Sh. Sudhir Gupta was a director of the Respondent Company but he denied to be a director of the company w.e.f. 4.10.99. The copy of the alleged form No. 32 filed by the petitioner is incorrect and false. The affidavits allegedly given by Sh. Gupta on 29.3.2003 and 21.5.2003 to ROC Delhi and Haryana are denied and incorrect and false. He resigned in the year 2002 and not in the year 1999. It is pointed out that Shri Gupta has filed a criminal complaints against the petitioner in the court of Chief Judicial Magistrate, Dehradun, which is pending before the said court for adjudication and disposal. Hence the alleged affidavits filed by Mr. Gupta are not admitted and bear no significance. Shri Apoorva Sharma was never a director of the company and appears to belong to the petitioners group and is being shown as a director of the respondent company to further petitioners vested interest. It is denied the respondents have committed any fraud or conspiracy with each other with the malafide intention to grab the company or to take control of its assets. It is rather the petitioner, who by self styling her as the director of the company even after her resignation. It is further submitted that the contents of the prayer clause of the petition are devoid of any merit or substance. The petitioner has already resigned voluntarily from the directorship of the company w.e.f. 26.9.01 and now cannot challenge Form No. 32 filed in this regard. It is reiterated that Respondents Nos. 3 to 5 are validly appointed directors of the respondent company. As regards the shifting of the Regd. Office of the company from Patparganj to Hauz Kaus, the same was validly done by the Board of Directors of the respondent company and Form No. 18 dated 16.5.02 was filed with the ROC. The petitioner, who was not a director at that point of time, is not entitled to challenge the said shifting of the Regd. Office of the respondent company. The petition is false, frivolous and is liable to be rejected. It is prayed that this Board be pleased to declare that the petitioner is neither a director nor a shareholder in the respondent company and the petition be dismissed with cost to the respondent.
25. During the course of hearing of this petition an application was filed on 8.3.2004 on behalf of Sanjay Daksha. Sofiur Rehman and Mr. Vinod Raj Hans for impleadment and permission intervene in the ongoing proceedings. The learned counsel for these three interveners submitted that the applicants were sole shareholders of the company of M/s. Anghalia Housing Pvt. Ltd., the respondent company. he also submitted that even register of members regularly maintained by respondent company, carries entry to this effect and name of all the applicants is therein as shareholder of the company. That the Board of Directors of the respondent company consists of Shri Sanjay Daksha and C.M. Aggarwal. All statutory records of the respondents company are in their possession and the Regd. Office of the applicant/respondent is situated at 1013, Gali Khirki wali, Ballilaran, Delhi. That the applicants are in possession of original scripts of the equities as they are the only holders of the equities and no equity stand in the name of any other person. The original petitioner and the respondent in collusion with each other for the unlawful gains and benefits have falsely and wrongly claimed themselves to be the shareholders/directors of the company, without any valid and legal documents and have no locus-standi to maintain these proceedings. It was also mentioned that the law is well settled and relying on the judgment of Supreme Court in S.P.C. Varaya Naidu (Dead) by LRs v. Jagannath(Dead) by Lrs. and Ors. (AIR 1994 SC 853), the learned counsel submitted that the Courts of Law are meant for imparting justice between the parties and process of Courts is not abused. A person whose case is based on falsehood, has no right to approach the Court. It was further submitted that in the absence of the applicants as defendants, this board may not be able to effectively and completely settle the matter in controversy and further that will entail multiplicity of the proceedings. Accordingly the applicants were allowed to intervene in the proceedings as parties and to make their submissions in the case.
26. The learned counsel for interveners has also submitted written submissions. The interveners filed their reply and was also given opportunity of being heard on merits. The interveners challenge the locus-standi of the petitioner to maintain the petition and prayed for dismissal of the petition. The interveners case in short is that the present petition has been filed without any locus-standi. The petitioner has deliberately attempted to seek a relief whereby she can claim that her appointment as director has got a sanctity from this Board and accordingly misuse this order for securing all unlawful benefits and to dislodge the present respondents and bonafide persons of their rights. The conduct of other respondents further establish that the present proceedings initiated for securing a collusive decree or order which is bad in law and amounts to fraud against this board. The petition is not maintainable for want of sufficient pleadings and being in contravention of the proceedings of the circular under the Company Law Board Regulations, 1991.
27. As per Regulation 14 of the Company Law Board Regulation, 1991, a petition to the bench shall be proposed in Form No. 1 in Annexure II and as per Regulation 18 and a petition shall be completed by documents as prescribed in Annexure 3. The learned counsel relying his arguments on insufficiency of pleadings submitted that no evidence/arguments can be allowed relying on Supreme Court judgment in the case of T.H. Musthaffa v. M.P. Varghese and Ors. 1999 (6) Scale 190 and quoted para 10 of the judgment as under:-
"-----Unless the appellant had put forth his case in the pleading and the respondents are put on notice, the respondents cannot make an admission at all and there is no such admission in the course of the pleadings. If the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot got to trial. Any amount of evidence in that regard, however excellent the same may be, will be futile."
28. The second judgment relied on which reliance was placed by learned counsel for respondent is of Delhi High Court in the case of Jagjit Industries Ltd. v. Rajiv Gupta 18(1980) Delhi Law Times 434. He quoted para 11 of the judgment which reads as under:
"----The evidence of the landlord and his father, stating that the landlord has no right to stay in the house of his father and, therefore, he has no suitable accommodation apart from the premises in question for his own use, is sufficient. No mala fide act has been pleaded against the respondent landlord. The respondent in evidence no doubt stated that the landlord wants to enhance the rent and wants to sell the property. These facts were not pleaded and hence this evidence cannot be looked into. The word' require' means that there must be an element of need and not mere desire that the landlord requires the premises for his residence. The respondent landlord has no accommodation for his residence and therefore it can be held without any hesitation that the bonafide requires the suit premises for the residence of himself and for his family members i.e. his wife and two children."
29. The third judgment Shri Seetharaman and ors. v. Stick Fast Chemicals Pvt. Ltd. and Ors. (1998) (Mad) to press the point that in a petition filed under Section 397 of the Companies Act 1956, the petition should contain all material facts. In the case of fraud, mismanagement, oppression etc full and complete particulars must be alleged in the petition. Subsequent affidavits are not enough. The petitioner must plead all material facts necessary for granting the relief as prayed for. Facts arising subsequent to the filing of the petition cannot be relied upon. The validity of the petition will be judged on the facts alleged therein and existing at the time of the presentation. Lack of essential allegations in a petition cannot be made up by leading evidence.
30. The learned counsel for respondents further submitted that Mr. Sanjay Daksha, Mr. Sofiur Rehman and Mr. Vinod Raj Hans are the sole shareholders of the respondent company having an authorized capital of Rs. 5 lakhs divided into 5000 shares of Rs. 100 each, which is fully subscribed. Shri Sanjay Daksha holds 1846 equities with script No. 121196 and script No. 3547 to 4196. Shri Rehman is the holder of 1350 equities with script 1647 to 2596 and script No. 4197 to 4596 and Shri Raj Hans holds 1804 shares with script No. 1197 to 1646, 2597 to 3546 and 4596 to 5000.
31. The petitioner has committed a fraud against this court by withholding the vital documents and facts. The memorandum and articles of association of the company on record, no where records as to the amendment in the original one and on the contrary carries the print line of 10.12.69. This only shows the malafide of the petitioner. The first contention of the respondent is that the said documents cannot be looked into in this proceedings which have been filed during the course of pleadings and are not admissible.
32. The petitioner has failed to establish on record that she holds minimum requisite shares to maintain the present petition. The petition itself has got inherent contradictions to the extent. The learned counsel relied on the SC judgment in the case AIR 1994 Supreme Court 853. This judgment indicates that a litigant, who approaches the Board, is bound to produce all the documents executed by him which re relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. It is alleged by the interveners that the petitioner deliberately concealed the facts of allotment of shares and full subscription of the equity of the company in the year 1993-95 only. All the equities/shares of the company being already subscribed, the claim of the petitioner for purchase of shares by fresh allotment at subsequent stage does not hold any basis. To press his point, the learned counsel relied on the following two judgments of CLB and High Court of Karnataka. The CLB judgment of Gammon India Ltd. (1990 3 Comp.LJ 89(CLB) at page 90 reads as under:-
"---Held A transaction of shares is complete as soon as the instrument of transfer is duly stamped and executed by the transferor and the transferee. It is another matter that a company may, under certain circumstances, refuse to register the transfer in its register of members. Registration of the transfer in the register of members is a clerical act or a formal act of mutation and does not determine the question as to whether or not a transfer has taken place. Even the scheme of the Act, particularly, what appears from Section 108 to 112 shows that registration of transfer is an act which follows a completed transfer and the act of registration does not constitute transfer."
33. Similarly the citation of Karnataka High Court in the case of Aarti Sign Enterprises Pvt. Ltd. and Ors. v. Muniamma and Ors. (1993) 2 Comp. LJ327 Karn reads as under:-
"Company - Transfer of shares - Rectification of share register - Instrument of transfer - "Duly stamped"-Section 12 of the Indian Stamp Act, 1899/Section 12 of the Karnataka Stamp Act read with Section 108 of the Companies Act, 1956. These provisions are mandatory"-Share transfer forms must be properly stamped and registered to constitute a valid transfer - non cancellation of stamp affixed would render the instrument concerned unstamped and" and duly stamped"-Such an instrument shall not, being invalid, be received in evidence, registered or acted upon."
34. The petitioner has wrongly stated that there was no transfer, no subscription between the year 1993-2000. The records of ROC vide diary/receipt No. 17364/35444 29.3.95 is the evidence of filing of form No. 2 of return of allotment. This is the non disputed piece of conclusive evidence which fortifies the case of respondent that the equities of the company were fully subscribed and therefore the petitioner has deliberately concealed the fact of filing Form No. 2. The petitioner without being the shareholder by resolution dated 20.2.2003 has attempted to acquire and picket the rights and interest of the company in a very unfair manner. In this regard the learned counsel for intervener relied upon (1994) 1 SC cases 1 and quoted para 5 and 6 of the judgment which reads as under:-
"The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigations. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceeds."
35. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
36. The learned counsel for intervener submitted that the petitioner has had the argument stage without any foundation attempted to develop a case that at one point of time the original shares of the shareholders were lost/misplaced. Hence duplicate shares were issued in the year 1988. The petitioner cannot be allowed to develop altogether a new story at the stage in the pleadings. The petitioner cannot be allowed to produce any documental support any such story and the documents produced are not admissible. The story conceived and projected inherently contradictory in nature and as such cannot be relied upon. The certain dates and events are relevant which were pointed out by the intervener. A letter has been produced dated 3.10.1988 showing that certain complaint was made against one Mr. V.P. Verma. However, on page 4 after seven years, it appears that a police complaint was lodged alleging that the same person has taken away the shares. The contention of the respondent is that the same person cannot take away the same documents twice. On 20.1.1995 an alleged complaint to S.S.P. Dehradun has been produced for taking away of the documents and shares. The intervener has mentioned that the case should have been registered at New Delhi as the Regd. Office of the company was at Daryaganj, New Delhi.
37. The letter dated 22.10.1995 shows that in fact there was no major dispute. The story of the petitioner that due to certain dispute the documents were taken away by said Mr. Verma is in contrary to their own records. The intimation was again given on 28.9.98 to SSP Dehradun as to loss of the same instrument which was apparently lost on earlier three occasions. Infact, the complaint is that the petitioner lost those shares while carrying them. Admittedly the share certificates are personal property of the shareholders having already been transferred to the respondents by that time. In any case intimation of loss if any should have been given to the concerned police station at Delhi. The intervener further pointed out that just after three days of the loss of those shares duplicated shares were issued on 2.9.98. This indicates the malafide intention of the petitioner. The petitioner had filed a document which appears to be an advertisement for notice of loss of share certificate. This notice had been issued subsequent to issuance of duplicate shares. Secondly this notice was issued in a newspaper having limited circulation in Dehradun which was not at all Regd. Office of the company and the same cannot be relied upon. The share certificates running from page 34 to 44 of Vol III of documents filed by the petitioner. The Regd. Office of the company has been shown as 55 Vidyut Kikunj, 112 Patparganj, Delhi. However, the annual returns filed for the year 97-98 and 98-99 by the petitioner shows that the Regd. office of the company was at 109, Darya Ganj, Delhi and therefore, these shares are nothing but bogus and sham documents. The learned counsel has relied on AIR 2000 SC 579 para 11 has been relied which indicates that the cause of action would be at a place where Regd. Office of the company situated.
38. It is also submitted by the intervener that the photocopy of the share certificates produced by the petitioner have got apparent defects on face of it and they have produced a chart indicating antedated documents have been prepared by the petitioner. It is submitted that as per Rule 5 Sub-rule 3 of the company Rule 1960 the word "duplicate" shall be stamped or punched in bold letters across the phase of share certificates. Section 84 Sub-section 2 of the Companies Act, 1956 has been mentioned which indicates that a certificate may be renewed or a duplicate certificate may be issued if such certificate is proved to have been lost or destroyed. The Learned Counsel has relied on following three judgments to stress its point:-
1. (1999) 1 Comp.LJ 476(Delhi) Radhey Sham Gupta and Anr. v. Kamal Oil and Allied Industries Ltd. and Ors.
"-----By the impugned judgments in the written statement there is serious dispute between the parties as to whether shares in favour of appellants were transferred rightly and validly in accordance with Section 108 of the Act and that the decision of such a question to clearly beyond the scope of Sector 397 and/or 398 of the Act and the remedy of the party lies at approaching a civil suit. The petition was held not to be maintainable and was accordingly dismissed."
2. (1997) 2 Comp.LJ 249(CLB) before the Company Law Board, Southern Region, Madras Seshasayee Paper and Boards Ltd. v. Riddhi Chordia and Mool Chand Chordia.
"-----Besides this, we also note that stamps on transfer forms were not cancelled which is a mandatory requirement under Section 108 of the Act and accordingly, as far as the first reference is concerned, we confirm the decision of the Board of directors in refusing the splitting and consequent registration of transfers."
3. (1999) S. Anuratha V. A.K.M.N. Cylinders (CLB), Southern Region, Chennai v. A.K.M.N. Cylinders Pvt. Ltd. and Anr. (Vol.95)
---That the contentious issues raised by the parties regarding fraudulent manipulation of the duplicate share certificates, fabrication of the transfer instruments and other records could not be resolved in summary proceedings by the Company Law Board. The Company Law Board could not go into the question whether the agreement dated Nov. 16, 1995, became in fructuous in Section 111 proceedings which could be agitated only in a civil suit.
39. The learned counsel for intervener submitted that the conduct of the petitioner is very relevant. The petitioner has through out been claiming to be the person having all control and interest in the affairs of the company. However, while filing the petition she did not file any relevant documents to establish her locus. The interveners have produced all the original documents and are holding entire equity of the company. The petitioner opted not to file any affidavit or reply and as such she has admitted the case of interveners. The documents produced at subsequent stage are not admissible. This all indicates towards the wrongful intentions of the petitioner. The Learned Counsel relied upon following two judgments of the Supreme Court -
1. (1983) 2 Supreme Court Cases 252 Dina Nath Anands v. Administrator and Ors.
"Despite our clear indication on the last occasion that if the respondents intended to claim privilege in respect of any documents they should do so by filing a proper affidavit, that has not been done. The question of any such claim of privilege does not, therefore, arise. The case is already covered by the decision of this Court in Mohd. Zakir v. Administrator."
2. 1989 Supp (2) SC Cases 665 Medimpex(1) Pvt. Ltd. v. Drug Controller-cum-Chief Licensing Authority and Ors.
"--Finding affirmed by High Court - document purporting to be a true copy of a certificate produced for the first time before Supreme Court controverting the finding not acceptable in absence of any affidavit of the authority issuing the certificate vouchsafing its genuiness - Finding of Drug Controller and High Court being finding of fact based on material placed before them, held, there was no justification for Supreme Court Interference with the same on merits - Constitution of India, Article 136 - Practice and Procedure - Concurrent findings affect - Interference with."
40. The intervener submitted that they are holding entire equity of the company. The subscription of the full equities was completed by the year 1995 itself and any subsequent subscription and allotment of equities/shares after 199 is false and cooked up story. The records of ROC also fortified this fact. The interveners had not been made a party to the proceedings by the petitioner deliberately. Respondent No. 2 namely, Mr. Sudhir Gupta who is facing criminal allegation against himself leveled by the petitioner has chosen to support her. This fact industries towards collusion and nothing else. The petitioner has attempted to mislead this board that in pursuance of the order of Hon'ble High Court of Uttaranchal at Nainital in WT(MP NO. 1224 of 2003 this Board has got jurisdiction to adjudicate upon the disputed facts of this case. The proceedings before this Board is summary in nature, where detailed trials are not carried out. The Hon'ble High court of Uttaranchal has also refused to entertain the disputed facts of the case and has only directed that in view of the rival claims of the parties, it will be in the interest of justice that the matter may be heard by Company Law Board first."
It is submitted by the interveners that this order of Hon'ble Uttaranchal, High Court has no where intended to enlarge the jurisdiction of this Board and thereby authorizing this Board to entertain and adjudicate upon the issues which require the detailed trial being the question of disputed facts. In any case that order is in-personam in nature and as such cannot find that interveners as per certain law. The Learned Counsel has relied upon AIR 1998 SC 3153 G.B. Patnaik and A.P. Misra JJ Ammonia Supplies Corporation P. Ltd. Appellant v. Modern Plastic Containers P. Ltd. and Ors.
"Rectification of Register of members - Jurisdiction of Company Court under Section 155 - Is summary in nature - Civil Court jurisdiction is impliedly barred."
41. The contention of the petitioner that the original share certificates produced by the respondents are invalid. Having been already lost earlier are false, and wrong. The respondents are holding original transfer deeds and other supporting documents. Otherwise also the probability of claim of these shares by the third party alleged in have been lost earlier has also been admitted by the petitioner itself and therefore, at this stage, the petitioner is estopped from raising the contentions of invalidity or loss of these shares. The name of the interveners has already been registered in the register of members and therefore whole process of transfer has attained finality. The Learned Counsel has relied on the judgment of Company Law Board (1999) CLB Vol 95(555) which has already been quoted above.
42. It was further submitted that the original certificates produced by the interveners are valuable instruments and any electrical mistake, cutting, over writing etc. Having some discrepancies do not make them invalid. It was not the case of the petitioner that documents have been forged. The case of petitioner was certain discrepancies were found while endorsing the transfer. It is a matter of record that Respondents and interveners are holding original scripts without any manipulation. The deficiency raised otherwise rectifiable in accordance with law and therefore, the contention of the petitioner as to the discrepancy is nothing but an attempt to mislead the board. The petitioner has initiated this collusive proceedings for unlawful gain. The petitioner has not produced any documents to satisfy the court as to locus-standi of the petitioner to maintain this proceeding and the present petition is not maintainable. The interveners have produced admissible documents alongwith the affidavits. The inspection of these documents was given to opposite parties during the course of the proceedings. Therefore, any contentions that respondents/interveners are raising disputes just to oust of the jurisdiction of this board are baseless and malatious contention. The petitioner has also attempted to mislead that in view of the order of the Uttaranchal High Court this board has adjudicate the matter. There is no such order which is apparent on the face of it. Accordingly the respondent/interveners submitted that the petition may be dismissed with cost and any other be passed in favour of intervener and against the petitioner.
43. In order to appreciate the rival claims and documents by the various parties with ROC, NCT of Delhi and Haryana, a status report had been called from the ROC> The report dated 15.01.2004 has been received from ROC NCT Delhi and Haryana which has provided following information:-
1. Date of incorporation and Regd. Office of the Company. The company M/s. Anghaila Housing Pvt. Ltd. was incorporated on 22.1.1970 having its regd. office situated at 55, Vidyut Nikunj, 112 Patparganj, Delhi. Later on the Regd. Office of the company has been changed to R-24, Hauz Khas, New Delhi w.e.f. 1.5.2002.
2. Authorised capital of the company - The authorized capital of the company as on 31.3.2003 is Rs. 5,00,000/-.
3. Filing position - As per the records maintained in this office, it appears that the company is regular in filing its statutory documents and latest balance sheet as at 31.3.2003 filed on 27.10.2003.
4. There is neither any complaint received against the affairs of the company or its directors not any inspection report Under Section 209A of the act appears to have been received against the affairs of the company.
5. This office has not filed any prosecution in the court against the company and its officer's.
44. ROC has further mentioned that on perusal of the document filed on the company, it is seen that three separates sets of annual returns made upto 26.9.2002 have been received, signed by different persons. It is difficult to give consolidated list of directors and shareholders of the company, since different information is given in different annual returns/documents. The latest form No. 18 filed with ROC 9.9.2004 which is dated 4.9.2003 purported to have been signed by Sudhir Gupta indicates that the company has shifted its Regd. Office to 7-C Doctors Lane, Gole Market, New Delhi w.e.f. 11.8.2003.
45. As per the last annual return made upto 26.9.2002 received with the signatures of two persons i.e. M.S. Mausami Bhattacharjee and Mr. Apurba Sharma, the following have been shown as directors of the company.
Name and Address Date of Apptt.
---------------- --------------
1. Ms. Mausumi Bhattacharjee 1.11.1997
55, Vidyut Nikunj,
112, Patparganj, Delhi-92
2. Mr. Apurba Sharma, 10.1999
Samannay Co-operative Housing Two separate F-32 received regarding
Society, Bishnu Raya Path, Beltola is appointment by the name Apurba Sharma) Guwahati, Assam A copy of the list of shareholders as per annual return filed on 26.9.2002 with ROC Delhi is as under:-
Details of shares/debentures, AGM held on 26.9.2002 S.No. Name Father's/Husband Name Type No. of Amount per shares Share (in Rs.)
1. Sh. Prithpal Singh Sh. Jwala Prasad equity 1 100
2. Sh. Vinod Narain Sh. Kusum Narain equity 51 100
3. DLF United Pvt. Ltd. N.A. equity 194 100
4. Smt. Prem Lata Gupta Sh. D.P. Gupta equity 150 100
5. Ms. Mausumi Bhattacharjee D/o Sh. D.P. Bhattacharjee equity 2080 100
6. Mr. Apurba Sharma S/o Sh. S. Borodoloi equity 150 100
7. Mr. D.P. Bhattacharjee S/o Late Sh. Bhattacharjee equity 100 100 As per second available annual return made upto 26.9.2002 received with the signatures of two persons i.e. Shri Sudhir Gupta and Tarun Bhardwaj the details of directors of the company are given as under by ROC:-
Name and address Date of Apptt. Date of ceasing
--------------------------------------------------------------------------
1. Sh. Sudhir Gupta 6.3.1989 -
109, Darya Ganj, New Delhi
2. Sh. Naresh Kumar, 26.9.2001 -
237, Shastri Nagar, Meerut (UP)
3. Ms. Masumi Bhattacharjee 1.11.1997 26.9.2001 55, Vidyut Nikunj, 112, Patparganj, Delhi.
4. Sh. Ram Saran Singh, 26.9.2001 Shakti Nagar Colony Meerut Road, Bijnore (UP)
5. Ms. Kusum Lata, 26.9.2001 237, Shastri Nagar, Meerut (UP)
6. Sh. Tarun Bhardwaj, 26.9.2002
(i) 7-C, Doctor's Lane Gole Market, New Delhi
(ii)H-452, IIIrd Floor, (As per F. No. 32 dt. 2.9.03 New Rajinder Nagar, enclosed as annexure II) New Delhi The said annual return is also purported to be signed by Shri Sudhir Gupta whereby Shri Naresh Kumar, Shri Ram Saran Singh and M.S. Kusum Lata have resigned from the directorship of the company wef 11.8.2003.
The third annual return available with ROC made upto 26.9.2002 received with the signature of one Shri Naresh Kumar and another person indicates the following persons as directors of the company:-
Name Date of Apptt. Date of Ceasing 1. Sh. Sudhir Gupta 20.9.87 31.7.2002 2. Ms. Mausumi Bhattacharjee 1.11.97 26.9.2001 3. Ms. Kusum Lata 26.9.01 - 4. Sh. Ram Saran Singh 26.9.01 - 5. Sh. Naresh Kumar 26.9.01 -
46. It is seen that Form No. 32 dated 13.5.2002 presented by Shri Sudhir Gupta one Ms. Mausumi Bhattacharjee has resigned from the directorship w.e.f. 26.9.2001. Inspite of the above facts, Ms. Mausumi Bhattacharjee is still shown as Managing Director of the Company. A copy of the form and copy of the resignation letter dated 1.8.201 from Ms. Mausumi Bhattacharjee has also been sent by ROC with his report. Similarly, as per form No. 32 dated 5.12.2000 presented by Ms. Mausumi Bhattacharjee, Shri Sudhir Gupta has resigned from the directorship of the company w.e.f. 4.10.1999. Shri Sudhir Gupta has also yet been presented the documents. In this regard a copy of affidavit stated to be executed by Shri Sudhir Gupta has also been furnished. The genuineness of the affidavit has however to be established also of the resignation dated 1.8.2001 or Ms. Mausumi Bhattacharjee as mentioned by ROC Delhi. Thus it would be seen that M.S. Mausumi Bhattacharjee and Shri Sudhir Gupta has submitted Form No. 32 regarding cessation of each other due to resignation. The details of the shareholders as attached to the different annual returns are also conflicting as stated by ROC in the status report sent by him to this Board.
47. I have gone through the documents and various statements filed by the Petitioner as well as Respondents and also the status report submitted by ROC Delhi. The case was argued by both sides at length when the case had been finally concluded and reserved for orders on 5.4.2004. This judgment was being written and have not yet been completed, the Learned Counsel for Respondents 3 filed a copy of the order 17.4.2004 of the High Court, Uttaranchal at Nainital on 23.4.2004 passed in review petition No. 1450 of 2004 in writ petition No. 1224 of 2003 (M/B). Accordingly, a separate order dated 20.5.204 has been pronounced holding the maintainability of this petition under the provisions of Section 399 of the companies act, 1956.
48. I now proceed to discuss the averments and arguments of Learned Counsels of both the sides. The respondent No. 1 who claims to be the Respondents company namely, Anghaila Housing Pvt. Ltd. had sought permission alongwith Respondent No. 3 to withdraw from the case. Accordingly, on 13.11.2003 this bench passed the order to allow them to withdraw from the case and inform the parties in writing with a copy to Company Law Board. Thereafter, on 9.3.2004 again an application CA No. 51 of 2004 was filed on 5.3.04 on behalf of respondent No. 1, that the respondent company appointed Shri Tarun Bhardwaj as director of the company 26.9.2002 Form 32 evidencing the appointment of said Shri Tarun Bhardwaj was annexed with the application. It was also said that Shri Tarun Bhardwaj has been appointed as MD of the company on 19.7.2003. Accordingly the order dated 13.11.2003 whereby concerned representative of the respondent company withdrew himself from the case, was set aside and the Respondent No. 1 through Sh. Tarun Bhardwaj was allowed to participate in this case. There are no material documents placed on record by Sh. Tarun Bhardwaj on behalf of the Respondent No. 1 company except challenging the maintainability of the petition which has already been disposed of separately. The case of Respondent No. 1 is that the company is managed by Shri Tarun Bhardwaj MD alongwith Shri Sudhir Gupta and he had been appointed MD of the company. The form No. 32 filed with the ROC Delhi is the only document on which Mr. Bhardwaj has relied upon for his appointment as director. This has been field with the purported signature of Mr. Sudhir Gupta, R-2. On 9.9.2003 and the form has been signed on 2.9.2003. There is also cutting on the residential address which was first mentioned as 7-C Doctor's Lane, Gole Market, and subsequently scored of and written as 11-452, 3rd Floor, New Rajinder Nagar, Delhi-60.
49. This petition was filed on 7.7.2003 and was mentioned on 10.7.2003 by the learned counsel for petitioner and the same was admitted. It is observed that Respondents 1 was first withdrawn from the case as per order dated 13.11.2003 of this board and subsequently filed an application for impleadment again on 5.3.04. It appears that form No. 32 filed with ROC on 16.12.03 happens to be between these two date i.e. withdrawal from the case and impleadment subsequently as stated above. It is therefore after thought by Sh. Tarun Bhardwaj to claim that he is the managing director of the respondent No. 1 company and incharge of day to day affairs of the company. There are no documents or copies of share certificates attached with the reply filed on behalf of the Respondent No. 1. On the contrary he has been only harping on maintainability of the petition in his written submissions/arguments. Respondent No. 1 has failed to even substantiate by documentary proof that he holds atleast 10% shares of the respondent company. Mere filing of returns with ROC by anyone cannot make him director or managing director or shareholder in any company. Moreover, all the returns filed with ROC are signed by Shri Sudhir Gupta who is only material witness in this case. Shri Sudhir Gupta personally appeared in the court and filed his evidence by way of affidavit dated 07.10.2003 in which he has reiterated that he has already filed two affidavits dated 29.3.2003 and 21.5.2003 with ROC Delhi and he stands by the declarations made in those affidavits. There is no reason to disbelieve the person who had been director of the company and his directorship has not been disputed by any of the parties including the petitioner till he ceased to be director with effect from 4.10.99. Therefore, I do not find any merit in the arguments advanced by Respondent No. 1 that he is the MD of the Respondent No. 1 company as he has also not advanced any documents/proof including share certificates etc. to that effect.
50. Shri Sudhir Gupta, Respondent No. 2 has filed a reply affidavit dated 7.10.2003 to the petition. He also appeared in person in the court and affirmed that he stands by the contents of the affidavits dated 29.3.2003 and 21.5.2003 filed by him before ROC NCT of Delhi & Haryana and the present affidavit reply dated 7.10.2003 filed before this Board. He has affirmed that the petitioner is shareholder and the continuing as the Managing Director of the Respondent No. 1 Company. He is the only person whose directorship of the company till he ceased to be director on 4.10.99 has not been disputed by any of the respondent or the petitioner. His evidence, therefore, needs to be given weightage.
51. The Learned Counsel for Respondent No. 3 withdrew from the case on the 13.11.2003 alongwith Respondent No. 1. Subsequently an application was filed on 6.2.04 by Respondent No. 3 for leave to file reply in the main petition. he has no shareholding or any document to indicate his interest in the company. Nonetheless in the interest of justice, he was allowed to file his reply. The reply filed by the Respondent No. 3 on 20.2.2004 indicates that Ms. Mausumi Bhattacharjee resigned from the directorship of the respondent company on 26.9.2001 at her own/voluntarily. She was also well aware that on the same date, Respondents No. 3 to 5 namely, Shri Naresh Kumar, Shri Ram Saran Singh, and Ms. Kusum Lata were appointed directors of Respondent company by the then director of the company namely, Shri Sudhir Gupta. The whole case of R-3 to 5 revolves on the requisite form 32 purported to have been filed by Shri Sudhir Gupta appointing above said three persons as directors and filed with ROC on 16.5.2002 i.e. after about eight months after the appoint of directors on 26.9.2001. It is also mentioned in the form that they were appointed in AGM. None of the respondents have filed any documents to substantiate that any AGM was held and on which date.
52. The documents/order of Hon'ble High Court of Uttaranchal filed by Respondent No. 3 and pointed out by the intervener (Sanjay Daksha and Ors) are in respect of proceedings initiated by the respondent No. 3 Shri Naresh Kumar disputing the petitioners position as the Managing Director and not by the Respondent No. 2. Shri Sudhir Gupta. The Hon'ble High Court of Uttaranchal at Nainital in their order dated 21.2.2003 observed as under:-
"----- The grievance of the petitioner is that he is the director of the company in Appeal No. 78 of 2003 and he has not been arrayed as party.
Respondents company is being represented by Ms. Mausumi Bhattacharjee who was earlier director of the company and has now resigned.
The question involved in this writ petition is as to whether the resignation of Ms. Mausumi Bhattacharjee is genuine or not. It being a question of fact cannot be resolved by way of the writ petition under Article 226/227 of the Constitution of India. The matter is already subjudice before the Company Law Board. In view of rival claims of the parties, it will be in the interest of justice that the matter be heard by the Company Law Board first."
53. Subsequently, Respondent No. 3 again approached Hon'ble High Court of Uttaranchal in review petition and the court directed that question of maintainability be first decided. Accordingly, a separate order on the maintainability of this petition has been pronounced on 20.5.2004.
54. The purported form No. 32 appointing directors to Respondent No. 3 to 5 has been filed on 16.5.2002 and was signed by Mr. Sudhir Gupta whereas Respondent No. 2 Mr. Sudhir Gupta in his affidavit reply has categorically denied and mentioned that Form No. 32 dated 16.5.2002 has not been signed by him but his signatures may have been forged. The Respondents No. 3 to 5 have not filed any document to counter the declaration made by Respondent No. 2 on whose strength they were appointed as directors. Shri Sudhir Gupta has already resigned as director w.e.f. 4.10.99 and this has been published in newspapers also for general public. Accordingly, the arguments advanced by learned counsel for Respondents 3 to 5 that they were appointed as directors are not tenable for the reasons stated above.
55. Particularly, respondent No. 4 did not participate in the proceedings and remained absent although he had written a letter to the petitioner on 27.5.03 that he had not received copy of the petition which was sent to him by the petitioner on 1.8.2003 by speed post and the affidavit of compliance has been filed by the Learned Counsel for petitioners. When the case had been closed after hearing all parties on 5.4.2004, an application stating that he is an old man of more than 71 years old he is permanent residence of Bijnore and he may be permitted to contest the above petition. As already stated, the case of Respondent No. 4 is similar to Respondent No. 3 that they had been appointed directors by Shri Sudhir Gupta which had been discussed above. Moreover, as early as on 27.5.2003 Respondent No. 3 was aware that a petition had been filed before this board and he had written to the counsel for petitioner who has sent a copy of the petition to him as already stated. It is normal practice in the company law board that petitioners are allowed to serve the copy of the petitions/documents to respondent and Company Law Board never serves any documents directly to the parties. There was no reason for Respondent No. 4 to keep quite if the case was finally over and file an application thereafter for impleadment. This is nothing but a delaying tactics for which no reason have been given by the Respondent No. 4. I therefore, disallow the application filed by Respondent No. 4 on 15.4.2004 after the case was finally heard and reserved for order on 5.4.2004. In any case he has not filed any documents with his application to show his interest and he stands on the same footing as respondent No. 3 whose contentions have not been agreed to. Accordingly, there is no case made out by Respondent No. 4 in his favour.
56. The reply field by Respondent No. 5 is mainly on the grounds of maintainability of the petition for which a separate order has already been pronounced. Respondent No. 5 has also disputed the resignation of Respondent No. 2 Mr. Sudhir Gupta and has submitted that on the date of filing of said form No. 32 Shri Sudhir Gupta was a director and he has resigned only with effect from 31.7.2002 on which dated Respondent No. 3 to 5 has also been appointed as directors. Mr. Sudhir Gupta, Respondent No. 2 according to Respondent No. 5 actually resigned or 31.7.2002 and not on 4.10.99. There cannot be a better person than Mr. Sudhir Gupta himself and he has confirmed his resignation from the company w.e.f. 4.10.99 and he has declared personally being present in the court that he has no connection whatsoever with the affairs of the company after that date. Hence the contention of Respondent No. 5 that Mr. Sudhir Gupta, Director of company had appointed them as directors after the resignation of Ms Mausumi Bhattacharjee does not find any truths. There is no reason not to rely on the reply affidavit filed by Mr. Sudhir Gupta and affirmed personally in the court. Accordingly, the arguments advanced by Respondent No. 5 do not hold any good and are rejected. Lastly, the interveners came to the court and on 9.3.2004 and stated that they were holding all the shares of the Respondent Company. Accordingly, they were granted an opportunity of hearing their case on merit and they were allowed to intervene in the proceedings. The case of the interveners had been discussed in detail in which they claim that they are holding all the shares. In this context, it is interesting to note that appointment of Shri Tarun Bhardwaj were made on the basis of Form No. 32 purported to have been signed by Mr. Sudhir Gupta and filed on 9.9.2003 with the Registrar of Companies, New Delhi whereas Respondent No. 2 had already resigned from the directorship of the company w.e.f. 4.10.99. As such this form cannot be taken as correct. As regards Sanjay Daksha and Ors. There is no mention of their names in the Registrar of Company's records till 8.3.2004. Two forms No. 2 alleged to be filed in 1995 in respect of allotment of shares made in 1993 alongwith form 32 and form 18 carry only one receipt of Rs. 300 fees paid by the parties. This does not seems to be correct proposition. No additional fees had been paid for delay of more than 2 years and there is no such document sent by ROC with his report.
57. Lot of discrepancies and omissions have been shown in the shares produced before this board during the course of hearing and some of them were very glaring mistakes. Similarly no transfer deeds including allotment of folios/transfer numbers/distinctive numbers of the shares have been shown. The interveners are claiming their shareholding of allotment of shares in 1993 to certain persons. The transfer of shares from the allottees to the interveners as well as the certified copy of form No. 2 has not been produced besides other discrepancies. No document has been produced in respect of transfer of these shares and there are large number of omissions in the share certificates. In any case mere holding of some shares of the respondent company does not set the claim of shareholders automatically to its directorship or running the management of the company. The Learned Counsel for interveners in his written submissions have quoted large number of judgments of various courts on which he has relied. All the judgments have been discussed above and it is needless to say that the subject matter of this petition is not the quantum of shareholding by each party. The judgments quoted by learned counsel for interveners do not reflect the correctness of their own shares. On the contrary the discrepancies pointed out by Learned Counsel for intervener are not in line with the judgment quoted by him for their own shares. The interveners showed the amendment register of members at page Nos. 46 to 54 of their reply. These are the extracts of the annual return showing past and present members and does not seems to be register of members in terms of companies (Issue of Share Certificates) Rules, 1960 I am refraining myself from pointing out the correctness or otherwise of the shares as it is not subject matter of this petition. The parties are free to take legal course at appropriate forum if they feel that respondent company has not given them proper shares or otherwise.
58. The interveners have filed share certificates which the petitioners have disputed. The certified copy of Form No. 2 has not been produced besides other discrepancies in the share certificates. These discrepancies are said to be clerical in nature according to them. Although in the list of documents of the company received in ROC, one Form No. 2 return of allotment 1995 is mentioned to have filed on 29.3.95. Such form No. 2 having been filed on 23.9.95 by diary No. 173364 has not been received either in the status report of ROC nor the party has filed any copy. There is no other document which the interveners have shown to have been filed by them prior to 1995. All such documents have been filed on one date by the interveners i.e. 8.3.2004. There are no other documents to substantiate by the interveners that they were ever holding the charge of the company or they were directors in the company at any point of time. If the interveners feel that company has not registered their shares or they are the original shareholders, they can file appropriate application before the competent court to claim their shares. I, therefore, reject their claim that they are the custodian of the company.
59. Now I take up the subject matter of the petition. The reliefs sought by the petitioner as under:-
1. Purported illegal removal/resignation of the petitioner from the office of directors of the company.
2. Alleged illegal appointment of Respondents No. 3 to 5 as Directors of the company.
3. Purported allotment of 46.4 equity shares of Rs. 100 each to Respondents 3 to 5.
4. Alleged shifting of Registered Office from 54 Vidyut Nikunj Apartment, 112, Patparganj, Delhi 92 to B-4, Hauz Khas, New Delhi.
60. The other reliefs/complaints are not significant. The alleged resignation/removal of the petitioner from the directorship of the Respondent Company and purported issue of 4602 shares to Respondent No. 3 to 5 are two major issues in the petition and needs to be examined.
61. As regards first issue, the petitioner stated that Shri Sudhir Gupta, Respondent No. 2 has fraudulently forged her signature and filed her letter of resignation in the office of ROC, NCT of Delhi and Haryana, on 16.5.2002 to show that she ceased to be a director of the respondent company w.e.f. 26.9.2001. It is admitted by all the respondents that Sri Sudhir Gupta was director of the company till 4.10.99. Moreover, he has filed his reply affidavit and was personally present in the court. Therefore, his statement needs to be given weightage. He has stated in his affidavit that the petitioner Ms Mausumi Bhattacharjee is in total control of the affairs of the company holding 94% shares in the company and Respondent No. 3, 4 and 4 are not connected to the affairs of the company in any manner. He has denied to have sent any resignation letter of Ms. Mausumi Bhattacharjee to ROC, NCT of Delhi and Haryana. She had been filing balance sheets, audit reports and annual returns etc. She had also been appearing in the court cases of the company in Dehradun/Uttaranchal, Bank of Baroda, Bikaji Cama Place, New Delhi has issued a certificate that she is maintaining a current No. 1146 and is operating the said account as MD of the Respondent Company and as authorized signatory. The petitioners shareholding of 1680 shares out of total 3226 shares as per form No. 2 dated 17.11.2000 filed with ROC NCT of Delhi & Haryana has not been disputed. I am not inclined to comment on the further allotment of shares as it is not subject matter of this petition. The petitioner has herself stated that she has not resigned from the directorship and her signature had been forged. Relying on her evidence as well as on the evidence of Respondent No. 2 and the averments made by the petitioner during the course of arguments, I declare that Ms. Mausumi Bhattacharjee continues to be the director of the Respondent Company and her purported resignation letter dated 1.8.2001 and Form No. 32 filed with ROC, Delhi is declared as null and void.
62. The second question is of appointment of respondent No. 3 to 5 as directors of the Respondent Company. They have relied on the Form No. 32 sent to ROC by Shri Sudhir Gupta which has been discussed above. Mr. Sudhir Gupta Respondent No. 2 has denied having sent any such form No. 32 and appointing them as directors of the company by way of his affidavit and oral statement made in the court.
63. I have no option but to rely on the statement of Respondent No. 2 Shri Sudhir Gupta whose directorship till he ceased to be Director on 4.10.99 has not been disputed by any respondents. Accordingly, the appointments of respondent No. 3 to 5 as directors of the respondent company are declared invalid and purported allotment to them of 4604 equity shares of Rs. 10 each are also declared as null and void.
64. The petition is disposed of with above directions.