Calcutta High Court
Smt. Anita Tolasaria & Anr vs Utkal Contractors & Joinery Pvt. Ltd. & ... on 1 July, 2013
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
ACO No. 118 of 2013
With
APO No. 198 of 2013
IN THE MATTER OF:
SMT. ANITA TOLASARIA & ANR.
VERSUS
UTKAL CONTRACTORS & JOINERY PVT. LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 1st July, 2013.
Appearance:
Mr. Debangsu Basak, Adv.
Mr. D. Roy Choudhury, Adv.
Mr. R. Sarkar, Adv.
Mr. S. K. Trivedi, Adv.
...For the Petitioners
Mr. S. Sengupta, Adv.
Mr. T. K. Mondal, Adv.
... For the Respondent no. 14
The Court: This is an appeal under Section 10F of the Companies
Act, 1956 against a final order dated January 11, 2013 passed in C.P. No. 340 of
2011 dismissing the application filed by the appellant under Sections 397/398 of
the said Act. The petitioner prays for interim order.
Pursuant to the caveat the respondent no.3 appeared and prayed for an
accommodation and on such request the matter was fixed today. At the time of
moving the said application the respondent no. 14 appears and submits that the
copy of the application may be served upon the said respondent.
2
It appears that both the respondents are the subsequent purchasers of the
immovable properties of the company. The dispute relates to the transmission of
shares by way of inheritance and one of the heirs is proceeding to deal with the
entire assets of the company in most oppressing manner. From the impugned
order it does not appear that apart from these purchasers, any other heirs of the
original shareholder appeared before the company Law Board. It is also not in
dispute that during the pendency of a proceeding before the Company Law Board
the appellant was enjoying an interim order restraining the respondent from
creating and/or alienating and/or encumbering the properties of the company to
a third party and also from changing the share-holding patterns of the company.
The Company Law Board has recorded that at the time of moving the application
the company was in process of being struck off from the register of the Registrar
of Companies.
Now, when this application is being moved, the learned Advocate appearing
for the respondent no.14, submits that the name of the company has already
been struck off from the register of the Registrar of Companies.
Mr. Basak, learned Advocate for the petitioner, further submits that the
alleged majority shareholders have been acting prejudicially to the interest of the
other shareholders or the members of the said company and there is no
impediment on the part of his client to proceed with the application under
Section 397/398 of the said Act, even if the name of the company is stuck off
from the register of the Registrar of the companies.
3
There is no dispute that certain properties have already been sold, which,
according to the appellant, is invalid, grossly undervalued and prejudicial to the
interest of the other members because of the quorum non judis.
This Court, therefore, feels that a triable issue is raised in the proceeding
which is required to be determined. Pending determination the interests of the
respective parties are required to be protected. This Court, therefore, restrains
the respondent and each of them from alienating and/or encumbering and/or
transferring and/or creating any third party interest in respect of the properties
being the subject matter of the proceeding before this Court without taking prior
leave of this Court.
The appellant is directed to serve the copy of this application upon the
respondent no.14 who appears today. Since the copy of the application has
already been served upon the respondent no.3 pursuant to the caveat no further
copy should be served. However, the appellant shall effect the service of the copy
of this application upon the rest of the respondents.
Let the affidavit-in-opposition be filed within four weeks from date; reply, if
any, be filed within one week thereafter.
Let this matter appear after five weeks.
The appellant shall put a special messenger with cost for bringing the
records from the Company Law Board. Such cost shall be put in within a week.
.
(HARISH TANDON, J.) sg2 4