Girish Sanghi …Petitioner vs Sanghi Cements Ltd & another CP No. 5/59/HDB/2020
Facts:
1) Petitioner/Director of Respondent No.1 Company and also a shareholder holding 1,42,188 equity shares constituting around 14.21% of the fully paid up share capital of the Respondent No.1 Company before the impugned allotment of shares to Respondent No.2.
2) Petitioner along with his family are holding around 4,87,499 (Four Lakhs Eighty-Seven Thousand Four Hundred and Ninety-Nine) equity shares of Rs.10/- (Rupees Ten only) each amounting to 48,76% of the total paid up share capital of the Respondent No.1 Company. There were several disputes arose between the shareholders of the Respondent No.1 Company and set of shareholders have filed a petition under Section 397 and 398 read with Section 11 of the Companies Act, 1956 which was numbered as CP No. 73 of 2008 before the erstwhile Hon’ble Company Law Board and later renumbered as TP No. 31/HDB/2016 and same is pending for adjudication.
3) There were transfer of shares which the petitioner is challenging by way of this petition.
Issue: Whether the petition can be allowed?
Arguments:
Petitioner:
1) Counsel submitted that as per the illegal Form PAS-3 the Respondent No. 2 is showing as if the allotment was made on 21.03.2014 the form was filed only on 20.12.2016 which is around three years after the alleged date of allotment. This clearly nails the fraud played by the Respondent No.2 on the Petitioner and his group. The very fact that the Respondent No. 2 has filed Form PAS-3 after more than 2 years 9 months clearly demonstrates that the no allotment was made but as an after though the Respondent No. 2 has filed Form PAS-3 to make the Petitioner and his group who are holding equal number of shares a miniscule minority.
2) It is also apprehended no consideration was ever received by the Company with Respect to the impugned allotment. On this ground alone the impugned allotment needs to be set aside.
Respondent:
1) Counsel submitted that Petitioner claimed variedly at different parts of the Petition that the date on which he had gained knowledge of the impugned allotment dated “20.12.2019” was 19.12.2019 and, in another place, that the “allotment was made on 21.03.2014 the form was filed only on 20.12.2016” contradictory statements and has filed the above Petition knowing fully well that it is time barred.
2) Counsel submitted that allotment of shares by the Respondent No.1 Company on 21.03.2014 and the instant Petition is filed by the Petitioner on 19.12.2019 which is way beyond the limitation period i.e., after a period of 5 years and 9 months from the date of allotment of shares prescribed under Article 137 of the Limitation Act, 1963. Therefore, the instant Petition is barred by limitation and is liable to be dismissed.
3) Counsel submitted that it is highly surprising that the Petitioner on the very same day of inspection of records of the Respondent No.1 Company had managed to engage a counsel, draft the Petition, collate all the documents and file the instant Petition on the very same day before this Hon’ble Adjudicating Authority seeking various interim reliefs.
4) Counsel submitted that shareholders of the Respondent No.1 Company had approved the increase in Authorised Share Capital in order to further issue shares by way of Preferential Allotment to the Respondent No.2. The explanatory statement to the notice of EGM clearly specifies that for the purpose of meeting working capital requirements of the Respondent No.1 Company it was proposed to issue shares to the Respondent No.2. Therefore, the contention of the Petitioner that he was never aware of the allotment of equity shares to the Respondent No.2 is absolutely false more so, when the Form MGT-14 for approval of increase of authorized shared capital as well as for preferential allotment of shares was filed on 20.11.2014 itself.
Decision: Hon’ble Tribunal dismissed the application.
Rationale:
1) Hon’ble NCLT held that Form No.MGT-14 being a public document, hence when the same was duly uploaded as rightly contended by the Ld. Sr. Counsel for the respondent, the Petitioner being a Director of the 1st Respondent Company cannot claim ignorance of this resolution and the day-to-day affairs of the Company.
2) It held that As per Article 137 of the limitation Act, the prescribed three years’ time begins to run when the right to apply accrues. When it is the case of the petitioner only upon visiting the MCA website on 20.12.2019, he came to know about the purported illegal allotment of 85,00,000 lakh shares in the year 2019, the very same website also contained the annual returns of the year 2014 reflecting the allotment made in the name of the 2nd respondent. So much so, on a mere plea that the petitioner came to know on 20.12.2019 on his alleged belated inspection of the MCA website, the petitioner version as regards the impugned special resolution under Section 81(1A) passed on 21.03.2014 to increase the share capital of the Company and allot the shares to 2nd Respondent cannot be accepted.
3) It held that Indisputably, both the pleadings as well as submissions in the case on hand are focused, on pleas such as, illegal transfer of shares, disputed family settlement, non- payment of consideration in respect of the shares transferred, loss of crores of rupees to the shareholders, the locus standi of petitioner in transfer of equity shares for discharge of loans, violation of the order of status quo by the respondents etc. In our considered view the above pleas/questions since being contested and disputed seriously require deeper investigation and a detailed adjudication.
Order:
