Amit Triloknath Mishra vs Tap Constructions & Technologies Pvt. ...

IN THE MATTER OF : Shri Amit Triloknath Mishra ... Appellant

Versus

TAP Constructions & Technologies Pvt. Ltd. & Ors. ... Respondents

Present: Shri Aditya Pande and Shri Akshay Petkar, Advocates for the Appellant.

ORDER

19.01.2018 Heard the learned counsel for the appellant. Perused the

impugned order.

2. Learned counsel for the appellant submits that the appellant had

on 25.06.2013 resigned as Director but he did have shares and that the

shares were never physically issued to him. According to him, for such

reason, paragraph 21 of the Articles of Association could not have been

relied on by the respondents. Learned counsel further points out his

pleadings, which were made before the National Company Law Tribunal,

New Delhi (hereinafter referred to as 'NCLT') and the reply filed by the

respondents in paragraph 3.0 (iii). He submits that the respondents did

accept that the appellant had shares and Respondents claimed that when

he resigned from the Directorship, he relinquished his shares. According

to him, this shows that the appellant did have shares, and Company

Petition was wrongly disposed off.

Company Appeal (AT) No. 21 of 2018 - 19.01.2018- ....Page 2/- -2-

3. In the impugned order, the learned NCLT observed in paragraphs 8

and 9 as under :

"8. In the instant case, the Respondent did not

produce any record evidencing misplacing/shares

transferred to third party. Further, he has also not

produced any evidence towards steps taken by him to

obtain duplicate share certificates from the R1

Company. In the absence of any records to satisfy any

of the requirements as specified under Section 244

especially any member or members holding not less

than 1/10th of the issued share capital of the company.

In the instant case since the Respondent in the MA

235/2017 does not provide any evidence of holding

shares in R.1 Company like original share certificates,

therefore, he does not fulfill the requirement as stated

above. In the absence of any Share certificates

currently held by the Respondent, he would not even

qualify for considering the other two conditions under

Section 244 i.e., not less than one hundred members of

the company or not less than one-tenth of the total

number of its members.

Company Appeal (AT) No. 21 of 2018 - 19.01.2018- ....Page 3/- -3-

9. In view of the above facts and circumstances,

observations of the Bench as discussed supra, the MA

235/2017 is admitted and we hold that the

Respondent has failed to establish that currently he is

the shareholder of TAP Construction & Technologies

Pvt. Ltd. and holding more than 1/10th of the issued

share capital to file a Company Petition under Section

241 of the Companies Act, 2013. No order as to cost."

4. Looking to the above, it is apparent that the appellant does not

actually have shares in hand to show his rights. When the Companies

Act requires holding of shares and none are shown, there is no reason

why we should interfere with the impugned order.

The appeal is dismissed. There is no order as to costs.

[Justice A.I.S. Cheema] Member (Judicial)

[Justice Bansi Lal Bhat] Member (Judicial)

/ng/nn Company Appeal (AT) No. 21 of 2018 - 19.01.2018