Bhikhunhai J. Pate! & Anr vs Hetshri Dairy Pvt. Ltd. & Ors
- CitationCompany Appeal (AT) No. 163 of 2017
Ratio decidendi
The rule this decision rests on
The Tribunal holds that a petitioner seeking relief under sections 397 and 398 of the Companies Act, 1956 must, as of the date of filing the company petition, hold the statutory minimum of one-tenth of the company's shares or be one-tenth of its members; where the material before the Tribunal (the annual return filed by the company) shows the petitioners fall short, and the petitioners offer no record establishing their holding as of that date, a contested question of their shareholding is a disputed question of fact on which no relief under those sections can be granted.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 163 of 2017
IN THE MATTER OF:
Bhikhunhai J. Pate! & Anr. .Appellants Vs Hetshri Dairy Pvt. Ltd. & Ors. Respondents
Present: For Appellants:- Mr. Arun Saxena and Ms. Nalini, Advocates.
For Respondents: - Mr. Rajnish Sinha and Ms. Arunima Bose, Advocates.
ORDER
29.05.2017- From impugned order dated 5th April, 2017 passed by
National Company Law Tribunal, Ahmedabad Bench, Ahmedabad, in TP
No. 74/397-398/NCLT/AHM/2016, we find that as per Annual Return
filed by the Respondents, the Appellants are not having 1/10th Shares
and they are not having 1/10th number of members. The Tribunal
observed that if the Form No.2 filed by the Appellants gives correct
picture, there is no need to look into annual return for the year 2000 filed
by the Respondent no. 2. Therefore, the Tribunal held that Appellants are
not eligible to file the petition under section 397 & 398 of the Companies
Act, 1956.
2. Ld. Counsel for the Appellants tried to convince that the Appellant
has more than 1/10th shares and that the annual return filed by the
respondents were fabricated one. However, such submissions cannot be
accepted in the absence of any record to suggest that the Appellants as -2-
on the date of the filing of the Company Petition have more than 1 / 10th
shares. In the circumstances, there being disputed question of fact no
relief can be granted. In absence of any merit this appeal is dismissed.
However, in the facts and circumstances of the case, there shall be no
order as to cost.
(Justice S.J. Mukhopadhaya) Chairperson
(Mr. Balvinder Singh) Member(Technical) Ar
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