Hind Dyes Manufacturing Company Pvt Ltd ... vs Kanji Bhanji Shah & Anr

Mr. Arun Kathpalia, Sr Advocate, with Mr. Abhinav Agarwal, Advocates for the appellant. Mr. Shailendra Singh, Ms Muskaan Garg, Mr. Amit Singh, Mr Manish Malpani, Advocates for Respondent.

Company Appeal (AT) No.41 of 2019 2

JUDGEMENT

(8th JANUARY, 2020)

DR. ASHOK KUMAR MISHRA, MEMBER (TECHNICAL)

This appeal has been filed by the appellant under Section 421 of the

Companies Act, 2013 for being aggrieved by the order dated 22nd January 2019 of

National Company Law Tribunal (NCLT in short), Mumbai Division II, Mumbai.

They are basically aggrieved with the order of NCLT Mumbai in respect of "not

alienate any of the assets of the company until further orders in CP No.2440/241-

242/MB/2018". Respondent in the present appeal Mr. Kanji Bhanji Shah and Mr.

vadilal Kunverji Gada have approached NCLT Mumbai to grant multiple reliefs

including not allowing any transfer of shares by the respondent in the main

petition until final order is passed by the NCLT; to restore the post of directorship

of the petitioner in the main petition (Respondent in appeal) and treat resignation

letter dated 21.2.2012 as null and void; to direct the respondent in the main

petition (appellant herein) to rectify the register of members, to instruct the

respondents in the main petition/appellant, to allow petitioner for inspection of

all records maintained by the Respondent Company and copies of the same be

provided etc. NCLT have granted only two reliefs vide order dated 22nd January,

2019 and that too only for production of statutory records of the company to the

petitioners in the main petition/Respondent for inspection and copy thereof be

provided to them, if necessary and second not to alienate any of the assets of the

company by the Respondent until further order.

2. The Respondent in the appeal has submitted that they were not provided for

inspection of the statutory records of the company inspite of repeated requests by

the Respondent in the main petition/appellant in the appeal inspite of various

Company Appeal (AT) No.41 of 2019 3

letters/legal notices dated 11th April, 2018, 30th April, 2018 etc and were provided

on 13.2.2019 with the Registry of NCLT Mumbai.

3. The appellant in appeal have stated that the Respondent are not the

shareholders of the company and shares they have shown to NCLT Mumbai are

forged shares, signature on some of the shares are forged signatures and no seal

of the company. They are also alleging that the Tribunal have failed to appreciate

that there was no share transfer agreement and there was no share transfer form

signed by the Respondents and no consideration were passed. They are alleging

for some forged signatures on some of the certificates Page 10 para L of the appeal.

The appellants have also made their submission that the Respondent in the

appeal, no doubt, were appointed as director of the appellant company in

December, 2010 but resigned from the company in February, 2012 and they are

not holding any qualifications shares and unable to get any shares within the

prescribed time limit. It is also revealed that the Respondent in the appeal have

filed a complaint before ROC on 22nd April, 2016 and the said complaint was closed

by ROC on 6th November, 2017. It is also observed from the submissions made by

the appellant that the disputed question of facts may be examined by the Civil

Court and not by the Tribunal and have placed certain citation of Hon'ble Supreme

Court of India and CLB.

4. Respondent in the appeal have submitted that application for transfer of

shares dated 3.6.2011 was sent to the appellant No.1 company which was duly

acknowledged as received on 4.6.2011 by the company representative alongwith

rubber stamp. The Respondent in the appeal were never ever access to the records

maintained at registered office of the company. The appellant have misguided and

misrepresented the respondent for over four years and have taken their signatures

Company Appeal (AT) No.41 of 2019 4

on various documents conveying respondent that they are still directors of the

company and the respondent realised about this in 2016 about all this fraudulent

act including removal as director from company. They filed a complaint to the

ROC in 2016, not getting the disposition in his favour, have approached the

Tribunal for redressal of their grievance. They were also carrying the original share

certificates subject to verification by the Tribunal. The grievance is of continuous

nature and hence being a continuous cause of action they have not gone out of

the limitation period as prescribed under the law of limitation.

5. We have gone through the various documents furnished by the appellant

and the respondent including various submissions made, citation provided and

have observed following:-

 No doubt certain share certificates carries two directors signatures

excluding authorised signatory and signatures on back side transfer of

shares is also signed by one authorised signatory and sometime by two

authorised signatories.

 In any case appellant itself is telling that some of the share certificates are

forged, page 10 para L of the appeal.

 The Tribunal has not passed any final order in its order dated 22.1.2019

and has fixed next date of hearing also.

 We have also seen that they are complying with a criteria of Section 241 to

244 as they are holding shares.

 Any member of a company can redress their relief in cases of oppression

vide Chapter XVI of the Companies Act, 2013. NCLT order not to alienate

the assets of the company is till further order only.

Company Appeal (AT) No.41 of 2019 5

6. Hence we do not find any need or merit to interfere with the order and the

appellant are free to make their submissions before the NCLT. Hence the appeal

is dismissed. No order as to costs.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

(Dr. Ashok Kumar Mishra) Member (Technical) New Delhi

Bm/

Company Appeal (AT) No.41 of 2019