Ms. Amita Hemant Shah & Ors vs Mr. Kamlesh Thakorbhai Shah

IN THE MATTER OF: Amita Hemant Shah & Ors. ...Appellant

Versus

Kamlesh Thakorbhai Shah & Anr. ...Respondents

For Appellant : Mr. Arjun R. Sheth and Adv. Hetvi G., Advocates. For Respondents : Ms. Natasha Dhruman Shah, Advocates.

ORDER

(Hybrid Mode)

17.09.2026: The proceedings were initiated by invoking the provisions

as contained under Section 397 and 398 under the Act of 1956, which was

numbered as CP No. 122/397/398/CLD/NB/2013, which was later re-

numbered as TP No. 52/397-398/NCLT/AHM/2016. Those proceedings stood

adjudicated by Learned NCLT finally by final determination that was made

by the judgment of 08.03.2017 wherein the Ld. Tribunal had proceeded to

determine the reliefs claim for in the following manner:

"40. In view of the findings on points 1 to 4, the following order is passed:- (1) Petitioners 1 and 2 are hereby declared as holding 2121 and 35 equity shares of Rs.100/- each in the 3rd respondent-company and their percentage of shareholding to the total shareholding in the year 2004-2005 is 40% and 0.66%, respectively. (2) The purported transfer of shares of petitioners 1 and 2 to the 2nd Page 1 of 5 respondent through the 1t respondent that allegedly took place in September 2009 and transfer of shares shown during the year 2010-11 from Shivani Hemant Shah to the 2nd respondent on 12.09.2011 are hereby cancelled.

(3) The increase in paid-up share capital of the 3td respondent company by 4759 equity shares that took place on 08.10.2013 and the allotment of 4759 equity shares at the rate of Rs.100/- each to the 2nd respondent is hereby cancelled.

(4) There shall be an order to the 3rd respondent-company to rectify its Register of Members accordingly and the same shall be accepted by the Registrar of Companies.

(5) The 2nd respondent shall cease to be a director of the 3rd respondent-

company with effect from the date of holding of Extraordinary General Meeting of the 3rd respondent-company to be held within three months from the date of this order.

(6) Respondent No.3-company is hereby directed to conduct Extraordinary General Meeting within three months from the date of this order by giving 21, days' clear notice to all the shareholders, including the petitioners, and take steps for appointment of Directors as per the provisions of the Company Act and the Articles of Association of the 3rd respondent-

company and from the date of appointment of Directors, they shall take over the affairs and management of the 3rd respondent-company.

(7) In case EOGM was not held as per the directions of this Tribunal and Directors are not appointed, the petitioners are at liberty to approach this Tribunal for appointment of Directors to the 3rd respondent-

company for managing its affairs.

Page 2 of 5 (8) The Annual Returns filed by the 3rd respondent-company from the year 2005-06 till the immediate preceding financial year, in respect of the shareholding pattern of the 3rd respondent company are hereby set aside and it is directed to show the names of the petitioners as shareholders in the Register of Members and in the Annual Returns to be filed by the 3rd respondent-

company.

(9) The removal of the 2nd respondent as Director and setting aside of the Annual Returns in respect of the shareholding for the year 2005-06 onwards till the immediate preceding Financial year will not have any effect on other business transactions that were undertaken by the 3rd respondent-company.

(10) There shall be a status quo order in respect of the assets and liabilities of the 3rd respondent-company till the appointment of Directors in the proposed Extraordinary General Meeting to be held within three months.

41. This petition is disposed of accordingly. No costs.

2. The Respondent alleging non-compliance of the said judgment dated

08.03.2017, had filed an application before the Ld. NCLT thereby invoking

provisions contained under Section 425 to be read with 4 sub-Section 3 for

drawing contempt proceedings against the appellants.

3. The said application that was preferred by the Respondent praying for

initiation of the contempt proceeding was rejected by the Ld. Tribunal

observing thereof, that it would be without prejudice to the rights of the

Page 3 of 5 respondents to file an appropriate execution proceedings ensuring for

implementation of the order dated 08.03.2017.

4. The Appellant before us is an opposite party to the proceedings in the

Contempt Petition No. 05 of 2018. His grievance is as against the second

part of the observation made in the impugned order, so far the Ld. Tribunal

while finally deciding the application by the impugned order of 13.04.2016

had left it open for the applicant to the contempt proceedings to initiate an

appropriate execution proceedings.

5. The grievance of the Appellant is as if, if the order 08.03.2017 itself,

which is read, the execution was not at all required that because it would be

treated that the order has already been executed in terms of the finding

recorded in the order, but his contention at this stage cannot be appreciated

by us for the reason being that if at all the order that has been passed in the

proceedings under Section 397 and 398 an 08.03.2017, under law it would

be in the shape of a decree, hence under the law it is required to be

executed as per the provisions contained under Rule 2. If at all it happens

and the order is put to execution in furtherance of the direction given by the

impugned order it would be open for the appellant to raise all his contentions

and defence, which is being attempted to be raised by him in the instant

company appeal while putting a challenge to the impugned order of

13.04.2026, which has been passed under proceedings under Section 425,

424 (3) of the Companies Act.

6. The test of executability of an order cannot be tested by this appellate

forum, without the order dated 08.03.2017, being actually put to execution,

Page 4 of 5 because the test of delicacies of execution cannot be tested at this stage

without the execution being actually filed, this company appeal stands

rejected, however the liberty open for the Appellant to raise all his

contentions if at all any execution proceedings in compliance of the

directions issued therein for its execution is instituted before the competent

court.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Arun Baroka] Member (Technical)

[Indevar Pandey] Member (Technical) MT/RR

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