Shri Kalu Masar & Anr vs Solanki Green Marble Pvt Ltd

Shri Kalu Masar & Anr. ...Appellants

Versus

Solanki Green Marble Pvt. Ltd. & Ors. ...Respondents

Present:

For Appellants : Mr. M. L. Sharma, Advocate

ORDER

05.09.2018 The appellants (petitioners) filed an application under Section

397 and 398 of the Companies Act, 1956 (Section 241 and 242 of the Companies

Act, 2013) alleging 'oppression and mismanagement' on the part of the

respondent. The National Company Law Tribunal, New Delhi Bench (hereinafter

referred to as the 'Tribunal') by impugned judgment dated 17th July, 2018

dismissed the same as no case of 'oppression and mismanagement' has been

made out by the petitioners.

Learned counsel appearing on behalf of the petitioners (appellants)

submitted that 8000 shares of petitioner No. 1 was illegally transferred by forged

his signatures which resulted transfer of the mining lease in favour of the

company. The allegation of syphoning off the funds has also been made. It is 2

further submitted that the Tribunal failed to consider the relevant evidence

including the fact that total amount out of Rs. 20 lakhs which is alleged to have

been paid by the 2nd Respondent is not based on any evidence. It is also

submitted that the Petitioner No. 1 never wanted to sell his 8000 shares.

We have heard the learned counsel for the appellants and perused the

record. We find that the appellants made the allegation against 2nd respondent

of fraudulently transferring the shares in form of the company. The application

under Section 397 and 398 was preferred in the year 2015 on the ground that

the petitioner came to know the same in the said year.

The Tribunal while accepted that allegation of fraud has no period of

limitation, but taking into consideration the allegation that the handwriting and

the signature of the petitioner No. 1 to be verified to find out whether it is forged

or not and the allegation of forgery, fabrication, coercion, deceit as levelled by

the petitioners are all subject matters of the trial and the petitioners have already

moved before the Civil Court of competent jurisdiction for same set of allegations

which has not been disclosed by the petitioners, the Tribunal dismissed the

petition.

Taking into consideration the fact that the allegation of 'oppression and

mismanagement' is based on the allegation of forgery, fabrication, coercion etc.

as alleged by the petitioners for which they have already moved before the Civil

Court of competent jurisdiction, we agree with the finding of the Tribunal that in

such case the allegations are to be substantiated on the basis of evidence, no

finding can be given on the question of 'oppression and mismanagement' based

Company Appeal (AT) No. 274 of 2018 3

on such allegation. We find no merit in this appeal. The appeal is accordingly

dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) No. 274 of 2018