Uma Shankar Gupta vs Vishal Promoters Private Limited

2. Shyam Sundar Gupta, For self and as Karta of Shyam Sunder Gupta (HUF) residing at 5, Kabir Road, 3rd Floor, Kolkata - 700026. Appellants (Original Petitioners)

- Versus -

1. Vishal Promoters Private Limited 45A, Raja Basanta Roy Road, Kolkata - 700 029.

2. Ramdiha Mercantile Private Limited 210, Sikkim Commerce House, 4/1, Middleton Street, Kolkata - 700 071.

3. May Fair Commotrade Private Limited 9, JagmohanMullick Lane, 2nd Floor, Kolkata - 700 007.

4. Sumash Developer Private Limited Aishwarya Apartment, 5th Floor, 29A, Ballygunge Circular Road, Kolkata - 700 019.

5. Reality Vinimay Private Limited Aishwarya Apartment, 5th Floor, 29A, Ballygunge Circular Road, Kolkata - 700 019.

Company Appeal (AT) No. 326 012017 2

Steam Port Folio Management Limited 88, College Road, Rabindranagar, Flat No. 108, Block 'E' Howrah-711 103.

7. Bengal Enterprises Private Limited Stephen House, Room No. 90, 5th Floor, 4, B.B.D. Bag Road (East), Kolkata - 700 001.

S. Kedar Nath Agarwal, ParmeshwariSadan, 92/93, NaliniRanjan Avenue, New Alipore, Kolkata - 700 053

9. Ashok Kumar Gupta, Aishwarya Apartment, 5th Floor, 29A, Ballygunge Circular Road, Kolkata - 700 019.

10. Prem Kumar Agarwal 46A, Pandit Madan Mohan Malviya Lane, Indraprastha, Flat No. 3D, Kolkata - 700 020.

11. Vikaram Sikaria Flat No. 4A, 200, Sarat Bose Road, Kolkata - 700 029. Respondents

Present: Mrs. Sonal Shah with Shri Anirudh Sanganeria, Advocates for the Appellant.

ORDER

15.11.2017 Heard learned counsel for the appellants (Original

Petitioners). This appeal has been tendered by the appellants-original

petitioners, who filed Company Petition being C.P. No. 294/2013 before

the Learned National Company Law Tribunal, Kolkata Bench (hereinafter

Company Appeal (AT) No. 326 012017 3

referred to as 'NCLT') claiming 'oppression and mismanagement' by the

respondents.

The learned NCLT, after hearing the petition, has dismissed the

same on the ground that there was no 'oppression and mismanagement'.

Learned counsel for the appellants has submitted that in this

matter, the respondents had called for a meeting on 14th August, 2013

with the agenda of changing the registered address of the company.

According to the learned counsel, the notice of the said meeting was not

served on the Appellant No. 1, Director/ shareholder of the company and

the learned NCLT wrongly relied on a document which purported that the

notice was received by one Bipin Naskar on behalf of the appellant.

According to learned counsel, this was one act of 'oppression'. She claims

that the appellant had, for the same date, given notice to hold a meeting

at the registered address rather than the proposed place in the notice

dated 14th August, 2013 but the meeting was not held at the registered

office. It is further submitted that Respondents Nos. 9 to 11 had taken

loan from the company and the same was not repaid and this also

amounts to an act of 'oppression'.

It is further argued that Respondent No. 11 was appointed as

Additional Director in the meeting dated 14th August, 2013 and thus such

appointment of the Additional Director also was another act of

'oppression'.

Company Appeal (AT) No. 326 of 2017 4

Learned counsel further submitted that the Appellant/ Petitioner

No. 1 had filed an application alleging forgery of the document of service

of notice for meeting dated 14th August, 2013 and the minutes, but that

application was not decided and disposed of while disposing of the

company petition by the learned NCLT.

We have gone through the material which is available on record and

having heard the learned counsel for the appellants, what appears is that

the learned counsel is referring to the notice date 29th July, 2013 calling

Board Meeting of the Board of Directors at an address of 'Room No. 90,

5th Floor, Stephen House, 4 B.B.D. Bag (E), Kolkata - 700 001'. The

agenda of the meeting included subjects of change of the registered office

of the company as well as appointment of Vikram Sikaria as Additional

Director. The objection on this count has not been accepted by the NCLT

relying on a document which was filed with the reply of the respondents

(Copy of which has been filed at Page 276 of the Paper-Book). Learned

counsel submits that this person, Bipin Naskar, was not connected with

the appellant and the service on him could not be said to be sufficient or

correct service of notice. However, we find from the impugned order that

the learned NCLT has taken into consideration that even if the

Appellant/ Petitioner No. 1 would have attended the meeting concerned,

the respondents had the necessary majority to carry the agenda and thus

there is no reason why the respondents would not serve the notice.

Company Appeal (AT) No. 326 012017 5

We fmd substance in the reasoning of the NCLT and thus the

grievances made regarding shifting of the registered office and

appointment of Additional Director are not such which would require

interference. Learned NCLT further noted that Respondent No. 11 had

already resigned and the relief sought had become infructuous.

It appears that the company had purchased some property.

Petitioner No. 1 and Respondents Nos. 8 to 10 had lent money for the

same. Against such lending, shares were issued to the appellant as well

as Respondents Nos. 8 to 10 and in the Board Meeting dated 20th May,

2010, Respondents Nos. 2 to 7 as nominees of Respondents Nos. 8 to 10

were issued the shares. It appears that Respondents Nos. 8 to 10 later

took loan from the company and are paying interest. This loan the

appellant is claiming had not been repaid and so the appellant wants

cancellation of shares issued to Respondents. We find that the earlier

issue of shares was a completed subject and only because subsequently

Respondents Nos. 8 to 10 took loan from the company and the same has

not been returned by itself cannot be calculated as 'oppression and

mismanagement'.

The impugned judgement appears to be well reasoned and there is

no substance in the grounds being raised and there is no reason to

Company Appeal (AT) No. 326 of 2017 6

entertain this appeal. The admission of the appeal is declined, and the

Appeal is dismissed.

There shall be no order as to costs.

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

[Balvinder Singh] Member (Technical)

/ng/

CompanyAppeal (AT) No. 326 012017