Vimla Yadav, Member - (1.) IN this order I am considering Company Petition Nos. 151 of 2007, 152 of 2007 and 153 of 2007 (these company petitions are being disposed of together, the facts and circumstances and the parties being almost the same, arguments were made in Sangeeta Construction (P.) Ltd. to be adopted in the other two company petitions) filed by Naresh Mohan Mittal and another (petitioners) against Sangeeta Construction (P.) Ltd. and others Nippun Construction (P.) Ltd. and others Aarti Construction (P.) Ltd. and others alleging oppression and mismanagement under section 397/398 of the Companies Act, 1956 ('the Act') seeking a declaration that the appointment of Sandeep Mittal, Nippun Mittal in Sangeeta Construction (P.) Ltd. and Nippun Construction (P.) Ltd. and Sameer Mittal and Naveen Mittal in Aarti Construction (P.) Ltd. as directors is null and void and they be restrained from interfering with the administration of the company and acting for and on behalf of the company in any manner whatsoever; declaration that the illegal purported resolutions dated 9th December, 2006, 27th August, 2007 and 31st August, 2007 are null and void and are of no consequence; declaration that the petitioner No. 1 and his group manage the operation and administration of the company in the interest of all the members of the company and the company in general and to appoint an independent chairman/administrator, if deemed necessary; that the R -3 to 5 should not interfere with the administration; debarring of R -3, R -4 to 5 from acting as a director or involving themselves as director and or in any capacity in the management of a company for a period of at least 5 years from the date of passing of said order.
(2.) IT is noted that the petitioner 1 is one of the four bothers, namely, S/Shri Mahesh Mohan Mittal, Naresh Mohan Mittal, Ratish Mohan Mittal and Satish Mohan Mittal and petitioner No.2 is the nephew of the petitioner No. 1. It was condended that in order to streamline the business and to the business activities in more professional manner and to have a scope for diversification for business, all four brothers including the P -1 got together and conceived an idea to form three private limited companies, wherein all brothers would have equal shareholding. Accordingly on 28th April, 1993 three private limited company by the name of Aarati Construction (P.) Ltd., Nippun Construction (P.) Ltd. and Sangeeta Construction (P.) Ltd. were incorporated. The R -1 companies in all the three company petitions (CP No. 151, 152 and 153) are engaged in the business of acquiring land for the construction of the multistoreyed building and to licence flats therein on suitable terms and conditions. All four brothers, namely, S/Shri Mahesh Mohan Mittal, Naresh Mohan Mittal, Ratish Mohan Mittal, Satish Mohan Mittal, were declared to be first directors of the company. The R -1 -companies are closely held private limited companies, wherein, all four brothers had equal shareholding in all three companies. It was pointed out that with the passage of time, three directors, namely, S/Shri Naresh Mohan Mittal, Ratish Mohan Mittal and Amul Mohan Mittal remained on Board in all three companies, viz., Sangeeta Construction (P.) Ltd., Nippun Construction (P.) Ltd. and Arati Construction (P.) Ltd. On 20th October, 2004 the youngest brother of the petitioner Shri Satish Mohan Mittal expired. On his death his son Amul Mohan Mittal was inducted as director in the Board of all three companies in place of his father. It was pointed out that Shri Ratish Mohan Mittal (R3) although being a director since inception of the company, never participated in the affairs of the company in any manner whatsoever, he attended only one Board meeting in last seven years, the petitioners were managing the affairs of the respondent -company. It was pointed out by the counsel for the petitioners that in the year 1983 R -1 -company purchased Plot No.3 in Mohan Bazar Community Centre, Ashok Vihar Phase -1, Delhi -52, from Delhi Development Authority ('DDA') in public auction held on 4th May, 1983 and developed it. Vide agreement to letter dated 25th August, 1987, the R -1 -company, leased out a total area of 3247.60 sq. ft. to Mittal Hotels (P.) Ltd., for a period of five years commencing from 1st September, 1987 on a monthly rent of Rs. 6,200. The rent was to be payable in advance on the 7th day of each calendar month. It was pointed out that Mittal Hotels (P.) Ltd. was also promoted by all four brothers and their family members but later on all the shares of Mittal Hotel (P.) Ltd. were transferred to eldest brother Shri Mahesh Mohan Mittal (now dead) and his family members in and around April 1995. On 31st August, 1992, the tenancy agreement between Sangeeta Construction (P.) Ltd. and Mittal Hotel (P.) Ltd. came to an end by efflux of time. The Mittal Hotel (P.) Ltd. did not get the lease deed renewed and since that day, i.e., 1st September, 1992, they are the illegal occupant of the premises. As on today, the lessee is in arrears of rent. To compound the illegalities, Mittal Hotels (P.) Ltd., has encroached upon terrace and carried on illegal and unauthorised construction.
(3.) THE petitioners' grievance is that the respondent -company had convened a Board meeting on 31st August, 2007. A notice of the meeting was sent to all three directors along with agenda. Due to some unavoidable circumstances two of the three directors were not able to attend the meeting and both of them sent their application for leave to the registered office of the company. When Shri Amul Mohan Mittal went to the registered office of the company to submit the leave application, to his utter shock and surprise he saw that R -3 was sitting with R -4, 8 along with Shri Sameer and Shri Naveen Mittal. When he reached near R -3, he was forcibly made to sit and was asked by all present to sign his attendance and sign few blank papers to which he refused and almost fainted out of shock, after which he was allowed to leave and he ran away, later he filed his complaint in the office of the company. On receiving a complaint from Shri Amul Mohan Mittal, the P -1 immediately made a written complaint and reported the matter to the Registrar of Companies ('RoC') and Ministry of Corporate Affairs ('MCA') and also endorsed and sent a copy of the same to R -3 (Shri Ratish Mohan Mittal) for explanation. In response to the complaint filed by the P -1, the company received an e -mail from MCA informing that some documents were filed on 31st August, 2007. It was pointed out that on 5th September, 2007 the P -1 received a letter of enquiry from one of the shareholders. It was pointed out that after the shareholders of the respondent No. 1 -company and petitioners received some documents by speed post dated 5th September, 2007, namely, auditors report, balance sheet and profit and loss account without any schedules and notes to accounts, the petitioners passed a resolution in the Board meeting held on 7th September, 2007 to the effect that the petitioner No. 1 is authorised to apply to RoC to grant extension of time to hold annual general meeting ('AGM'). He was also authorised to seek explanation from the respondent No. 2 (Ritish Mohan Mittal) and 5 (G K Arora). A careful perusal of the documents showed that these were signed by R -3, Shri Ratish Mohan Mittal an R -4 Shri Sandeep Mittal as director and Shri G K Arora as the auditor of the company. This was the first time that the P -1 came to know that the R -3 and two sons of his eldest brother late Shri Mahesh Mohan Mittal have started indulging in fraudulent practices. On 11th September, 2007 the petitioner received an e -mail from MCA about filing of certain documents by the respondent -company. It was also revealed that DIN 3 of Shri Ratish Mohan Mittal was filed on 31st August, 2007 as per resolution dated 27th August, 2007, which never took place. While searching the Website of RoC the petitioner was shocked and surprised to discover that a company secretary Sh. Naresh Kumar vide diary No. 3615 had filed certain documents including Form 32 certifying induction of Shri Sandeep Mohan Mittal as director of the R1 -company, the Form 32 indicated that Sh. Sandeep Mittal had been made director of the company based on a Board resolution dated 9th December, 2006. The same was a matter of utter shock for Sh. Naresh Mohan Mittal and Sh. Amul Mohan Mittal us no Board meeting ever had taken place on 9th December, 2006 and no such resolution had ever been passed including Shri Sandeep Mittal as a director of the company. Another Form 32 certifying induction of Sh. Nippun Mittal as director of the company was also filed indicating that Sh. Nippun Mittal had been made director of the company based on a Board resolution dated 31st August, 2007. After these facts came to the knowledge of the petitioner on 12th September, 2007, the petitioner located Mr. Naresh Kumar (R9, the company secretary who had filed the said Form 32 with the office of the RoC). The petitioner wrote to R -4 to give an explanation for these fraudulent act vide letter dated 12th September, 2007, the R -9 vide reply dated 15th September, 2007 narrated entire sequence of events which revealed that signatures of the petitioner had been forged and used with an intention of committing a serious fraud, embezzlement, criminal breach of trust, forceful illegal control over the company. The entire drama of forger, was masterminded and done at the instance of Ratish Mohan Mittal, Sandeep Mittal and Nippun Mittal.;