B.S.V.Prakash Kumar, Member (J) - (1.) THE petitioners holding around 15 per cent shareholding in R1 -company, filed this CP against R1 -company, R2 -5 continuing as directors of R1, against R6 working as auditor and acting in connivance with R2 -5 and R7 -46 continuing as shareholders of R1 -company, under sections 397 and 398 of the Companies Act, 1956 ('the Act') on the ground that R2 -6 are managing the affairs of the company prejudicial to the interests of the petitioners, thereby the petitioners sought reliefs: (a) to set aside the allotment of shares to the extent of 1,42,200 made after 31st March, 2008, as reflected in the balance sheet dated 31st March, 2009, (b) to direct R2 -6 to bring an amount around Rs. 16 crore into the books of R1 -company siphoned off by the directors (R2 -5) in connivance with the Auditor of the company (R6), (c) to direct R2 -6 to bring the amount diverted to other sister concerns wherein R2 -6 have majority shareholding and beneficial interest, (d) to appoint a receiver to take charge of the company, (e) to complete the aforesaid project Vikas Cine Mall at GT Road, Shahdara and (f) to pass such other order or orders as this Bench may deem fit and proper in the facts and circumstances of the case. The petitioners' case is that the authorised share capital of R1 -company is Rs. 3 crore divided into 30 lakh shares of Rs. 10 each. The total subscribed and paid -up capital of R1 -company is Rs. 23,43,500 equity shares of Rs. 10 each.
(2.) R 1 -company is engaged in the business of Builders & Colonisers. The petitioners submit somewhere in the year 2006 they invested around 1.8 crores of money constituting 16.35 per cent shareholding of the total issued and paid -up capital of the company. The petitioners together held around 3,60,000 shares of the face value of Rs. 10 each at a premium of Rs. 40 each in R1 -company for which they paid Rs. 1,80,00,000 as on 30th September, 2006. The petitioners paid full money to the shares at the rate of Rs. 10 per share at a premium of Rs. 40 per share. Soon thereafter, R2 -5 unilaterally brought down the shareholding of the petitioners from 16.35 per cent to 15.36 per cent as on 31st March, 2009 making an allotment of 1,42,200 shares to themselves behind the back of the petitioners as reflected in the balance sheet dated 31st March, 2009. The petitioners submit that R1 is a private limited company run by R2 -5 as directors and R6 as auditor. R2 -5 are relatives and friends holding majority of the shares in R1 -company. The petitioners submit that they filed Rejoinder and, thereafter, additional affidavits bringing in subsequent facts disclosing diversion of R1 -company's interest bearing loan amount to the sister concerns maintained by respondents 2 -6, as unsecured interest -free loan, even before starting construction work of R1 -company. As on the date the petitioners entered into the company, R1 has a project for development of a plot of land at GT Road, Shahdara, into a multiplex/Cine mall known as Vikas Cine mall. This company has no other business except this project, i.e., construction of Cine mall, as understood between the petitioners and respondents. The petitioners, as on 30th September, 2006, invested Rs. 1.8 crore in this company to set up Cinema hall over a plot of land purchased for a sale consideration of Rs. 16.20 crore, inclusive of stamp duty. The petitioners submit that the reply filed by the respondent No. 4 discloses that total saleable area in the aforesaid project comprises of approximately 47,000 sq. ft. which is the covered area, plus three basements comprising of about 1,00,000 sq. ft. The admitted project cost was Rs. 43 crore, thereby the cost of acquisition with respect to the said project was approximately Rs. 9,500 per sq. ft. of covered area in the year 2010 which ought to have raised in a period of three years.
(3.) THE petitioners submit that the R2 -5 controlled and managed Vikas Multiplex (P.) Ltd., Vikas Infrastructure (P.) Ltd., Vikas Jagan Developers (P.) Ltd., Vikas Travels & Tours, Alankit Assignment, Quadria and Associates (P.) Ltd., Alankit Finsee Ltd., Vikas Associates (P.) Ltd. and Vivek Gyan Uday Foundation. They submit that United Bank of India as on 22nd July, 2006 sanctioned loan of Rs. 15 crore, out of which, as per balance sheet of the year ending 31st March, 2008, R1 -company availed Rs. 11.78 crore by the time the company was hardly at the stage of digging for foundation. This entire amount, taken for raising Cine mall went into sister concerns of the respondents though UBI Bank mandated that the loaned amount be utilised only for the purpose for which it was sanctioned, i.e., for construction of the cine mall. They submit that R1 -company took loan on interest and diverted those funds as 'interest -free loans' to the sister concerns making the company indebted for the loan amount pumped into the companies owned by the respondents 2 -5. Respondent No. 1 -company diverted Rs. 10.40 crore to various sister concerns.;