K.J.SENGUPTA, J. - (1.) THIS is an appeal against the judgment and order of the learned Trial Judge of the Company Court dated 9th June, 2010 by which the appellants' application for recalling order dated 16th June, 2003 sanctioning the scheme of amalgamation between the respondents and also for cancellation of the scheme of amalgamation between the respondents and for reversal of respondent companies to their original position as prevailing prior to the sanction of the scheme and consequential direction upon the Registrar of Companies and Official Liquidators has been rejected. While rejecting the said application the learned Trial Judge recorded certain findings which had gone against the respondents companies and as such cross-objection has been filed against the said portion of the judgment. Accordingly, both the appeal and cross-objection are hoard together and being disposed of by the following common judgment and order.
(2.) THE short fact leading to filing the application before the learned Trial Judge and consequently preferring appeal to this Court are follows:- The aforesaid appellants were the applicants numbering 11 (eleven) before the learned Trial Judge. Out of these five appellants 1 to 6 are person individuals, and the rests are private limited companies. It appears that the said individual applicants by virtue of majority shareholding are really controlling the appellant companies. It also appears that these appellants are also really majority shareholders of the respondent companies No. 2 to 7. The detail shareholding patterns of all the appellants in the respondent Nos. 2 to 7 are stated in the application. The learned Trial Judge has recorded this fact accurately and this fact of extent of shareholding are not denied and disputed by the respondent- companies. In the application grounds for aforesaid reliefs are stated in the affidavit in support of Judge's summons. Sum and substance of the same which are relevant for the purpose of deciding the appeal is as follows:- (a) Applicant Nos. 1,2,8 and 10, shareholders of respondent No.1 did not attend the meeting dated 18th May 2002 nor they received any notice of the meeting, (b) One Dr. Narendra Rungta and Dr. Mrs. Neena Rungta shareholders of the respondent No.1 have affirmed affidavit before the Company Law Board, New Delhi in the petition No.37 of 2004 that they have not received any notice nor they attended meeting. It is therefore clear that there were fifteen total shareholders against thirteen total shareholders of the respondent No.1 at the relevant time and out of which at least six shareholders did not attend the meeting out of the alleged thirteen shareholders. (c) Subsequent to the amalgamation, no notice was given to the applicants herein with regard to the amalgamation or otherwise. The applicants were never asked by the Transferee Company to make over their shares scripts of the Transferor Company and collect share certificates of the Transferee Company in lieu thereof. (d) The scheme as sanctioned has not been accepted by a majority of the shareholder. The shareholders purporting to accept the scheme of amalgamation do not form a requisite majority. No individual notice was served upon the shareholders. Notices were said to have been received by the alleged proxy-holder of the shareholders. There is no justification to issue notices to the alleged proxies. For the companies i.e., respondent No.2 to 7 no evidence has been adduced to prove service of notice under certificate of posting. (e) No notice of the said meetings has been received by the applicants, although the applicant No.1 was a Director in respondent No.1 i.e. Rungta Chemical Limited now Roadco India Private Limited and applicant No.4 was director in respondent No.1 and respondent No.5 i.e., Hadoti Cements Limited at the relevant time. (f) Applicant Nos. 1 and 4 did not receive any notice nor attended any Board Meeting of any of the respondents held for the purpose of considering the scheme of amalgamation. (g) Therefore, in the above manner a fraud has been practised on the shareholders and upon the Court reporting that directions have been complied with on the strength of which sanction has been obtained for the amalgamation of the companies. So far other grounds taken in the said application are concerned we are of the view the same are not required to be considered at the moment, as if it is held that in spite of having received notice or knowledge no action was taken within the time as permitted by the law challenge to the subsequent action is not entertainable at all.
(3.) THE said application has been opposed by filing affidavit affirmed by one Suresh Kumar Rungta who has claimed to be constituted Attorney of the first respondent. Bereft of all details which purport to deal with the allegations contained in the petition, relevant objections are summarized hereunder: (a) The instant application has been filed against six non-existent companies. The application is barred by limitation and also hit by the principle of res judicata or at least constructive res judicata. (b) The applicants who purport to be parties interested in the scheme of amalgamation sanctioned by this Hon'ble Court by order dated 16th January, 2003, and by the Hon'ble Court in Rajasthan on 17th October, 2003, were at all material times since the sanctioning of the scheme, aware of the same. Some of the petitioners had unsuccessfully challenged the scheme before the Hon'ble High Court at Rajasthan, and had thereafter again unsuccessfully challenged the same sanctioned by this Court through one Ambika Prasad Modi before this Hon'ble Court. Despite the fact that some of the petitioners actively supported Ambika's challenge by filing affidavit, they have also joined with other petitioners in the present action. (c) Inasmuch as the issue raised in the instant application was directly and substantially was issue in the application filed by the said Ambika Prasad Modi before this Hon'ble Court, and that filed by some of the petitioners before the Hon'ble High Court at Rajasthan, all of them were heard, finally and decided previously by both the Hon'ble High Court, hence instant application is clearly hit by the principle of res judicata and/or constructive res judicata. (d) The applicants suppressed material fact that the applicants Nos. 1 to 4 are the brothers of Rajendra Prasad Rungta, a Director of respondent No.1. Their other brothers are Budhi Prakash Rungta and Dr. Narendra Kumar Rungta. (e) The principal shares in the respondent Nos. 2 to 7 and eight others companies namely RMC Med Limited, the petitioner No.9 Active Traders Private Limited, petitioner No.10 Choon Moon Trading and Finance Private Limited, Amber Commercial Private Limited, petitioner No.7 Camaro Marketing Private Limited, Camaro Projects Private Limited, petitioner No.8 Raja Trade and Credit Private Limited and Dharni Pharma Private Limited were at all material times held by the petitioner No.4 Vinod Kumar Rungta, Rajendra Prasad Rungta and petitioner No.1 Suresh Kumar Rungta and by their respective family members, friends and associates. (f) In terms of the scheme shares of Roadco (India) Limited were also allotted to the shareholders of the respondent Nos. 2 to 7. In essence the scheme which was framed in terms of the order of the Court has not only been sanctioned but the same has been acted upon. Thus despite being well and fully aware of the sanctioning of the scheme of amalgamation by the Hon'ble High Court at Calcutta on 16th January, 2003, through out the entire course of 2003 no challenge whatsoever to the sanctioning of the scheme of amalgamation of the respondent Nos. 2 to 7 by the petitioners or by any one else was made. In fact, with the sanctioning of the scheme of amalgamation by the Hon'ble High Court at Jodhpur on 17th October, 2003, Suresh Kumar Rungta accepted the same by entering into the understanding and/or arrangement on 18th October 2003, on the basis thereof from the beginning of 2011, and agreeing that he would leave the company in the event of being paid a sum of Rs.1.5 crores. (g) In the annual returns of these companies signed by the said Suresh Kumar Rungta himself and/or his associates for the year ended 31st March, 2002 reflected the actual shareholding of Rajendra Prasad Rungta, his family members, friends and nominees in the said companies. The annual return filed by the same set of persons as on 31st March 2004 showed that their shareholding in the companies had been completely either done away with and/or drastically reduced. This could not have been done in view of the expressed object of the understanding and/or arrangement of 4th January, 2001, sanctioning of the scheme of amalgamation to give effect to the same and understanding and arrangement of 18th October, 2003, inter alia, recording the intention of Suresh Kumar Rungta to part with the entire interest in RMC Med Limited against payment of sum of Rs.1.5 crores. ;