DHAN RAJ - (1.) IN this case, the Petitioner Company has filed the Petition under Secs. 397 and 398 of the Companies Act, 1956 for the alleged acts of oppression and mismanagement on the part of the Respondents and the said petition is under consideration for adjudication. Precisely speaking, it has been mentioned that the Petitioner along with the Respondent No. 2 acquired the Respondent No. 1 Company. Earlier the name of the Respondent Company was M/s. Bhaskar Finvest Pvt. Ltd. and the same was changed to M/s. Saboo Engitech Pvt. Ltd.
(2.) The Petitioner Advocate has highlighted that the Respondent Company, M/s. Saboo Engitech Pvt. Ltd. has made allotment on 5th December 2002, 31st March 2004 and 24th September 2004 to various persons and in one of the allotments, the Respondent Company, M/s. Saboo Engitech Pvt. Ltd. allotted the shares at the face value of Rs. 100/ - each to the allottees. 1.1 The Petitioner Advocate has further averred that the Petitioner Company advanced an unsecured loan of Rs. 1,52,46,015/ - to the Respondent Company, M/s. Saboo Engitech Pvt. Ltd. and the same also found reflected in the audited Balance Sheet of the Petitioner Company. The Petitioner Company after sometime asked the Respondent Company to return the unsecured amount along with interest to which the Respondent Company expressed its inability to repay the same. However, the Respondent Company agreed to allot its equity shares to the extent of its unsecured loan. The Petitioner Company having been left with no alternative agreed to subscribe the aforesaid allotment. At that time, the Respondent Company persuaded the Petitioner Company to subscribe the 3040 equity shares at a premium of Rs. 4,900/ - per share on the ground that intrinsic value of the equity share of the Company is more than Rs. 5,000/ - per equity share. The Petitioner Company on the basis of the statement of the Respondent Company agreed to subscribe 3040 equity shares of Rs. 10/ - each at a premium of Rs. 4,900/ -. Thus, the Petitioner Company invested Rs. 1,52,00,000/ - into the Respondent Company. In this regard, it has been pointed out that in order to show that the value at which shares are being allotted to the Petitioner Company, are actually the book value of the Company, simultaneously allotted sub -equity shares to the other existing shareholders at a premium of Rs. 4,900/ -. Accordingly, after obtaining the consent of the Petitioner Company, the Respondent Company allotted 3040 equity shares at a premium of Rs. 4900/ - per equity share and Form No. 2 was filed with the Registrar of Companies, Rajasthan. 1.2 It has been alleged in the Petition that immediately after making the impugned allotment on 18th February 2008, the Petitioner Company further allotted shares to the Respondent No. 2 on 1st September 2009 without charging any premium. In the Reply, the Respondents Advocate has controverted that the Petitioner has provided no details of the alleged unsecured loan or the transaction relating to the same which was converted into equity in 2008 by allotment of shares to the Petitioner. Further, it has been pointed out that the Petition has been filed by Mr. Girdhar Saboo allegedly as authorized signatory of the Petitioner Company whereas he has filed the affidavit accompanying the Petition in his personal capacity as the Petitioner. 2.1 It has also been submitted that Mr. Girdhar Saboo and the Respondent No. 2 are real brothers and till 2000, the Respondent No. 1 Company was controlled and managed by Mr. Girdhar Saboo who was looking after the day to day affairs of the Respondent No. 1 Company. However, in the year 2000, the management of the Respondent No. 1 Company was taken over by the Respondent No. 2. During that period, the Respondent No. 1 Company was under the control of Mr. Girdhar Saboo and the Petitioner Company was reflected as sundry creditor of the Respondent No. 1 Company, however, the amount of credit was disputed. It is also evident from the fact that the name of the Respondent No. 1 Company is not reflected as unsecured creditor in the balance sheet of the Petitioner Company. In this regard, after change of control of the Respondent No. 1 Company, the Respondents asked for details of the said credit for a considerable period and Mr. Girdhar Saboo, apart from showing the book entries made during his control offered no satisfactory reply to material to justify the accounting entries. However, since the said amount was reflected as sundry credit in the books of the Respondent No. 1 Company, it was agreed between the Petitioner Company and the Respondent No. 1 Company to allot 3040 equity shares of Respondent No. 1 at a premium of Rs. 4,900/ - per share towards settlement of disputes by squaring off the book entries. Under these circumstances, it was agreed between the Respondent No. 1 Company and the Petitioner to accept the shares with no conditions. Thus, before the allotment of the said shares, the Petitioner Company was not a shareholder of the Respondent No. 1 Company and only after obtaining the consent of the Petitioner Company, the Respondents allotted 3040 equity shares at a premium of Rs. 4,900/ - per share. Consequently, a Company having subscribed to the shares at a particular price cannot now resile from the same and request under the garb of the present petition for the variation of the terms already agreed to. 2.2 The Respondents Advocate has also reiterated that the quantum of the sundry credit of the Petitioner Company reflected in the books of the Respondent No. 1 Company since 2000 though was seriously disputed the Petitioner Company took no steps for its recovery and decided to compromise the matter by agreeing to subscribe the shares of the Respondent No. 1 Company for a premium. Further, the allotment made on 18th February 2008 which has been confirmed in the Petition, were approved and consented by the Petitioner Company. Subsequently, allotments were made by the Respondent No. 1 Company on 1st September 2009 at the face value at such time and even at such time, though the Petitioner Company had no right to participate in the issuance of capital, it was offered to subscribe to the additional shares if it so desired but the Petitioner Company did not want to infuse any money into the Respondent No. 1 Company. Further it has been highlighted that even with respect to such additional allotment made on 1st September 2009, the consent letter was signed and delivered by the Petitioner Company. For this allotment made in 2009, the Form No. 2 was duly filed on 16th September 2009 and the allotments have been duly reflected in the annual returns for the years 2009 onwards. 2.3 The Respondents Advocate has also emphatically mentioned that the Petitioner is a Public Limited and a Listed Company in which the Respondent No. 1 Company holds 1,60,000 equity shares of Rs. 10/ - each.
(3.) THE Petitioner Advocate filed the rejoinder stating therein that in the Board meeting held on 9th August 2012, Shri Anuj Kumar Samdhani was not present in the meeting even though notice of the same was sent to him with the request to him to attend the meeting. However, he did not attend the Board meeting nor any leave of absence was sought. In fact, the meeting was attended by three Directors of the Company viz. Shri Atul Kharbanda, Shri Vijay Verma and Shri Navrsinh Pathusinghabhai Parmar and in the said meeting Shri Girdhar Saboo was authorized to sign, verify and file the present Company Petition. Moreover, Shri Anuj Kumar Samdhani resigned from the Board of the Company on 24th October 2012 and in his resignation letter, he requested the Company to accept the same with immediate effect. Accordingly, in the Board meeting held on 26th October 2012, the resignation letter of Shri Anuj Kumar Samdhani was accepted by the Board. Apart from this, it has been alleged that the conduct of Shri Anuj Kumar Samdhani is contrary to the fiduciary duty entrusted to him and hence, it has been decided by the Board to initiate criminal proceedings against him. Not only this, the Board re -enforced the faith in Shri Girdhar Saboo and again, passed the resolution confirming the earlier resolution passed on 9th August 2012 authorizing him to file the present petition. In view of this, it has been submitted that Shri Girdhar Saboo is an authorized signatory of the Petitioner Company and in the capacity of a signatory, he has filed the affidavit in support of the Petition. 3.1 The Petitioner Advocate has also reiterated that the Petitioner has paid a substantial amount of Rs. 1,52,00,000/ - for acquiring 3,040 equity shares of Rs. 10/ - each at a premium of Rs. 4,900/ - per share. As a matter of fact, as stated in the Petition, the Petitioner Company has advanced an unsecured loan of Rs. 1,52,46,015/ - to the Respondent company and the Respondent Company allotted the shares in lieu of the unsecured loan and the Petitioner Company agreed to subscribe the aforesaid shares. The Petitioner Advocate has pleaded that once the Respondent Company has accepted the allotment, there is no occasion to the Petitioner to divulge the details of the unsecured loan. In addition, it has been pointed out that the Petitioner Company was allotted shares at a premium of Rs. 4,900/ - per share and the allotment made thereafter has been done at the face value and no premium has been charged by the Respondent Company from the subsequent allottees. 3.2 Lastly, it has been emphasised that in the subsequent allotment made on 1st September 2009, a total number of 7,150 equity shares were allotted to Respondent No. 2 and his daughter and to Respondent No. 3 without charging any premium which is clearly an oppressive conduct on the part of the Respondent Company. In addition, it has also been averred that if the Respondent Company has any grievance with the Petitioner Company, the same can be agitated by writing to the Petitioner Company by filing a complaint against the Petitioner Company.;