Vimla Yadav, Member - (1.) IN this order I am considering the Company Petition No. 93/2003 filed by M/s Opera Global Pvt. Ltd. holding 67.5% shares in the respondent company namely M/s Opera Hospital Medical and Research Centre Pvt. Ltd. alleging 'oppression and mismanagement' by the respondent No. 1 company and other respondents namely, Shri Mahesh Sharma (R -2) and Ors. This petition has been filed under Sections 397 and 398 of the Companies Act, 1956 (hereinafter to be referred as "the Act"). The petitioner has challenged the increase in the authorised and paid up share capital of the respondent company on 6.1.2003 from Rs. 85 lakhs to Rs. 125 lakhs by R -2; the allotment of Rs. 3,99,900 further shares to Shri Mahesh Sharma (R -2) and his family members thereby unauthorisedly and illegally reducing the petitioner's shareholding from 67.5% to 47%; the appointment of respondent No. 3 to 8 as additional directors on 6.1.2003 single handedly by the only director present namely, Shri Mahesh Sharma (R -2); besides, the change in the Regd. Office on 15.11.2002 from 3/52, Ladpura, Kota to A -1, Indira Vihar, Mahaveer Nagar -II, Kota (Rajasthan) as unauthorised and illegal. Hence this petition.
(2.) UNDISPUTED facts of the case are: M/s Opera Hospital Medical Research Centre Pvt. Ltd. (R -1) was originally incorporated in the year 1996 in the name and style of M/s Shantanu Cements Pvt. Ltd. with an authorised capital of Rs. 5 lacs and a paid up capital of Rs. 400 (40 shares @ Rs. 10/ - each) by Shri P.K. Sharma, Shri Sushil Kumar, Shri Prem Kumar Sharma and Mrs. Shalini Kumar Sharma as its promoter directors. The name of the company was subsequently changed to M/s Opera Hospital Medical and Research Centre Pvt. Ltd. on 15.2.1999 and necessary changes pertaining to change of name and Main Objects of business were also carried out in the Memorandum of Association. The main object of the R -l company as per the new Memorandum of Association is to carry on all or any of business of construction and running of hospital(s), Medical, Research Centre(s), Health Care Unit(s), Laboratory(ies), Testing Centre(s), Family Health Centre(s), Community Development Centre(s), Primary Health Centre(s), rehabilitation Centre(s), Centre(s), for disseminating knowledge on nutrition and health of human beings, conduct classes and or run institution(s), for education in field of medicine and community development, undertake management and maintenance of equipment, instruments and all such machines required for running of hospital, medical, research centers, etc. and assist in improving the operations of existing establishments doing the above activities including their rehabilitation, educate and train people for above, besides additional objectives. The main objects as contained in the original Memorandum of Association at the time of incorporation of M/s Shantanu Cements P.Ltd. were also included in the new Memorandum of Association. The petitioner company namely, M/s Opera Global Pvt. Ltd. is a major shareholder in the respondent No. 1 company holding approx. 67.5% of the total share capital of the respondent No. 1 company as on 31.12.2002 and is acting through its director, Mrs. Rakesh Verma duly authorised in this regard vide Board Resolution dated 24.9.03. The petitioner company had filed a tender with the Rajasthan Finance Corporation (hereinafter to be referred as RFC) for purchase of the hospital and was declared successful bidder. Opera Global Pvt. Ltd. the petitioner desired that the Hospital be transferred to M/s Shantanu Cements Pvt. Ltd. RFC agreed and at the time of issuing requisite conveyance/transfer of deed put the condition that during the currency of the loan, M/s Opera Global Pvt. Ltd. shall hold 51% of the shareholding of that auctioned hospital, the business of which stood transferred to M/s Shantanu Cements Pvt. Ltd. The name of Shantanu Cements P. Ltd. was changed to its present name by passing special resolution on 15.2.1999 and the new company was given the name of M/s Opera Hospital Medical and research Centre Pvt. Ltd. Thus, M/s Opera Global Pvt. Ltd. became major shareholder in the newly formed Respondent No. 1 company. On the date of filing of this petition the position of shareholding and appointment of directors of the company was as under: Name As on 25.3.99 As on 31.12.2002 As on 6.1.2003 Mr. P.K. Sharma Director -do - -do - Mr. Nakul Sharan -do - -do - -do - Mr. Mahesh Sharma -do - -do - -do - Additional Directors Mrs. Rakesh Verma, -do - Mr. Vinod Kainth -do - Mr. Jatin Kainth -do - Mr. Ritin Kainth -do - Directors (Disputed) Mr. Harish Chander Sharma, Mr. Umesh Chander Sharma, Mr. Anil Kumar Sharma Ms. Sunita Kumari Sharma, Ms. Santosh Kumari Sharma Mr. Yogesh Kumar Sharma The authorised share capital of Opera Hospital at the time of incorporation was Rs. 5.00 lakhs (50,000 equity shares @ Rs. 10/ - each), which subsequently with the consent of all the Directors/shareholders was increased to Rs. 85.00 lakhs (8,50,000 equity shares @ Rs. 10/ - each) w.e.f. 10.12.2002. The authorised share capital of Opera Hospital at present is Rs. 125 lakhs. The shareholding pattern of Opera Hospital as on 31.12.2002 and as on 6.1.2003 is as under: Name of the company As on 31.12.2002 As on 6.01.2003(Disputed) Opera Global Pvt. Ltd. 67.5% 5,74,000 shares 47% 5,74,000 shares+(not disputed) 100 shares allotted on 6.1.2003 Shri P.K. Sharma 10 " 10 shares Shri Prem Kumar 10 " 10 " Shri Sushil Kumar 7 " 7 " Shri Harish Chandra Sharma 3 " Nil Shri Mahesh Sharma & Associates 32.5% 2,75.970 " 54% 6,75,873 " - - - - - - - - - - - - - - - - - - - - - - Total 8,50,000 " Total 12,50,000 " The petitioner was represented by Shri U.K. Chaudhary. Advocate. Respondent Nos. 2 to 8 were represented by Shri Atul Sharma, Advocate. R -9 was represented by Shri Umesh Gulati, Advocate. However, R -1 has been represented by two counsels separately - by Shri Ajay Jain, Advocate on the authority given to him by Mrs. Rakesh Verma who is also the petitioner herein being one of the Directors of the petitioner company. At the same time R -1 is also represented by Shri Shyam Moorjani on the instructions of Mr. Mahesh Sharma(R -2). Considering the allegations and counter allegations by the two counsels representing R -1 at one point of time (as also indicated in my order dated 7.4.2006) I intended to ascertain as to which of the two counsels for R -1 (each representing different group) could be permitted to present the case for R -I. But on considering the inadequate material placed before CLB, I could in no way come to a definite conclusion in the matter. To avoid causing prejudice to any of the parties and in all fairness I permitted both the counsels for R -I to present their case. The counsel representing R -1 through the petitioners stood by the averments of the petitioner and categorically pointed out that the so called EOGM allegedly held on 6.1.2003 as well as the Directors meeting on 1.1.2003 were without resorting to the proper prescribed procedure and were held, if at all, illegally single handedly by the only director Shri Mahesh Sharma. Hence, the raising of the authorised share capital, allotment of additional shares and appointment of additional directors were all illegal. However, the counsel representing R -1 through the respondents stood by the averments of R -2 to R -8. R -9 impleaded at the fag end of the hearing on an injunction from the Rajasthan High Court, Jaipur also stood by the averments of R -2 to R -8.
(3.) SHRI U.K. Chaudhary, counsel for the petitioner strongly objecting to the delaying tactics of the respondents argued that : No notice of any Board meeting held on 1.1.2003 and on 6.1.2003, were given to or received by any of the Directors.(affidavits at pages 53 to 84) annexed to the Rejoinder dated 19.12.2003 refer); it is nowhere stated in the reply that there was any Board Meeting held on 1.1.2003. No evidence, whatsoever has been shown to the Hon'ble Board regarding any notice or meeting of board of directors purportedly held on 1.1.2003. Without a Board Meeting on 1.1.2003, no notice of EOGM could be given. Notice dated 1.1.2003 annexed to reply is not a requisition by a shareholder but is convening of the EOGM by approval of the Board. No Board meeting on 1.1.2003 was convened or held. It is admitted case of the respondent that never a Board Meeting was held outside Kota, i.e. the registered office of the respondent No. 1 company as per his own admission as per his letter dated 18.12.2003 served on the company. Hence, respondents are estopped from claiming that there was any meeting held at Jaipur on 1.1.2003. It is admitted by the respondents that on 1.1.2003 as well as on 6.1.2003, there were only 7 directors, 6 out of 7 have given affidavits on oath that no notice was received nor they attended any Board meeting on 1.1.2003 or 6.1.2003. Therefore, there could not have been a Board Meeting on these dates. That admittedly on 1.1.2003 as well as on 6.1.2003 there were seven directors out of which six directors belonged to petitioner's group. Hence respondent No. 2 Mr. Mahesh Sharma alone could not have held meeting on 1.1.2003 and or on 6.1.2003 without the concurrence and consent of other six directors belonging to petitioners group as quorum could not be completed. That a board meeting was held on 31.12.2002, whereby allotment was made of shares including to respondent No. 2 group. Hence, there is no logic that after 31.12.2002, another meeting will be held on 1.1.2003, the next day only to take such important decision, contrary to the interests of the majority shareholders. That it does not stand to reason or logic that majority of the directors of the Board and majority of the shareholders holding 67.5% shares will permit their position to be diluted from majority to minority without any reason or without any consideration. Hence it is evident that all the documents relating to increase in the authorized capital are false, fabricated and are manipulated documents and appointment of directors is also fabricated. That in any case not more than 12 directors could exist as on 6.1.2003 because Articles permit only 12 directors as on that date. Hence, even articles are allegedly amended only on 6.1.2003 (on old form) which is illegal, unauthorised and void. That manipulation of Form 32 is evident from the fact that a form signed on 6.1.2002 by Mr. P.K. Sharma is used by respondent No. 2 on 6.1.2003, that is why the date of 6.1.2003 is chosen for filing of Form 32. The malafide of the respondents is evident from the fact that on page 133 date of 6.1.2002 is mentioned on form 32 is 6.1.2002 and page 132 date mentioned is 6.1.2003.;