VINOD KUMAR SHARMA AND ORS Vs. BHAWANI COLD STORAGE PVT LTD AND ORS
LAWS(NCLT)-2016-11-17
NATIONAL COMPANY LAW TRIBUNAL
Decided on November 18,2016

VINOD KUMAR SHARMA Appellant
VERSUS
BHAWANI COLD STORAGE PVT LTD AND ORS Respondents




JUDGEMENT

V.S.R. Avadhani, Member - (1.)The Company Application is filed by the Respondents in the Company Petition, with a prayer to dismiss the Company Petition as the Petitioner (non applicant) does not qualify the essential prerequisites mandated by Sec. 399 of the Companies Act, 1956. For convenience, the parties will hereafter be referred as 'applicant' who is the respondent in the CP; and 'non-applicant' who is the Petitioner in the CP.
(2.)The Company Petition has been filed under Sections 397, 398, 402, 403 and 406 of the Companies Act, 1956 on the allegations of oppression and mismanagement of the affairs of the company for various reliefs but the main reliefs are (1) to declare the resignation of the Petitioner as null and void; (2) to declare the transfer of 10 equity shares of the petitioner in favour of Mr. Vishal Mittal (6th Respondent) as null and void and to restore the Petitioner's 25% in the equity; (3) to order for giving back 2 Pacca Bighas of land of the petitioner; and (4) to declare the allotment of all shares made other than subscribed through Memorandum of Association as null and void. The other reliefs are either supplementary or ancillary/consequential to the above core reliefs.
The contesting respondents in the CP seem to have filed the present application under Regulation 44 of the Company Law Board Regulations, 1991 before the Company Law Board (CLB) New Delhi, on 25.11.2013. That application was not registered and it is available in the record received by this Tribunal from CLB, after abolition of CLB.

(3.)The objections taken by the contesting respondents on the maintainability of the Company Petition are: (1) The Petitioner does not meet the basic criteria of having one tenth of the share capital or 1/10 of the membership as prescribed by section 399; (2) the Petitioner approached the Tribunal 20 years after his resignation and 15 years after sale of his shares; (3) The petitioner filed a civil suit in the Civil Court at Meerut with regard to some of the matters stated in the Company Petition and suppressed the fact that his suit was dismissed. (4) There was no understanding to return 2 pacca bighas of land and the petitioner has not approached the Tribunal with clean hands.
The learned Judicial Member Shri H.P. Chaturvedi, while he was sitting single on 26.08.2016 ordered that the application under Regulation 44 has to be first disposed off and ordered to list the matter on 22.9.16. We have directed the Registry to allot CA Number to the application forthwith. In those circumstances, the bench is taking up the Company Application for disposal.

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