PREM KUMAR RASTOGI AND ORS Vs. BHARAT COLD STORAGE PVT LTD AND ORS
LAWS(NCLT)-2016-12-3
NATIONAL COMPANY LAW TRIBUNAL
Decided on December 07,2016

PREM KUMAR RASTOGI AND ORS Appellant
VERSUS
BHARAT COLD STORAGE PVT LTD AND ORS Respondents




JUDGEMENT

V.S.R. Avadhani, Member - (1.)The Company Petition is heard along with the unregistered Company Application for amendment of the Company Petition. Though the Company Application was filed in the year 2010, it has been coming along with the Company Petition and nobody has taken initiative to mention the same for disposal. except when this Bench posted the Company Petition for final hearing However, as agreed by both sides, the Company Petition and Company Application are heard together, particularly because the facts in issue to be considered are very much common.
The core reliefs claimed in the Company Petition are-

1. To remove Respondents 2 and 3 or any other person appointed by the Respondents as Director of the Respondent No. 1 Company. namely, Bharat Cold Storage Pvt. Ltd;

2. Cancel the allotment and is issue of 5000 shares to the majority shareholders;

3. Cancel the transfer of 3400 shares earlier allotted in the name of Swami Dayal, Sunder Lal. Bhagwati Prasad Rameshwar Singh and Ram Asray Pandey;

4. Direct the Company to pa to the petitioners the amount of sale of petitioners' shares and dividends collected on those shares together with interest @ 15% p.a. which is lying to the credit of suspense account;

5. Direct the company to amend its articles of Association for providing proportional representation of members for appointing Directors of the Company;

6. Direct the Respondents 2 and 3 to reimburse the Company (i) interest recoverable from Giriraj Udyog Ltd., (ii) the amounts withdrawn in the Respondents its 2 and 3 from the company by manipulated repairs and maintenance expenses since the year ending 31.12.1982 and short collected storage rent;

7. In the amendment Petition referred supra, the Petitioners have further claimed the relief to cancel the allotment of 40, 000 equity shares to Giriraj Udyog Ltd.

The other ancillary or supplementary reliefs are not extracted to maintain succinctness of the order.

(2.)The Petitioners' group and he Respondents' group are family members and there are several particulars pleaded regarding family arrangement, separation of management of certain business houses owned by the family and partition of jewellery etc which are not germane for the discussion. Suffice it to state simply that, since 1976, the management of the Company was given to the Respondents' group after the expiry of Shri Arya Kumar.
Initially the authorised and paid up capital of the Company was 15 lacks of Rs. 100 per share out of which the Petitioners group held 5250 shares; and later the capital of the company was raised to 20 lacks. The Petitioners' claim is that they could not subscribe for the rights issue as their funds were blocked by the Company in the shape of unpaid Deposits. After the Respondents filed their Reply, it was brought on record that by holding an EGM on 19.01.2002. the authorised capital was raised to 60 lacks and the 40000 new shares were allotted to Giriraj Udyog, which is a company controlled by the Respondents group. It has then been contended by the Respondents that the Petitioners' holding in the Capital of the Company falls below 10% and under Sec. 399 of the Companies Act, 1956 they have an qualification either in terms of capital or in number of members and so the CP is not maintainable.

(3.)Consequent upon that Reply, the Company Petitioners filed the Application for amendment of the CP asserting that they have no notice of KGM. and the allotment of newly issued shores to Giriraj Udyog without offering to the members and this decision is not supported by any Board Resolution and is contrary to Articles of Association and is unsustainable. On those grounds the Petitioners have sought to amend the Company Petition by inserting relevant pleas as to the non-issuing of notice of KGM, and the illegality of issuing of new shares contrary to Articles of Association of the Company besides pleading to set aside the allotment of new shares to Giriraj Udyog. The Respondents have filed the reply to the Application for Amendment. It has been contended that the issuing of new shares is according to law that proper notice was given to the Petitioners and that the application is belated. It is this application that has also been coming for consideration along with the Company Petition.
The Petitioners have also filed another application to add the new Registered address of the Respondent No. 1 Company and also to add Sh. Shyam Dixit, Sh. Vipin Kumar Dixit. and Shri Atul Kumar Dixit, who are the new directors of the Company and served notices on the new directors and filed proof affidavit into the Office on 15.9.2016 but the new Directors did not enter appearance, After the CP record is transferred to this Bench from the CLB, the Office has issued notices to all the parties on record afresh and thereupon the Petitioners are appearing through Sh. Subham Aggarwal, Advocate and Sh. Anil Kumar entered appearance for the Company. The other Respondents neither appeared nor represented so far. In as much as the attributions of mismanagement or acts of oppression to the management are ultimately culminated in interdicting procedure adopted by the Company, the juristic person, we find that there is sufficient representation by Sri Anil Kumar representing the Company, to enable us to dispose of this Petition of the year 2004.

Besides that the Respondents have also filed another application taking a preliminary objection as to the maintainability of the CP on the ground that the Petitioners did not qualify the test of Sec 399 of the Act. In this application also, the Petitioners filed their reply. Sh. Subham Aggarwal Ld. Counsel for the Petitioners and Sri Anil Kumar, PCS for the Company have agreed that all the pending applications also may be disposed of along with the Company Petition.

We will deal with the key controversy of increasing the share capital from 20 lacks to 60 lacks and allotting the 40000 new shares to Giriraj Udyog, a family company in which the Respondents' group had majority interest and control. We will also refer to relevant pleadings and documents at the appropriate parts of the discussion.

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