- (1.) The Company Petition bearing CP No. 36/241/HDB/2017 is filed by Mrs. Proddaturi Malathi against M/s. SRP Logistics Private Limited and 5 others, U/s 59 and 241 R/w 242, 244 of the Companies Act, 2013, by seeking the following reliefs: a. To declare the impugned transfer of shares from Mr. Proddaturi Rama Krishna shown in the Annual Return filed for the year 2006 as null and void. b. To declare the impugned Allotment of shares made on 30.09.2015 and 26.11.2016 as null and void. c. To declare the impugned Board Meeting held on 30.09.2015 as null and void. d. To declare the impugned Board Meeting held on 31.10.2016 as null and void. e. To declare the impugned Extra-ordinary General Meeting held on 26.11.2016 as null and void. f. To declare the impugned Board Meeting held on 26.11.2016 as null and void. g. To declare the impugned appointment of Mr. Mallesham Mekala as Additional Director as null and void. h. To direct the Respondents 2, 3 and 4 to sell their shares to the Petitioner by fixing a fair value by appointing a valuer. i. To declare Annual Return filed for the period ended 31.03.2016 as null and void.
(2.) Brief facts, leading to the filing present petition, which are relevant to the issue in question, are as follows: 1) M/s. SRP LOGISTICS PRIVATE LIMITED (hereinafter referred to as the "Company") was Incorporated as a Private Limited Company on 28.05.2003, under the provisions of the Companies Act, 1956. The present Authorised Capital of the Company is Rs.40,00,000/- (Forty Lakhs only) divided into 4,00,000 equity shares of Rs.10/- each.The present Paid up Capital of the Company is Rs.30,01,000/- (Thirty Lakhs One Thousand only) divided into 3,00,100 equity shares of Rs.10/-each. 2) The Company was promoted by Mrs.Proddaturi Malathi, the Petitioner herein, Mr. Proddaturi Rama Krishna, the Respondent No. 5 and Mr. Sekhar Pendam, the Respondent No.2. 3) The Company's shareholding pattern at the time of incorporation till date is as under: a) At time of incorporation: s. No Shareholder Name No. of Shares of Rs.10/-each Amount Percentage of shares 1 Sekhar Pendam 5,000 50,000 49.95% 2 Proddaturi Malathi 5,000 50,000 49.95% 3 P. Rama Krishna 10 100 0.10% Total 10,010 1,00,100 100% (b) The Company's shareholding pattern as on 31.03.2015 as per the Annual Return for the year ended 31.03.2015 was as under: s. No Shareholder Name No. of Shares of Rs. 10/-each Amount Percentage of shares 1 Sekhar Pendam 24,995 2,49,950 49.99% 2 Proddaturi Malathi 24,995 2,49,950 49.99% 3 Salalitha Parsha 10 (impugned transfer) 100 0.02% Total 50,000 5,00,000 100% (c) The Company's shareholding pattern after the impugned allotment dated 30.09.2015 is as under: s. No Shareholder Name No. of Shares of Rs.10/-each Amount Percentage of shares 1 Sekhar Pendam 58,615 5,86,150 39.08% 2 Proddaturi Malathi 42,875 4,28,750 28.58% 3 Salalitha Parsha 48,510 4,85,100 32.34% Total 1,50,000 15,00,00 0 100% (d) The Company's shareholding pattern after the impugned allotment dated 26.11.2016 is as under: s. No Shareholder Name No. of Shares of Rs. 10/-each Amount Percentage of shares 1 Sekhar Pendam 2,08,615 20,86,150 69.51% 2 Proddaturi Malathi 42,875 4,28,750 14.29% 3 Salalitha Parsha 48,510 4,85,100 16.17% 4 Mallesham Mekala 100 1,000 0.03% Total 3,00,100 30,01,000 100% e) Shareholding details of Petitioner (after impugned allotments dated 30.09.2015 and 26.11.2016) is as under: s. No Shareholder Name No. of Shares of Rs. 10/-each Amount Percentage of shares 1 Proddaturi Malathi 42,875 4,28,750 14.29% Total 42,875 4,28,750 14.29% f) Shareholding details of Respondents group (after impugned allotments dated 30.09.2015 and 26.11.2016) is as under s. No Shareholder Name No. of Shares of Rs.10/-each Amount Percentage of shares 1 Sekhar Pendam 2,08,615 20,86,150 69.51% 2 Salalitha Parsha 48,510 4,85,100 16.17% 3 Mallesham Mekala 100 1,000 0.03% Total 2,57,225 25,72,250 85.71% 4) As on the date of Incorporation of the Company, the following were the First Directors: S No Name Designation Date of Appointment 1 Sekhar Pendam Managing Director 28.05.2003 2 Proddaturi Malathi Director 28.05.2003 i. Later on, the constitution of the Board of Directors was as follows: s No Name Designation Date of Appointment 1 Sekhar Pendam Managing Director 28.05.2003 2 Proddaturi Malathi Director 28.05.2003 3 Salalitha Parsha Director 24.10.2003 5) The impugned Board Meeting was held on 31.10.2016 for issue of Notice of Extra-ordinary General Meeting without issuing any notice of Board Meeting, as per the provisions of the Companies Act, 2013 and SS -1 (Secretarial Standard on meetings of the Board of Directors) issued by the Institute of Company Secretaries of India. 6) It is stated that Mr. Mallesham Mekala is appointed as Additional A\ \ \\ Director of the Company at a Board Meeting held on 26.11.2016 [1 XJJ for which no notice was issued as per the provisions of the Companies Act, 2013 and SS -1 (Secretarial Standard on meetings of the Board of Directors) issued by the Institute of Company Secretaries of India. 7) Allotment of shares was made in the Board Meeting held on 30.09.2015. The date of Board Meeting has not been mentioned in Form MGT-7 (Annual Return) as on 31.03.2016 which was filed with the Registrar of Companies, Hyderabad. It is alleged that in the minutes of the Annual General Meeting held on 30.09.2015, which were attached to Form MGT-14, in which the mentioning of members present is differed with the Form MGT-7 (Annual Return) filed for the financial year ended 31.03.2016 with the Registrar of Companies, Hyderabad. 8) It is contended that the Petitioner is having little knowledge on the affairs of the Company as the Respondent No. 2 being the Managing Director himself is taking care of the affairs of the Company. In fact, there were no invitations for Board meetings and general meetings held. Being a closely held company, with good faith, the Petitioner has signed on some papers given by the Respondent No. 2. The Petitioner and the Respondent No. 2 are the business associates with equal ratio of partnership in about 3(Three) Partnership Firms such as M/s. S R P Logistics, M/s. Sree Freight Forwarders and M/s. S R P Farms. Therefore,it is an understanding and known fact and condition stipulated by the both the parties orally, morally and legally that there should not be any deviation of shareholding or any share in any partnership of business firm without the knowledge of the other party. The Respondent No. 2 has violated such terms and conditions only with an intention to have a personal gain to him and to his wife with an ulterior motto to gain control over the Company. 9) The petitioner has requested numerous times to allow her to go through and inspect the books of accounts, minutes books and statutory registers including attendance registers for board meetings and general meetings, register of members, Register of Directors, register of Director shareholding, register of transfers, register of allotment, etc. However, it is alleged that Respondent No. 2 has not acceded to the request made by the petitioner and has continued to behave differently and the business of the company has been run for his personal benefits and there are occasions where the Respondent No. 2 has transferred/encashed several amounts from the Company. The Respondent No. 2 has not furnished bank statements to the petitioner in spite of several requests. The Respondent No. 2 has unilaterally operating the Bank Accounts of the Respondent No. 1 Company with his single signature as authorised signatory. Since the conduct of Respondent No. 2 is prejudicial to the interest of the Respondent No. 1 Company and to the Petitioner, it is need of the hour to change the authorised signatory for operation of bank accounts jointly with the petitioner. 10) It is stated that the petitioner has received a notice dated 04.03.2017 with regard to conducting of Board Meeting on 15.03.2017. The petitioner has made certain objections vide her letter dated 11.03.2017 with regard to conducting of the Board Meeting on 15.03.2017 in which the petitioner categorically questioned how Mr. Mallesham Mekala be regularised as Director and under what circumstances it was proposed to remove the petitioner from the Directorship. The petitioner has also questioned the proposed allotment of 99,900 equity shares to the Respondent No.2 including the intention in conducting Extra- ordinary General Meeting in a hurried manner. After receiving the said letter dated 11.03.2017, the Respondent No.2 has called the Petitioner over phone and lured her with certain promises and requested to attend the meeting. The Respondent No.2has assured the petitioner that the Petitioner will be continued as Director and appointment of Mr. Mallesham Mekala as an Additional Director will be nullified and another Additional Director with the choice of the Petitioner will be appointed in the Company and the ratio of the shareholding shall be maintained to the petitioner at 50%. The Respondent No.2 has also promised that 10 shares held by the Respondent No. 3 which was transferred illegally from Mr.Proddaturi Rama Krishna, Respondent No.5 will be transferred back to him. By believing the false promises made by the Respondent No.2, the Petitioner went to the premises to attend the board meeting on 15.03.2017 at 10.00 A.M. at the scheduled time. The venue of the Board Meeting is nothing but the residence of Smt. S.Kavitha Rani, Practicing Company Secretary, who is shown as invitee in the notice of the Board Meeting. When the Petitioner tried to enter into the venue of the Board meeting, the Respondent No. 2 and his henchmen objected the Petitioner to enter in to the premises, abused the petitioner with filthy and un-parliamentary language and threatened the Petitioner if she entered in to the premises, she has to face the dire consequences. The Petitioner was compelled to leave the premises. To avoid the physical tussle and not to have any bodily injuries, on the advice of the well-wishers, with a heavy heart of standing throughout till 12.30 P.M. as an affected party, though the Petitioner is thought of approaching the police authorities, on the advice of well-wishers and legal experts, left the premises with a view to approach this Hon'ble Tribunal for relief and justice. 11) It is stated that the Petitioner has received a notice of Extraordinary General Meeting dated 15.03.2017, which is going to be conducted on 10.04.2017 with an agenda to transact the business for removal of Mrs. Proddaturi Malathi, the Petitioner, from the office of the Director of the Company and to regularise services of Addll Director Mr. Mallesham Mekala( Respondent No. 4) as Director of the Respondent No. 1 company. The business contemplated in the proposed Extra-ordinary General Meeting dated 10.04.2017 was against the provisions of the Companies Act, 2013. The regularisation of the appointment of Mr.Mallesham Mekala from the Additional Director to Director is in sheer violation of the provisions of Section 161(1) of the Companies Act, 2013. 12) It is contended that the Petitioner has also approached the Registrar of Companies with a Complaint as soon as the notice for the Board Meeting dated 04.03.2017 is received by the Petitioner. It was advised by the office of the Registrar of Companies that the Petitioner has to file an electronic Investor Complaint Form for a speedy Redressal of the complaint. Accordingly, as advised, the Petitioner has filed the complaint in the electronic form with the Registrar of Companies. No reply has been received so far till the date of this petition about action if any initiated. 13) It is alleged that allotment of shares to Respondent No. 2 & 3 as on 30.09.15 with an intention to gain control over the Company and to reduce the stake of the Petitioner is against the provisions of Section 62 of the Companies Act, 2013 is an act of oppression. The petitioner ought to get equitable ratio of shares but has been allotted with less number of shares. 14) It is alleged that the petitioner has not received any notice to convene the Board Meeting, which was stated as held on 31.10.2016. The only aim of conducting such board meeting was nothing but to convene the Extra-ordinary General Meeting with an aim to increase shareholding of the Respondent No.2 and allotting shares to the Respondent No. 4. Therefore the Board Meeting held on 31.10.2016 is not valid and against the provisions of Section 173(3) read with 173(4) of the Companies Act, 2013. 15) Allotment of shares made on 26.11.2016 to the Respondent No. 2 and the Respondent No. 4without issuing notice of Board Meeting to the Petitioner is not valid and allotment is made to gain control over the Company and to reduce the stake of the Petitioner which is against the provisions of Section 62 of the Companies Act, 2013.lt is another act of oppression. 16) The appointment of Mr. Mallesham Mekala, the Respondent No. 4 as an Additional Director at the Board Meeting held on 26.11.2016 without issue of notice for Board Meeting to the Petitioner is not valid and his appointment is against the provisions of Section 173(3) read with 173(4) of the Companies Act, 2013. The above act is mismanagement and it is only to gain control over the Board which is against the interest of the Petitioner. 17) It is therefore, contended that above series of the oppressive acts of the Respondents 2 & 3 would cause an equitable ground to wind up Company but it will be prejudicial to the interest of the Petitioner as well as the 1st Respondent Company. Therefore, the Petitioner has filed the present petition by seeking the relief as mentioned supra.
(3.) The Company petition is opposed by the respondent No. 1 and 2 and their contentions, in brief, are as follows: 1) The petitioner has come out with unclean hands by not disclosing that she was all along consenting party as a whole time Director of the Company, on this count alone the petition is liable to be dismissed. 2) The Company was incorporated in 2003 and it is engaged in the Customs Clearance, Freight Forwarding, Logistics and Transportation. To carry out the activities of the company a Customs Broker License issued by Govt, of India is must. Without this Custom Broker License, company would not be able to carry on its main objects. The respondent No 2 has successfully cleared the written examination of the Customs and Central Exercise and got License No. 07 of 2003. Only the second respondent is competent to transact the business of Company and the petitioner is not qualified to work as custom house agent. It is asserted it is only second respondent, who is instrumental in running the affairs of Company. 3) It is contented that Petitioner has drawn remuneration of Rs.5,40,000/-each for year 2014-15& 2015-16. Annual Returns are not routine matter and they are prima facie evidence as per Section 95 of the Act. The petitioner herself uploading all annual returns, now cannot belatedly feign the ignorance of the contents thereof and she is prevented from the challenging the same. It is stated that transfer request from Respondent No. 5 was noted by the Company in the Board Meeting held on 04.04.2005 in which Petitioner was also present.. It was decided in the said meeting that the shares be transferred to Respondent No. 3, who is the Director of the Company; the petitioner who was present consented for the decision. On 16.06.2005 the Board approved transfer of 10 shares from Respondent No. 5 to Respondent No. 3. In the said Board Meeting, the Petitioner is also the beneficiary of first allotment of shares to the extent of 19,995 she is the beneficiary in the allotment to the extent of 17,880 shares. She exercised her voting and other rights in those shares in the AGMs, EGMs held subsequently. By accepting the shares allotted to her, the petitioner cannot question the decisions selectively and it is not only barred by laches and limitation but she is also estopped from questioning it. In this regard, the petitioner relies upon the judgment Hon'ble NCLAT in Appeal No. 26 of 2016 in the Case of M/s. Esquire Electronics Inc. Anr. Vs. Netherlands India Communications Enterprises Ltd. & others dated 15.02.2017, in which it is interalia held as under: "We also agree with the finding of the Tribunal that the suit for which there is no prescribed period is provided as per Article 113 of Limitation Act 1963, period of limitation is three years. For the reason aforesaid we agree with the findings of the Tribunal that the appellant(s) cannot rake up any issue which is barred by limitation i.e., of a period which is three years prior to the date of filing of the Petition." 4) The respondents have also relied upon the judgment rendered in Abdhul Rahim vs. Md. Azimuddin (AIR 1965-Patna-156) , in support of their contentions that while admitting signed some blank papers, is now denying every signature of her and it is nothing but blowing hot and cold in same breath. They relied upon para (8) of the judgment which reads held as under: "(8) ... There is a certain amount of peril for the party who takes absolutely inconsistent pleas grounded on different and contradictory facts, and while leading evidence in support of them he will have to blow hot and cold in the same breath which is bound to shake confidence in the truth of his allegations. For such reasons, inconsistent defences that will depend upon contradictory facts are not generally permitted....." 5) Mere denials of signature of petitioner, after signing relevant proceedings in question of Board Meetings are not all tenable. In this regard , the respondents relied upon para 24 of rejoinder filed before NCLAT , which reads as under: "24....It is submitted that mere lacuna on the part of the appellant, if any , in raising objection at the time of the Meeting dated 30th September, 2015, cannot amount to sanction of the unlawful and illegal conduct of the Respondents in conducting the said Meeting." 6) It is stated that list of allotees contains all the three Directors of the Company, who are also 100% shareholders of the Company got shares allotted by merely converting the pending share application money that was lying in the books of accounts and were allotted by way of unanimous resolution passed by the Board of Directors (and also 100% shareholders of the company) . The Balance sheet for year 2014-15, which clearly discloses a sum of Rs. 8,42,601/- was pending as share application money and this balance sheet was also authenticated by petitioner herself. The Ministry of Corporate Affairs vide its notification No. G.S.R. 241(E) dated 31.03.2015 has directed the companies to complete the share allotments with respect to share application money pending with the Company before the notification of 2013 Act. Hence the company allotted shares with respect to pending share application monies received from shareholders/directors to the extent of the share application money pending as on 30.09.2015. Since all these shareholders and directors have participated and approved the allotment on 30.09.2015 there cannot be any complaint or grievance on this issue by any of the shareholders. L\7) It is stated that the petitioner has also admitted her attendance 9) 1 at Board Meeting held on 31.10.2016 and the same is also I reiterated in the rejoinder of petitioner filed before Hon'ble NCLT at para 27, which is extracted below: "...it is submitted that mere lacuna if any in raising any object at the time of meeting dated 31.10.2016 cannot amount to sanction of the unlawful and illegal conduct of the respondents in conducting the said meeting.... The conduct of the petitioner is clearly exposed where she takes different stands before NCLAT and NCLT. On one hand she complaints she-has not received notice for the Board Meeting and on the other hand she says she attended the Board Meeting. Both statements cannot stand together. 8) It is denied that no notice was issued to the petitioner for the Board meeting held on 26.11.16, and on the contrary, she has participated in it, and consented for decisions taken during the meeting. And she never made any complaint so far either to the Company or to the respondents regarding this allotment. She has attended meetings subsequently.;