M K Shrawat, Member - (1.) This is a Company Petition filed by the Petitioner under section 241 read with section 242 of the Companies Act 2013 against Respondent Nos.2 (R.2) and Respondent No.3 (R3) for conducting the affairs of the Respondent No.l (Rl) Company in a manner prejudicial and oppressive to the Petitioner members and are against the interest of the company, apart from being illegal. This case was listed for hearing on several occasions in the past but unfortunately the Respondent has never bothered either to file a reply or to represent the matter either personally or through any Representative. The Petitioner has placed an Affidavit dated 16.8.2017 affirming the service of Petition on the Respondent. According to the "Consignment Tracking Record" the delivery is confirmed. There is one more Affidavit of Service dated 13.10.2017 through which the Petitioner has affirmed that the today's date of hearing (20-11-2017) was duly intimated. Although number of opportunities were granted but the Respondent remained absent throughout. It is worth mentioning at this stage that these very Petitioners earlier had filed a Petition under section ill of the Companies Act on 06.02.2012 wherein as well, the Respondent was M/s. Ravi Gum Industries. Even at that time this very Respondent remained absent, hence Company Petition No.01 of 2012 & Company Petition No.ll of 2012 were decided vide Order dated 22.05.2017 with the following observations":- "3. Before I proceed further it is necessary to place on record that the Respondent remained non-cooperative throughout the proceedings. The case records are full of notings of non-attendance of the Respondent although since the filing of the Petitions in the year 2012 number of opportunities were granted. It is worth to devote some time in mentioning the non-appearance of the Respondent consistently recorded in the order sheets. On 7th August 2013, the then respected member of the CLB in para 1 had made an observation that "despite consistent efforts, service upon Respondent No. 1 company could not be effected. We registered en velopes received back with an endorsement "closed". The notice sent through courier has been received back with the endorsement "shifted". Despite publication made in newspaper the Rl did not choose to appear. On the website of the ROC, the company is reflecting "active". 3.1 Thereafter an advocate viz. Mr. Jit B. Patel started appearing on behalf of the Respondent as per an evidence on record a letter dated 24-11-2013 asking for an adjournment. On 14-02-2014 advocate Mr. Patel appeared and the matter was adjourned. Thereafter again the Respondent or his representative remained absent, as a result, on 14-09-2016, the Registry was directed to issue notice to the Respondent by fixing the date of hearing on 24-10-2016. On 24-10-2016 Mr. Jit P. Patel for the Respondent was present in the court and the observations made as under:- " CP No. 01/111/CL V/MB/2013 5. The Petitioners are represented by id. Advocate Mr. Narendra L Jain and the Respondents are represented by Ld. Advocate Jit P. Pate/. 6. After hearing both the sides for some time, the Bench is of the opinion that the main controversy revolves around the signatures, alleged by the Petitioners as forged, on the Transfer Forms. 7. Therefore, in the interest of justice, it is hereby directed to the Respondents to produce a sealed cover the original Transfer Forms and the Share Certificates along with the connected evidences to the bench Officer on or before 19 November, 2016 so that the genuineness of the signatures can be examined and verified by the authorised agency i.e. Forensic Science Laboratory, Mumbai. 8. After obtaining said report the matter can be listed for hearing on 23rd January, 2017. Date is duly communicated to both the parties." 3.2 On 23-01-2017 Petitioner remained present but no one was present from the other side. The Petitioner has informed that though a letter dated 02.01.2017 issued to the Respondent and intimated to produce the relevant documents, as directed on the last date of hearing held on 24-10-2016, but no compliance was made. The case was adjourned directing the Respondent to comply the directions and the date fixed was 21-02-2017. None appeared on behalf of the Respondent, hence a cost of Rs.5,000/- was imposed as per the following interim order:- " TCP No. 11/111/CLB/MB/MAH/2012 TCP NO,01/111/CLB/MB/MAH/2013 1. The Learned Representative for the Petitioner is present. No one is present from the side of the Respondent. 2. The Petitioner has intimated that inspite of the directions issued by an Order dated 27" January, 2017 the Respondents have not complied with the requisite documents as directed therein. On the last occasion it was observed that in case of non-compliance a cost can be imposed. Considering the past record and the regular non-compliance from the side of the Respondents costs ofRs. 5000/- (Rupees Five Thousand only) in each Petition (CP 11/2012 and CP 01/2013) is imposed to be paid either to the Petitioner or the Legal Representative of the Petitioner on or before the next date of hearing. 3. Both the Petitions are adjourned to 8h March, 2017 with a direction to the Petitioner to communicate this Order as well as the next date of hearing to the other side. It is also directed to place on record through an Affidavit the proper service to the other side. 3.3 When these petitions were again listed for hearing on 08-03-2017, neither the Respondent was present nor any compliance of the earlier directions have been made. To enforce the cooperation of the Respondent again a fine of Rs. 15,000/-was imposed with a direction to pay the fine to the Petitioner/legal representative on or before 30tfl March 2017. These petitions were listed finally on 18-04-2017. On the said date of final hearing the Petitioner was present and as happened in the past, the Respondent remained absent. Learned counsel of the Petitioners has strongly pleaded that the matter is very old therefore should be decided today being listed for final hearing. He has vehemently pleaded that more than enough opportunities were granted to the Respondents. Hence deserve no more opportunity. This bench is left with no option but to proceed ex-parte qua the Respondent to decide these petitions on the merits of the case." 1.1 From the past history it is evident that the Respondent is an established defaulter. Therefore, this Bench is left with no option but to proceed ex-parte qua the Respondent and herein below decide this Petition on merits after hearing the Learned Representative of the Petitioner.
(2.) Facts of the case revealed that R.l is a Company in which the Petitioners collectively hold 18.84% (18436+13408'31844 shares out of 1,69,000 shares issued by the Company) of the total shares issued of the Respondent No.l Company. The Petitioner has alleged that the names of the Petitioners were illegally removed from the Register of Members of the Company, in spite of this Tribunal's Orders in Company Petition No.1/2012 and 11/2012 to restore the names of the Petitioners to the Register of Members of the Respondent Company. Since the Respondents have violated the Orders of this Tribunal, the Petitioners have filed the impugned Petition under Clause (a) of Subsection (l) of Section 244 read with Section 241 and 242 of the Companies Act, 2013. 2.1 The Petitioners have prayed that the Respondents be directed to maintain status quo with respect to a property having address as A-l/14, Vatva GIDC Industrial Estate at Ahmedabad which was allegedly transferred to one firm viz. Poonam Industries run by Shri Prabhudas Patel. 2.2 The Petitioners admit that in the year 2001, at the request of the Petitioners, the Respondents have agreed to pay some amount to the Petitioners on the condition that the Petitioners would resign from the Directorship of the Company and would also discontinue as Partners from some of the Firms. They have agreed to the same and accepted Demand Draft issued to them in August, 2001. However, the Father (now deceased) of the Petitioner No.l had reassured the Petitioners that the shareholding in the Company would remain intact and would continue to enjoy all the rights connected therewith. Thereafter due to strained relationships among the family members, there were no proper communication after the death of the Father in the year 2004. It is also stated by the Petitioners that during the years 2001 to 2010, there was no filing done by the Respondent Company with the Registrar of Companies. However, the details regarding the filings were done together in one go in the year 2010 and at that point of time the Petitioners came to know that 18,436 shares held by the Petitioner No.l and 13,408 shares held by Petitioner No.2 were shown to be transferred in favour of Late Shri Premchand Dharamshi Dedhia, Dhanji Dedhia and Girish Dedhia somewhere in the year 2000-01 that too on the basis of forged share transfer forms. It was stated that the Petitioners had never executed any such share transfer forms. Thereupon the Petitioners moved the then Company Law Board. That Petition was subsequently got transferred to this Tribunal. This Tribunal, in its Order dated 22.05.2017 in Company Petition No.Ol/lll/CLB/MB/2012 & ll/lll/CLB/MB/2012 passed the following orders, only relevant portion reproduced below :- "4. Considering the totality of the facts and circumstances of the case as well as the attitude of the Respondent I am of the considered opinion that the Respondent company should comply the directions of this judgement to rectify the "Register of Members" by restoring the names of the Petitioners. The provisions of section 111 of the old Act has empowered the Tribunal to entertain an appeal of the aggrieved person if he ceased to be a member of the company by illegally removing his name from the Register of Members". The Respondent Company is directed to comply the directions within 30 days on receipt of this order and submit the compliance report/information to the office of the concerned ROC. In case of non-compliance the company may be liable for damages and other consequential legal action. 5. The Petitioner is hereby directed to serve a copy of this order to the Respondent and place on record of NCLT the proof of service of the order. A copy of this order is also to be delivered in the office of the ROC. The Petitioner shall also recover the fines on the Respondent as imposed during the course of hearing, mentioned supra."
(3.) In the light of the past background now in the present Petition the Petitioners have also casted a doubt that the shares of the Father of the Petitioner No.l seems to have been transferred to one Jignesh Dedhia and Gangaben Dedhia. They claimed that such transfers, if made, would also be void as it is in violation of Articles of Association of the Respondent Company and in violations of the provisions of the Hindu Succession Act, in view of the fact that the Father of the Petitioner No.l i.e. Shri Premchand Dedhia did not transfer the shares while he was alive and the shares have been transferred mala fidly after his death to defraud the Petitioners and to defeat their rights.;