K. Anantha Padmanabha Swamy, Member - (1.) Under consideration is a petition filed by Shri. S. Ramesh, (the Petitioner) under section 59 of the Companies Act, 2013 (the Act, 2013) seeking an order directing M/s. The South Travancore Hindu College Association, (the Company) to rectify the Register of Members by deleting the name of the R3 and in the place of his name to restore the name of the petitioner.
(2.) The brief averments made in the petition are: The father of the petitioner had purchased 1 (One) share of A Class of the Company from one Mrs. Thanammal and it was transferred to his name and a share certificate bearing No. 70D dated 03.03.1983 was issued to him. On the demise of the father of petitioner, the said share was transferred to Ins mother on 04.09.1989 and due to a family partition the said share was transferred to the petitioner on 29.11.1989. Thus the petitioner became the shareholder of the company. Since the share certificate was mutilated, the petitioner had applied for a duplicate share certificate and a duplicate share certificate dated 07.12.1991 was issued to him by the Company. During the year 2001, the petitioner had lost the duplicate share certificate and on his application a fresh duplicate share certificate was issued to him on 26.07.2001. The company is used to issue notice for the Annual General Meeting (AGM) and the petitioner used to attend such meetings. On 17.09.2003, an AGM was held, but, no notice was issued by the Company to the petitioner. When the same was enquired by the petitioner, the Company had informed him that the A class share has been transferred to R3. Since, the petitioner has not transferred his share, immediately he has filed police complaint against R3, however, the police did not take any action saying that the case is of a civil nature. Subsequently, the petitioner filed a suit in OS No. 585/2003 on 26.09.2003 before the Court of the Principal District Munsiff, Nagercoil and the said court has passed an interim order on 26.09.2003, however, the same was vacated on the application filed by the Respondents. The said court has finally dismissed the said suit on the ground of jurisdiction. Aggrieved by the order made by the District Munsiff Court, the petitioner filed an appeal before the Principal Subordinate Judge, Nagercoil and the said appeal was partly allowed and partly dismissed and a direction was given to the petitioner to approach the Company Law Board (CLB) . Hence this petition was filed before the erstwhile CLB. The petitioner never transferred his shares to the R3 and the name of the petitioner was omitted from the Register of Members of the Company without showing sufficient cause and the acts of the deletion of the name of the petitioner was made on forged documents with active collusion of R3. Since the transfer of shares was effected on the basis of forged documents, the same is null and void. The learned PCS while reiterating the above averments, prayed that the Company be directed to rectify its Register of Members by deleting the name of the R3 and in the place of his name to restore the name of the petitioner.
(3.) The Rl and R2 have filed counter wherein inter-alia raised preliminary objections and the averments are: The petitioner is aware that the R3 has transferred his shares to one Mrs. S. M. Vijila in the year 2006 itself and it is evident from the report of cross examination by the petitioner Counsel in OS No. 585 of 2003. The petitioner has suppressed this fact from the Tribunal and he has also not made the said Mrs. S. M. Vijila as a party to the present proceedings. Therefore, the petition is to be dismissed for non-joinder of parties. The Company was registered in the year 1951 and it is an educational institution functioning at Nagercoil. It is a non-profitable organization and the shareholders are not entitled for any dividend or interest for the shares they hold. The father of the petitioner had purchased A class share of Rs.5000/-(distinctive No. 108) from one Thanammal and it was transferred to his name on 03.03.1983 vide Folio No. 50 (Share Certificate No. 70 D/20.01.1983) . Subsequently the same was transferred to his wife on his demise and again it was transferred to the petitioner on 29.11.1989. (Folio No. 67) . The petitioner has applied for a duplicate share certificate and the same was issued on 07.12.1991 (Duplicate share Certificate No. 80) and again he has applied for another duplicate share certificate and the same was issued to him on 26.07.2001 (duplicate share certificate No. 95) . Thus the petitioner came to be in possession with two duplicate certificates for the same set of shares. The petitioner transferred his shares to the R3 on the basis of the 1st Duplicate Share Certificate (Certificate No. 80) for valuable consideration. Since there were two duplicate certificates, the Company insisted for a written request from the Petitioner and the petitioner addressed a letter dated 06.09.2003 to the Company wherein he stated that he had sold the shares to R3 and he has no objection to transfer the same to R3. The petitioner signed the transfer deed on 06.09.2003 in which his signature is attested by a Notary Public. Based on the said document the Rl and R2 transferred the A class share to the R3 in the board meeting held on 17.09.2003. Subsequently petitioner filed a complaint before Police Authorities against R3 and the Notary Public and also filed a suit in OS No. 585 of 2003 before District Munsiff Court, Nagercoil and the said suit was dismissed for default on 03.08.2006. In these circumstances, the R3 sold the said A class share to one Mrs. S. M. Vijila and submitted a letter dated 20.09.2006 informing the no objection for the transfer to Mrs. S.M. Vijila. The R3 also submitted the share transfer form duly attested by a notary public. Therefore, the Company transferred the shares to Mrs. S. M. Vijila on 26.09.2006 and she owns the shares presently. After the subsequent transfer to Mrs. S. M. Vijila, the OS No. 585 of 2003 was restored and finally the said suit was dismissed on 10.12.2011 on merits. The petitioner preferred an appeal before the First Class Additional Subordinate Judge, Nagercoil and vide order dated 11.09.2013, the said appeal was party allowed and partly dismissed. The petitioner applied for the second duplicate share certificate and sold the shares on the basis of the earlier duplicate share certificate issued on 07.12.1991 without disclosing the existence of the second duplicate share certificate to R3. The petitioner played fraud against the Respondents with ulterior motive and violated the principles of law and justice and has not approached this Tribunal with clean hands. The learned Counsel for the Rl and R2 while reiterating the above averments prayed for the dismissal of the petition.;