Decided on January 23,2015

Sudhir Kumar Gupta And Ors. Respondents


B.S.V.PRAKASH KUMAR - (1.)THE petitioner filed this company petition under sections 397 and 398 read with section 402 of the Companies Act, 1956, against Sudhir Kumar Gupta (respondent No. 1), Utkarsh Kumar Gupta (respondent No. 2) and M/s. Ashish Ashiana P. Ltd. (respondent No. 3), alleging that respondents Nos. 1 and 2 dealing with the affairs of the company prejudicial to the interest of the petitioner, therefore, sought the reliefs as follows:
(2.)"(a) To call the records pertaining to the company filed with the Registrar of Companies as per the Companies Act, 1956,
(b) To seize the accounts of the company during the pendency of the case,

(c) To quash the illegal agenda passed by the board of directors of the company for removal of the petitioner from the directorship of the company under section 283(1)(g) of the Companies Act,

(d) To quash the appointment of respondent No. 2 as director of the company in the alleged resolution dated January 10, 2009,

(e) To declare 11,000 shares allotted to respondent No. 2 without any notice to the petitioner as invalid,

(f) To declare all the resolutions passed in board meetings and general meetings as invalid and,

(g) To grant any further relief which may be fit and proper in the facts and circumstances of the case."

The case of the petitioner is that the petitioner and respondent No. 1 are cousin brothers residing at Etah, Uttar Pradesh and they together incorporated respondent No. 3 company on November 27, 2008, by becoming promoter directors with 50 percent, shareholding each. The authorised share capital of the company is Rs. 5 lakhs, wherein the petitioner and respondent No. 1 were allotted 5,000 shares each having value of Rs. 10 each. Respondent No. 3 company has come into existence to carry real estate business, in pursuance thereof, respondent No. 1, acting as a power of attorney holder on behalf of one Sudhir Kumar Gupta, son of Shri Surender Kumar Gupta, Rajesh Kumar Gupta son of Suresh Kumar Gupta and Ms. Anju Gupta, daughter of Suresh Kumar Gupta, sold land admeasuring 467.43 sq. mt. situated at Etah in Uttar Pradesh for a sale consideration of ten lakhs of rupees on August 25, 2009. The petitioner submits that he himself paid sale consideration of Rs. 10 lakhs from his pocket to respondent No. 1 in cash in the presence of witnesses namely, Shri Ratnakar Gupta, Shri Mukidul Rehman and Shailesh Saxena, though the document has been executed in favour of the company. He also submits that these three people filed affidavits stating that the petitioner himself paid cash of Rs. 10 lakhs to respondent No. 1. He also submits that respondent No. 1 surreptitiously got inserted a clause in page No. 15 of registered sale deed, a note saying that 21 cheques bearing numbers 365556 to 365576 were issued in lieu of sale consideration, he further submits in the same document in page 7 of the registered sale deed, it has been said that respondent No. 1 received a sum of Rs. 10 lakhs in cash from the second party, i.e., the company represented by the petitioner, which is inconsistent to the note subsequently given at page No. 15 of the sale deed.

The petitioner submits respondent No. 1 appointed his son Utkarsh Gupta (respondent No. 2) as director of respondent No. 3 company on January 10, 2009, contrary to the provisions of articles of association and without notice to the petitioner, therefore, Form 32 filed by them showing digitally signed by the petitioner showing respondent No. 2 as director is null and void.

(3.)APART from this, respondent No. 1 allotted 11,000 shares to respondent No. 2 in violation of the articles of association, without making any offer of allotment proportionate to the shareholding of the petitioner and without notice to the petitioner. The petitioner submits that he has not received any notice to any meeting; even the notices shown as given through UPC with one day gap notice before meeting date. The petitioner submits, on inspection, he came to know that respondent No. 1 put up documents with the Registrar of Companies showing meetings were held on April 24, 2010, May 24, 2010, June 23, 2010, March 27, 2010, August 9, 2010 and August 28, 2010, stating that the meeting were held in all these cases with one day gap between the date of issual of notice and meeting date, therefore, even assuming they were issued by respondent No. 1, they are all on short notice to the petitioner. The petitioner denies that he received notices to any of the meetings aforesaid.

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