KHURSHID ALAM Vs. P PAGNON COMPANY P LIMITED

JUDGEMENT

(1.) THIS is a petition filed by Mr. Khurshid Alam, the petitioner herein, on 9 August, 200, under Section 111 of the Companies Act, 1956 (hereinafter called as 'the Act') praying for rectification of register of member of P. Pagnon Company (P) Ltd. (hereinafter called as 'the respondent company'). The facts of the case, as stated in the petition, are that sometime of 1966, the promoter director, Mr. Pierre Pagnon, of the respondent company sold his shareholdings in the company to Enamul Haque and Nasir Ahmed and left for Italy. Both the groups held equal stake in the respondent company, i.e., 701 shares were held by each of the two groups. During the year ended on 31.3.1986, the paid up share capital of the respondent company was Rs. 1,40,200 divided into 1,402 equity shares of Rs. 100 each. Thereafter, the paid up share capital was alleged to have been increased to Rs. 2,90,200 divided into 2,902 equity shares of Rs. 100 each. The respondent company is now managed by the directors, viz Mrs. Munera Khatoon (wife of late Nasir Ahmed); Mr. Shahnawaz Akhtar (son o late Nasir Ahmed) and Mr. Seraj Ahmed (brother of late Nasir Ahmed). Nasir Ahmed died in 1994. Late Enamul Haque, a Mohammedan, who was the owner of 697 shares of the respondent company died on 23.6.1984 and left a will. By his late will and testament dated 5 January, 1983, late Enamul Haque, inter alia, bequeathed the said 697 shares of the respondent company in favour of his second son, viz., Mr. Khurshid Alam, the petitioner herein. Late Haque died leaving behind his wife, Hasina Begum (since deceased), five sons (Mr. Masood Alam, Mr. Khurshad Alam, Mr. Jamshed Alam, Mr. Jahangir Alam and Mr. Mahmood Alam), and one daughters (Ms. Shagufta Yasmin) who was married to Mr. Iqbal Ahmed, and thereafter she became Mrs. Shagufta Iqbal. In the last will and testament dated 5.1.1983 of late Enamul Haque, it has been mentioned, inter alia, that:

(2.) The respondent Nos. 1, 2 and 3 filed an affidavit opposing the grant of the relief prayed for and the respondent No. 4 also filed separate affidavit adopting the same stand taken by the respondent Nos. 1, 2 and 3. The petitioner filed rejoinder to the said affidavits-in-opposition. The respondents while refuting all the allegations of the petitioner, have stated that the petitioner has deliberately suppressed material facts and has made misleading allegations in the petition. The petitioner and his four brothers had sent a letter dated 5.3.1986 to the respondent company along with an affidavit dated 27.3.1985, wherefrom it appears that the purported will of the petitioner's father alleged to have been executed on 5.1.1983 has been brought into existence subsequently. In the said affidavit dated 27.3.1985, the petitioner has stated that their father died intestate, and as such, five brothers including the petitioner were entitled to the share in the company, namely, 697 shares and his brothers had no objection to the shares being transmitted to the petitioner alone. In the said affidavit, the petitioner deliberately did not mention that their mother was alone inasmuch as the petitioner has also a sister. It is alleged that the petitioner and his brothers, sister and mother did not take any interest in the company, and as such, late Nasir Ahmed had to take effective steps in the interest and for the benefit of the company so that the company could survive. On receipt of the letter dated 5.3.1986 the matter was discussed in a Board meeting of the respondent company held on 7.7.1986 and the petitioner and his brothers were requested to produce the succession certificates as also the death certificates of their, father, Enamul Haque, to enable the company to take effective steps in the matter. The petitioner also suppressed material facts that at the time of allotment of further shares in 1986, the petitioner and his brothers were aware of such allotment, but they were not interested in the shares. From 1986, till sometime in 1992, the petitioner and his brothers did not take any information regarding the affairs of the company and they also did not produce the succession certificate and the death certificate and other documents to enable the company to take effective steps in the matter inasmuch as they did not attend any annual general meeting of the company. The purported will dated 5.1.1983 was allegedly accepted on 19.11.1985 by five brothers and the sister, but there was no such acceptance by the mother of the petitioner, who was then alive. In any event, from the letter addressed to the company on 5.3.1986 and from the affidavit affirmed on 27.3.1985, it would appear that the name of the sister was not even mentioned. Beside, the purported will was attested by the notary public on 25.11.1998. In a Board meeting held on 22.9.1999, it was resolved that the will seemed to be not genuine, and the company had reasons to believe that the same must have been brought into existence with an attempt to practice fraud on the company and on all concerned, and as such, it was decided that mere production of purported will was not enough but the complainant should be requested to produce proper documents for consideration of the company. Moreover, the petition is hopelessly barred by the law of limitation, particularly, when question of declaration and consequent transfer of shares of involved. The respondents have denied that Enamul Haque, a Mohammedan, by his last will and testament dated 5.1.1983, inter alia, bequeathed the said 697 shares of the company in favour of his second son, the petitioner. The respondents have also alleged that the death certificate of late Enamul Haque is not a geninue one, inasmuch the said Enamul Haque died at his residence at 31/7, Miazen Ostagur Lane, Kolkata 700 017 and his late rites were performed at the Iraqi Burial Ground in Kankurgachi, Kolkata, where as the death certificate shows that at the time of death the said Enamul Haque was at Hazi Muhammed Mohasin Road, Budge. The respondents' father stated that they are not the members of Iraqi Welfare Society and as such, the purported decision, if any, or the rules and regulations, if any, of the said society are not binding on the company and the shareholders of the company. Moreover, the said Iraqi Welfare Society was not competent to adjudicate upon the alleged disputes. The respondents have further alleged that the petitioner is not entitled to transmission of shares, particularly, when the alleged will being the source of his right, is prima facie not genuine and the same must have been brought into existence by the petitioner with ulterior motive. Accordingly, the respondents submitted that no case has been made out in the petition warranting interference of this Company Law Board in the matter and the petitioner is not entitled to any relief claiming therein particularly from the relief fro declaration prayed for by the petitioner and that the petition should be dismissed with costs.

(3.) THE petitioner in his rejoinders denied all the allegations made by the respondents in their affidavits.