VYSHAK INTERNATIONAL HOTELS P. LTD. Vs. P.S. KURIAN

JUDGEMENT

(1.) THE present application is filed by respondents Nos. 1, 6, 7 and 9 praying this Bench to dismiss the petition as not maintainable on the ground that the petitioners do not hold any shares in the company and have executed share transfer deeds. Shri R. Murari, learned senior counsel appearing for the applicants submitted that none of the petitioners are shareholders and have transferred their shares more than two years back. The petitioners who have ceased to be shareholders, have filed the present petition with a mala fide intention for the purpose of preventing the first respondent -company from getting an FL 3 licence to entitle it to serve liquor on the premises. The petitioners falsely declared themselves to be shareholders and have sought to file the present petition. Petitioner No. 1, i.e., Shri P.S. Kurian, transferred his shares as early as May 20, 2008, in favour of Mr. Nishad Mathew, the ninth respondent herein. He also issued a letter acknowledging the transfer and receipt of consideration. The board, of directors approved the transfer of shares. In so far as the second petitioner, i.e., Shri P.K. Jose (P.C. Jose) is concerned, it is reiterated that no one by the name of P.C. Jose has ever been a shareholder of the company and therefore no such person herewith can ever figure as a petitioner in the present petition. In the earlier petition the name given was P.C. Jose and he has also signed as such in that petition. In the present petition, there remains a controversy between P.K. Jose and P.C. Jose though both of them are shown at the same address. Assuming that the person concerned is in fact P.K. Jose, the said P.K. Jose has also transferred his shares in the company and the relevant transfer deed and board minutes, extract from the register of members of the company are filed along with this application. The third petitioner, i.e., Shri Kurian Thomas executed a share transfer deed on May 20, 2008, transferring his shares in the company and has also issued an acknowledgment acknowledging the receipt of consideration and confirming that he has no interest in the shares of the company. The fourth petitioner, i.e., N.K. Mathai has also executed a share transfer deed on May 20, 2008, transferring his shares in the company. Therefore, the petitioners have no locus standi to file the petition and the petition is to be dismissed as not maintainable. The petitioners have filed quite a detailed counter and denied the allegations and averments made in the application. Shri Rajesh, learned counsel appearing for the petitioners submitted that the petitioners have not made any voluntary transfer of shares in favour of any person and hence the claim of the applicants that the shares were already transferred is false and the burden of proof of such voluntary transfer lies on the applicants herein. It is submitted that the applicants hijacked the company from the petitioners and made use of the blank transfer deeds duly signed and kept in the company's premises by the petitioners, thereby creating a share transfer in the name of the applicants and the ninth respondent and making a claim that the petitioners have transferred their entire shares in the company to the applicants. It is submitted that during the pendency of C.P. No. 9 of 2008, the applicants invited the petitioners for settlement of talks and during the course of the settlement the petitioners executed the blank transfer forms and kept them in the company's premises along with the share certificates under the impression that the matter would be settled between them and the applicants insisted the petitioners to withdraw C.P. No. 9 of 2008 from this Bench as a pre -condition to finalise the settlement. The applicants have filed some letters to show that as if the respondents have given in writing that they have voluntarily transferred the shares to the applicants herein. The letters are fabricated and the petitioners denied the execution of any such letters and the applicants must furnish the original letters before this Bench and the said letters must be sent to the Forensic Science Department for signature verification and its genuineness. The petitioners state that they have not executed any share transfer form nor received any consideration from the applicants towards sale of any shares. It is reiterated that the blank transfer forms containing the signatures of the petitioners have been misused and the rest of the columns in the forms were filled -in by the applicants herein to suit their convenience to exhibit as if there was a transfer by the petitioners to the applicants herein. It is submitted that the exhibition of the share transfer forms and the letters dated May 20, 2008, are being disputed by the petitioners, and as such the applicants cannot claim that the petitioners are not shareholders of the company and submitted that the said letters are not genuine and are fabricated documents. It is reiterated that the petitioners continue to be shareholders and directors of the company and the applicants through their misdeeds cannot eliminate or throw the respondents out of the company and the burden of proof is on the applicants to prove before the Bench that how they claim that the petitioners are not the shareholders of the company. In view of the reasons, the application is devoid of merits and liable to be dismissed.

(2.) RESPONDENTS Nos. 6 and 7 have filed their counter and submitted that the present application is an abuse of the process of law on the ground that they have not made out any prima facie case seeking reliefs as prayed in the application. It is stated that the applicants herein invited the respondents/petitioners for settlement and laid a condition that the petitioners should withdraw the petition to pave way for settlement and the petitioners were forced to withdraw the petition to comply with the pre -condition imposed by the respondents. Had there been any settlement, it would have been reported to this Bench and recorded in the order of this Bench but no settlement was arrived at between the parties. The averment regarding transfer of shares by the petitioners to respondents Nos. 6 to 9 is totally false. Further, these respondents were the promoter -directors of the company since its incorporation. To the knowledge of these respondents, no board meeting was held wherein the share transfer was approved. Any document produced in support of the claim of the applicants could be fabricated documents purposely created to justify their fraudulent acts. As directors of the company these respondents were aware that when C.P. No. 9 of 2008 was filed by the petitioners, the respondents were invited for settlement of talks and laid a condition that the petitioners should execute the blank transfer forms and kept them in the company's premises along with the share certificates. Accordingly, the petitioners signed the blank transfer forms and kept them at the company's premises on the pretext that the matter would be scaled soon. However, the said C.P. No. 9 of 2008 was simply closed as withdrawn on November 7, 2008, though no settlement was reached between the petitioners and the respondents.

(3.) THE said affidavit is signed by petitioner No. 1 and is dated February 22, 2010, admittedly much later to the transfer of shares. The first petitioner in his letter dated January 19, 2010, addressed to the Excise Commissioner, Thiruvananthapuram, stated that: