SANTUSH MANE Vs. VIGHNAHARTA BUILDERS & PROJECTS (P.) LTD

JUDGEMENT

(1.) THE present application is filed praying this Bench to dismiss the CP No. 76 of 2011 filed by the 3rd respondent herein as not maintainable and also prayed this Bench to vacate the ad interim orders dated 26th September, 2011. Shri Devitre, learned senior counsel for the applicant submitted that the petitioner is not and has never been a shareholder of the company and does not qualify under section 399 of the Act. The petitioner claimed his entitlement to file the present petition on the basis that he has succeeded to the estate of his late father to the extent of 50 per cent of the equity shares. The petition is a gross abuse of the process of law. The petitioner has not submitted any succession certificate, probate or letters of administration to substantiate his claim for membership as required by the articles of association of the company. The petitioner and his sister are the children of late Mr. Sunil Mane from his divorced wife, Ms. Shalaka. The petitioner has approached this Bench with ulterior motive and unclean hands to grab a part of shares of the company though not entitled to the same. The petitioner is not on the register of members of the company and has in fact never been on the register of members of the company and, thus, does not have any locus standi to file the petition. The petitioner has deliberately suppressed some extremely vital and important facts from this Bench which are as follows. The petitioner was appointed as an additional director of the company on 30th April 2011 and e -Form 32 filed with the Registrar of Companies ('RoC'), Mumbai relating to his appointment. He regularly attending the office of the company. He was also authorised in respect to the various bank accounts of the company on 5th May, 2011 with a power to singly sign cheques up to any limit and in fact signed the cheques on behalf of the company and has illegally retained the company's cheque books with him. He in fact has access to all the operations of the company and all the records of the company including accounts and financial records. The petitioner has siphoned off huge sums of money from the accounts of the company for his personal benefits, by, inter alia, purchasing luxury motor vehicles from the funds of the company for his personal use. Since the petitioner has intentionally and with mala fide intention suppressed the above facts from this Bench, therefore, the present petition grossly suffers with suppressio veri and is liable to be dismissed on that ground. It is submitted that the petitioner has not established legally that he is the legal heir of the deceased shareholder nor established his right by obtaining a succession certificate or probate or letters of administration. There is a succession dispute relating to Mr. Sunil Mane's estate, therefore, even on that score the petition cannot lie in the face of a disputed succession. It is further submitted that the petitioner has not submitted any application with the company for transmission of shares of his father. It is a fact that a Board meeting of the company was held at the registered office on 5th May, 2011 at 4.30 PM to appoint the petitioner as a signatory to the bank accounts and the petitioner did not attend the said Board meeting as he was not present in the office on that day. The petitioner has unlawfully and fraudulently obtained an acknowledgement allegedly on behalf of the company on an alleged application for transmission dated 5th May, 2011. Even if it is assumed without admitting that the petitioner has submitted the application for transmission of shares, it is pertinent to note that the petitioner has admittedly not submitted any documents in support of his claim for alleged entitlement for transmission of share certificates. It is submitted that this Bench cannot decide the complicated questions of facts and law and disputed succession issues while considering a petition under section 111 of the Companies Act, 1956 ('the Act'). Even otherwise, the petition is not maintainable as a composite petition in the facts of the present case and the face of disputed succession issues. The relief's purporting to be under section 111 cannot be combined with allegations claim under sections 397 to 400 and 402 to 405 of the Act in the present case. The petitioner is bound to first establish his claim to become entitled to the estate and shares of late Mr. Sunil Mane in a civil court. In support of his contention the learned senior counsel relied upon the judgments :

(2.) THE petitioner has filed his detailed reply to the application. Shri Raju Subramaniam learned senior counsel appearing for the petitioner submitted that the application is wholly unmeritorious and untenable filed with a sole intention to mislead this Bench. It is submitted that there is no suppression of facts as contended by the applicant. The petitioner's appointment as a director on 30th April, 2011 is of no material consequence to the company petition which specifically deals with the oppression caused by the applicant. Further authorising the petitioner to sign cheques on behalf of company and deal with various bank accounts also has no connection with the oppression caused by the applicant. It is categorically stated that the petitioner has a locus standi to file the company petition and the same is maintainable on the ground that petitioner's father held 64,560 equity shares in the company and he was a permanent director and his name still continues to reflect on the company's register of members. The petitioner and his sister being the sole legal heirs are entitled to his estate in toto. It is settled position in law that legal heirs and representatives of the deceased member are entitled in law to redress their grievances against any form of oppression suffered by them in capacity of legal heirs and representatives of the deceased member. Even the applicant has acknowledged that the petitioner and his sister as the legal heirs of late Sunil Mane. There is no dispute insofar as their legal heirship is concerned, therefore no succession certificate or probate or letters of administration necessary for maintaining the petition for redressal of their grievances. Thus, the present petition is maintainable and bar under section 399 cannot be attracted. The petitioner has not embezzled any funds nor mismanaged the company. The allegation in respect of purchase of cars is concerned, it is submitted that the cars were purchased by the company in the name of the company during the petitioner's father's life time. The learned senior counsel further submitted that the petitioner made an application on 5th May, 2011 to the company seeking transmission of shares, but the company is denying the fact of making such an application. The applicant being the own uncle of the petitioner acknowledges the fact that the petitioner and his sister are the legal heirs and there is no requirement of succession certificate or probate or letters of administration. It is submitted that there is no complicated question of fact and law arisen in the present petition. It is an undisputed fact that the petitioner and his sister are the only legal heirs of late Sunil Mane. As a matter of abandoned caution, the petitioner applied for letters of administration and filed appropriate proceedings in that regard before the appropriate forum. It is further submitted that it is settled position in law that a 'member' of a company also includes a legal representative of a member. It is submitted that the name of the petitioner is not required to be on the register of members of the company on the date of the petition. The right to file the petition by the petitioner is in the capacity being a legal heir and representative to the estate of late Sunil Mane who held an overwhelming majority of shares in the company. Therefore, the petitioner has locus standi to file the petition and the same is maintainable. In support of the contention the learned senior counsel relied upon the following decisions :