JONAS HEMANT BHUTTA Vs. SURGI PLAST LIMITED

JUDGEMENT

(1.) THIS is a petition filed under Section 111 of the Companies Act, 1956, filed by Mr. Hemant Bhutta for and on behalf of minor, Jonas Hemant Bhutta, for restoration of the name of the petitioner in the register of members of the respondent-company as owner of 22,500 equity shares of Rs. 10 each of the respondent-company. In the petition it is stated that the petitioner was the owner of 22,500 shares of the respondent-company and this fact was also reflected in the annual return filed by respondent No. 1-company with the Registrar of Companies, Gujarat, Ahmedabad, for the years 1987-88 and 1988-89 respectively. The respondent-company had wrongfully and fraudulently without sufficient cause omitted from the register of members the name of the petitioner from July 30, 1990. According to the petitioner, the petitioner's father, Mr. Hemant Bhutta, is the natural guardian and he has not transferred or authorised the transfer of any of the shares held by the petitioner. It is further stated that in the register of members the name of the petitioner has been removed and the name of respondent No. 4, Mrs. Sunita B. Shah, director of the company and wife of the third respondent, Mr. Bipin Shah, the managing director of the first respondent-company, has been incorporated. It is further pointed out that the fourth respondent is an aunt of the petitioner and the third respondent is an uncle of the petitioner. According to the petitioner, the omission of the petitioner's name from the register of members of the respondent-company came to his knowledge for the first time in July, 1991, and immediately the petitioner took inspection of the records of the respondent-company. It is further submitted that the transfer of shares has taken place without the approval of the board of directors. It is submitted that the shares have not been sold or transferred to any person and no instrument of transfer has been executed by the petitioner's lawful natural guardian.

(2.) In the reply filed by respondent No. 1, it is stated that the petition is misconceived and not tenable and there is no genuine cause or justification to file this petition. It is pointed out that the petition involves highly disputed questions of fact and serious disputes about the title to the shares which cannot be resolved in summary proceedings and the proper course to adopt is to refer the parlies to a competent civil court. It is submitted that Mr. Hemant Bhutta is guilty of suppression of material facts and of making false and misleading statements and Mr. Hemant Bhutta has not come with clean hands and, therefore, the petition deserves to be dismissed. Further, the petition is, otherwise, also barred by delay, laches and acquiescence. It is further submitted that Mr. Hemant Bhutta was working as the executive director of the first respondent-company from 1986 to 1990 and he has made several unreasonable and arbitrary demands against the first respondent. It is also pointed out that Mr. Hemant Bhutta has not returned the first respondent-company's car and this petition appears to have been filed with a view to pressurise the management of the first respondent-company so that it may submit to his unreasonable demands. It is submitted that Mr. Hemant Bhutta has also made false complaints about the non-receipt of share certificates belonging to him and his family members and, ultimately, it was discovered that a large chunk of those shares are lying with the Canara Bank Mutual Fund as a collateral security for the equity buy-back arrangement. The respondent-company has also alleged that the inspection report, exhibit 'A', to the petition is false and fabricated and the company denies the contents of the said exhibit. Mrs. Vibha H. Bhutta, mother of the petitioner minor Jonas, has acted as a natural guardian for the petitioner and Mr. Hemant Bhutta, being aware of the same, has no locus standi to file this petition as Smt. Vibha H. Bhutta has been acting as natural guardian in respect of this folio. The company has also stated that when 32,000 shares were acquired for the first time by Jonas H. Bhutta, Smt. Vibha H. Bhutta has executed transfer deeds and produced the share transfer forms along with share certificates for effecting transfers of 32,000 equity shares and these shares were subsequently transferred to Vikas Finance Pvt. Ltd. All the transfer forms in connection with these transactions were signed by Smt. Vibha H. Bhutta as natural guardian and the petitioner has failed to disclose this in the petition. Regarding the second entry in the register of members, it is submitted that the company has made allotment of 10,000 equity shares on July 7, 1988, and the said application was submitted by Smt. Vibha H. Bhutta as guardian of the minor petitioner. As regards the third entry relating to acquisition of 12,500 equity shares in two lists of 2,500 and 10,000 shares, it is submitted that both the forms were signed by Smt. Vibha H. Bhutta in her capacity as the guardian of the petitioner. The company has further submitted that as an officer of the company, the petitioner was present in the board meeting held on November 10, 1990, when all the transfers effected during the year including the impugned shares were approved but it was not objected to by him.

(3.) SMT. Vibha H. Bhutta has also filed an affidavit dated July 12, 1992, wherein it is submitted that according to Hindu law, Hemant Bhutta, father of Jonas, is the only natural guardian who has the necessary power to deal with his property. In this connection, she has invited attention to Sections 6 and 11 of the Hindu Minority and Guardianship Act, 1956. She has further submitted that she has no right or authority to deal with or transfer the said 22,500 shares or any shares belonging to or which stood in the name of Jonas in the register of members or any other property of Jonas and that the alleged transfer of 22,500 shares belonging to Jonas is illegal, null and void and is not binding on Jonas or Hemant Bhutta or on anyone else. She has further pointed out that the first respondent-company should not have accepted/approved the transfer form signed by her. She has submitted that since she was related to respondent No. 4 and they were holding jointly some shares of companies other than respondent No. 1, on the request of respondent No. 4 she gave a few blank transfer forms to respondents Nos. 3 and 4 which have been misutilised by them.