DHANANJAY PANDE Vs. BAIS SURGICAL AND MEDICAL INSTITUTE PVT LTD

JUDGEMENT

(1.) THE petitioner claiming to be entitled to hold 49% shares in M/S Dr. Bais Surgical & Medical Institute Private Ltd. (the company) has filed this petition under Sections 397/398 of the companies Act, 1956 (the Act) alleging that by allotment of further shares to themselves the respondents 2 and 5 have reduced the shareholding of the petitioner and that the company is in the process of handing over complete control of the company to the 9th respondent which would be against the interest of the petitioner and the company. With these allegations, the petitioner has sought for cancellation of the allotment made and also for restraining the company from entering into any MOU with the 9th respondent.

(2.) The facts of the case are that the petitioner had earlier filed a petition under Sections 397/398 of the Act (CP 9 of 2001) which was disposed by an order dated 2nd December, 2004. In terms of the said order, the company was directed to allot 1475998 shares of Rs. 10 each to the petitioner or in the alternative refund the entire amount of Rs. 1.475 crores invest by him along with an interest of 6% from the date of investment till the date of payment. In a board meeting held on 15.12.2004, reserving its right to file an appeal against the order of this Board, the company decided to allot 1475998 shares to the petitioner and by a letter dated 16.12.2004, the petitioner was informed of the said decision. On the same day, i.e. on 15.12.2004, the company also held an EOGM to increase the authorized capital of the company from Rs. 3 crores to Rs. 10 crores. On 25.12.2004, while allotting shares to the petitioner as per the decision on 15.12.2004, the board of the company also allotted shares to the 2nd and 3rd respondents against their earlier investment. With these allotments against the investment already made, the shareholding of the petitioner and the 2nd and 3rd respondents came to be 49% and 51% respectively. However, on the same day the 2nd respondent was allotted further 60 lakh shares as consideration for sale of the land and building in which the hospital is functioning, to the company. The petitioner has challenged the allotment of 60 lakh shares to the 2nd respondent on the ground that the same was made solely with a view to dilute the percentage shareholding of the petitioner from 49% to around 15% and also to enable the 2nd respondent group to take complete control of the company in view of his holding going up from 51% to about 85% shares.

(3.) THE learned Counsel further submitted: At the time when the petition was mentioned, this Board had directed that no management agreement should be entered into by the company with M/S Wockhardt. When the petitioner apprehended that the company/respondents might enter into management agreement, filed CA 54/2005 which was heard by this Board and by an order dated 14.3.2005 directed that the management agreement would be subject to final order on the petition. THErefore, a finding on this aspect should also be given.