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ompany Law Board while passing an order in the matter of Shri Rupak Gupta & Others v. M/s. Banaras House Pvt. Limited has taken a very serious note of the serious breach of duty by Notaries in the capital while attesting affidavits (like affidavits having blank spaces, non disclosure of the identity of the person signing the affidavits, notarization in the absence of the deponents and cases of false impersonation and false identification of deponent.
In the present case, the learned Judge rightly observed that the conduct of the company was dishonest. There had been transactions galore running into crores. More than Rupees sixty-four lacs were admittedly paid by the company. Even then, the company initially denied the relationship, subsequently took a different stand in the affidavit that would make the position of the company vulnerable.
A list of professionals appointed by the company from 1957 onwards is extracted in the written submissions filed by the respondents to argue that the Board seat was not reserved for family members on representative basis. The list includes several non-family directors. Therefore, it is contented that though the company is promoted by three families and has representatives of three families as its shareholders, it has been professionally managed, and hence there was never any understanding or tacit consent stipulating proportional representation of the shareholders on the board. It is the specific case of the respondents that if such an understanding was there, one of the petitioners would have automatically become a director of the company.
It is noted that Shri Suresh Chandra V. Parekh and Smt. Nilaben S. Parekh jointly hold ten equity shares of Rs.100/- each under a common share certificate in HDFC Ltd. They requested for splitting of the said one share certificate into ten certificates of one share each. HDFC Ltd. acceded to their request and created 7 Folios for 7 shares with Folio Nos.5110 to 5116 but later on it was realized by HDFC Ltd. that the transferee in all 7 transfer deeds was the same person and necessary corrections were made for transfer of 7 shares into folio no.5110.
CP No 18/07 stands disposed off in the above terms. All CAs stand disposed off. All interim orders stand vacated. No order as to cost. The B.O New Delhi, Bench to send a copy of this order to R-10 & R-11 at their new address at 207-Gaur Green Avenue, Abhay Khand-II, Indirapuram, Ghaziabad, U.P.
Considering the fact that the entire claim in the instant application is based on the declaration made in the statement of affairs which was on the basis of the realisable value indicated in Ex. R1 and in that regard, if the view taken by this Court in the case of the Official Liquidator, Bangalore Batteries (P.) Ltd. (In Liquidation) v. N.S. Gopal [2010] 103 SCL 164 (Kar.) is noticed, it would be clear that the proceedings under Section 543 cannot be initiated merely based on the realisable value of the assets indicated.
To file a petition u/s 397, 398 of the Act, one has to fulfil the requirement as contemplated under the above provision of law. Unless and until the above criterion is fulfilled, the petition is not maintainable. The persons who can qualify to file the petition are (i) in case the company is having a share capital, not less than 100 members; or (ii) not less than 1/10th of the total number of its members, whichever is less.
Under section 399 of the Act, statute has made it clear that 10 per cent shareholding is requisite qualification to invoke jurisdiction under sections 397 and 398 of the Act. If the joint shareholding of first petitioner has become half, then certainly this petition is short of the requisite qualification that is required under section 399 of the Act.
In the present case the petitioner No. l was removed as director and this Bench presumes that the convening and holding of general meeting in which he was removed is legal and valid. So far as para 11.3 of the reliefs is concerned that the R1-company be directed to be operated only with the joint signature of the petitioner No.1 and respondent No.2 is concerned a similar relief is sought by the applicants in the main petition at para 9.3. Therefore, pending adjudication of main petition, I do not consider it to grant the reliefs at the interim stage. So far as reliefs at para 11.4 is concerned I am not inclined to grant the stay in conducting the shareholders and Board of directors meetings which are to be conducted by the company in accordance with the law or the company may thinks fit to call the meetings in its best interest.
The charge has to be registered by filing Form 8 with the concerned RoC in terms of section 125 within a period of 30 days after the creation of the charge. The RoC may allow another 30 days time on payment of additional fee and therefore, total 60 days time is available to file the necessary forms with the RoC for creating the charge over the properties. The Act states that company has to file the necessary forms with the concerned RoC, for registration of charges. It is obvious that the lender need to take action to get it registered with RoC to safeguard their interest.
