(1.) The two plaintiffs namely (i) Ajit Kumar Mittal; and, (ii) Flowmech Engineers Private Limited have instituted this suit impleading, (i) Rekha Garg; (ii) Mahesh Garg; (iii) Yogesh Aggarwal; (iv) Amar Aggarwal; (v) Sudhir Aggarwal; (vi) Hari Om Prasad Sharma; (vii) Bhero Baba Info Solutions LLP; (viii) Chakradev Devcon Private Limited; and, (ix) The Sub-Registrar-IIA, District West, Paschim Vihar, New Delhi, as defendants, for:-
(2.) On a reading of the plaint, it was felt that the suit is not maintainable. The suit came up first before the Court on 25th February, 2020, when on the ground of non-availability of Ms. Meena Chaudhary Sharma, Advocate for the plaintiffs, adjournment was sought and the suit adjourned to today. Today the senior counsel for the plaintiffs has been heard on admission.
(3.) It is the case of the plaintiffs in the plaint, that (i) the plaintiff no.1 was a director and shareholder of SAS Info Solutions Private Limited (SAS) which has been illegally converted into defendant no.7 Bhero Baba Info Solutions LLP (BBISLLP) by defendants no.1 to 6; (ii) the basic asset of SAS, of which Sunil Jain was one of the directors, was the land aforesaid at Village Mundka; Sunil Jain was interested in selling the said land; (iii) the plaintiff no.1 approached Sunil Jain for purchase of the land aforesaid, value whereof was assessed at Rs.52,00,000/- in the year 2011; (iv) the plaintiffs talked about the same with the defendant no.2, an acquaintance of the plaintiffs, who suggested that instead of purchasing the land in the name of the plaintiff no.1, the land be purchased in the name of a company, to enable use thereof for commercial purposes; (v) Sunil Jain offered to the plaintiff no.1, the entire shareholding of SAS, and it was finalised that the plaintiffs will purchase the entire shareholding of SAS and thereby also acquire title to the land aforesaid; (vi) the defendant no.2 induced the plaintiff no.1 to appoint his wife, defendant no.1 as director of SAS; the defendant no.2 also requested the plaintiff no.1 that although the total capital had been invested by the plaintiffs but the share distribution could be done later on as defendant no.1 was to be projected as Woman Entrepreneur before the Railway Department, to seek tender of solar project from the Indian Railways with whom the defendant no.2 was employed at a senior position; (vii) the plaintiffs paid the entire amount of Rs.58.50 lakhs for acquiring 100% shareholding of SAS and the erstwhile directors of SAS handed over physical possession of the land to the plaintiff no.1; (viii) the plaintiff no.1, in good faith, handed all title documents to defendants no.1&2; (ix) the plaintiffs and the defendant no.1, on 20th September, 2011, together purchased the shareholding, assets and liabilities of SAS against the payment of Rs.58.50 lakhs, through the funds of the plaintiff no.2 Company; (x) the plaintiffs, on 27th September, 2010, paid a sum of Rs.30 lakhs to SAS from the account of plaintiff No.2 for purchase of liabilities of SAS and pursuant to the said payment, the defendant no.1 was appointed as director of SAS on 29th September, 2010; (xi) the plaintiff no.2 transferred a sum of Rs.5,00,000/- to the account of defendant no.1 in October, 2010 and the same was transferred from the account of defendant no.1 to the account of SAS and whereafter the plaintiff no.1 was appointed as director of SAS; (xii) the plaintiff no.2 thereafter transferred Rs.13,00,000/- to the account of SAS for purchase of liabilities of SAS and a sum of Rs.10,00,000/- to the account of defendant no.1 for purchase of shares on 20th December, 2010 and the defendant no.1 transferred the said amount to SAS - in this manner, the total amount of Rs.58.50 lakhs was paid by the plaintiffs only for purchase of shareholding, assets and liabilities of SAS and defendant no.1 was placed as director of SAS with maximum shareholding, inspite of her having not contributed any money; (xiii) SAS, through defendant no.1, on 10th February, 2015, admitted that Rs.43,00,000/- was lying deposited as SHARE APPLICATION MONEY for allotment of shares to plaintiff no.2 but no shares were ever allotted to either of the plaintiffs; SAS also admitted Rs.15.50 lakhs was lying towards other head; (xiv) believing the defendants no.1&2, the plaintiffs agreed to only 100 shares being transferred in the name of plaintiff no.1 and the remaining 89000 shares being allotted in the name of defendant no.1; (xv) the plaintiffs, from time to time, asked the defendant no.2 about the project, who always assured that it was in progress; (xvi) the plaintiff no.1 used to sign the balance sheet of SAS as and when got prepared by the defendants no.1&2 from their own Chartered Accountant and the plaintiff no.1 signed the balance sheet of SAS till the Financial Year 2013-2014; (xvii) no board meetings of SAS were held; (xviii) in the month of January, 2015 the plaintiff no.1 started smelling some foul play and asked his own Chartered Accountant to obtain the records of SAS from the office of Registrar of Companies; (xix) from perusal of the balance sheet and master data of SAS, the plaintiff no.1 came to know that no progress had been made about the solar project; (xx) the plaintiff no.1 approached the defendants no.1&2 but they pacified the plaintiff no.1; (xxi) believing the defendants no.1&2, the plaintiff no.1 did not take any action; (xxii) the plaintiff no.1, on further enquiries learnt that others had been appointed as directors of SAS by the defendant no.1; (xxiii) the plaintiff no.1 requested the defendants no.1&2 to supply to him the copies of the resolution of the Board of Directors and of the shareholders of SAS but none were delivered; (xxiv) in October, 2015, the plaintiff no.1 learnt that the defendants no.1&2, with the connivance of defendants no.3 to 6, fabricated a resignation letter dated 3rd February, 2014 and submitted the same to the Registrar of Companies, showing that the plaintiff no.1 had resigned from SAS and appointed defendants no.3 to 5 as directors of SAS; (xxv) the plaintiff no.1, on 16th October, 2015 made a complaint to the Registrar of Companies against the aforesaid actions of the defendants; (xxvi) the defendant no.1 alone could not have appointed the defendant no.3 as director of SAS; (xxvii) the defendants no.1 to 5, in furtherance of their fraudulent design changed the name of SAS to Bhero Baba Info Solutions Private Limited; (xxviii) the plaintiff no.1, on 5th February, 2016 filed another complaint dated 23rd December, 2015 with the Registrar of Companies against the defendants; (xxix) the defendants no.1 to 5, in furtherance of their illegal design, in 2016 further converted Bhero Baba Info Solutions Private Limited to BBISLLP, without even allotting shares to the plaintiffs; (xxx) the plaintiffs also learnt that the defendant no.1 had transferred her 89000 shares in SAS to one Mamta Aggarwal on 10th July, 2014, who held the same till September, 2015; (xxxi) the plaintiffs, on 11th April, 2016 filed a suit for declaration and permanent injunction, for declaration that the appointment of defendants no.3 to 6 as directors was null and void and for declaration that the conversion of SAS into BBISLLP was null and void and for restraining the defendants from dealing with the property; (xxxii) the plaintiff no.1 also lodged a complaint and in pursuance to which an FIR No.0259 dated 3rd September, 2016 was registered with P.S. Mayapuri and which FIR is pending investigation; (xxxiii) that during the pendency of suit aforesaid filed by the plaintiffs vide plaint dated 11th April, 2016, the National Company Law Tribunal (NCLT) having exclusive power and jurisdiction to deal with the dispute was constituted; the plaintiffs thus withdrew the suit and vide order dated 18th October, 2016, the suit was disposed of with liberty to the plaintiffs to approach the NCLT; (xxxiv) the defendants no.1 to 7 sold the land aforesaid vide Sale Deed dated 13th January, 2017 to defendant no.8; (xxxv) the plaintiffs, on 13th July, 2018 filed an application under Sections 7(7), 119(4), 241(1), 169(8) and 251 of the Companies Act before the NCLT, which is now pending adjudication as Company Petition No.270/241/242/ND/2018; and, (xxxvi) the Sale Deed dated 13th January, 2017 does not create any right in favour of defendant no.8; (xxxvii) the cause of action paragraph 32 of the plaint is as under:-