VIJAY KUMAR TIWARI Vs. COMPANY LAW BOARD

JUDGEMENT

(1.) HEARD Shri S.D. Singh, senior advocate, assisted by Shri R.K. Gautam learned counsel on behalf of the applicants and Shri R.K. Agarwal, advocate assisted by Shri Chandan Sharma on behalf of respondent Nos. 1 and 2. This company appeal under section 10(f) of the Companies Act, 1956 ('the Act') has been filed against the order of the Company Law Board ('CLB'), New Delhi dated 8th May, 2012. The CLB under the order impugned has dismissed the petition made by the appellants under sections 397, 398, 402, 403 and 406 of the Act alleging certain acts of oppression and mismanagement by Tiwari Sheet Grah (P.) Ltd. ('company'). The CLB in the order impugned has recorded that the grievance of the petitioner was two -fold:

(2.) IN reply to said pleas a counter affidavit by Mahaveer Tiwari had been filed in which it was stated that a written application was made by the three shareholders, namely, Mahaveer Tiwari, Vijay Tiwari and Gayatri Devi for conversion of the unsecured loan advanced by the aforesaid three directors of the company into capital. On the application so made in writing, a meeting of the shareholders of the company did take place on 1st October, 2007 wherein a resolution was passed for conversion of the unsecured loan into equity shares as per their requests. The minutes of this meeting were also duly counter signed by Mahaveer Tiwari, Gayatri Devi along with Vijay Tiwari. For the purposes of rebutting the said statement of facts made on oath, the appellants were provided two weeks time to file rejoinder affidavit by the CLB vide order dated 25th August, 2011. For nearly four months, no rejoinder affidavit was filed and on 3rd January, 2012, it was stated on behalf of the applicants that they did not propose to file any rejoinder affidavit and the matter be listed for final arguments. Accordingly, final arguments were heard on 24th April, 2012 and 27th April, 2012. The averments made by the appellants and the documents filed by them and the averments and documents filed by respondent No. 4 which were un -rebutted were examined. The CLB after considering the application made to the company on 15th September, 2007 by Mahaveer Tiwari, Vijay Tiwari and Gayatri Devi and the resolution of the Board dated 1st October, 2007 duly signed by appellant Vijay Tiwari, Mahavir Tiwari and respondent No. 2 held that the case of the company qua making of the application dated 15th September, 2007 for conversion of the unsecured loan into the equity shares and consequent resolution had to be accepted as corrected as it has not been controverted. It has specifically been recorded in the order impugned that since the appellants did not rebut the said averments and documents placed on record by the respondents, the authenticity of the application and the Board resolution collectively filed along with affidavit cannot be doubted.

(3.) IN the opinion of the court, the conclusion so drawn by the CLB on the basis of the facts as noticed above cannot be faulted with. If the appellants for the reasons best known to them did not chose to controvert the statements made on oath by the respondents and did not seek to challenge the correctness or otherwise of the documents brought on record by the respondents in the shape of the application dated 15th September, 2007 and the resolution of the Board dated 1st October, 2007 which according to the Board did bear signatures of the appellants, this court finds no reason to interfere. The conclusion drawn by the Board appears to be justified. The Board has also taken note of the fact that there may have been some discrepancies in submission of Form 2 by the company but as held by the Delhi High Court in the case of S.K. Bhattacharya v. Union of India : 1996 IL Delhi 221(Delhi High Court), the submission and acceptance of Form 2 by the Registrar of Company is only a ministerial act and mere defect in Form 2, is by itself not sufficient to rebut the strong presumption arising from the filing of un -rebutted documents namely the signed application and the signed resolution of the Board referred to above.