DARSHAN ANILKUMAR PATEL Vs. GITANEEL HOTELS PRIVATE LIMITED

JUDGEMENT

(1.) THIS is an application for appointment for Provisional Liquidator of 1st respondent pending the hearing and final disposal of petition for winding up of the 1st respondent Company. Some of the facts emerging from the record disclose shocking state of affairs and prove at least prima facie that the 2nd respondent and members of his Group have indulged in various acts of manipulation amounting to subterfuge, fraud and acts purporting to jeopardise the assets of the Company and lack of probity. The respondent No. 2, respondent Nos. 5 and 8 have purported to appropriate the valuable assets of the Company to themselves personally and caused serious prejudice to the Company and minority Shareholders as would be obvious from the later part of this order. This is my strong prima facie finding for purpose of this application.

(2.) ON 18th March 1980, the respondent No. 1 Company (formerly known as "gitaneel Hotels and Investments Pvt. Ltd.) was incorporated as a Private Limited Company under the provisions of the Companies Act (I of 1956 ). On 9th April 1980, the Certificate of Incorporation was issued by the Registrar of Companies, The authorised capital of the Company is Rs. 65 lacs divided into 50,000 equity shares of Rs. 100/- each and Rs. 15,000/- preferential shares of Rs. 100/- each. The issued and paid-up capital of the Company is Rs. 35,01,000/- divided into 35010 equity shares of Rs. 100/- each. The respondents Nos. 2 and 5 were the subscribers to the Memorandum of Association of the Company, having initially subscribed 5 shares each. On 1st July 1980, the Company entered into partnership with Messrs. Gitaneel Builders, a firm in which various members of the same family were partners, with 25 per cent share in profits; 11 per cent share in assets and liabilities and 25 per cent share in losses. The said partnership firm of M/s. Gitaneel Builders was dissolved and all the assets and liabilities of the said firm were taken over as a going concern by the Company as on 31st March 1981, 35,000 equity shares of Rs. 100/- each, (fully paid up) were allotted to erstwhile partners of the dissolved firm in proportion to their credit balance with the dissolved firm as shown in the relevant annexture to the Balance Sheet of the Company for the period ended 31st March 1981. On dissolution of firm of M/s. Gitaneel Builders, its partners became shareholders of the 1st respondent Company in lieu of their credit balances with the dissolved firm. The Company was established, inter alia, with an object to set up a residential hotel and carry on business in real estate as builders and developers. The Company is owner of a valuable plot of land situate at 85, Hill Road, Bandra, Bombay, admeasuring about 1670 sq. metres. The total F. S. I. available in respect of the said plot is 24,012 sq. ft. out of which F. S. I. of 17,600 sq. ft. is already consumed in relation to construction of shopping arcade. etc. In the Directors Report to the shareholders forming part of annual accounts of the Company for the period ended 31st March 1981, the abovereferred facts are clearly set out. Schedule VIII appended to the balance sheet of the Company for the period ended 31st March 1981 also set out the particulars of allotment of shares to 16 persons named therein lieu of their credit balance in the capital account of the dissolved firm of which assets and liabilities were taken over by the Company as a going concern. The paid up capital of the Company is held by members of the same family divided into two groups i. e. Jalgaon Group represented by petitioner, respondents Nos. 9 to 13 and the Bombay Group represented by respondents Nos. 2 to 8. The history of formation of the Company, its joining the firm of M/s. Gitaneel Builders in which most of the present shareholders were already partners, take over of the assets and liabilities of the firm on dissolution and allotment of shares to all the partners of the dissolved firm in ratio of credit balance in their respective capital account firm in dissolved firm indicates that the Company is a domestic Company.

(3.) IT appears from Exhibit "b" to the petition that late Shri Jinabhai Rajivbhai Patel had four sons and three daughters. Shri Bhagwandas Jinabhai Patel, the Chairman and Managing Director, the respondent No. 2 is so described in the Board Minutes of the Company. The respondent No. 2 is one of the sons of late Shri Jinabhai Patel. Shri Bhagwandas Patel leads the group of shareholders of 1st respondent Company described by the parties in the pleadings as Bombay Group. Shri Vrajlal Jinabhai Patel, respondent No. 8 herein, belongs to Bombay Group of shareholders. Shri Surendra Vrajlal Patel is sister son of Shri Bhagwandas Jinabhai Patel, Shri Pravinchandra J. Patel and Shri Vrajlal J. Patel. Shri Surendra Vrajlal Patel is part of Bombay Group. Shri Pravinchandra J. Patel and Shri Anilkumar J. Patel and some of their family members including the petitioner form part of Jalgaon Group of shareholders of 1st respondent Company. The shares of the Company are held by members of the family of Shri Pravinchandra Jinabhai Patel and Shri Anilkumar Jinabhai Patel on the one hand and Shri Bhagwandas Jinabhai Patel and Vrajlal Jinabhai Patel, their family members and Shri Surendra V. Patel on the other hand. Some shares of the Company are also held by Shri Mahendrabhai Kalyanjibhai Ghelani and Smt. Meenaben Mahendrabhai Ghelani, practising Advocates and Solicitors of this Court. The Company has in all 17 shareholders only, 15 of the shareholders being family members belonging to the two Groups and 2 of the shareholders being Shri Mahendra Kalyanji Ghelani and Smt. Meena Mahendra Ghelani. Late Smt. Maniben Jinabhai Patel, mother of Shri Bhagwandas, Shri Pravinchandra, Shri Vrajlal and Shri Anilkumar J. Patel held 1105 shares in the 1st respondent Company. The shares held by the mother late Maniben J. Patel have now been transferred to the name of respondent No. 3 and respondent No. 4 belonging to Bombay Group. The petitioner and other members of Jalgaon Group have impugned the said transfer of shares formerly held by Maniben during her lifetime as fraudulent transfer. According to members of Bombay Group, members of Jalgaon Group held 37. 88 per cent shares of the said Company, members of the Bombay Group held 56. 86 per cent shares and the 2 lawyer members forming part of Bombay Group held 5. 27 per cent shares. According to the petitioner and supporting respondents, the shareholding of members of Jalgaon Group in the said Company works out to 39. 9 per cent. This small dispute is not of much consequence for the purpose of determination of the application for appointment of Provisional Liquidator. The fact remains that the complaining shareholders are a minority group having substantial shareholding and the members of the Bombay Group led by respondent No. 2 are majority shareholders, the ratio of their respective shareholding being about 38 per cent on the one side and 62 per cent on the other side. The dispute regarding alleged fraudulent transfer of shares held by the mother can be examined at subsequent stage of the petition.