RAM GOPAL PATWARI Vs. PATWARI EXPORTS P. LTD.

JUDGEMENT

(1.) COMPANY Application No. 357 of 2007, which was filed by Respondent No. 1 in Company Petition No. 88 of 2007 challenging the maintainability of the company petition without filing counter affidavit to the company petition, was disposed of by the Company Law Board vide its order dated October 1, 2007 Ram Gopal Patwari v. Patwari Exports P. Ltd., (2008) 142 Comp Cas 8) allowing the company application and dismissing the company petition as not maintainable. In appeal filed by the Petitioner/non -applicant under Section 10F of the Companies Act, 1956, the hon'ble High Court at Calcutta on December 11, 2007 held that:

(2.) C .P. No. 88 of 2007 was filed by Shri Ram Gopal Patwari group against the Patwari Exports P. Ltd. and Shri Ishwar Lal Patwari Group under Sections 397, 398, 402, 403 and 406 of the Companies Act, 1956 (hereinafter referred to as "the Act") alleging certain acts of oppression and mismanagement.

(3.) IT is the applicant's/Respondent's case that the resignation letter dated June 19, 1975 of R.G. Patwari, i.e., Petitioner No. 1 along with Form No. 32 filed at the material time, annual returns as on the annual general meeting for the year 1990 and 1991 along with filing receipts, share certificates relating to the shares transferred by the Petitioners, register of members, register of share transfer annual accounts of M/s. Suwidha Viniyog Company P. Ltd. for the period ended March 31, 1989, March 31, 1990, March 31, 1991, income -tax returns of M/s. Suwidha Viniyog Company P. Ltd. for the assessment year 1991 -1992 and register of documents destroyed produced before the Company Law Board conclusively establish that the Petitioners do not have the requisite shareholding to maintain the company petition. It was pointed out that the resignation letter clearly evidences that the Petitioners of their own volition did not want to be associated with the management and administration of the Respondent No. 1 company and Petitioner No. 1 had resigned from the company. The resignation letter was produced in original. The annual returns as on the date of the annual general meeting held for the relevant years 1990 and 1991 duly indicate that the Petitioners had transferred their shares and did not hold the requisite shareholding since several years, the filing receipts also indicate that the annual returns were filed at the material time and could not be disputed. The copies of share certificates relating to the shares claimed to be held by the Petitioners which are the documents of title of the shares were produced. The reverse side of the share certificates indicates that the shares were transferred to M/s. Suwidha Viniyog Company P. Ltd. and registered in the name of the said company. The register of members of the company conclusively establishes that the Petitioners did not hold the requisite shareholding and thus the Petitioners could not maintain the petition under Section 399 of the Companies Act. The register of share transfers also clearly establishes that the shares claimed by the Petitioners were in fact transferred by the Petitioners and the present petition under Sections 397 and 398 of the Companies Act, 1956 could not be maintained by the Petitioners. The annual accounts of Respondent No. 7 company indicate that they had acquired the shares of Respondent No. 1 company which are claimed by the Petitioners and the same formed a part of the assets of Respondent No. 7 company. The income -tax returns for the assessment year indicating that the accounts of the company were duly filed with the income -tax authorities. The register of documents destroyed also indicates that the share transfer forms were held by the company for several years and thereafter destroyed as contemplated in the Companies Act and thus were neither available with the company nor could be expected to be available with the company.