BENGAL TOOLS LIMITED Vs. METRO INFRASTRUCTURE DEVELOPMENT LIMITED

JUDGEMENT

(1.) IN this case, earlier C.P. No. 304(111A)/ERB/2006 was filed under Section 111A of the Companies Act, 1956 (hereinafter referred to as "the Act") in the matter of M/s. GNB Credit Private Limited (presently known as M/s. Bengal Tools Limited) -vs - Metropolitan Laboratory & Nursing Home Limited (now known as M/s. Metro Infrastructure Development Limited) and while disposing of this C.P., this Bench passed an Order on 10.08.2010, the operative portion of which reads as under: -

(2.) THE Respondent Advocate, while denying and disputing the contentions made in the Petition, has submitted that the Order dated 19.04.2012 was obtained by GNB by suppression of the fact that it stood amalgamated with the Petitioner on and from 01.04.2010 and also, the 90 ordinary shares stood transferred to and vested in the Petitioner on and from the transfer date or the appointed date, i.e. 01.04.2010. Further, the said GNB had no locus to contest the appeal being A.C.O. No. 157 of 2010 preferred by the Respondent Company against the Order dated 10.08.2010 passed by this Hon'ble Board in C.P. No. 304(111A)/ERB/2006. The Order dated 19.04.2012 has been obtained by the said GNB by perpetrating fraud on the Hon'ble High Court at Calcutta and the Respondent Company. The Respondent Company refused to effect the transfer of 90 ordinary shares lodged by the said GNB as the mandatory provisions of Section 108 of the Act were not compiled with and the promoters and persons in control of GNB were hostile to the management of the Respondent Company and were acting against the interest of the Respondent Company. The Respondent Advocate has contended that the Petitioner is not entitled to the transfer of shares of GNB as it has not complied with the mandatory provisions of Section 108 of the said Act and the Respondent Company is not obliged to effect the transfer of any share in the name of the Petitioner. Further, the time prescribed for compliance of the said provisions of the Act has lapsed and the Company is not obliged to entertain any further application by the Petitioner. The Respondent Advocate has pleaded that in view of the aforesaid facts, the instant Company Petition is not maintainable and also urged that no order to enforce or execute the Order dated 10.08.2010 be passed or the said Order dated 10.08.2010 be sent to the Hon'ble High Court as claimed by the Petitioner Advocate. In support of his argument, the Respondent Advocate has relied upon the following judgments : -

(3.) IN rejoinder affidavit, the Petitioner Advocate has submitted that the Petitioner being successor -in -interest of GNB by the reason of the Scheme of Amalgamation sanctioned by the Hon'ble High Court, is entitled to all right, title and interest in respect of the properties held by the said GNB including the right to the shares. There has been devolution of interest by operation of law and the Petitioner is entitled to pursue the instant Company Petition for enforcement of the rights of GNB. The Scheme of Amalgamation was sanctioned vide Order dated 16.08.2011 and the said GNB was finally dissolved by an Order of Hon'ble High Court at Calcutta dated 24.09.2012. Further, the allegation of non -compliance of Section 108 or that the promoters and persons in control of GNB were hostile to the management of the Respondent Company or were acting against the interest of the Company, are barred by principles of res judicata. Further, the original share certificates and the original transfer deeds are lying in the possession of the Respondent Company and it is under a duty and obligation of the Respondent Company to transfer the said shares in the name of the Petitioner and return the duly endorsed share certificates. The allegations have been made recklessly and are without basis and no reliance should be placed thereon. The repeated requests and demands have been made by or on behalf of the Petitioner to the Respondent Company for compliance of the orders of this Hon'ble Board as well as Hon'ble High Court at Calcutta, but the Respondent Company deliberately failed to comply with the same.