BEFORE THE COMPANY LAW
BIOARD
PRINCIPAL BENCH
Dated 17 th November 2001
2.
Sh.S.Balasubramanian, Vice Chairman
In the matter of Companies
Act, 1956-Sections 397/398
AND
In the matter of Mrs.
DeepaGoyal
Versus
M/S Nanda Devi Builders (P)
Ltd. And Ors.
1. Ms. Deepa
Goyal
1. M/S Nanda
Devi Builders (P) Ltd.
Present on behalf of
parties:
1. Shri Anurag Kr.
Aggarwal, Advocate
.. for petitioner
2. Shri U.P. Mathur,
Advocate
.. for respondents
3. Shri D.D. Pandey,
Advocate
.. for respondents
(Date of final hearing:
3.7.2001)
S.BALASUBRAMANIAN:
1. The petitioner
being the holder of 500 shares in the paid up share capital of M/S Nanda Devi Builders (P)
Ltd. (the company) has filed this petition alleging acts of oppression and mismanagement
in the affairs of the company in terms of
Section 397/398 of the Companies Act, 1956 ( the Act).
2. A summary of
the petition is: The company has built a multi storied commercial complex in Prasant
Vihar, Delhi, known as Nanda Devi Tower. This
Tower consists of 5 floors including a basement. The
petitioner had booked the entire 3rd floor admeasuring 1450 sq. ft. in the said
complex in 1989 at the rate of Rs.675/- per sq. ft.
She had paid a sum of Rs.3.4 lacs in various instalments from July, 1989 to January, 1991.
She had also paid Rs.50,000 in July, 1999 for 500 shares at Rs.100/- each. As against a sum of Rs.3.4 lacs paid by her, the
company has reflected a sum of Rs. 1.25 lacs only in the Balance Sheet for the year
1991-92. The respondents have not so far
handed over the possession of the premises to her nor has asked for payment of the balance
amount nor has refunded the amount paid by her. Further,
they have also not delivered the share
certificates for the 500 shares allotted to her and also for 50 shares allotted to her
son. However, the petitioner has learnt that
the entire 3rd floor which was allotted to her has subsequently been sold to
the friends of the respondents. Further, the
company has also issued 1200 further shares without any offer to the existing
shareholders. The company has also proposed
to remove one Shri M. R. Jindal who is representing the minority shareholders from the
Board. All these acts would indicate that the
respondents are carrying on the affairs of the company in a manner prejudicial to the
interest of the shareholders and the company and as such an investigation should be
ordered into the affairs of the company and the Board should be superceded etc.
3. In the reply,
the respondents have submitted that this petition is not maintainable in as much as the
petitioner has sought for enforcing a private agreement.
Further this petition has been filed by the petitioner at the behest of Shri M.R.
Jindal who had by himself filed another petition CP 7 of 2001 alleging acts of oppression
and mismanagement in the affairs of the company. As
far as Rs.3.4 lacs as claimed to have been
paid by the petitioner, she paid only Rs.1.25 lacs as advance for booking the said floor
as against a total consideration of Rs.9.8 lacs. As
on 31.3.1992, there were unsecured loans of Rs.1.3 lacs in the name of Shri K.C. Goel, the
husband of the petitioner and Rs.75,000 in the name of Shri Manoj Goel, son of the
petitioner. Since the petitioner had failed
to pay the full consideration, the allotment was cancelled and the amount of Rs.1.25 lacs
paid by her was forfeited as early as in 1993. Shri
K.C. Goel was a director of the company during that period.
Likewise Shri M.R. Jindal who was also
a director has signed the Balance Sheet of
the company for the year 1995 and for 1996 to 2000. The
unsecured loan of Rs.1.25 lacs and Rs.75,000 were forfeited in the year 1994-1995 and
1995-96, respectively. Therefore, the
question of handing over the 3rd floor to the petitioner did not arise. Further, the petitioner had not voiced any
grievance on this score for over 8 years. As
far as the sale of the flats at 3rd floor is concerned, they were sold in Feb.
1994 and the proceeds of sale have been credited to the accounts of the company. As far as issue of 1200 shares is concerned,
the same was made in 1993 and as such the petitioner cannot raise a grievance after a gap
of long 8 years. In regard to the removal of
Shri Jindal as a director is concerned, in the Extra Ordinary General Meeting held on
24.2.2001, the General Body passed a resolution in terms of Section 284 of the Act to
remove him as a director but the same has not been given effect to in view of the interim
order passed by this Bench on 5.2.2001 in CP 7 of 2001.
Share certificates in respect of 500 shares of the petitioner and 50 shares in
respect of his son were delivered to them as early as in 1989 itself.
4. Shri Aggarwal
and Shri Mathur appearing for the respective parties reiterated the averments made in
their respective pleadings. Even though the main allegation of the petitioner relates to
the 3rd floor in Nanda Devi Tower, yet we find that she has not sought for any
relief in regard to allotment of the same to her. Further,
even if there had been a prayer as such, we could not have considered the same in the
present proceed ings in as much as private
agreements cannot be enforced through this petition.
Even otherwise, we note that the company had already forfeited the advance paid by
her as early as in 1993 after canceling the allotment.
Therefore nothing survives on this allegation.
As far as the allotment of 1200 shares is concerned, since the allotment was made
as early as in 1990, we cannot look into the bonafide of this allotment after a long gap
of 8 years. In regard to the removal of Shri
Jindal as a director, this matter is already before us in CP 7 of 2001. Thus, we find that the petitioner has not been
able to establish any act of mismanagement and oppression in the petition and therefore we
dismiss this petition with no order as to cost with liberty to the petitioner and her son
to apply for duplicate certificates in respect of the shares allotted to them and in case
they so apply, the company should issue duplicate certificates in accordance with law.
(S. Balasubramanian )
(A.K. Banerji )