Company Appeal No. 5 of 2008 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Company Appeal No. 5 of 2008 (O&M) Date of Decision: November 2, 2010 Jiwan Mehta ..... Appellant Versus EMM Bros Forgings (P) Ltd. and others ….Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Ashok Aggarwal, Senior Advocate, with Sarvshri Gaurav Chopra and Mukul Aggarwal, Advocates, for the appellant. Shri Arun Palli, Senior Advocate, with Shri Tushar Sharma, Advocate, for the respondents. Hemant Gupta, J. (Oral) The present is an appeal under Section 10-F of the Companies Act, 1956 (for short `the Act’) against the order dated 20.11.2007 passed by the Company Law Board, Principal Bench, New Delhi (for short `the Board’), dismissing the petition filed by the appellant under Sections 397 and 398 read with Sections 402 and 403 of the Act. The appellant has averred that respondent No.1 M/s Emm Bros Forgings (P) Ltd., is a Company with limited liability incorporated under the Act. The appellant is said to be possessed of Company Appeal No. 5 of 2008 (O&M) [2] 67590 fully paid up equity shares representing 15.36% of the total paid up share capital. Respondent Nos. 2 to 4, are said to be Directors along with the appellant, whereas respondent No.4 is the Chairman of the Company. It is pleaded that M/s Emm Bros Wires and Strips Ltd. was established in the year 1989 and subsequently, another Company Emm Bros Metals Pvt. Ltd. was established in the year 1991 and the respondent-Company in the year 1994. As per the appellant, the share holding pattern of respondent No.1-Company prior to 2000 is said to be as under:- S. No. Name of the shareholder Number of shares % of the total paid up share capital 1. Jiwan Mehta 67590 15.36% 2. Ramesh Mehta 67580 15.36% 3. Raj Mehta 67580 15.36% 4. Harish Mehta 67580 15.36% 5. Mohinder Mehta 67580 15.36% 6. Ashok Mehta 67580 15.36% 7. Devi Rani Mehta 34500 7.84% Total 4,40,000 100% The shareholding pattern has undergone change and as per the annual report as on 29.9.2000, the shareholding pattern is as under:- S. No. Name of the shareholder Number of shares % of the total paid up share capital 1. Jiwan Mehta 67590 15.36% 2. Ramesh Mehta 67580 15.36% 3. Raj Mehta 135170 30.72% 5. Mohinder Mehta 135170 30.72% 7. Devi Rani Mehta 34500 7.84% Total 4,40,000 100% From the above table, it is clear that Shri Harish Mehta and Shri Ashok Mehta have transferred their shares in favour of Shri Raj Mehta and Shri Mohinder Mehta. It is pleaded that respondent No.3-Shri Mohinder Mehta was appointed as Director of the Company Company Appeal No. 5 of 2008 (O&M) [3] on 7.7.2000, whereas as per the annual report, respondents No. 2, 3 and 4 swapped their individual shareholding in sister concerns Emm Bros Forging Pvt. Ltd and Emm Bros Metals Pvt. Ltd. without knowledge of the appellant. As a result of such swapping, respondent Nos. 2 and 3 have become majority shareholders in Emm Bros Forging Pvt. Ltd. and Emm Bros Metal Pvt. Ltd. The appellant alleged that such transfer of the share holding is illegal and in contravention of the provisions of Articles 7 and 8 of the Articles of Association of the respondent-Company. The appellant has also alleged that respondent Nos. 2 and 3 removed the appellant from directorship without any intimation on 27.1.2001 and that respondent Nos. 2 and 3 appointed their respective wives as Additional Directors on 15.11.2001 in 8th Annual General Meeting of the Company held on 31.8.2002 and raised share capital in their names and their wives so as to gain majority stake against all the remaining shareholders. It is alleged that the annual returns of the respondent- Company in the year ending March, 2001, has been filed after forging signatures of the appellant. The appellant has got his signatures verified by a reputed forensic expert, whose report has been appended as Annexure A.6. It is alleged that no meeting, whatsoever has been held by the respondent-Company, but by taking cover of Section 283 (1)(g) of the Act, the appellant has been removed from Directorship of the respondent-Company. It is also alleged that respondent No.4 was also running partnership firms and has diverted all funds to its proprietary concern to buy shares and raise his equity in the Emm Bros Metal Pvt. Ltd. Inter-alia, on the above said fact, the appellant sought restoration of the share holding in the Company as existed prior to the transfer made in the year 2000 and to direct respondent Nos. 2 , 3 and 4 to restore funds and render the accounts of the financial affairs of the Company apart from the declaration that the funds were Company Appeal No. 5 of 2008 (O&M) [4] illegally utilized by respondent Nos. 2, 3 and 4 and in contravention of the provisions of law. Respondent Nos. 1 to 3 filed reply to such petition filed by the appellant, wherein it was asserted that the petition is liable to be dismissed as the appellant has not come to the Court with clean hands. The appellant has concealed and suppressed the family settlement arrived at between the appellant and his brothers, which is evident from the Memorandum of Understanding. It is also alleged that the appellant has made vague and uncertain pleadings in the petition and has not alleged that the acts of majority shareholders of the respondent-Company were harsh and wrongful to justify the oppression. It is explained that the business firms consisted of Shri T.D. Mehta (father) and his six sons i.e. Sarshri Jeewan Mehta, Ramesh Mehta, Raj Mehta, Harish Mehta, Mohinder Mehta and Ashok Mehta. Shri T.D. Mehta being the head of the family, used to supervise the three businesses of the family, namely, two Brick Kilns and one Ice Plant and Cold Storage in which all the six sons were partners either themselves or through their wives. In view of the growth of the family, it was decided by Shri T.D. Mehta that the time has come when the sons should be settled independently. But being a large family this was possible only in phases and in supportive manner. In the year 1989, it was decided to set up a factory outside Punjab. Therefore, a sick unit by the name and style of M/s Alco Tools Pvt. Ltd (subsequently changed to Emm Bros Wires and Strips Ltd.) having industrial land and building at Plot Nos. 6 and 7, Sector 5, Parwanoo (Himachal Pradesh), was taken over and after renovating the building, a unit for manufacturing of super Enameled Copper Wire was put up. Subsequently, in the year 1991, Shri T.D. Mehta, purchased another unit at Parwanoo and established the same under the name and style of M/s Emm Bros Metals Pvt. Ltd. Shri T.D. Mehta and his sons held equal shares in the said Company. But it was Company Appeal No. 5 of 2008 (O&M) [5] agreed that the Company would be controlled by Shri Harish Mehta and Shri Ashok Mehta. All the six sons and Shri T.D. Mehta were having equal shares. However, the appellant and Shri Ramesh Mehta controlled 68.5% of shares in the Emm Bros Wires and Strips Ltd. and are in control and management of the said Company. In the year 1994, the respondent-Company was incorporated with the clear direction of Shri T.D. Mehta that such Company would be managed and controlled by respondent Nos. 3 and 4 herein. It is, thus, alleged that the businesses of the three Companies were, therefore, managed and controlled by the two brothers each, though all six brothers were having shares in each of the three Companies. It is further pleaded that after the death of Shri T.D. Mehta in the year 1996, the affairs of the Emm Bros Wires and Strips Ltd., deteriorated due to huge siphoning of the funds by Shri Jiwan Mehta- the appellant from Emm Bros Wires and Strips Ltd. The State Bank of India initiated recovery proceedings against the said Company. It has been so pleaded in the written statement:- “6. After the death of late Shri T.D. Mehta in the year 1996, the affairs of the Company Emm Bros Wires and Strips Limited deteriorated due to the huge siphoning of the funds by Mr. Jiwan Mehta from Emm Bros Wires and Strips Ltd. the State Bank of India, Parwanoo filed execution proceedings against the said Company and threatened to auction the properties given as guarantee by the brothers of the petitioner. Therefore to resolve all the issues between them all the six brothers agreed to formally divide the family assets and assets and liabilities of M/s Emm Bros Wires and Strips Limited. Thereafter on or about 7 th October, 2001, all six sons of late T.D. Mehta executed the Memorandum of Understanding on 7.10.2001 a copy of which is marked hereto as Annexure R.1. 7. In terms of the said agreement it was mutually agreed between the petitioner and respondents 2 to 4 that the first respondent Company shall exclusively belong to respondents 2 and 3 and that M/s Emm Bros Wires and Strips Pvt. Ltd. shall exclusively belong to the petitioner and Mr. Ramesh Mehta and M/s Emm Boss Company Appeal No. 5 of 2008 (O&M) [6] Metals Pvt. Ltd., shall exclusively belong to Harish Mehta and Ashok Mehta. It was further agreed in the said agreement that all efforts by way of adjustment shall be made to release each others inter-se from all shares/deposits/investments between the brothers in the above mentioned companies. 8. Prior to the aforesaid understanding reached between the brothers in terms of the Memorandum of Understanding dated 7.10.2001 respondent No.4 herein on 21.6.2000 transferred 33,000 equity shares of first respondent herein in favour of respondent No.3 herein. Similarly on 21.6.2000 Mr. Harish Mehta transferred his 34,480 shares in favour of the respondent No.2. When the aforesaid transfers took place, the petitioner was the Director of the first respondent Company and was aware of the said transfers. Simultaneously respondents 2 and 3 also transferred their shares in Emm Bros Metals Private Limited to Mr. Ashok Mehta and Harish Mehta. xx xx xx 10. As a sequel to the above said Memorandum of Understanding dated 7.10.2001, on or about 2.7.2002 Mr. Ramesh Mehta transferred 27,750 shares in first respondent Company in favour of respondent No. 2 herein. Mr. Ramesh Mehta further on the same day i.e. 2.7.2002 transferred his entire shareholding in first respondent Company in favour of respondent No. 3 herein. Similarly, respondent No.2 transferred his entire share holding in Emm Bros Wires and Strips in favour of Mr. Ramesh Mehta.” The respondents have also relied upon the resolutions of the Board of Directors dated 27.7.2000 and 27.1.2001 whereby the transfer of the shareholding has been accepted by the Board of Directors of the respondent-Company. It is the categorical stand of the respondents that other five brothers have swapped their respective shares in each of the Companies to get control and management of their respective companies. However, the appellant for some ulterior motives has not honoured the terms of the Memorandum of Understanding and has not transferred the share holding in the first respondent-Company in favour of 2nd and 3rd Company Appeal No. 5 of 2008 (O&M) [7] respondents and in Emm Bros Metals Pvt. Ltd. in favour of respondent No.4 and Shri Harish Mehta. In Para 8.2 (b) of the reply, it has been pleaded that pursuant to the transfer of shares as aforesaid, the Memorandum of Understanding was signed on 7.10.2001 and as per the mutual agreement, the three Companies were divided amongst the brothers. It is also pleaded that Ramesh Mehta, who was to control and manage Emm Bros Wires and Strips Limited has transferred the shares of the first respondent in favour of respondent No.2. It may be mentioned that none of the respondents has referred to any oral agreement arrived at between the parties in the year 1997 or in the year 2000 in the written statement filed before the Board. Learned counsel for the respondents has pointed out that in fact, such averments have been made in another petition (CP No. 82 of 2004) filed by the appellant against Emm Bros Metals Pvt. Ltd. The said petition was decided by the Board together by separate order of the same date. The learned Board has dismissed the petition filed by the appellant, primarily for the reason that the appellant has not offered to refute the preliminary objections raised by the respondents in respect of the maintainability of the petition. A finding has been returned that allotment, swapping etc., except of the appellant, was made pursuant to oral understanding as early as on 27.7.2000 and that the appellant has deliberately concealed the Memorandum of Understanding from the Board. It was held though held that neither the appellant nor the respondents want to rely on the oral agreement mutually agreed between all the brothers in May, 2000 and later reduced into writing on 7.10.2001 and that the said Memorandum of Understanding had to be kept in abeyance due to non fulfillment of the agreement and non swapping of the shares of the appellants. It was held that the respondents’ allegations that the appellant has not Company Appeal No. 5 of 2008 (O&M) [8] come to the Court with clean hands, have turned out to be true and that the appellant is guilty of misappropriation. Thus, it was concluded that the Board exercising equity jurisdiction cannot ignore the well known maxim of equity that one who wants equity must do equity. Still further, the Board held that the petition suffers from delay and laches as the swapping of shares was done on 25.7.2000 and the appellant was deemed to vacate his office on 27.1.2001, but the petition was filed only on 31.8.2004. Therefore, even if the provisions of the limitation are not applicable, the proceedings suffer from delay and laches. It was held that besides the allotment and swapping, vacation of office was with full knowledge, consent/acquiescence of the appellant, therefore he cannot challenge past and concluded transactions. It was held to the following effect:- “….Further, there is no plea for condoning the delay and laches on the part of the petitioners in initiating proceedings before the Company Law Board. Besides, the allotments, swapping, vacation of office was with the full knowledge, consent/acquiescence of the petitioner who cannot challenge past and concluded transactions. The principles of estoppel, waiver and acquiescence also apply in this case. Further, it is noted that the petitioner has made an allegation regarding his removal as director but his prayers in the petition do not include any prayer seeking his restoration as director in the respondent-Company. In view of the foregoing, the petition is not maintainable. I find no jurisdiction to consider the arguments on merits. The petition is hereby dismissed. All interim orders stand vacated. All CAs stand disposed of. No order as to cost.” Learned counsel for the appellant has vehemently argued that the Board has given contradictory findings in respect of the implementation of the alleged Memorandum of Understanding. It is contended that once the Board itself has found that the Memorandum of Understanding was not given effect to, then the Board was not Company Appeal No. 5 of 2008 (O&M) [9] justified in not considering the petition on merits and returning a finding that the petition is not maintainable as the appellant has not come to the Board with clean hands. It is argued that the Memorandum of Understanding was in respect of the family assets and assets and liabilities of the Emm Bros Wires and Strips Limited primarily though it was recited, as per Clause (IV), that the three Companies were to be owned by two brothers each. It is contended that none of the pre-conditions as per the Memorandum of Understanding were honoured by the respondents. Therefore, non- disclosure of such Memorandum of Understanding cannot be made sole basis of dismissal of the petition. It is contended that the fact that the Memorandum of Understanding was not given effect to, is evident from an application (CM No. 5080 of 2004) filed by respondent Nos. 2 to 4 in Civil Writ Petition No. 3765 of 2004, wherein, it has been averred as under:- “That Jiwan Mehta petitioner has concealed the fact that though a family settlement was entered into according to which, subject to his fulfillment of other conditions mentioned therein, the said house was to fall to his individual independent share, yet the said family settlement remained in abeyance on account of non- fulfilment by Jiwan Mehta of his part in the said settlement by way of payment of various amounts to the present applicants and also on account of his non- fulfilment of other obligations. Jiwan Mehta has, therefore, deliberately concealed and not placed on record the family settlement entered into. A copy of the same is attached herewith as Annexure A with this application. It is reiterated that this family settlement was not acted upon and House No. 939 Sector 8, Panchkula continues to be in the ownership of Jiwan Mehta and Ashok Mehta, who are owners in equal shares of the said house.” It is argued that as per the Memorandum of Understanding, House No. 939, Sector 8, Panchkula was to be exclusively owned by the appellant and that a sum of Rs.10 lacs was Company Appeal No. 5 of 2008 (O&M) [10] payable by the appellant to Shri Ramesh Mehta and that after repayment of all the liabilities of Emm Bros Wires and Strips Ltd., the balance cash flow was to be shared by Shri Jiwan Mehta and Shri Ramesh Mehta. Even though such was the understanding, Ashok Mehta filed a civil suit claiming separate possession by partition of the said house and that the said suit is still pending. Reference is also made to a public notice (Annexure A.7) dated 1.9.2001 published by Shri Ramesh Mehta and Shri Ashok Mehta to the effect that the appellant for and on behalf of Emm Bros Wires and Strips Ltd., has been debarred from operating and opening any Bank account, though as per the Memorandum of Understanding, the Company is to be managed by the appellant along with Shri Ramesh Mehta. It is, thus, sought to be contended that the Memorandum of Understanding was not given effect to by any of the parties to the said understanding. It is further contended that the recitals in the said Memorandum of Understanding that the oral understanding mutually agreed between all the brothers has been redued in writing in order to avoid any dispute and differences in future, do not pertain to oral agreement said to be arrived in the year 1997 or in the year 2000. The said Memorandum of Understanding does not refer to any particular date of oral agreement. In fact, the oral agreement mentioned in Clause (8) of the Memorandum of Understanding is in relation to oral agreement arrived at, just before the document was reduced in writing on 7.10.2001. The transfer of share holding by other brothers is not in pursuance of the any oral understanding amongst all including the appellant herein. On the other hand, learned counsel for the respondents has argued that it is the appellant alone, who has not transferred his shareholding either in the respondent-Company or in Emm Bros Metals Pvt. Ltd. The shareholding has been transferred by Shri Ramesh Mehta, who was to jointly own and manage M/s Emm Bros Company Appeal No. 5 of 2008 (O&M) [11] Wires and Strips Ltd. with the appellant. It is also pointed out that the appellant is the sole brother, who has not given effect to the oral settlements arrived in the year 1997 and 2000 and that non- disclosure of such Memorandum of Understanding has been rightly taken into consideration by the Board to reject the petition filed by the appellant. Before the respective arguments of the learned counsel for the parties are considered on merits, it may be pointed out that since the resolution of the Board of Directors of the respondent- Company were not legible; the original proceedings book of the respondent-Company was called for. Learned counsel for the respondents has also produced photo copies of the aforesaid minutes/proceedings, which are permitted to be taken on record. The proceedings book start from the meeting of the Directors held on 7.7.2000, which records the fact that the appellant was absent from the meeting and no leave was granted to him. The second minutes of meeting are of 27.7.2000. The appellant was absent and was not granted leave though leave of absence was granted to Shri Mohinder Mehta. The minutes record the transfer of shares of Shri Ashok and Shri Harish Mehta. In the meeting of 23.8.2000, the name of Jiwan Mehta, the appellant, is mentioned as the person present in the meeting, but the proceedings book is not signed by him. Shri Mohinder Mehta was absent, but no leave was granted. In the meetings of 17.10.2000, 30.11.2000, 30.12.2000 and 27.1.2001, Shri Ashok Mehta and Shri Raj Mehta are the persons present in the meeting and Shri Jiwan Mehta, the appellant, was not granted any leave of absence. Such meetings have not transacted any business except to discuss the current business programme or the need to have more working capital. The annual return filed in pursuance of Annual General Meeting held on 29.9.2000 produced by Company Appeal No. 5 of 2008 (O&M) [12] the appellant bears signatures of Shri Jiwan Mehta apart from signatures of Shri Mohinder Mehta and Shri Raj Mehta. Before adverting to the effect of non-disclosure of Memorandum of Understanding by the appellant in his petition under Sections 397 and 398 of the Companies Act, I find, prima-facie, that the reliance of the respondents on the annual returns of the Company filed in pursuance of the Annual General Meeting held on 29.9.2000, which has been relied upon by the Board, is based upon forged and fabricated signatures of the appellant. The proceedings book of respondent No.1 from 7.7.2000 till 27.1.2001 shows that Shri Jiwan Mehta is absent from the Board meetings. If Shri Jiwan Mehta has not attended the meeting of Board since July 7, 2000, how he would sign Annual Returns of the Company in pursuance of the Annual General Meeting held on 29th September 2000. It seems to be improbable. The said aspect gets support from the report of the Forensic Expert Annexure A-6, wherein signatures of Jiwan Mehta, the appellant, on such Annual Returns, have been found to be forged and fabricated. The respondents have also relied upon the communication of the Registrar of Companies, wherein the cessation of office of Director by the appellant in the meeting of the Board on 27.1.2001 is said to be communicated to the appellant. The three meetings, the absence of which led to the vacation of office by the appellant, discuss the need to have more working capital, which is evident from the minutes of 17.10.2000, 30.11.2000 and 30.12.2000. It appears that such minutes have been recorded to make out a ground for cessation of office by the appellant as, prima-facie, the consideration of working capital requirement in three Board’s meetings seems to be manipulated one. The requirement of working capital possibly cannot be discussed in three meeting of the Board and without taking any corrective step. Such finding is recorded to Company Appeal No. 5 of 2008 (O&M) [13] consider, prima-facie, the maintainability of the petition of the appellant herein. It is for the competent authority to consider and return a categorical finding on the detailed examinations of the documents. The Board has held that the appellant has deliberately concealed the Memorandum of Understanding from the Board. The Memorandum of Understanding