CL: Disputed questions of fact relating to fraud and fabrication of documents cannot be raised as a preliminary objection at threshold to dismiss petition under section 111/111A
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[2014] 51 taxmann.com 95 (CLB - Mumbai)
COMPANY LAW BOARD, MUMBAI BENCH
Gaurishankar Neelkanth Kalyani
v.
Sulochana Neelkanth Kalyani
ASHOK KUMAR TRIPATHI, JUDICIAL MEMBER
CA NOS. 100-107 OF 2011
CP NOS. 19 TO 26 OF 2011
SEPTEMBER 4, 2013
Section 59, read with section 56 of the Companies Act, 2013/Section 111A, read with section 108 and section 111 of the Companies Act, 1956 - Transfer of shares - Rectification of register on - In a private trust, petitioner was one of trustees - Said trust acquired share capital of R1 company - Share certificates were issued in name of petitioner, her husband R2 and two other persons - Petitioner alleged that impugned shares were illegally transferred to R2 without express execution of transfer deed by each trustees - Whether, where there was non-compliance of mandatory provisions of section 108, petitioner was an 'aggrieved person' within meaning of section 111 (4) and as such, entitled to maintain petition - Held, yes - Whether where petitioner being unaware of documents in question did not mention same in her petition, this could not be said as concealment or suppression of material and vital facts - Held, yes - Whether since petitioner had filed instant petition in her capacity as a member/ joint shareholder of R1 company and not as a trustee, non-joinder of other trustees would not make any difference - Held, yes - Whether further, complicated questions of fact relating to fraud and fabrication of documents, etc. cannot be adjudicated in summary proceedings under section 111, hence they cannot be raised as a preliminary objection at threshold to dismiss petition - Held, yes - Whether, thus, applications filed by respondents opposing instant petition were to be dismissed - Held, yes [Paras 17, 27, 40 & 47]
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[2014] 51 taxmann.com 95 (CLB - Mumbai)
COMPANY LAW BOARD, MUMBAI BENCH
Gaurishankar Neelkanth Kalyani
v.
Sulochana Neelkanth Kalyani
ASHOK KUMAR TRIPATHI, JUDICIAL MEMBER
CA NOS. 100-107 OF 2011
CP NOS. 19 TO 26 OF 2011
SEPTEMBER 4, 2013
Section 59, read with section 56 of the Companies Act, 2013/Section 111A, read with section 108 and section 111 of the Companies Act, 1956 - Transfer of shares - Rectification of register on - In a private trust, petitioner was one of trustees - Said trust acquired share capital of R1 company - Share certificates were issued in name of petitioner, her husband R2 and two other persons - Petitioner alleged that impugned shares were illegally transferred to R2 without express execution of transfer deed by each trustees - Whether, where there was non-compliance of mandatory provisions of section 108, petitioner was an 'aggrieved person' within meaning of section 111 (4) and as such, entitled to maintain petition - Held, yes - Whether where petitioner being unaware of documents in question did not mention same in her petition, this could not be said as concealment or suppression of material and vital facts - Held, yes - Whether since petitioner had filed instant petition in her capacity as a member/ joint shareholder of R1 company and not as a trustee, non-joinder of other trustees would not make any difference - Held, yes - Whether further, complicated questions of fact relating to fraud and fabrication of documents, etc. cannot be adjudicated in summary proceedings under section 111, hence they cannot be raised as a preliminary objection at threshold to dismiss petition - Held, yes - Whether, thus, applications filed by respondents opposing instant petition were to be dismissed - Held, yes [Paras 17, 27, 40 & 47]
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