(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)
1. This appeal is directed against the order of the Company Law Board dated 30.03.2011, by which the petition filed by the present appellant Under Section 111A of the Companies Act, 1956 is dismissed by the Company Law Board.
2. According to the appellant, he had purchased equity shares of the respondent company in the year 1995. There are about 3900 equity shares of the respondent company and he is the rightful owner of the same and the direction is required to be given to the company to enter the name of the appellant in respect of said shares and delete names of others appearing in the register of the company by rectifying the same. The case of the appellant is that he had purchased the said shares from the original owner, but thereafter, the said shares were found missing. The appellant accordingly prayed that he may be declared as rightful owner of 3900 equity shares of the company and the register of the company may be rectified accordingly.
3. The Company Law Board has considered the matter from an appropriate angle and has found that the appellant has failed to prove genuineness of his claim about the ownership. In order to find out genuineness of the claim, it has been considered that the appellant has never approached the Company for registering his name for about 8 years. The Company Law Board in the petition has considered the reply of the company, which reply is incorporated in paras-3 and 4 of the order, which read as under:-
"3. None appeared for the Respondent Company. However, a detailed reply is filed on its behalf. It is submitted that the Respondent has strong objections to the maintainability of the present petition. The petitioner has intentionally and deliberately not disclosed the true and material facts before this Bench and is guilty of suppression, concealment & misrepresentation of material facts. The petition is barred by limitation. As per Sec.111A(3) of the Companies Act, 1956 a petition for rectification of register of members has to be made within two months from the date of the lodgement of transfer deed with the Company. The petitioner is approaching this Bench more than 8 years after the date of alleged purchase of the shares of Respondent Company seeking relief against the Respondent Company for an act of loss/theft or original share certificate for which Respondent Company is no way connected or responsible. The petition also suffers from serious defect of non joinder or necessary parties i.e. alleged transferors of 3900 shares of Respondent Company and Active Finstock Pvt. Ltd., the broker. The petitioner has not lodged the impugned shares with Respondent Company for transfer and the petitioner has not produced any documentary evidence to substantiate his claim except the contract note which cannot be taken as the conclusive proof for payment of consideration. The petitioner at no point of time had lodged the transfer deeds with the Respondent Company pertaining to the shares alleged to be purchased by it.
4. It is further submitted that in spite of misplacing the original share certificates along with the blank transfer deeds, the petitioner is in a position to furnish the exact share certificate number for the shares purchased. But he has not given the folio number of the person from whom the shares were purchased. Soon after coming to its knowledge about the loss /theft of the Blank Share Transfer Forms, should have approached the Respondent Company and the police authorities. The petitioner first informed the Respondent Company vide its alleged letter dated 6th Jan., 2005 i.e. more than eight years after the alleged purchase contract was executed by the petitioner with the share broker. In the said letter the petitioner has requested for issue of duplicate share certificate which were not registered in his name nor, the petitioner has at any point of time submitted Share Transfer Deed. The petitioner cannot initiate another legal proceedings against the Respondent Company when a Civil Suit No.1162 of 2005 filed by the petitioner against the Respondent Company is still pending before the City Civil Court at Ahmedabad. In the circumstances, it is prayed that the application for condonation of delay may not be granted. It is also prayed that keeping in view the facts and circumstances of the case, this Bench may dismiss the petition with exemplary costs."
4. Considering the say of the appellant as well as of the company, the Company Law Board found that the petition is not maintainable on the ground that the appellant is neither the transferor nor transferee within the meaning of Section 111A of the Act. Admittedly the appellant had not lodged the shares for transfer with the company along with requisite documents and if the company without sufficient cause refuses to register his name, in such a case, the aggrieved person can approach the Company law Board within the time prescribed under the law.
5. It is the case of the appellant that he had written various letters to stop transfer of the shares. The appellant thereafter filed suit in the year 2005, i.e. Suit No.1162 of 2005, which was withdrawn by him and subsequently Company Petition was filed. It is required to be noted that according to the appellant, the shares were lost in the year 1996 and the suit was filed in the year 2005, which was subsequently withdrawn. In our view, the Company Law Board has rightly dismissed such a frivolous petition. It has been found by the Company Law Board that the stand of the appellant is not clear as to whether share transfer deeds were lost or stolen and the appellant is not even certain about this. The Company Law Board has given appropriate reasoning in not entertaining such a frivolous petition.
6. Learned Counsel for the appellant has failed to prove even remotely how he was owner of the aforesaid equity shares. The Company Law Board has also criticized the conduct of the appellant. The claim of the appellant, in our view, therefore, seems to be nothing but an afterthought and in fact, from the order of the Company Law Board we find no error of law in any manner which is required to be interfered with by this Court. The appeal is throughly misconceived. Hence, it is dismissed.
7. In view of the order passed in the main OJ Appeal, the Civil Application does not survive and the same is disposed of accordingly.
(P.B.Majmudar, J.) (Paresh Upadhyay, J.) *Shitole Top