Home   |   About us   |   Contact us   |   Request Callback  
 
   
ALREADY A MEMBER ?
Username
Password

Translate

This Page To:

 
BALESHWAR SHARMA V/S ANIRVA DEVELOPERS P. LTD. & OTHERS, decided on Monday, April 28, 2014.
[ In the Company Law Board Principal Bench New Delhi, C.P. No. 74 (ND) of 2010. ] 28/04/2014
Judge(s) : D.R. DESHMUKH, (CHAIRMAN)
Advocate(s) : Geeta Luthra, Rohit Kumar and Narendra Goyal. R1 & R3 to R8, Abhinav Vasisht, Vibhu Bakhru, Senior with P. Nagesh, Rajat Arora, R2, A.K. Sinha.
Judgment Full Text : Existing LawyerServices Members, kindly login above.

Non Members, Enter your email address:- and , to request this judgment.

Alternatively, you may send a request by email to info@lawyerservices.in for the Full Text of this Judgment (chargeable).

LawyerServices Facebook Page

Judgments that may be related:-


  Baleshwar Sharma Versus Nageshwar Pandey,   13/01/2017.  




#LawyerServices #bestlegalsoftware #legalsoftware #judgment #caselaw

  "2015 (2) CompLJ 108"  ==   "2014 (187) CC 233"  ==   "2014 (56) RCR(Civil) 612"  ==   ""  







    The present petition C.P. No. 74(ND) of 2010 is a glaring example of the grossest abuse of process and fraud practiced on this Board by respondent No. 3 and forum shopping by the petitioner to somehow acquire title for M/s. Anirva Developers P. Ltd. (henceforth the company) over its only asset being the only purpose for its formation.2. The company was incorporated on June 14 2007 with its registered office at 59 A/2. Kalusarai New Delhi-110 016. The main purpose for the incorporation of the company was to acquire title over land admeasuring approximately 1 33 325 sq. metres in old Goa being Plot No. D-3 forming part of property known as Malians admeasuring 68 325 sq. metres belonging to Mr. R.C.P. Navelcar and Plot No. D-1 also forming part of property known as Malians admeasuring 65 000 sq. metres situated in Bainguinim Tiswadi Taluka under survey No. 26/2 part of the said village under the jurisdiction of village Panchayat of Se (old Goa) (henceforth the property) for a total sale consideration of Rs. 35 crores. The petitioner who is shown by the respondents as a property broker/agent and respondent No. 2 Mr. Nageshwar Pandey an advocate both invested Rs. 50 000 each to contribute to the authorised share capital of rupees one lakh of the company divided into 10 000 equity shares of Rs. 10 each and shared equally the equity of the company i.e. 5 000 shares each. The articles and memorandum of association of the company show the petitioner and respondent No. 2 as the initial subscribers to the authorised and fully paid-up share capital of the company. Prior to the said incorporation a memorandum of understanding had been executed between the petitioner and respondent No. 2 on June 5 2007 recording that respondent No. 2 had entered into an agreement to purchase the property from Shri Ravinder Navelcar and Mr. Mahesh R.P. Navelcar both residents of Goa and a sum of Rs. 3.95 crores had been paid by the petitioner to respondent No. 2 and that a partnership firm shall be formed between them and a sale deed of the property shall be got executed in the name of the said partnership firm only. As the petition unfolds the petitioner and respondent No. 2 decided instead to incorporate the company as it would be more congenial for facilitating obtaining of loans from banks financial institutions or outside parties. According to respondent No. 2 the petitioner did not advance any money to respondent No. 1 company.3. Since the document (annexure P3) dated June 5 2007 recorded a cash payment of Rs. 3.95 crores by the petitioner to respondent No. 2 on March 21 2013 1 directed the petitioner to swear an affidavit to that effect and to file his income-tax return to show that such payment was reflected in his income-tax return for the said year. On May 21 2013 the petitioner filed an affidavit that the said transaction was not reflected in his income-tax return as he had secured an advance of Rs. 2.40 crores from his friend Mr. Mukesh Kumar and Rs. 1.91 crores from another friend Mr. Pawan Kumar. The date of the said advance was not mentioned in the affidavit. Affidavits of Mr. Mukesh Kumar and Mr. Pawan Kumar were also not filed. I am therefore of the considered view that the said transaction of payment of Rs. 3.95 crores by the petitioner to respondent No. 2 is a transaction not recognised under law. Another important fact which emerges from perusal of the pleadings is that respondents Nos. 3 to 8 have categorically denied the payment of Rs. 3.95 crores by the petitioner to Mr. R.C.P. Navelcar. The petitioner has placed strong reliance on the memorandum of understanding dated June 5 2007 to substantiate payment of Rs. 3.95 crores by him to Mr. Nageshwar Pandey respondent No. 2 in cash towards his contribution for the purchase of the property. Any such transaction was between the petitioner and respondent No. 2 prior to the incorporation of the company. Secondly the property consists of two plots admeasuring 68 325 sq. metres and 65 000 sq. metres. However the sale deed executed by Mr. R.C.P. Navelcar in favour of the company and the sale deed executed by the auction purchaser Smt. Nirupa Udhav Pawar in favour of respondent No. 2 is only in respect of Plot No. D-3 admeasuring 68 325 sq. metres and not in relation to the other plot. Therefore firstly no payments were made directly by the petitioner to Mr. R.C.P. Navelcar. Secondly the transaction of payment of Rs. 3.95 crores in cash by the petitioner to respondent No. 2 is not recognised by law. It is also clear that the said amount of Rs. 3.95 crores was to be apportioned towards the consideration of both the plots and not Plot No. D-3 alone. Therefore it cannot be ascertained as to how much did the petitioner contribute towards the purchase of Plot No. D-3 before incorporation of the company. Be that as it may it.is a transaction only between the petitioner and respondent No. 2 prior to the incorporation of the company and the petitioner is at liberty to avail remedy available to him in an appropriate jurisdiction for recovering such amount from respondent No. 2.4. The petitioner as early as in March 2009 had instituted and vigorously pursued a Civil Suit No. 470 of 2009 (annexure P18) against all the respondents herein before the High Court of Delhi for identical reliefs as claimed in the present company petition none of which were granted to the petitioner even in the interim: On August 19 2010 i.e. the very first date of mentioning this petition before this Board learned counsel for the petitioner conceded that the petitioner had instituted Civil Suit No. 470 of 2009 with I.A. No. 3267 of 2009 praying for identical main and interim reliefs before the High Court of Delhi and therefore sought time to withdraw the said civil suit and argue on interim reliefs. Needless to say that having approached the High Court of Delhi in March 2009 by filing Civil Suit No. 470 of 2009 no relief whatsoever was granted to the petitioner by the High Court till unconditional withdrawal of civil suit by the petitioner. It is also to be noted that despite the assertion by his counsel till conclusion of hearing the petitioner did not file a certified copy of the order passed by the High Court of Delhi permitting such withdrawal. Since the petitioner did not file such order the contention of respondent No. 2 that an unconditional withdrawal simpliciter was obtained by the petitioner from the High Court of Delhi has to be accepted. It therefore needs to be examined as to what was the dominant purpose of filing the present petition under sections 397 398 402 and 403 of the Companies Act 1956 and invoking the equitable jurisdiction of this Board instead of pursuing Civil Suit No. 470 for identical reliefs pending since 2009 before the High Court of Delhi.5. As the petition itself reflects the petitioner was at all times aware that the property was the subject matter of litigation in Goa and stood attached and auctioned by the Goa State Co-operative Bank (henceforth the bank) and various litigation's were pending including a writ petition in the High Court of Bombay at Goa by Mr. R.C.P. Navelcar. On the strength of a sale deed executed by Mr. Ravinder Navelcar in favour of the company and pertaining only to a part of the property to wit Plot No. D-3 and fraudulently got registered by respondent No. 2 before a Sub-Registrar in Goa not having jurisdiction and the subsequent transfer of the said property only in the name of respondent No. 2 by an auction purchaser Mrs. Nirupa Udhav Pawar was made the basis for seeking a relief in paragraph 8(d) of the company petition directing respondent No. 2 to transfer in favour of respondent No. 1 company all rights created in Plot No. D-3 forming part of the property known as Malians admeasuring 68 325 sq. metres situate in Bainguinim Tiswadi Taluka under survey No. 26/2 part of the said village under the jurisdiction of village Panchayat of Se (old Goa) vide sale deed duly registered No. 380 of Volume No. 2187 of Book No. 1 pages 311 to 330 dated February 3 2010. Despite knowledge the petitioner nowhere revealed in the company petition that Mr Ravinder Navelcar had mortgaged Plot No. D-3 out of the property with the bank which was subsequently sold in an auction by the said bank to the auction purchaser Mrs. Nirupa Udhav Pawar who had subsequently also executed a sale deed of the said Plot No. D-3 in favour of respondent No. 2: All such details were carefully suppressed by the petitioner. It was also suppressed by the petitioner that in a Civil Suit No. 22/2010/A (Panaji) subsequently re-registered as Civil Suit No. 39 of 2010(C) (Mapusa) instituted by the company through its director Mr. Satish Julka respondent No. 3 herein the civil court had declined to grant any injunction in favour of the company in relation to the said property on the ground that having mortgaged the said property with the bank Mr. Ravinder Navelcar could not transfer any legal title by execution of a sale deed in favour of the company which is shown to have been got registered fraudulently by respondent No. 2 (as alleged by the petitioner) with a Sub-Registrar in Goa not having jurisdiction. It was further held that the company could not challenge the legality of the auction proceedings held by the bank in respect of the said property as no injunction could be granted against any authority acting under the law. The refusal of injunction on the ground that the company had no prima facie case was also founded on the fact that the auction in favour of Mrs. Nirupa Udhav Pawar had become final and a sale deed executed by the said auction purchaser i.e. Nirupa Udhav Pawar in favour of respondent No. 2 Mr. Nageshwar Pandey in his personal capacity after a consented withdrawal of a Writ Petition No. 498 of 2006 filed by Ravinder P. Navelcar before the High Court conferred valid title in favour of Mr. Nageshwar Pandey respondent No. 2. Shri R.C.P. Navelcar had submitted before the civil court that Nageshwar Pandey had paid the consideration for the property to him even before incorporation of the company or in his words even before the company was bom. In other words the civil court held that no prima facie title passed on in favour of the company and in relation to the property mentioned above in view of the fact that having mortgaged the property Ravinder P. Navelcar had no legal right to transfer the said property in favour of the company. Thus the above mentioned fact dearly go to show that being in the knowledge of the above fact and having been unsuccessful in securing even a favourable interim order after pursuing before the High Court of Delhi Civil Suit No. 470 of 2009 and I.A. No. 3267 of 2009 the petitioner indulged in forum shopping and filed this company petition in July 2010 in an attempt to somehow obtain relief for respondent No. 1 company by suppressing material facts.6. Heavy reliance is placed by the petitioner on a memorandum of understanding dated December 19 2007 executed between all the parties herein sans the company. Every averment and argument contained in the petition is founded on this memorandum of understanding. It is the case of the respondents that the said memorandum of understanding dated December 19 2007 was never acted upon and was in fact cancelled vide cancellation deed dated December 27 2007 because the said memorandum of understanding was ambiguous and against the provisions of the Companies Act 1956. The respondents have filed the said cancellation deed dated December 27 2007 as annexure R18 which prima facie bears the signature of the petitioner and all respondents. According to the petitioner the said deed is a forged document. To prove this the petitioner has filed certain documents. First he has filed an air ticket to Goa with his family leaving New Delhi on December 22 2007. However that does not conclusively show that the petitioner was in Goa on December 27 2007. Secondly he has filed documents pertaining to stay with his family in Hotel La Calypso from December 22 2007 to December 29 2007 but the reservation is not in the name of the petitioner but in the name of the company M/s. Anirva Developers P. Ltd. No explanation is forthcoming as to how on a private visit with his family the reservation is done in the name of the company. It is also interesting to know that excepting the food bill dated December 27 2007 the food bills during stay in Hotel La Calypso are not signed by the petitioner and in particular on the food bill dated December 27 2007 the signature is somewhat different than the signature of the petitioner in the petition. So far as cell phone bills are concerned it does not conclusively show that it was the petitioner alone who made these calls from Goa. Be that as it may the fact whether signature of the petitioner appearing on the cancellation deed dated December 27 2007 is forged and whether the petitioner was throughout on the said date in Goa is a complicated question of fact requiring expert forensic evidence and examination on affidavits which as held in Ammonia Supplies Corporation P. Ltd. v. Modern Plastic Containers P. Ltd. [1994] 79 Comp Cas 163 (Delhi) [FB] by the High Court of Delhi (Full Bench) may be declined in exercise of its discretionary and summary jurisdiction by the Company Law Board. I therefore decline to examine this issue. In view of their pleadings respondents Nos. 3 to 7 cannot take any advantage of clause (6) of the memorandum of understanding dated December 19 2007 relating to appointment of directors on the board since it is their case that the said memorandum of understanding was cancelled on December 27 2007 and was not to be acted upon by either party.7. It is now clear that the company today has no asset inasmuch as no legal title passed on in favour of the company over the property till date. The jurisdiction to grant the relief seeking direction to respondent No. 2 to transfer all rights created on the property in favour of the company rests solely with the civil court and not with the Company Law Board since respondent No. 2 has acquired title over the said property in his personal capacity from the auction purchaser Nirupa Udhav Pawar who had a legal title over the property and transferred such title in favour of respondent No. 2.8. Although the relief claimed by the petitioner in paragraph 8(d) cannot be granted by this Board there is another very disturbing feature of fraud practiced by respondent No. 3 Satish Julka. To substantiate the appointment of Mr. Satish Julka as the chairman of the Board and subsequent action taken in board meetings the respondents have filed certificate of posting dated November 5 2007 for the board meeting dated November 12 2007 certificate of posting dated January 14 2008 for the board meeting dated January 18 2008 certificate of posting dated January 21 2008 for the board meeting dated January 25 2008 certificate of posting dated July 4 2008 for the board meeting dated July 10 2008 certificate of posting dated August 8 2008 for the board meeting dated August 12 2008 certificate of posting dated August 22 2008 for the board meeting dated August 25 2008 certificate of posting dated August 25 2008 for the board meeting dated August 27 2008 certificate of posting dated September 20 2008 for the board meeting dated September 25 2008. All these certificate of postings obtained from the postal department bear the postal stamp of Satyajit Ray and all such notices were signed by Satish Julka respondent No. 3. Since the conduct of the respondents during the hearing aroused suspicion a certificate was obtained from the Postal Department which revealed that the postal stamp of Satyajit Ray was released on March 1 2009 and was not in existence in the years 2007 and 2008 in which the said board meetings were allegedly held. This unearthed a colossal fraud practiced by the respondents in obtaining position on the board and passing various resolutions. As held in S.P. Chengalvaraya Naidu v. Jagannath [1994] 1 SCC 1 a person whose case is founded on fraud has to be summarily thrown out at any stage of the litigation. Similarly as held in M.S. Madhusoodhanan v. Kerala Kaumudi P. Ltd. [2003] 117 Comp Cas 19 (SC) postal certificates have no legal sanctity and in this particular case there is a colossal fraud practiced by Mr. Satish Julka respondent No. 3 with the aid of such postal certificates in preparing false notices of such board meetings the resolutions passed therein and statutory forms filed with the Registrar of Companies on the strength of such concocted board resolutions. Therefore all such board meetings must be held to be non est and all resolutions passed at such board meetings must necessarily be held to be a nullity. All statutory filing of forms with the Registrar of Companies as a result of such fraud also gets vitiated as a nullity. I accordingly hold that resolutions passed in the board meetings held on November 11 2007 January 18 2008 January 25 2008 July 10 2008 August 12 2007 August 25 2008 August 27 2008 and September 25 2008 are null and void and status quo ante prior to passing of such resolutions on the board of directors of the company is restored. The petitioner and respondent No. 2 shall be the only directors on the board of the company. All statutory filings with the Registrar of Companies on the basis of such fraudulent resolutions are also rendered null and void. I decline to grant the relief claimed by the petitioner in paragraph 8(d) of the company petition since the jurisdiction to grant such relief is not with this Board. But for the fraud unearthed on account of a query made by this Board from the Postal Department I would have been reluctant to grant any relief in this company petition which is nothing but a glaring instance of forum shopping. However since fraud vitiates an act completely I have been inclined to declare null and void all such board resolutions. The act of respondents Nos. 3 to 7 in filing false certificates of posting and notices for board meetings before this Board tantamounts to practicing fraud on this Board and a complete abuse of the process of this Board. Respondents Nos. 3 to 7 being fully aware of the fraud practiced by them even declined to a suggestion given by this Board on October 11 2012 to gracefully step down from the board of the company. I therefore also deem it necessary to award an exemplary cost of Rs. 1 lakh on the author of such fraud i.e. respondent No. 3 Satish Julka. The said cost shall be deposited within 30 days from this order by Satish Julka by a demand draft favouring Delhi Legal Services Authority Delhi. On failure by Satish Julka to comply with this order stringent coercive action including criminal prosecution may be initiated against him. Interim order contained in paragraph 6 of the order dated January 20 2011 and in paragraph 5 of the order dated April 20 2012 stands vacated. Company Petition No. 74(ND) of 2010 and C.A. No. 118 of 2011 filed by respondent No. 2 are accordingly disposed of.