Deepa Goyal vs Nanda Devi Builders (P) Ltd. And … on 16 November, 2001

Company Law Board
Deepa Goyal vs Nanda Devi Builders (P) Ltd. And … on 16 November, 2001


S. Balasubramanian, Vice-Chairman

1. The petitioner being the holder of 500
shares in the paid up share capital of 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 Prasnat Vihar, Delhi, known as Nanda Devi Tower. This Tower consist
of 5 floors including a basement. The petitioner had booked the entire 3rd floor
admeasuring 1,450 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 lakhs 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 lakhs paid by her, the company has reflected a sum of Rs.
1.25 lakhs 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 have asked for payment of
the balance amount, nor have 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 1,200 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 form 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Board should be superseded etc.

3. In the reply, the respondents have submitted that this petition is not maintainable
inasmuch 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 lakhs as claimed
to have been paid by the petitioner, she paid only Rs. 1.25 lakhs as advance for
booking the said floor as against a total consideration of Rs. 9.8 lakhs. As on
31.3.1992, there were unsecured loans of Rs. 1.3 lakhs 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 lakhs paid by her was forfeited as
early as in 1993. Shri K.C. Goel was a director of the company during the 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 lakhs
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 February, 1994, and
the proceeds of sale have been credited to the accounts of the company. As far as
issued of 1,200 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 extraordinary 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
proceedings inasmuch 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 cancelling the allotment. Therefore, nothing
survives on this allegation. As far as the allotment of 1,200 shares is concerned, since
the allotment was made as early as in 1990, we cannot look into the bona fide 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 [since reported as Jindal (M.R.)
v. Nanda Devi Builders (P) Ltd. and others (2002) 1 Comp LJ 410 (CLB)]. 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.

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