IN ‘THE NATIONAL COMPANY LAW TRIBUN. JAIPUR BENCH, CORAM: SHRI DEEP CHANDRA JOSHI, HON'BLE JUDICIAL MEMBER SHRI RAJEEV MEHROTRA, HON’BLE TECHNICAL MEMBER IN THE MATTER OF: RINKU SHARMA VERSUS CANo. 02/PRI024 & CP No, 27/241-242/JPR2023 -:PETITIONER MODERN MEDICO SOLUTIONS PVT. LTD. & ORS. -RESPONDENTS MEMO OF PARTIES RINKU SHARMA, Rio 2-B, Hazareshwar Colony, Court Chouraha, Udaipur, Rajasthan 313001 Email: rinkush88@gmail.com VERSUS 1. MODERN MEDICO SOLUTIONS PVT.LTD. Having its Registered Office at: B-405, Circle View Apartment, Sukhadia Circle, Udaipur, Rajasthan-313001 2. RAJEEV PORWAL Rlo B-405, Circle View Apartment, Sukhadia Circle, Udaipur, Rajasthan 313001 3. MANISHA PORWAL CANo. 02PR2024 « APPLICANT/PETITIONER CP No, 277241-242/7PR2023Rio B-405, Circle View Apartment, Sukhadia Circle, Udaipur, Rajasthan- 313001 4. SINGAL EXPRESS CARRIERS PVT.LTD. Having its Registered Office at: B-405, Circle View Apartment, Sukhadia Circle, Udaipur, Rajasthan- 313001 5, STATE BANK OF INDIA Having its Branch Office at: SME Branch, Riddhi Complex, Madhuwan, Udaipur- 313001 Email: sbi,04082@sbi.co.in 6, AJMER VIDYUT VITRAN NIGAM LTD. Having its Registered Office at: Vidyut Bhawan, Panchsheel Nagar, Makarwali Road, Ajmer- 305004 Email: seitaim.avvnl@rajasthan.gov.in 7. REGISTRAR OF COMPANIES, JAIPUR Having its Office at: Corporate Bhawan, C-6/7, Residency Area, Civil Lines, Jaipur- 302001 Email: roc jaipur@mea.gov.in -. NON-APPLICANT/RESPONDENTS. FOR APPLICANT(S) 1 Prateek Kedawat, Adv’ FOR RESPONDENT(S) : Nivedita R, Sarda, Adv. Order Pronounced On:14.03.2024 ORDER 1. A Company Petition bearing CP No, 27/241-242/JPR/2023 kas been filed by Mrs. Rinku Sharma (‘Petitioner’) under Sections 241, 242,244, 244(1), 59, 213, 166, 447 and 452 of the Companies Act, 2013 read with Rule 81 ofoppression and mismanagement in the affairs of M/s: Modern Medico Solutions Pvt. Ltd. ‘Respondent Company’! ‘Respondent No. 1°) by is directors and members. The Petitioner sought relief against the alleged acts of mismanagement and oppression 2. ‘The brief facts giving rise to the present Petition as contended by the Petitioner areas follows 2.1, The Respondent Company isa closely held Private Limited Company, ‘which was incorporated on 19.12.2007 by Rajeev Parwal (Respondent No, 2') under the provisions of the Companies Act, 1956, duly repistered with the Registrar of Companies, Jaipur, having Corporate Identity No, USS19SRI2007P1CO25536. The registered office of the Company is situated at Plot No. B-405, Circle View Apartment, Sukhadia Circle, Udaipur, Rajasthan. 313001. The authorized share capital of the Company Rs, 1,25,00,000/- (Rupees One Crore ‘Twenty-Five Lakhs Only) divided into 12,50,000 Equity Shares of Rs. 10/- each. The Respondent Company is engaged in the Business of running and managing Diagnostic Centres at Udaipur. 2.2. The Ps toner, who was running her diagnostic centre was approched by Rajeev Porwal (Respondent No. 2’) and Manisha Porwal (Respondent No.3") to join the Respondent Company. Thereafter, the Petitioner was appointed as a Director ofthe Respondent Company on 25.09.2021. Further, she also became a shareholder of the Respondent CA.No, O2UPR2024 « (CP No, 27241-2421 PR2234 ‘Company and held 1,25,000 equity shares amounting to 10% of the total shareholding ofthe Company. The correct sharehold ng pattern of the Company as alleged by the Petitioner is as follows: Petitioner/ Respondent ‘No. of | %ofEquity Shares | Share Capital ‘Rajeev Porwal (Respondent No.2) | 287,500 | 23% ‘Manisha Porwal (Respondent No. 3) | 1,87,500 | 15% ‘Rinku Sharma (Petitioner) 725,000 | __10%6 |Singal Express Carriers Pvt. Ltd 6,50,000 52% (Respondent No. 4) TOTAL 72,50,000 | ‘100% 2.3. After the appointment of the Petitioner as a Director ofthe Respondent Company, she has been kept in the dark concerning functioning of the ‘Company. Further, she was denied access to documents and records of the Company. A copy of the E-mail ofthe Petitioner dated 08.11.2022 seeking documents from the Respondent Company is annexed as Anmexure-P4 of the Petition. 2.4, The Petitioner has also not been invited to any of the Board Meetings of the Respondent Company since the date ofher appointment, Further, the Petitioner has never been served with any notice pertaining to board meetings as required under the Companies Act, 2013. The Petitioner raised the issue with the Company vide her email dated 10.11.2022 but no heed was paid to the same, A copy of the email dated 10.11.2022 is annexed as Annexure-PS of the Petition, Ea CANo, O2UPR2024 « CP No, 27/241 24YIPR20232.8. The Petitioner raised her grievances with the Registrar of Companies RoC’ ‘Respondent No. 7°) vide her complaint dated 29.12.2022. In reply to the complaint, Respondent No. 2 had filed postal receipts of notices of Board Meetings that were served upon the Petitioner. A copy of the rely fled by Respondent No. 2 with the RoC is annexed as Annexure-P8 of the Petition. Regarding the postal receipts filed by Respondent No. 2 itis alleged by the Petitioner tha thy are bogus documents as no notice has ever been served upon her 2.6. Respondent No.2 and 3 exercise complete control aver the Respondent ‘Company as they hold 90% Authorized Share Capital ofthe Company long with Mis Singal Express Carriers Pv. Ltd (Respordent No. 4”). 1 company managed by the said Respondents. The said Respondents with the intention of ousting the Petitioner ffom the Respondent Company, forged an SH-4 Form conceming the transfer of all the shares of the Petitioner in favour of Respondent No. 2 for a consideration of Rs, 12,50,000/- (Rupees Twelve Lakhs and Fifty ‘Thousand Only). Further, the Respondents concocted a story about approval of the transfer in the Board Meeting dated 31.98.2022. The Petitioner alleged thatthe said transfer of shares is completely illegal as she is still in possession of her original share certificates and the ner has Respondents have forged her signature on the form. The filed « copy of the forensics report in support of her contention and the CANo. O2UPR2024 a CP No, 27241 24IPRADS6 same is annexed as Annexure-PI1 of the Petition, Further, the Petitioner has not received any consideration as mentioned in the SH- 4 form 2.7. ‘Thereafter, the Petitioner was illegally removed from the directorship ‘of the Respondent Company vide an Extra-ordinary General Meeting, (CEGM) dated 28.11.2022. The Petitioner was nether sewed with any special notice of EGM nor she was given any opportunity of hearing at the EGM as mandated under Section 169 of the Companies Act, 2013. Further, Respondents No. 2 and 3 have filed an illegal DIR-12 form with the RoC. Illegality in the DIR-12 form becomes apparent from a bare perusal of the form which reveals that the digital signature of Respondent No. 3 and PCS Mohit Vanawat on DIR-12 were affixed on (06.01.2023, whereas the challan attached with it is of an earlier date ive, 07.12.2022 2.8, Against the ilegsl actions ofthe Respondents, the Petitioner filed an FIR on 11.05.2023 bearing no, 94/2023 under Sections 419, 420, 406, 467, 468, 471, and 506 read with Section 120-B of the Indian Penal Code, 1860 against Respondent No. 2 and 3 and one Priyanka, 29. In addition tothe aforementioned allegations, the Petitioner has stated thatthe Respondent Company took a loan of Rs. 3.5 Crores from State Bank of India (‘Respondent No. 5°) for which the Petitiner gave her personal guarantee, The Respondents have failed to furnish the CA.No, O2/5PR2024 aerequisite bank statements concerning the loan account tothe Petitioner. It has been alleged that the Respondents are siphoning off the funds of the loan account. Hence, the conduet of Respondent No. 2 and 3, and ‘the manner in which the business of Respondent Company is earied ‘on amounts to mismanagement and oppression against the Petitioner. 3. The Respondent No. 2 vide its Affidavit bearing Diary No, 2916/2023 dated (08.12.2023 raised the issue of maintainability of the Fetition, The contentions raised by the Respondent No. 2 in the affidavit are summarized hereunder: 3.1. Itis stated in the affidavit that the Petitioner is neither a shareholder nor a director in the Respondent Company as on the date of filing of the instant petition, ‘The Petitioner has transferred her shares for consideration of Rs 12,50,000/- (Rupees Twelve Lakhs Fifty Thousand Only) in favour of Respondent No. 2 and the same has been approved in the Board Meeting of the Company dated 31.03.2022, As per Section 244 of the Companies Act, 2013 a Petition under Section 241-242 can only be filed by a shareholder having a share capital, not less than one hhundred members ofthe company or not less than one-terth of the total number of its members. The Petitioner is no longer a member of the Respondent Company and she has also not sought aay waiver 2s provided under Section 244 of the Companies Act, 2013. Therefore, the present Petition is not maintainable and deserves to be dismissed. CA.No, O2/0PR2024 se CP No, 27/241-24/PR2023‘The shareholding of the Company at the time of filing of the present Petition is as follows: Petitioner/ Respondent No. of | % of Equity Shares | Share Capital Rajeev Porwal (Respondent No.2) 412,500 | 33% “Manisha Porwal (Respondent No. 3) 787,300 | 15% | Rinku Sharma (Petitioner) 5 = Singal Express Carriers Pv. Lidl 6,50,000 | 529% (Respondent No. 4) [ TOTAL 72,50,000 | 100% | Fume, the Petitioner was removed from the directarship of the Company following the due process of law in the EGM dated 28.11.2022. 3.2. ‘The Patiton does not disclose any existence of oporession and mismanagement in conducting the afrs of the compeny to justify invoking of Seetion 241 and 242 of the Companies Act, 2013. In support of the Contentions, the Respondent relied upon the following Judgments:- 1. Kalinga Tubes v/s Shanti Prasad Jain AIR 1963 Orissa 189 II, Ashoka Betelmut Company Pvt. Lid. vis M.K. Chandrckanth [1997- I-L.W. 616] IIL, Subhas Chand Agarwal v/s Associated Limestone Limited 1998 CC 92 525 IV, Tin Plate Dealers Association Pvt. Ltd. ws Satish Chandra Sanwalka (2016) 10 SCC 1 3.3. The Petitioner has not approached this tribunal clean hands and ‘has concealed material facts from the tribunal. It was stated that the cxmeetnone ETB ca suPetitioner had received a sum of Rs. 5,00,000/- (Five Lak Only) from the Bank Account of Ms Singhal Express Carriers Pvt, Ltd (Respondent No. 4") towards share application money. A copy of the Bank Statement of the transferor account is annexed as Annexure No. -03 of the affidavit. Further, the Petitioner's firm Mis Prime Kshipra Labs and Sonography was also paid an amount of Rs. 15,00,000 (Fifteen Lakh Only) by Respondent No. 2 on 20.04.2021, The Petitioner has consciously hidden the aforementioned facts from this Tribunal, and the present Petition deserves to be dismissed on this ground alone 4. This Tribunal vide its order dated 08.12.2023 permitted the Peftioner to file written submissions conceming waiver under Section 2:4(1) of the Companies Act, 2013. In compliance of the same, the Petitioner filed the ‘written submissions bearing Diary No. 3100/2023 dated 29.12.2023. In the ‘written submissions the Petitioner reiterated the submissions concerning her shareholding as stated in the main petition and without prejudice to her earlier submissions, prayed for waiver under Seetion 244 of the Companies Act 5. The Petitioner has filed an Amendment Application numbered CA No. (02/JPR/2024 seeking amendment of Para 50 of the Petition wherein it was stated that the Petitioner is still in possession of the Original Share CAN. R208 « CP No, 27/241.24IPR20310 Certificate. The Amendment to Para 50 as sought by the Petitioner in the Application reads as: “That the aforesaid impugned Form SH-4 (share transfer form) was forged as the details lke the number of shares, name of wransferee ‘consideration date etc. were filled without the knowledge and ‘consent of the Petitioner No. 1 Mrs Rinku Sharma, which ' i clear violation of Section 56 of the Companies Act, 2013 read with Rule 11 of Companies (Share Capital and debentures) Rules, 2014. Additionally, the original share certificates are at the registered office of the company with the respondent no. 2 and 3 and the respondents are illegally not allowing the petitioner fo enter the registered office ofthe company. Hence, the board of directors could not have legally approved and registered the purported transfer as the same is in clear violation of Section 56 of the Companies Act 2013 read with Rule 11 of Companies (Share Capital and debentures) Rules, 2014 as the Petitioner neither signed nor delivered the instrument of transfer to the company. Copy of the impugned illegal & forged SH-4 is annexed herewith and marked as Annexure P9." 6. We have heard the Ld, Counsels forthe partes and perused the averments made in the Petition, Application, and Affidavit along with the documents enclosed therein, 7. Before delving into the contentions of the parties, it will be apposite to mention the shareholding of the Respondent Company as per the annval return for the year ended on 31.03.2022 as provided in the Petition itself: [S.No. ‘Name No. of Shares_| Percentage 1_| Rajeev Porwal 412,500 33%, 2._| Manisha Porwal 1,87,500 13% 3 [Rinku Sharma a 0 CANo, O2UPR2024 ‘ CP No, 27/24 4YIPR2023n 4 |Singal Express Carriers Pv. | 650,000 52% Lid. “TOTAL 72,50,000 100% 8. As per the Annual Return for the year ended on 31.03.2022, the Petitioner hhas ceased to be a shareholder of the Respondent Company with effect from the Board Meeting dated 31.03.2022 wherein the Board has approved the transfer of Petitioner's shares in favour of Respondent No. 2, Further, a Copy of duly signed SH-4 is also on record. However, the Petitioner has challenged the said transfer of shares under Section 59 of the Companies Act, 2013 in the present Petition and has alleged that the SH-4 Form is @ forged document. 9. ‘The question of jurisdiction of this Tribunal to adjudicate upon disputed questions of facts in no more res integra. In the case of Ammonia Supplies Corporation (P) Ltd. v/s Modern Plastic Containers Pvt. Ltd & Ors (1998) 7 SCC 105, the Hon'ble Apex Court has held that under Section 155 of the Companies Act, 1956 (Pari Materia to Section $9 of the Companies Act 2013), the tribunal has powers to decide questions incidental and peripheral to the issue of rectification, Further, the proceedings under Section 59 of the Companies Act, 2013 are summary in nature. Thus, the tribunal does not have the jurisdiction to deal with complicated and disputed questions of forgery and fabrication of documents or pass declaratory reliefs of declaring, the private transfer of shares as null or void. Ey CA No. O2IPRI2024 « CP No, 27/241-242/IPR2022 10. In the case of Mukesh Jaiswal v/s Phool Chand Gupta 2022 SCC OnLine Cal 3957, the Hon'ble Calcutta High Court has observed that: ‘In view of the above, this Court finds that NCLT is not competent to enquire into the allegation of fraud specifically when the plaintiff has prayed for declaration of recording the names of defendant no 2and 3 as share holders in the books” 11. In light of the Judicial Pronouncements referred to above, we are of the pinion that this tribunal does not have the jurisdiction to deal with the complicated issues of forgery concerning the transfer of shares as raised by the Petitioner. The allegations of forgery, fraud, and fbrication of documents raised by the Appellant cannot be a subject matter ofa petition under Section 59 of the Companies Act, 2013. 12. As far as the allegations of the Petitioner qua mismanagement and oppression of the affairs of the Respondent Company are concerned, the tribunal is duty-bound to ascertain the locus standi of the Petitioner as provided under Section 244 of the Companies Act. Section 244 of the Companies Act, 2013 reads as ‘244. (1) The following members of a company shall have the right 10 apply under section 241, namely: (@)In the case of a company having a share capital, not less than one hnundred members of the company or not less than one-tenth ofthe total umber of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, subject to the condition that the applicant or appitcants has or have paid all calls and other sums due on his or their shares; CANo. O2IPR2024 « CP No. 27/241-242/1PR20232 () in the case of a company not having a share capital, not less than one- Jfifth of the total number of its members:- Provided thatthe Tribunal may, on an application made to it in this behalf ‘waive all or any of the requirements specified in clause (a) or clause (8) so 4 to enable the members to apply under Section 241.” 13. As already observed, the Petitioner's right as a member of the Respondent Company is in dispute and the same cannot be adjudicated upon under Section 59 of the Companies Act, 2013, Further, as per the Annual Report for the year ended on 31.03.2022, the Petitioner did not hold any shares of the Respondent Company as on the date of filing of the Company Petition i,e., 07.11.2023 and has ceased to be a shareholder of the Company with effect from 31.03.2022, Therefore, the Petitioner does not fulfil the mandatory condition as prescribed under Section 244 of the Companies Act, 2013. 14, In the Petition and the affidavit, the Petitioner has also sought a waiver under ‘Section 244 of the Companies Act, 2013. The Hon’ble NCLAT has issued guidelines concerning the grant of waiver in the case of Cyrus Investment Put, Lid. & Anr. Versus Tata Sons Ltd. & Ors wherein it was observed that: “151. Normally, the following factors are required to be noticed by the Tribunal before forming its opinion as to whether the application merits ‘waiver’ of all or one or other requirement as specified in elouses (a) and (0) of sub-section (1) Section 244:- (Whether the applicants are member(s) of the company inguestion? If the answer is in negative ie. the applicant(s) are not member(s), the CA No. O2IPRI2024 « (CP No, 277241-242/PR202315 (i Gai) ty) “ application is to be rejected outright. Otherwise, the Tribunal will look into the next factor. Whether (proposed) application under Section 241 pertains to ‘oppression and mismanagement’? If the Tribunal on perusal of proposed application under Section 241 forms opinion that the application does not relate to ‘oppression and mismanagement’ ofthe company or its members and/or is frivolous, it will reject the application for ‘waiver’. Otherwise, the Tribunal will proceed to notice the other factors Whether similar allegation of ‘oppression and mismanagement’, was earlier made by any other member and stand decided and concluded? Whether there is an exceptional circumstance made out to grant ‘waiver’, so as to enable members 10 file application under Section 24! ete.?” ‘The Hon'ble NCLAT in the Judgment of Mr. Sudhir Join Horo wis Ideaworks Design & Strategy Pvt. Ltd. (2023) ibelaw.in $75 NCLAT has observed that: “The Adjudicating Authority has rightly considered the submission of the Appellant and has observed as under: “We have heard the arguments put forth by both the counsels and ‘perused the various documents submitted by them. This Tribunal is of the view that the petitioner has to first establish is rightas a member of the respondent company. As has been held by the Hon'ble High Court of Gujarat in Gulabrai Kalidas Naik & Others vs. Laxomidas Lallubhai Patel & Others case that if the petitioner's title to ‘membership isin dispute and he has to seek a relief ofthe rectification ‘for getting his name placed on the register of members to clothe himself with the rights of a member, it would be improper, till the dispute is decided, to permit such a person to maintain 2 petition for oppression and mismanagement because the petitioner is not a member. This observation holds good in this case and as a consequence this petition is not maintainable, ERE] CANo, o2PR2024 4 (CP No, 277241-242/5PR/2023In view of the above, the petition is disposed of as nonmaintainable” 18. We are of the considered view that the NCLT has rightly held that the petitioner (Appellant herein) has to first establish his rights asa member of the Respondent Company before going into the issues concerning oppression and mismanagement of the Company." 16, In view ofthe Judgments refered to above, we are ofthe opinion that sinee, the Petitioner is not a member ofthe Respondent Company as pe the Annual Reports as her very right to the membership is in dispute, her request for ‘waiver ofthe mandatory requirement isnot sustainable, 17, Further the Present Petition is premature and not maintainable at this stage ‘The Petitioner will be at liberty to get its rights adjudicated concerning the title of the shares from the appropriate court and file afresh application if the said issue is decided in her favour. 18, As far as the Amendment Application filed by the Petitioner s concemed, the same appears to be an afterthought. The fect conceming Petitioner's possession of the share certificates was in exclusive knowledge of the Petitioner. Thus it would be inequitable to allow the Petitionerto amend the Petition when the facts were or ought to have been in her knowledge atthe time of filing of the Petition. 19, In view of the foregoing, we are not granting the reliefs as sought by the Petitioner, henee, the Company Petition bearing no. 27/241-142\JPR/2023 and the /A(CA) No. 02/JPR/2024 stand. rejected and disposed of. CANo, O2PR2024 « (CP No. 277241-2020PR20236 20. For the sake of clarity, we make it clear that this Tribunal has not expressed its opinion on the merits of the case and validity of the transfer of shares of the Petitioner. ones co, JUDICIAL MEMBER RAJEEV MEHROTRA, ‘TECHNICAL MEMBER CANo, 02aPR 2024 « (CP No, 277241-242/5PR2023