IN THE HIGH COURT OF BOMBAY 

Appearances : Janak Dwarkadas & P. K. Samdani for the Petitioner. 

JUDGMENT 

DESHMUKH, J. 

1. The petitioner, Vayaz Indian Pesticides (P.) Ltd., has filed this petition for approval of the scheme of amalgamation. The only objection that has been received to this scheme is of Mr. J. P. Dave (hereinafter 'the objector'). On behalf of the company, a preliminary objection has been raised to the consideration of objections filed by the objector. According to the petitioner, the objector has no locus standi to present any objection to the scheme of amalgamation because the objector has no interest in the petitioner company. According to the petitioner, the objector was, holding 840 shares in the petitioner-company. Out of these 840 shares, on 8th January, 1993 he transferred 800 shares and on 9th January, 1995 he transferred balance 40 shares and, therefore, he does not have any interest in the company and, therefore, he is not entitled to file and maintain the objections. According to the learned counsel for the petitioner, on 8th January, 1993, 800 shares were transferred by the objector, the sale price of the shares was paid to the objector by cheque. This cheque was deposited in the account of the objector and the amount is credited in the account of the objector. According to the petitioner, sale of these 800 shares and receiving consideration of the sale is also reflected in the income-tax returns filed by the objector. According to the petitioner, this transfer is also reflected in the records submitted by the company with the Registrar of Companies (hereinafter 'the ROC'). So far as 40 shares transferred on 9th January, 1995 are concerned, the petitioner has filed statement of account of the transferee which shows that the amount of consideration of transfer of shares paid by cheque by the transferee to the objector has been debited from the account of the transferee. The reports have also been submitted to the ROC regarding this transfer. According to the learned counsel appearing for the objector, the objector was holding 50 per cent shares in the petitioner-company. According to the learned counsel, however, the petitioner is not in a position to place any document on record in support of this claim because share certificates have not been issued to the objector by the company and in support of her claim, she produced her letter dated 5th March, 1995 addressed by the objector to Mr. Pradip Dave making a grievance that his share certificates have not been delivered to him. Now, according to the objector, he was also 50 per cent shareholder of the company and was also director of the company. It is nowhere the case of the objector in the affidavits filed in this petition that he was not functioning as a director of this company or that he had delegated any of his functions as director to anybody else. Therefore, in my opinion, it is hard to believe that when, according to the objector himself, he was a 50 per cent holder of shares and was also a director of the company, he will not receive the share certificates when he himself is managing the affairs of the company. It is pertinent to note here that at no point of time, a statement has been made on oath before this court that the objector was not taking part in the management of the company. 

2. Insofar as the case of the petitioner-company is concerned, the objector was holding 840 shares in the company which were transferred by him in two instalments and except saying that the documents required for transfer of the shares were not executed by the objector and were forged and, therefore, the objector had filed a complaint on 21st August, 1997 in criminal court. The learned counsel for the objector was not able to show or explain the entries made in the account of the objector showing receipt of the sale consideration of the shares by him as also in the income-tax returns. In my opinion, in the absence of a statement made on oath that the objector was not operating the accounts wherein sale consideration of the shares had been deposited or that he had authorised somebody else to operate bank account, the case put up by the company that the objector transferred his shares and also received consideration for the sale has to be accepted. It is further to be seen here that the learned counsel for the petitioner submitted that the company was a dividend paying company, therefore, if it is the case of the objector that he did not transfer his shares, he has either to show that he has received the dividend for the period subsequent to the date on which according to the company he transferred his shares or a protest made by him to the company for non-payment of dividend to him, though he is a shareholder. However, the learned counsel for the objector could not say anything in this regard except to say that a complaint has been filed in the criminal court. It is pertinent to note that the criminal complaint has been filed in 1997. 

3. When, according to the company, the shares have been transferred in 1993 and 1995, what actions were taken in this regard by the objector before filing the complaint is not explained by the objector. The books of the company are kept in regular course of business and, therefore, the entries are to be presumed to be correct unless proved otherwise. The objector has not placed any material on record to dispel the presumption. The statements made in the affidavit are vague and lack details. It is further to be seen that the Companies Act, 1956 creates remedies for restoration of the shares to the person whose shares have been illegally transferred. According to the record of the company, the objector does not hold any share in the company. The objector has not taken any steps for the restoration of shares to him and for correction of the record and registers of the company. Filing of a criminal complaint cannot be said to be a step taken in this direction. Thus, in my opinion, in the face of the present position of the record, it can be concluded that the objector does not hold any share in the company. In my opinion, therefore, the preliminary objection raised by the petitioner to the maintainability of the objection filed by the objector deserves to be upheld. Objection is, therefore, rejected.