M/S.GLOSOFT TECHNOLOGIES PVT LTD V. THE COMMISSIONER

WP(C)/10340/2012

AI Insights

Glosoft Technologies Pvt Ltd filed two writ petitions against various police authorities and an individual, V.P. Abdul Kareem, seeking police protection and action on complaints regarding interference and intimidation at their office. The disputes originated from financial transactions and share transfers involving the 4th respondent, who was initially a director and significant shareholder of the company. After a memorandum of understanding for settlement was allegedly breached by the 4th respondent, the company sought legal recourse. The court, after reviewing the extensive litigation history and the nature of the disputes, concluded that the matter was not suitable for resolution under Article 226 of the Constitution and advised the petitioner to seek relief from other competent forums.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 694421 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 04-10-2012
• Assessment Year: misc
• Laws Referred To: Companies Act, 1956, Constitution of India
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: C R SYAMKUMAR; SUMATHY DANDAPANI; MILLU DANDAPANI
• Assessee Lawyers: K GOPALAKRISHNA KURUP; P N SANTHOSH; K P GEETHA MANI
• Keywords: Company law; Director appointment; Financial Dispute; Police Protection; Share Transfer; Writ of Mandamus
• Section: 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934 WP(C).No. 10340 of 2012 (N) --------------------------- PETITIONER : --------------------- M/S.GLOSOFT TECHNOLOGIES PVT LTD, A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT PEARLMOUNT OFFICE NO.15, 3RD FLOOR, DHARMA TOWERS, 88/150 NELSON MANIKKAM ROAD, CHOOLAIMEDU, CHENNAI-600094 REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SURENDRARAJA VARMA, S/O. P.G. GODAVARMA, AGED 53 YEARS, RESIDING AT FLAT NO. A1 ATHULYARAJA APARTMENTS, MANKAVE.P.O., KOZHIKODE. BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.P.N.SANTHOSH SMT.K.P.GEETHA MANI RESPONDENT(S): -------------------------- 1. THE COMMISSIONER OF POLICE, KOZHIKODE CITY, KOZHIKODE, PIN-673001. 2. THE C.I. OF POLICE, KASABA CIRCLE, KOZHIKODE, PIN-673001. 3. THE SUB INSPECTOR OF POLICE KASABA POLICE STATION, KOZHIKODE, PIN-673001. 4. V.P. ABDUL KAREEM, S/O. P.P. ABU, OPP. THAMARIND NEST APARTMENTS NEAR SWIMMING POOL, CHERUTTY HOUSING COLONY KOZHIKODE, PIN-673001. R1 TO R3 BY SR.GOVT. PLEADER SRI. C.R. SYAMKUMAR R4 BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2012, ALONG WITH WPC. 12430/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 10340 of 2012 (N) APPENDIX PETITIONERS' EXHIBITS : EXT.P1 TRUE COPY OF THE POWER ATTORNEY EXECUTED IN FAVOUR OF SHRI. SURENDRARAJA VARMA BY THE PETITIONER. EXT.P2 TRUE COPY OF THE MEMORANDUM OF SETTLEMENT ENTERED INTO BETWEEN THE MANAGING DIRECTOR OF THE PETITIONER COMPANY AND THE 4TH RESPONDENT DATED 11-5-2011. EXT.P3 TRUE COPY OF THE COMPLAINT DATED 13-1-2012 SUBMITTED BEFORE THE C.I. OF POLICE, KASABA CIRCLE, KOZHIKODE BY THE MANAGING DIRECTOR OF THE PETITIONER COMPANY. EXT.P4 TRUE COPY OF THE F.I.R. IN CRIME NO. 144/2012 OF KASABA POLICE STATION. EXT.P5 TRUE COPY OF THE COMPLAINT DATED 24-2-2012 FILED BY THE MANAGING DIRECTOR OF THE COMPANY BEFORE THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF THE ORDER DATED 9-3-2012 IN WPC NO. 2883/2012 OF THE HON'BLE HIGH COURT OF MADRAS. EXT.P7 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE MEMBERS OF THE STAFF BEFORE THE S.I. OF POLICE ON 21-4-2012. EXT.P8 TRUE COPY OF THE COMPLAINT DATED 21-4-12 MADE BY THE PETITIONER BEFORE 1ST RESPONDENT. EXT.P9 COPY OF THE ARTICLES OF ASSOCIATION OF THE COMPANY. EXT.P10 COPY OF THE AFFIDAVIT DATED 2-2-2012 SWORN TO BY THE WITNESS OF THE EXHIBIT P-2 MOU. EXT.P11 COPY OF THE LETTER RECEIVED FROM THE INCOME TAX DEPARTMENT DATED 15-3-2012 BY THE COMPANY. EXT.P12 COPY OF THE ADVERTISEMENT GIVEN BY THE 4TH RESPONDENT IN THE MALAYALAM DAILY (MADHYAMAM) ON 16TH JUNE 2012. EXT.P13 COPY OF THE ADVERTISEMENT GIVEN BY THE 4TH RESPONDENT IN THE MALAYALAM DAILY (CHANDRIKA) ON 18TH JUNE, 2012. EXT.P14 COPY OF THE INTERIM ORDER DATED 10-1-2012 IN WPC NO. 652 OF 2012 OF THIS HON'BLE COURT. EXT.P15 COPY OF THE ORDER DATED 4-2-2012 ISSUED BY THE APPELLATE AUTHORITY UNDER THE COMPANY SECRETARIES ACT, 1980. EXT.P16 COPY OF THE JUDGMENT DATED 15-2-2012 IN WPC NO. 652 OF 2012 OF THIS HON'BLE COURT. (Contd...) WP(C).No. 10340 of 2012 (N) EXT.P17 COPY OF THE I.A. NO. 1451 OF 2012 IN O.S. NO. 715 OF 2010 FILE D BY THE PETITIONER COMPANY BEFORE THE HON'BLE MUNSIFF COURT-II, KOZHIKODE. EXT.P18 COPY OF THE PROCEEDINGS IN I.A NO. 316/2011 IN OS NO. 2/2011 OF THE DISTRICT COURT, KOZHIKODE. RESPONDENTS' EXHIBITS : EXT.R4(a) : COPY OF THE ACKNOWLEDGEMENT DATED 9TH JULY, 2004. EXT.R4(b) COPY OF THE FORM NO. 32 DATED 1ST JULY, 2004. EXT.R4(c) COPY OF THE NOTICE DATED 15.7.2011. EXT.R4(d) COPY OF THE NOTICE DATED 30.8.2011. EXT.R4(e) COPY OF THE ORDER DATED 16.3.2011 IN CA NO. 12 OF 2011. EXT.R4(f) COPY OF THE COUTNER FILED BY THE RESPONDENT NO. 4 IN CA NO. 209 OF 2011. EXT.R4(g) COPY OF THE ORDER DATED 5.1.2012 IN DC NO. 85 OF 2010. EXT.R4(h) COPY OF THE REPLY DATED 12TH APRIL, 2012 FILED BY THE RESPONDENT NO. 4 BEFORE THE REGISTRAR OF COMPANIES, CHENNAI. EXT.R4(i) COPY OF THE FIR NO. 125 DATED 3.3.2012. EXT.R4(j) COPY OF THE FIR NO. 179 DATED 7.4.2012. EXT.R4(k) COPY OF THE FIR NO. 265 DATED 28.4.2012. EXT.R4(l) COPY OF THE FIR NO. 792 DATED 27.12.2011. (Contd...) WP(C).No. 10340 of 2012 (N) EXT.R4(m) COPY OF THE JUDGMENT DATED 8TH JULY 2011 IN OS NO. 715 OF 2010 BEFORE THE PRINCIPAL MUNSIFF -II, KOZHIKODE. EXT.R4(n) COPY OF THE ORDER DATED 10TH FEBRUARY, 2011 IN IA 316 OF 2011 IN OS 2 OF 2011 BEFORE THE DISTRICT JUDGE, KOZHIKODE. EXT.R4(o) PHOTOCOPY OF THE FORM NO. 32 INCLUDING PARTICULARS OF DIRECTORS MAINTAINED AS PER SECTION 303(2) OF THE COMPANIES ACT. EXT.R4(p) PHOTOCOPY OF THE WRITTEN STATEMENT DATED 22.11.2011 FILED BY DEFENDANTS 1 AND 2 IN O.S. NO. 2 OF 2011 ON THE FILE OF DISTRICT COURT KOZHIKODE 1ST ADDITIONAL. EXT.R4(q) PHOTOCOPY OF SUMMONS DATED 3.2.2012 ISSUED TO THE 4TH RESPONDENT BY THE ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, CHENNAI. EXT.R4(r) PHOTOCOPY OF DOCUMENTS PRODUCED BEFORE THE COMPANY LAW BOARD, REFERRED TO IN THE COUNTER AFFIDAVIT. EXT.R4(s) PHOTOCOPY OF FIRST INFORMATION REPORT NO. 240 REFERRED TO IN THE COUNTER AFFIDAVIT. EXT.R4(t) PHOTOCOPY OF NOTICE NO. KKD. CIR.1(1)AADCG1937E/10-11 DATED 20.10.2010 OF THE INCOME TAX DEPARTMENT. EXT.R4(u) PHOTOCOPY OF ADVERTISEMENT APPEARED IN MALAYALA MANORAMA DAILY ON 29.7.2011. EXT.R4(v) PHOTOCOPY OF ADVERTISEMENT APPEARED IN MATHRUBHOOMI DAILY, REFERRED TO IN THE COUNTER AFFIDAVIT. EXT.R4(w) PHOTOCOPY OF PLAINT IN O.S. NO. 366 OF 2012 ON THE FILE OF SUB COURT, KOZHIKODE. EXT.R4(x) PHOTOCOPY OF AFFIDAVIT DATED 30.3.2012 FILED BY THE 4TH RESPONDENT IN O.S NO. 2 OF 2011 ON THE FILE OF SUB COURT, KOZHIKODE. (Contd...) WP(C).No. 10340 of 2012 (N) EXT.R4(y) PHOTOCOPY OF PETITION DATED 30.3.2012 FILED BY THE 4TH RESPONDENT IN O.S. NO. 2 OF 2011 ON THE FILE OF SUB COURT, KOZHIKODE. EXT.R4(z) PHOTOCOPY OF ORDER VIDE F.NO.47549/IPC/KRN/3/2012 DATED 9.5.2012 ISSUED BY THE REGISTRAR OF COMPANIES, TAMILNADU, ANDAMAN & NICOBAR ISLANDS, CHENNAI TO THE 4TH RESPONDENT. EXT.R4(z) (a) PHOTOCOPY OF COMPLAINT PREFERRED BY THE 4TH RESPONDENT TO THE COMMISSIONER OF POLICE, CALICUT ON 30.5.2012 ALONG WITH ITS ACKNOWLEDGMENT VIDE NO. 492/PED/2012 DATED 30.5.2012. //TRUE COPY// P.S. TO JUDGE Mn K.M. JOSEPH & K. HARILAL JJ. ===================== W.P.(C)Nos. 10340 & 12430 of 2012 ===================== Dated this the 4th day of October 2012 JUDGMENT K.M.Joseph,J. These original petitions being connected, we dispose of the same by a common judgment. The petitioner in both the writ petition is one of the same. It is Private Limited company. W.P.(C) No. 10340/2012: 2. The petitioner approached this Court seeking the following reliefs: i) Issue a writ of mandamus or any other appropriate writ, direction or order to respondents 1 to 3 to provide necessary and adequate protection to the petitioner against the illegal acts of the 4th respondent for the smooth conduct and functioning of the office of the petitioner Company's administrative office at House of G- Tec, Indus Avenue, Kallai Rod, Kozhikode 673 002; WPC 10340 & 12430/2012 -2- ii)Issue a writ of mandamus or any other appropriate writ, direction or order to respondents 1 to 3 to take appropriate action on Exts.P7 and P8 complaints submitted by the Managing Director and members of the staff of the petitioner company without any further delay. 3. Briefly put, the case of the petitioner is as follows: The petitioner is a company registered under the Indian companies Act,1956 having its registered office at Kozhikode. During 2004, due to financial crunch, the company had to take certain advances from the 4th respondent in order to meet the urgent financial requirements. Certain arrangements were made for repayment of the said advances and to ensure the same it was agreed that certain shares will be transferred in the name of the 4th respondent and he will also be appointed as Director. Later, disputes arose between the Company and the 4th respondent relating to the mode and manner of repayment of the amounts advanced and the returns thereon. Several litigations are initiated between the parties and are pending in different forums. While so, a WPC 10340 & 12430/2012 -3- memorandum of understanding was entered into between the parties and it was agreed that an amount of Rs.2.40 crores will be paid to the 4th respondent in full and final settlement of all his claims against the shares and other moveable or immovable properties of the Company. An amount of Rs.75 lakhs was also paid and the receipt of the same was also acknowledged. But the 4th respondent withdrew himself from the agreement and started interfering with the functioning of the company. Now, the 4th respondent is making attempts to enter forcibly into the office of the company and to intimidate its staff and officers by use of criminal force. Though complaints were made by the company against the acts of the 4th respondent before the police authorities, there is no action. Hence this writ petition. 4. Counter affidavit and additional counter affidavits have been filed by the 4th respondent. The petitioner filed reply affidavit also. WPC 10340 & 12430/2012 -4- 5. Along with the counter affidavit, Exts.R4(a) to R4(n) were produced wherein it is inter alia stated as follows: The 4th respondent brought their investment and acquired 60 fully paid shares thereby making him the 50% shareholder of the company. Ext.R4(b) would show that he was appointed as Director of the Company. The building wherein the office is being run at Kallai Rod, Kozhikode is in the joint name of Shri Meharoof as well as the 4th respondent. Shri Meharoof designated as the Managing Director for a period of five years. There were several disputes started only when income-tax raid was done. The company Law Board restrained Shri Meharoof from giving effect to the Board resolution dated 2/8/2010 or dealing with the shares of the petitioner in any manner. There is reference to various proceedings before the Company Law Board. The allegation that the 4th respondent is evading acceptance of the third instalment payment as per Ext.P2 and the payment is sought to be denied. It is stated that Shri Meharoof approached the Registrar of Companies and WPC 10340 & 12430/2012 -5- filed writ petition before the High Court of Madras. Reference is made to various other proceedings including F.I.Rs. Reference is made to civil suit for a declaration that entering of 4th respondent's name is invalid or proper, which was hotly contested and the suit was rejected by Ext.R4(m). The 4th respondent instituted a suit O.S.No.2 of 2011 before the District Court, Kozhikode wherein interim injunction was obtained. The parties have filed a reply affidavit and additional counter affidavit. 6. We heard the learned Senior counsel appearing for the petitioner and the learned Senior Counsel appearing for the 4th respondent. After going through the pleadings and after hearing the learned counsel for the parties , we are of the view that in this writ petition under Article 226 of the Constitution of India which we should not entertain the petition for the purpose of considering the grant of police protection in favour of the petitioner as against the 4th respondent. We feel that if the petitioner is so advised, the petitioner may approach any other competent forum WPC 10340 & 12430/2012 -6- and without prejudice to the said right, this writ petition is closed. WP(C) NO. 12430/2012 7. The petitioner has approached this Court seeking the following reliefs: i) issue a writ of mandamus or any other appropriate writ, direction or order to respondents 1 to 3 to provide necessary and adequate protection to the petitioner against the illegal acts of the 4th respondent for the smooth conduct and functioning of th IT Magic (G-Tech Mahotsavam), the summer vacation computer course programme to be held on 1st and 2nd June, 2012 at Wonderla, Pallikkara, Ernakulam. ii) issue a writ of mandamus or any other appropriate writ, direction or order to respondents 1 to 3 to take appropriate action on Ext.P8 complaint submitted by the petitioner without any delay. 8. As far as the fist prayer is concerned, we had already granted interim order and the matter has become infructuous. No doubt, we had directed the commission to be taken out and the report was submitted by the Advocate WPC 10340 & 12430/2012 -7- Commissioner. The learned Senior Counsel for the party respondent, who is party respondent in the other case also, would submit that some amount may be directed to be paid to the 4th respondent as large sums are due. The learned Senior counsel for the petitioner on the other hand would submit that Rs.75 lakhs already paid and according to the learned Senior counsel for the petitioner no further amounts are due. In the light of the above , we feel that no further orders are necessary as we cannot adjudicate the claims. However, we make it clear that we leave it open to the parties to approach the competent forum and seek appropriate orders. We are not pronouncing the issues which have been raised in the writ petition. The writ petition is disposed of as above. Sd/- K.M. JOSEPH,JUDGE Sd/- ks. K. HARILAL, JUDGE True copy P.S.to Judge WPC 10340 & 12430/2012 -8- "