text of written arguments on 17-3-2003 in the city civil court

BEFORE THE HONORABLE CITY CIVIL COURT

C.S. NO. 5827/2001

PLAINTIFF: PANKAJ MODY

VERSUS

DEFENDANTS: (1) DHANYUSHYA FINANCIAL PVT LTD

(2) JATIN JALUNDHWALA

(3) CORE HEALTH CARE LTD

(4) GLOBAL TRUST BANK




WRITTEN ARGUMENTS BY PLAINTIFF



(1) The learned advocate for defendant 1 to 3 is giving false impression that impression pertains to ownership of shares only by quoting example of a Public Limited Company which is out of context in the present case Plaintiff most respectfully submits to consider the matter in totality in view of attempt made by the learned advocate to distort as well as conceal the factual position by also presenting the arguments on behalf of defendant 4. This is as under:

(2) It is only when defendant 4 who has claimed directorship of defendant on the basis of their exhibit 32 showing appointment as additional Director on 21-2-95.This is primae-facie distorting factual position as narrated under.

(2-A) Defendant 2 being company secretary is aware that this appointment as additional director is subject to the provisions of section 260 of the Companies Act as referred in para 27, page 7 of exhibit 1 in Articles of Association and Memorandum of original submission by plaintiff . Section 260 states that such additional director shall hold office only upto the date of next Annual General Meeting of the Company. Defendant 2 alongwith defendant 1,3 and 4 is
intentionally misguiding the honourable court on this issue. An attempt is being made that the defendant 2 continues as director on the basis of exhibit 32 which has not been furnished by defendant 1 to 3.

(2-B) It is inconceivable that the advocate of defendant 1 would fail to mention appointment of additional director in his notice dated 12-12- 1998 as shown in exhibit 8( preeented by the plaintiff) , when he di so in his para 1 of notice dated 14-10-1998 (exhibit 7 of original submission
made by plaintiff) and therefore, defendant 2 knew fully well that he was not the director of the company and this fact was known by the learned Advocate A.D. SHAH

(2-C) Defendant 2 is not in a positon to adduce even a simple certificate from the auditor of Rupmanglam which gives confirmation to his claimed directorship.

(2-D) In view of exhibit 10(of plaintiff’s original submission) showing notice dated 21-12-1999. Defendant 4 has not adduced evidence in forming of certificate from the auditor about claimed directorship of defendant no 2.

(2-E) Defendant 2 while filing written reply has not dared to submit evidence in form of exhibit 32 that he continues to be director of Rupmanglam after the expiry of term as additional director.

(3) The defendants 1 to 3 did not have necessary statutory record as abundantly clar from under mentioned information.


(3-A) Defendant 1 in his notice dated 14-10-1998 (AS per para 5 of exhibit 7 submitted initially by plaintiff) has admitted that he does not have statutory record:- Para is reproduced “ Plaintiff has not handed over the statutory register to existing mangagement at the time of resignation….. due to your total inaction in this regard, my client is actually incurring the risk of committing breach of various provions of the Act and it is absolutely essential that this statutory registars are handed over immediately failing which it will be your responsibility to face the liability arising out of breach of various provisions of the acts”.

(3-B) Defendant 1 in para 1.1 and 2 (exhibit –8 of original submission by plaintiff ) has admitted that they do not have statutory records which means they cannot pass any resolution for creation of charge , transfer of shares, passing of audited balance sheet, change in directorship, etc. Defendant 4 is deliberately shielding the acts of defendant 1 to 3 to protect them.


(3-C) Defendant 1 to 3 have deliberately not honoured their commitment made to the Court Commissioner on 8th January ,2002 that they shall produce all necessary evidence on 10th January.


(4) Defendants have made false claim of resignation as apparent from following information.


(4-A) Learned advoate for defendant 1 to 3 cannot beg shelter of evidence furnished by defendant 4 in form of exhibit 33 and exhibit 36 showing alleged resignation under \ Section 302(2) especially when defendants 1 to 3 are relying only on their denial statements. Defendants 1 to 3 apprehend that such exhibit 33 and 35 are produced By them, it could invite criminal action on the basis of fabricated Documents furnished to the Honurable Court.

(4-B) Defendant no 4. who has furnished exhibit 33 and 35 has to establish that the said form was filed under section 303(2) which is the relevant section under Companies Act and not section 302 (2).

(4-C) Exhibit 33 and 35 clearly shows that form showing alleged resignation on 17-9-96 and 22-4-96 respectively was filed on 1-10-97. This itself creates doubts of authenticity of alleged resignation at that time.

(4-D) On page 24, para 7.10 of reply by defendants 1,2,3 that they have stated that “ It is denied that the resolution has been as regards the resignation of the plaintiff as the director of Rupmanglam “ and this statement CONTRADICTS WITH STATEMENT on page 4 of defamation case 3326/99 filed by defendant 3 and assumed to be supported by defendant 1,2 and 4 ) states that the resignation was accepted by the Directors of the Board with immediate effect.

(4-E) Exhibit 35 furnished by defendant 4 as regards to alleged resignation on 22-4-1996, it needs to be observed that name of defendant 2 – Jatin Jalundhwala show different size/fonts and therefore, primaefacie fabricated and false document. Defendant 1,2,3 are reluctant to file such exhibit to avoid any criminal action intiated by the Honorable Court for filing of such fabricated documentary evidence and they are using only guarded statements.

(4-F) The onus of filing form under section 303(2) has to be initated by the company only and not by the alleged outgoing director. However, exhibit 33 and 35 of defendant 4 show that it is being initiated by the one of the alleged outgoing director.This is invalid and illegal.

(4-G) Defendant 2 had a choice of not signing forms as shown by defendant 4 in exhibit 33 and 35 for accepting resignation when he had grievance against plaintiff and such grievance was made by issuing notice only after creation of charge. This shows malafide intention.

(5) Plaintiff continues to be the director of Rupmanglam is evident from following.

(5-A) Exhibit 15 furnished by plaintiff in the suit shows plaintiff’s signature as director of the company in March 1997 and presented to the Income Tax department.

(5-B) Exhibit 16 furnished by plaintiff depict that the appropriate authorities of Income Tax department that plaintiff is considered to be Director of Rupmanglam even in September 2001.

(5-C) notice given by defednat 1 on 12-12-1998 as referred in exhibit 8 presented by plaintiff initially has been addressed to the plaintiff as the director and has not been refuted by defendant 1 pursuant to reply filed in exhibit 9 and presented by the plaintiff during initial submission. This has not been refuted even by defendant 4 vide their letter on 21-10-1999 as evident from exhibit 18 presented by plaintiff initially.

(6) Plaintiff and other Mody family members continue to be owners of of shares of Rupmanglam as evident from the following and hence defendant 1,2,3 are not in a position to pass any resolution for creation of charge.

(6-A) Defendants 1,2,3 have not honoured the promises of furnishing evidence of ownership of shares as promised to the Court Commissioner on 8th January 2002.

(6-B) Defendant 1 in their audited balance sheet for 1996-97 does not reflect ownership of Rupmanglam alleged to be acquired from plaintiff and his immediate family members as stated in their reply.

(6-C) Paragarph 7 of exhibit 9 of in itial submission made by plaintiff shows letter dt 1-2-1999. The defendant 1 and 2 have not been able to furnish copy of auditor’c certificate for alleged transfer of shares.

(6-D) In view of exhibit 10 (initial plaintiff’s submission which shows notice dt 21-12-1999, defendant 4 has not been able to furnish legal ownership of shares, which is absolutely necessary to pass necessary resolution to create charge,etc. This has to be seen in light of defendant 1 , 2 admissions that they do not have statutory records.









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17-03-03 (Sd)
Ahmedabad