TaxTMI 
TaxTMI 
2017 (6) TMI 499
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....tanding. Case of the petitioner as can be seen from the averments made in CP 15 of 2016 and reply filed in CP 6 of 2016 in brief is as follows :- 3. Respondent 2 was an employee in Sahajanand Medical Technologies, Surat till he was retrenched in the year 2005. During his employment, respondent 2 approached the petitioner with an idea to start the business of manufacturing and selling of stent under the partnership firm. Respondent 2 proposed to start partnership firm in the name of his wife (respondent 8) since respondent 2 being in employment of the said firm could not be partner in the other firm. Accordingly, partnership firm was established viz. Biosync Scientific (Biosync) on 21.07.2003 with capital and profit ratio as under: - SI. No. Name % 01 Viral L. Vaishnav (petitioner) 33 02 Mrs. Vinita R. Vaishnav (wife of R-2) 33 03 Pratap Survey (Friend of R-2) 33 4. During 2003 to 2005, 2nd respondent mismanaged affairs of Biosync Scientific and siphoned huge amounts to his account and by making use of the said funds increased share capital of his wife in Biosync Scientific. Respondent 3 also entered as 4th partner with 10% share in September, 2003 thereby share of pet....
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.... to increase share capital and it has been done in unjust and unfair manner to cause prejudice to the interest of the petitioner. Increase in share capital was done in paper Extra Ordinary General Meeting said to have been held on 25.08.2011 and it was done in collusion with the second respondent and respondents 3 to 8. Because of the raise in the share capital and allotment of bonus shares, percentage of the petitioner in the paid up share capital became to 5% only, instead of 15%. 8. It was agreed by second respondent that petitioner shall be employed as Project Manager with monthly remuneration of Rs. 75,000/- from August, 2011. 9. Second respondent withdrew Rs. 45.00 lacs from the bank account of first respondent company and the same was informed by 3rd respondent by way of SMS. Third respondent also informed the petitioner that payment of salary to the petitioner has been stopped. Petitioner was terminated from the employment in the first respondent company from 01.04.2016. Petitioner, having no other go, addressed letter to 2nd respondent and first respondent company to furnish statutory information about the shareholdings in the first respondent company and other informati....
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...., second respondent managed transfer of 1.00 lac equity shares comprising of 5%, from Abhishek Masalawala in his name in the EOGM convened and held illegally. According to the petitioner, he is also entitled to pre-emptive rights to purchase shares of Abhishek Masalawala but second respondent did not allow him to exercise his legitimate rights. 11. Petitioner requested to cancel new set of Articles of Association of the first respondent company adopted at the so called EEOGM convened and held on 03.12.2015. According to the petitioner he visited registered office the first respondent company on 12.09.2016 for inspection of statutory records but second respondent did not allow him to see the statutory records. Second respondent obtained signature of the petitioner on the acknowledgement without mentioning the documents that made available. Compliance certificate dated 08.08.2011 issued for financial year ended on 31.03.2012 clearly show that share certificates and allotment of securities were not made available for verification. It is also stated that the compliance certificate dated 08.08.2011 also discloses that the company has deposits from persons other than its members, Direct....
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....tioner's shareholding is 50% in the first respondent company. (f) Direct respondent 2 to appoint petitioner as a Director of the first respondent company. 14. It is the case of respondent 1, 2, 3, 5 and 8 as can be seen from the averments in CP 6 of 2016 and reply in CP 15 of 2016, in brief is as follows: - 15. Second respondent is promoter director of the first respondent company. Second respondent along with family members holds 90% shares of the first respondent company since incorporation. Paid up share capital of the first respondent company is 2.00 crores divided into 20.00 lacs equity shares of Rs. 10/- each. Second respondent is holding 9.90 lacs equity shares of Rs. 10/- each i.e. 49.5% of the shareholding of the first respondent company. Shareholding pattern of the first respondent company, according to second respondent is as follows: - No. Name of shareholder Relationship with petitioner Shares % of holding 01 Rajesh L. Vaishnav 2nd respondent 990000 49.50 02 Vinita Rajesh Vaishnav Wife of 2nd respondent (Respondent 8) 474000 23.70 03 Parth Rajesh Vaishnav Son of 2nd respondent (Respondent 5) 336000 18.804 04 Jayantilal L Nariya Brother in ....
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....and rival contentions, the following points emerge for determination: - (a) Whether petitioner is eligible to file CP 15 of 2016? (b) Whether second respondent in CP 15 of 2016 is eligible to file petition CP 6 of 2016? (c) Whether petitioner committed acts of oppression and mismanagement as alleged by second respondent? (d) Whether second respondent committed acts of oppression and mismanagement as alleged by petitioner? (e) To what relief? 19. Whether petitioner is eligible to file CP 15 of 2016? CP 15 of 2016 is filed by Viral L Vaishnav who is holding 5% of the paid up share capital of the first respondent company. According to petitioner, there are only five members in the first respondent company as on the date of filing of the petition and, therefore, he is eligible to file this petition. Even according to the second respondent, there are only five shareholders in the first respondent company. Therefore, petitioner being one among five shareholders in the first respondent company is eligible to file CP 15 of 2016 20. Whether second respondent in CP 15 of 2016 is eligible to file petition CP 6 of 2016? Second respondent in CP 6 of 2016 is claiming reliefs under secti....
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....ager was illegally terminated with effect from 01.04.2016. Fact remain that, petitioner was employed as Project Manager in the first respondent company. The fact remain that, petitioner was paid handsome salary for the services rendered by him in the first respondent company. According to second respondent, acts and conducts of the petitioner became prejudicial to the interest of the company and oppressive to all the members and to the interest of the company. According to the second respondent, petitioner was also given agency to deal with the products of first respondent company in the market in the name of a firm "MAX BIOCARE", but because of oppressive and intolerable acts of the petitioner, first respondent company ultimately terminated the petitioner from employment and also cancelled rights of distribution of first respondent company's products. A perusal of annexure "C" of CP 6 of 2016 - termination of employment letter show that petitioner was incompetent and irregular in attending the duties. It is also stated in the letter that petitioner was not attending his duties for last one month without any information or notice to the management. Termination letter also indic....
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....ferred to respondent 2 does not merit acceptance. Amendment of the Articles of Association also took place in the EOGM held on 03.12.2015. A perusal of annexure 14 to CP 15 of 2016 show that, form No. MGT-14 was filed with Registrar of Companies. The notice of meeting was despatched on 05.11.2015 and resolution was passed on 03.12.2015. In the said meeting it was resolved to alter Memorandum of Association of the company and explanatory statement to the said EOGM for adopting a new set of Memorandum of Association and Articles of Association needs consent of shareholders by way of special resolution has become necessity. Amendment to the Articles of Association took place in the EOGM dated 03.12.2015 and it was attended by the petitioner and, therefore, it cannot be said that amendment to the articles were illegal. 26. One more issue raised by the petitioner is that a sum of Rs. 45.00 lacs of the first respondent company was siphoned from the bank of first respondent company. In this connection, respondents have denied siphoning of funds as alleged by the petitioner. In this connection it is pertinent to mention here that, petitioner has not placed any material on record to substa....
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....pplied to him and resolutions filed with the Registrar of Companies. In fact, the petitioner has narrated such discrepancies in his petition and those discrepancies are between the copies furnished to the petitioner and documents filed with Registrar of Companies and they are not so material in nature they would make this Tribunal to come to a conclusion that the resolutions are manipulated. 29. Now, coming to the acts of oppression and mismanagement alleged by the second respondent against the petitioner. Those allegations appear to be more in the nature of public nuisance or criminal acts and harassment which cannot be treated as oppression and mismanagement. 30. Quarrels between two brothers who happens to be members of the first respondent company cannot be by any stretch of imagination be concluded as the acts of oppression and mismanagement under section 241 and 242 of the Companies Act, 2013. 31. In view of the above discussion, in both the petitions, there are no acts of oppression or mismanagement. However, there appears to be a dispute between the petitioner and second respondent. There appears to be some difficulty in the functioning of the first respondent company be....