TaxTMI 
TaxTMI 
2018 (12) TMI 1373
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....reaux Resorts was incorporated on April 13, 2005 by Mrs. Sonia Khosla and Mr. Vini Ahuja. One of the objects of the appellant-company was to develop a Holiday Resort at Kasauli on land belonging to Mr. R. P. Khosla father-in-law of Ms. Sonia Khosla. In terms of the business arrangement, it was proposed that the second respondent would infuse investment for developing the project and would be a majority shareholder. Agreements dated March 31, 2006 was signed between the parties. Respondents Nos. 2 to 4 were inducted as directors. It is alleged that respondent No. 2 further allotted shares to his wife and daughters, i.e., respondents Nos. 5 to 8, in an attempt to fraudulently usurp majority control of the appellant-company under the garb of increasing its capital. It is further alleged that the second respondent, during his tenure as the director of the first appellant got sale deeds of various pieces of land parcels executed in favour of the first respondent or his nominees instead of getting it executed directly in favour of the first appellant. It is also alleged that the second respondent being a majority stakeholder in the first respondent has set up competing business with that....
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....t petition on grounds of maintainability. The petitioners not being the shareholders of the first respondent-company, cannot invoke the provisions of sections 241-242 of the Companies Act, 2013. The provisions of the Act make it abundantly clear as to who can initiate such proceedings section 241 of the Companies Act 2013 is reproduced as below : '(1) The following members of a company shall have the right to apply under section 241, namely :- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number 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 applicants has or have paid all calls and other sums due on his or their shares : . . . Provided that the Tribunal may on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. (2) Where any members of a company are entitled to make an application under sub-sect....
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....set aside the impugned order dated January 13, 2017 passed by the Tribunal in Company Petition No. 144 of 2016 titled Montreaux Resorts P. Ltd. v. Ascot Hotels and Resorts Ltd. [2017] 201 Comp Cas 1 (NCLT). (iv) Direct that the proceedings of the hon'ble National Company Law Tribunal while adjudicating Company Petition No. 144 of 2016 titled Montreaux Resorts P. Ltd. v. Ascot Hotels and Resorts Ltd. [2017] 201 Comp Cas 1 (NCLT) shall be video recorded thereafter and at the cost of appellant, and the recordings shall be preserved exclusively with the hon'ble National Company Law Tribunal, with copies to be provided directly by it only to the review or appellate courts, as the case may be. (v) The cost of the appeal may be awarded to the appellant(s). (vi) Pass ex-parte orders and/or directions as prayed for above. (vii) Any further order or direction which this hon'ble Appellate Tribunal may deem fit and proper in the circumstances of the case be issued in favour of the appellant. 4. The appellants have argued that the Tribunal has dismissed the company petition in relation to three preliminary objections raised by the respondents t....
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....s, leaving it to the appellants to challenge this order, if so advised. Learned counsel for the appellants further argued that this was not a ground to dismiss the petition. 8. Learned counsel for the appellants argued that the fair and just opportunity ought to have been given to the appellants by the Tribunal to file a copy of the board resolution or the Tribunal ought to have directed that the appellant-company stands removed from the array of the parties. Learned counsel for the appellants further argued that it was not a ground to dismiss the petition at the initial stage. 9. Learned counsel for the respondent argued that the appellants had no locus to file the company petition under section 241/242 of the Companies Act, 2013 before the Tribunal below as they are not the shareholders of the first respondent. Therefore, they are not entitled to file the present appeal before this Appellate Tribunal. Secondly they are also not the shareholders of the appellant-company. 10. Learned counsel for the respondents further argued that no resolution has been passed by the appellant-company (original petitioner) to file the present appeal and the earlier company petition authori....
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....f 2007 which is still pending. 13. We have heard learned counsel appearing on behalf of both the parties and perused the record. 14. Learned counsel for the appellants argued that they have not made any claim that they are the shareholders of the first respondent and it is not their claim. This is also the position pinpointed by counsel for the respondent. Learned counsel for the appellants argued that they are not required to be shareholders of the first respondent, as it is not the first respondent whose affairs were alleged to have been mismanaged or conducted oppressively. Learned counsel further argued that the appellants agitating oppression and mismanagement of affairs of "x" company must be shareholder of that "x" company, not of company "y". Learned counsel further argued at the highest, the first respondent could have been stripped from the array of respondents instead of dismissing the petition. We have given a thoughtful consideration on this issue and it would have to be examined whether the first respondent is a necessary party or not and if so the appellants (the original petitioners) would have been directed to make suitable amendments. In the light of it we d....
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....er/member or group of shareholder/members without and notice or information cannot visualize or presume that his/their share(s) will be brought down to their disadvantage, which amounts to oppression and mismanagement. On such anticipation or pre-sumption no petition under section 397 or 398 of the Companies Act, 1956 can be filed. Such aggrieved shareholder(s)/member(s) can file the petitioner under section 397 and 398 of the Companies Act, 1956 only after cause of action has taken place. If that be so, the day on which a petitioner under sections 397 and 398 is filed by a share holder/member, whose shareholding has been brought down below the requirement of having an aggregate of 10 per cent. out of the total shareholding, will be deprived to avail remedy under section 397 and section 398, without their fault. He will be remediless. In Bhagwati Developers P. Ltd. v. Peerless General Finance Investment Co. Ltd. [2013] 178 Comp Cas 1 (SC) and Rajahmundry Electric Supply Corporation Ltd. v. State of Andhra, AIR 1954 SC 251 aforesaid issue was not raised nor decided. For the reasons aforesaid, we are of the view that the law laid down by Supreme Court in Bhagwati Developers P. Ltd. v....