TaxTMI 
TaxTMI 
2019 (5) TMI 607
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.... of the gamut of controversy involved at the bottom of instant case it would be appropriate to give a flashback of the events leading to passing of impugned order. Respondent No.1 'Dynatron Services Private Limited', who is petitioner in the Company Petition pending determination before the Tribunal, filed CP No. 1151/241-244/NCLT/MB/MAH/2018 being company petition under Section 241-244 r/w Section 246 of Companies Act, 2013 against Respondents (1)'Yeoman Marine Services Pvt. Ltd.', (2)'Dhananjay Mishra' and (3)'Seema Dhananjay Mishra' complaining of oppression and mismanagement with allegations in the petition that the Appellant - 'Dhananjay Mishra' refused to appoint Mr. Krishnamurthy and Mr. Avadesh Mishra as nominee directors of the Petitioner in terms of Second Memorandum of Understanding (MOU) dated 21st August, 2015 thereby taking entire control of 'Yeoman Marine Services Pvt. Ltd', denied it access to accounts of the aforesaid company and indulged in many more acts of oppression and mismanagement including diversion of funds invested by Petitioner for formation of 'Yeoman Marine Services Pvt. Ltd'. While the Company Petition was pending determination, the Appellant herein f....
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....r - 'Dynatron Services Private Limited' to agitate its grievance of oppression and mismanagement in the petition. The Tribunal was further of the opinion that the reliefs sought in the Company Petition did not arise out of any contractual obligation and the acts complained of could not be adjudicated upon by the Sole Arbitrator. It further held that the powers available to National Company Law Tribunal to adjudicate upon issues of oppression and mismanagement, financial irregularities, appointment of Directors, etc. could not be exercised by the Sole Arbitrator. Thus all contentions raised by the Appellant were repelled resulting in dismissal of the application. The Company Petition No. 1151/2018 was held to be maintainable. 5. The sole issue arising for consideration in this appeal is whether the issues raised in the Company Petition qua allegations of oppression and mismanagement are arbitrable? 6. Learned counsel for Appellant contends that the grievances of the Respondent No.1 - 'Dynatron Services Private Limited' in the Company Petition essentially relate to allegations of business of the Respondent No.2 - 'Yeoman Marine Services Pvt. Ltd' not being carried out in terms of t....
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....x Court in 'Booz Allen & Hamilton Inc.' Vs. 'SBI Home Finance Ltd.' reported in (2011) 5 SCC 532. It held:- "34. The term "arbitrability" has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the Arbitral Tribunal, are as under: (i) Whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the Arbitral Tribunal) or whether they would exclusively fall within the domain of public fora (courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the "excepted matters" excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the Arbitral Tribunal, or whether they do not arise out of the statement of claim and the counterclaim filed before the Arbitral Tribunal. A di....
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....dividuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject-matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Black's Law Dictionary.) 38. Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable. 39. The Act does not specifically exclude any category of disputes as bein....
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.... example, rights under a patent licence may be arbitrated, but the validity of the underlying patent may not ... An arbitrator whose powers are derived from a private agreement between A and B plainly has no jurisdiction to bind anyone else by a decision on whether a patent is valid, for no one else has mandated him to make such a decision, and a decision which attempted to do so would be useless." (emphasis supplied) 42. The distinction between disputes which are capable of being decided by arbitration, and those which are not, is brought out in three decisions of this Court. In Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. [(1999) 5 SCC 688] this Court held: (SCC pp. 689-90, paras 4-5) "4. Sub-section (1) of Section 8 provides that the judicial authority before whom an action is brought in a matter, will refer the parties to arbitration the said matter in accordance with the arbitration agreement. This, however, postulates, in our opinion, that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide. 5. The claim in a petition for winding up is not for money. The petition filed under the Com....
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....tion to carrying out of independent audit through an independent Auditor. The allegations in the Company Petition and the nature of relief claimed therein leaves no room for doubt that the Company Petition raises vital issues pertaining to exclusive jurisdiction of the Tribunal. Relief claimed in the backdrop of allegations of oppression and mismanagement would depend on the finding that the affairs of the Company have been conducted in a manner prejudicial or oppressive to the Petitioner (Respondent No. 1 herein) and that to windup the Company would unfairly prejudice Petitioner though otherwise the facts justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up. The Tribunal, empowered under Section 242 (2) of Companies Act, 2013 may, with a view to bring to an end the matters complained of, make such order as it thinks fit. On a plain reading of Section 242, it is manifestly clear that the facts should justify the making of a winding up order on just and equitable grounds. Admittedly, Arbitrator would have no jurisdiction to pass a winding up order on the ground that it is just and equitable which falls within the e....