TaxTMI 
TaxTMI 
2020 (10) TMI 498
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..... 2 to pay to the Petitioner a sum of Rs. 15,84,97,938/- along with such interest as this Hon'ble Tribunal deems fit, till actual date of payment. v. Pass order declaring that the Respondent No. 5 is not a director of the Respondent No. 1 Company. vi. Pass order removing the Respondent Nos. 2 to 5 as directors of the Respondent No. 1 Company. vii. Pass order of appointment of independent auditor and direction for conducting the special audit of the Respondent No. 1 Company for the F.Y. 2016-17, 2017-18 and 2018-19 and file such audit report before this Hon'ble Tribunal for passing of further appropriate order(s) as this Hon'ble Tribunal deems fit. viii. Pass order directing the Respondents not take any borrowings/facilities (fund based and/or non-fund based) without the prior permission of this Hon'ble Tribunal. ix. Pass order directing the Respondents not to create any third party rights, charge and/or encumbrance on the properties of the Respondent No. 1 without prior permission of this Hon'ble Tribunal. x. Pending admission, hearing and final disposal of the company petition this Hon'ble Tribunal be pl....
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....d by him after the clearance of dues of the CC facility and an obligation upon the Respondent No. 2 to clear the Bank Guarantees as well as making of alternate arrangement for giving collateral securities for release of property(s) belonging to the Petitioner under mortgage. 5. It is further alleged that in view of the said agreement, the Respondent No. 2 immediately appointed Respondent No. 3 and 4 being relative, as director of the Respondent No. 1 Company on 30.08.2017 and came in control of the board, without compliance of agreement so entered between Petitioner and Respondent No. 2 dated 11.08.2017. 6. It is further submitted/alleged by the Petitioner that dues of the CC facilities (Rs. 19,14,57,954.57/- as on August 2017) were required to be paid from the recovery of deposits/advances/WIP or collection received by the Company and lastly from his personal accruals which would be reimbursed from the recovery of deposits/advances/WIP or collection received by the Company. It is further made to understood that since money in relation to the recovery of deposits/advances/WIP or collection had not come in, he used his personal accruals to make payment of the CC and thereby ta....
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....i-Tech Sweet Water Technologies Pvt. Ltd.", promoted by the Petitioner. Petitioner has annexed the copies of trade mark certificate and list of shareholders of that company as Annexure-K and L at page No. 54-57 and 58 respectively. 14. On receipt of the notice Respondent No. 2 appeared and filed his reply along with the documents in support of his contentions denying all the allegations so made by the Petitioner in the Petition. It is submitted by the Respondent that the Petition is nothing but fraud on Respondent and is an attempt on the part of the Petitioner to take some order by the misrepresenting the court about the actual facts. 15. It is further submitted by the Respondent that Section 241-242 of the Companies Act, 2013 can be invoked only by the Members of the Company, if there is any incident of company being managed prejudicial to the interest of the company or members or class of members. 16. It is further submitted by the Respondent that the Petitioner is not a shareholder in view of agreement dated 11.08.2017 which is annexed as Annexure-D at page No. 37-41 of the reply and have also stated that another agreement was executed on the same day between the sa....
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....hat there was only one agreement dated 11.08.2017 (notarized) bearing stamp number 206030 and that Shri Narendra Garg, who is the witness to the execution of the agreement, has executed affidavit dated 30.03.2019, stating on oath that this was the last understanding between the Petitioner and the Respondent No. 2 and that the agreement dated 11.08.2017 (un-notarized) bearing stamp number 206028 was cancelled, as it contained the clauses which were not agreeable to the parties, which said fact is disclosed by filing IA 252/2019, wherein, no reply has been filed by the Respondent No. 2 dealing with the averments made in the IA 252/2019. 23. The Petitioner has alleged that it is the case of the Respondent No. 2 that the agreement dated 11.08.2017 bearing stamp number 206028 purportedly contained those additional clauses which was dealt with purported 'cash' transactions between the Petitioner and Respondent No. 2 and that the payment of the purported share transfer of the shares held by the Petitioner in the Respondent No. 1 Company were transferred on payment of cash. 24. The Petitioner has further alleged that on the other hand, Respondent No. 2 is making a case that t....
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....nts of the said company but not in that of Respondent No. 1 Company. Therefore, it shows that financial statements is/are not properly audited and as such special audit is required to be carried out. The Petitioner has annexed copies of relevant pages of the audited financial statements of "Turbotech Infranet Pvt. Ltd." for F.Y. 2017-18 as Annexure- C at page Nos. 18-28 of the rejoinder. 30. It is further alleged that in any event, the Respondent No. 2 has filed a different resolution of appointment of Respondent No. 5 (brother in law of Respondent No. 2) as director of the Respondent No. 1 Company which is annexed as Annexure D at page No. 29 of the rejoinder which goes on to show that the Respondent No. 2 is running the Respondent No. 1 Company as per his whims and fancies and devoid of the principles of company law. Findings 31. Heard both sides, also seen the pleading and objection along with the documents annexed with the petition, as well as the rejoinder. 32. Before proceeding further, it is necessary to see whether the petition fulfils the test of section 241 and 242 of the Companies Act, 2013. While dealing with the present petition, it must fulfil the followin....
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....conducted in a manner prejudicial to public interest, it may itself apply to the Tribunal for an order under this Chapter. 34. Admittedly, it is closely held private limited company of two persons in the form of quasi partnership and on perusal of the record it is found that there is a dispute with regard to the agreement(s) dated 11.08.2017 whereby the Petitioner as well as the Respondent No. 2 have arrived at an understanding to settle and part with on certain terms and conditions. However, dispute arose with regard to non-compliance or deficiency in compliance of the conditions of the said agreement by Respondent No 2. 35. The list of shareholders of the Respondent No. 1 Company at Annexure-A at page no 15 of the petition as well as at Annexure-Q at page No. 141 of the reply clearly reflect that the Petitioner as well as the Respondent No. 2 hold the 50% each of the shares of the Respondent No. 1 Company. There are no documents on record so as to show that the shares of the Petitioner in question have been transferred to the Respondent No. 2 or any other person(s) after following the due procedure relating to the transfer of shares as claimed by Respondent No 2. There are ....
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....nancial statements for the F.Y. 2016-17 available on record show that the same are signed only by the Respondent No. 2 which is in clear violation of the provisions of section 134 of the Companies Act, 2013 which requires that the same are to be signed by atleast 2 directors of the company. The financial statements for the F.Y. 2017-18 available on record show that the same are signed by the Respondent No. 2 alongwith the Respondent No. 5 showing that the Petitioner had refused to sign the said financial statements. Since, it is an admitted fact that the Petitioner is a shareholder of the Respondent No. 1 Company holding 50% of the share capital of the said company as well as a director of the said company, the Respondent No. 2 is under obligation to send the notices of all the meetings of the Respondent No. 1 Company to the Petitioner wherein the businesses are proposed to be transacted. However, there is no material on record to show that the Respondents including the Respondent No. 2 have sent the notices of the meetings held from time to time in compliance of the Companies Act, 2013. Moreover, the Respondents have failed to entertain the request of the Petitioner for the financ....
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....lthough the ultimate objective may be in the interest of the company, the immediate purpose would result in an advantage for some shareholders vis-a-vis the others. c. The action is against probity and good conduct. d. The oppressive act complained of may be fully permissible under law but may yet be oppressive and, therefore, the test as to whether an action is oppressive or not is not based on whether it is legally permissible or not since even if legally permissible, if the action is otherwise against probity, good conduct or is burdensome, harsh to oppression under sections 397 and 398. e. Once conduct is found to be oppressive under sections 397 and 398, the discretionary power given to the Company Law Board under section 402 to set right, remedy or put an end to such oppression is very wide. f. As to what are facts which would give rise to or constitute oppression is basically a question of fact and, therefore, whether an act is oppressive or not is fundamentally/basically a question of fact." Two prominent examples which figure in several cases and held an oppressive conduct are: 1) Issue and/or transfer of shares with th....