TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 773
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....22, RoC at Chennai from the year 2009 - 2017 to the Petitioner herein. d) Or any other orders as deem fit and proper to the circumstances of the case and thus render justice. 2. The 1 Respondent Company viz. Penda Marketing Private Limited was incorporated on 20.08.2009 under the Companies Act, 1956 as a Private Limited Company with Registration No. U45400TN2009PTC072622. 3. It is averred in the petition that the petitioner is the shareholder of the 1st Respondent Company and is a permanent resident of Thelicherry Kerala - 670 678, aged about 63 years and an illiterate and not able to read and write and using his innocence the 2nd and 3rd Respondents have persuaded him to invest huge sum of money into the 1st Respondent Company on the assurance that the said sum will be put to good use for the benefit of the Company. 4. It is further averred in the petition that due to the continuous instigation of the 2nd and 3rd Respondent, the petitioner persuaded one Ms. Ayesha Fahath to invest Rs. 60,00,000/- and one Mrs. Fouziya to invest Rs. 20,00,000/- in the 1st Respondent Company and for the said sum, the Petitioner stood as a guarantor and offered his property situated at Karanthoor....
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....itioner that the 2nd and 3rd Respondents had not settled any amount to the said Ms. Ayesha Fahtah and Mrs. Fouzia and only with an intention to cheat the petitioner, the 2nd and 3rd Respondent have stated so. 7. It is averred in the petition that on further demand by the petitioner, the 2nd and 3rd Respondent had agreed to purchase 1,80,000 equity shares from the petitioner herein within a span of 6 months and to effect the share transfers, the petitioner and the 2nd and 3rd Respondents had entered into a Memorandum share purchase agreement on 04.07.2012. Thereafter, the 2nd and 3rd Respondent have not proceeded with the share purchase agreement and failed to complete the purchase of shares and in one way or another evading the petitioner with an intention to cheat him. 8. It is further averred in the petition that the petitioner had issued a number of written communication to the 2nd and 3rd Respondents but all his efforts turned futile and as on date the 2nd and 3rd Respondent have not complied the Memorandum of Agreement dated 04.07.2012. Further, it is averred that by concealing material facts and on misrepresentation the 2nd and 3rd Respondents had obtained resignation from ....
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....ration and the Petitioner has also voluntarily resigned and has submitted his resignation letter on 17.11.2012 in which he has stated that due to personal reasons he is voluntarily resigning from being a Director of the 1st Respondent Company and the Board of Directors had also passed a resolution to that effect accepting the same on 25.11.2012 and also filed the requisite Form 32 before the Registrar of Companies. c. The petitioner as the major shareholder of the 1st Respondent Company initially, and the 2nd and 3rd Respondent were primarily managing the affairs of the 1st Respondent Company and since the petitioner was dealing with some other business abroad he used to call the 2nd and 3rd Respondent once in fortnight and he had other business in the Middle East countries and therefore he was unable to contribute towards the 1st Respondent Company. d. The Respondent admitted that it is true the certain people have pooled in money to the 1st Respondent Company and the details of whom are as follows; i. Mrs. K.P. Fousy; Rs. 60,00,000/- ii. Mrs. Ayasha Farhat; Rs. 25,00,000/- iii. Mr. Shahadab; Rs. 50,00,000/- iv. Mr. Ummer Hajee (Petitioner); Rs. 25,00,000/- It is als....
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....that they took all efforts for retaining the petitioner in the 1st Respondent Company but the petitioner was adamant on bringing his son to the Board as Managing Director and since the same would hamper the smooth functioning of the business of the 1st Respondent Company, the Board of Directors let with no other option but to accept the resignation of the petitioner. h. The Respondents further stated that the petitioner, pursuant to this, took all efforts to tarnish the image of the 1st Respondent Company by writing false letter to its clients and bankers. Further, it is stated that the Respondents during the tenure of the petitioner as a Director of the 1st Respondent Company has paid a sum of Rs. 12,45,000/- in spite of his not having any significant role in the 1st Respondent Company. i. It is stated that the Respondents had several negotiations through various common parties known to both the petitioner and the Respondent and finally a consensus was arrived between them and a Memorandum of Understanding (MoU) dated 04.07.2012 and a Share Purchase Agreement (SPA) dated 04.07.2012 was entered into between the Petitioner and the Respondents. j. It is stated that the MoU inte....
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....Axis Bank for an amount of Rs. 4,50,000/- m. It is further stated that after completion of the above mentioned transfer of shares the petitioner and the 2nd and 3rd Respondent discussed and the petitioner further decided to transfer his shares that were held by him in the 1st Respondent Company for the same price for which the earlier shares were transferred by him but no specific agreement was entered into, in relation to the same and based on the mutual agreement the 3rd Respondent handed over a DD to the petitioner for an amount of Rs. 3,33,000/- to the petitioner and the same was utilized by the petitioner but he did not sign the share transfer form as agreed in relation to the transfer of 33,000 shares held by him inspite of several reminders from the 3rd Respondent and his representatives. n. It is stated that the 1st Respondent Company has already repaid the amount that it owed to the Petitioner and certain others, however certain dues are pending to be paid to which the petitioner is no where connected and the details regarding the loans availed and paid and that are still pending are as under; Name Amount Borrowed Amoun....
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.... some funds into the 1st Respondent Company after which he had been tricked into by the Respondents and resigned as a Director of the 1st Respondent Company on 17.11.2012. Now, after the lapse of almost 5 years, the petitioner has filed the present petition to induct him as the Director of the 1st Respondent Company. In fact, whether the allegations as averred by the Petitioner in the petition would constitute oppression or mismanagement is to be examined in light of the Judgment of the Hon'ble High Court of Madras in S. Seetharaman and Others -Vs- Stick Fast Chemicals Pvt. Ltd. (1998) 93 CompCas 507 Mad, at Page 525 wherein it is held as follows; "The point for consideration is whether all these acts and incidents would amount to oppression and mismanagement as contemplated under sections 397 and 398 of the Companies Act, 1956. In a petition filed under section 397 of the Companies Act, the petition should contain all material facts. In case of fraud, mismanagement oppressive conduct, etc., full and complete particulars must be alleged in the petition. Subsequent affidavits are not enough. The petitioner must plead all material facts necessary for granting the relief as pr....
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....fraud particulars of which must be clearly set out in a petition under this section. One kind of mismanagement cannot be pleaded and some other cannot be proved. It was further observed that serious and disputed questions of title and controversies which were already the subject matter of the pending legal proceedings should not be adjudicated in summary proceedings as envisaged by the section. If an action of the director is illegal or invalid or unlawful the shareholder may take appropriate action in a court of law challenging the validity of such action, but a petition under section 397 or 398 is not an appropriate remedy for that purpose (see Hungerford Investment Trust Ltd. v. Turner Morrision and Co. Ltd. [1972] ILR 1 Cal 286)." 17. It is evident from the records that the petitioner has acted in pursuance of the Share purchase agreement entered into between the parties on 04.07.2012 and has transferred 1,80,000 shares out of the 3,00,000 shares in favour of the 2nd and 3rd Respondents and has also received the consideration in relation to the same. However, now in the present petition, the petitioner claims that he still holds 3,00,000 shares in the 1st Respondent Company, w....
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....e Limitation Act, 1963 would not apparently apply to the proceedings before the Tribunal as it is the original Court of jurisdiction and the petition filed before it u/s 241 and 242 of the 2013 Act are in the nature of suits." The aforesaid view was left untouched and was subsequently upheld by the Hon'ble NCLAT in Appeal in Praveen Shankaralayam -Vs- M/s. Elan Professional Appliances Pvt. Ltd. & Others in Company Appeal (AT) No. 34 of 2016. 19. Even otherwise going by recent decision of the Hon'ble Supreme Court in the matter of B.K. Educational Services Private Limited -Vs- Parag Gupta & Associates, wherein the Hon'ble Supreme Court had an occasion to consider the applicability of Section 433 of the Companies Act, 2013 to this Tribunal as well as the Appellant Tribunal had succinctly held as follows; 25 ................. Section 433 of the Companies Act, which applies to the Tribunal and the Appellate Tribunal, expressly applies the Limitation Act to the Appellate Tribunal, the NCLAT, as well. Also, the argument that the NCLAT is an appellate tribunal which is common to three statutes, under one of which, viz., the Competition Act, no period of limitation has been....