TaxTMI 
TaxTMI 
2020 (11) TMI 757
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....7190MH2005PLC151641. The petitioner-company was incorporated as 3A Capital Services P. Ltd., on February 28, 2005 has later been converted into a public limited company. Consequently, a fresh incorporation was obtained from the Registrar of Companies, Mumbai on March 1, 2006. 3. The main object of the petitioner is to carry on the business of investment and to buy, sell, trade, invest in, acquire, underwrite, hold, subscribe in shares, stocks, bonds, units, debentures, debenture stock, commodities, deposits, promissory note, warrants, obligations, rights, bills of exchange and other financial instruments. 4. The registered office of the petitioner is mentioned in the cause title. Certificates of incorporation, memorandum of association and articles of association of the petitioner are at annexures A1 and A2 to the petition. 5. Respondent No. 1 is a public limited company registered under the provisions of the Companies Act, 1956 bearing CIN : U18100AP1992PLC013686. The main object of the respondent-company is to carry on the business of processing, spinning cotton, viscose synthetics and blended yarn in cone and hank form. Respondents Nos. 2 to 13 are its managing director....
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....d, Chennai Bench passed order dated August 16, 2013 (annexure C) in the petitioner's favour directing the respondent No. 1 to transfer 2,40,70,000 equity shares in the name of the petitioner and rectify the register of members within 30 days, and further providing that the petitioner is entitled to the benefits attached to 2,40,70,000 equity shares including but not limited to dividend and bonus shares. 7.6 Several notices issued to respondent No. 1 seeking compliance of the said order dated August 16, 2013 did not yield result, hence the petitioner filed company application in Company Petition No. 3 of 2013 under section 634(4) of the Companies Act, 1956, wherein the hon'ble Board has passed order dated April 29, 2015 directing respondent No. 1 to transfer and register 2,40,70,000 equity shares in the name of the petitioner within a month. 7.7 Around May 20, 2015 respondent No. 1 has transferred and registered 2,40,70,000 equity shares in the name of the petitioner (40 per cent. of total issued and paid-up share capital of respondent No. 1). Thus, the petitioner has become member of total issued and paid-up share capital of respondent No. 1, only after about four yea....
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....such transaction is pending for registration with the concerned authorities. Copy of Ready Reckoner price of land of respondent No. 1, relevant in 2015 is at annexure J. List of signatories of M/s. Samruddhi Investors Services P. Ltd., extracted from the official website of Ministry of Corporate Affairs, proving the act of mismanagement is at annexure K. (ii) General meeting for approval of members of respondent No. 1 before entering into the said transaction of sale was not convened. Nor a resolution was passed. (iii) Newspaper advertisement has not been issued calling interested parties to bid. It is submitted by the petitioner that all the above amount to acts of oppression. 9. Action taken by the petitioner on the alleged acts of oppression by respondent No. 1 : (i) The petitioner has issued notice dated March 7, 2016 (annexure (L1) to respondent No. 1 for its acts of oppression. Respondent No. 1 gave reply dated March 28, 2016 (annexure L2). The petitioner issued notice dated March 2, 2016 (annexure M) to respondent No. 1 under section 110 of the Companies Act, 2013, calling upon it to convene extraordinary general meeting to reconstitute board....
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....nnai, the petitioner has filed application for impleadment (annexure U1). Said petition has been transferred to this Bench and this Bench has passed order dated December 31, 2016 (annexure U2) allowing the impleadment application. (d) Respondent No. 1 had 1 lakh spindles earlier, which has now been reduced to around 60,000 spindles (photograph is at annexure R). This proves that the machinery of respondent No. 1 is being sold off. (e) It is alleged in paragraph 27 of the petition that audited and unaudited financials of respondent No. 1 (annexures W1 and W2) show the oppression and mismanagement and also contravention of the Companies Act, 2013. Learned counsel for the petitioner has filed C. A. No. 84 of 2018 in this petition on January 25, 2018 requesting the Tribunal to incorporate an additional prayer clause, as "clause (c)(i)" of the petition, which reads as under : "(c)(i) Further or alternative to prayer clause (c) above, that this hon'ble Tribunal be pleased to direct that respondent No. 1-company be would up on just and equitable grounds and due to oppression and mismanagement of the respondents." The petitioner has also fil....
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....uction Co. (India) Ltd. (ARCIL). 13.4 It is averred in paragraph (II)(iii) and (iv) of the counter that ARCIL has issued notice (annexure 1 to the counter) under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 claiming a sum of Rs. 611,51,76,001 as due and payable as on June 30, 2008. In 2011, one of the lenders, viz., ICICI Bank Ltd., offered to sell 1,99,79,000 equity shares of respondent No. 1 held by them and the petitioner bought these shares at a price of Re. 1 per share (face value of Rs. 10 per share). Even other lenders followed the suit and the petitioner has bought at a throw away prices. Copies of transfer deeds are at annexures 2 and 3). Thus, the petitioner has acquired 2,40,70,000 shares at a total cost of Rs. 2,69,44,000, viz., Rs. 11 per share (face value of Rs. 10 per share). 13.5 In paragraph (II)(vii) and (viii) of the counter it is averred that Land Reforms Tribunal has passed order dated August 10, 2007 (annexure 6 to the counter) that respondent No. 1-company is holding land in excess of ceiling limit and it is liable to surrender the same. Respondent No. 1 has filed before the Ap....
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....in transfer of shares to theft of statutory records including Member Register for which an F. I. R. is lodged. 13.10 In paragraph (III)(10) of the counter it is admitted that there were disputes amongst Sanghi brothers, viz., Ravi Sanghi and Girish Sanghi and that led to filing several company petitions. It is also admitted that interim order dated October 23, 2008 was passed by the Company Law Board, Chennai Bench. However, it is contended that the said order pertains to amicable settlement and it does not make respondent No. 1-company to maintain status quo in regard to shareholding. 13.11 In paragraph (III)(11) of the counter it is denied that Ravi Sanghi has joined hands with respondents Nos. 2 and 3 and entered into arrangement of selling of land of respondent No. 1-company despite the orders of the Company Law Board, Chennai. 13.12 In paragraph (III)(18) of the counter it is submitted that order dated October 23, 2008 passed by the Company Law Board, Chennai Bench does not apply to respondent No. 1-company. Even then respondents approached the Company Law Board, Chennai Bench and sought modification of the order. In the meantime respondent No. 1 was facing action und....
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....akhs per acre. This agreement suffers from the following : (a) It was in breach of restraining order dated October 23, 2008 of the Company Law Board, (b) Without publication of advertisement, (c) Without obtaining quotation from prospective buyers, and (d) Without convening the extraordinary general meeting before agreeing to sell such a huge portion of land. It submitted that the said factors, therefore, establish oppressive act by the respondents. The petitioner has demonstrated in a tabular form that the land admeasuring 400 acres, which had market value of Rs. 120 crores had been sold at Rs. 4 lakhs per acre, viz., for value of Rs. 16 crores. 14.3 In paragraph 3(b) of the rejoinder the petitioner has offered to con tribute towards the total liabilities of respondent No. 1 to the tune of its shareholding in respondent No. 1, viz., 40 per cent. or any per cent. as decided by this Tribunal. 14.4 In paragraph 3(d) of the rejoinder it is averred that publication of advertisement is mandatory for receiving highest bid. In the present case irreparable loss has been caused by not publishing advertisement. 14.5 In p....
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.... 14.9 In paragraph 16 of the rejoinder the petitioner has refuted the allegation that the petitioner is interested in unjust profits. It is further averred that a representative of the petitioner has met the officer of respondent No. 1 in person with regard to sale of respondent No. 1-company as a whole and the petitioner has arranged to take the officials of SBICAP Securities Ltd., to Hyderabad to visit the plant/factory and immovable proper ties of respondent No. 1 to sell respondent No. 1-company to prospective buyers. Nothing fruitful has come in this regard. The petitioner has ruled out the possibility of respondent No. 1-company growing as an industry. 14.10 In paragraphs 21 and 22 of the rejoinder the petitioner averred that the petitioner has purchased 2,40,70,000 shares from reputed bankers like ICICI, IDBI, UTI. Respondent No. 1 could have sent 15 days' notice to such banks to confirm the sale of said shares to the petitioner and after getting confirmation respondent No. 1 could have transferred said shares in the name of the petitioner. However, respondent No. 1 failed to transfer the said shares for four years. 14.11 In paragraph 30 of the....
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....on in Bellador Silk Ltd., In re [1965] 1 All ER 667 (Ch D), wherein it is held that if motive of the petitioner is not bona fide and petition filed once with an oblique motive, then the petition should be dismissed without going into merits of the case. It is averred that the said decision has been relied on in several judgments thereafter. It is submitted that the said decision applies in the present case as the petitioner has not come with clean hands. 15.3 In paragraph 3(c) of the counter it is averred that respondent No. 1 has sold part of its assets in favour of respondent No. 14 as is reflected in the financial report of respondent No. 1. Said transaction had taken place prior to the petitioner becoming member of the company. Thus, the petitioner has no locus to question about the said transaction. 15.4 In paragraph 3(f) of the counter it is averred that the petitioner has no right to issue notice dated May 11, 2016 to respondent No. 14 and its director Ravi Sanghi about purchase of immovable properties of respondent No. 1. It is submitted that the petitioner has no locus to point out the interim orders passed by the Company Law Board filed by Sanghi Brothers. 16. Re....
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.... rejoinder it is averred that respondent No. 14 has admitted that respondent No. 1 has sold a part of its assets in favour of respondent No. 14. However, respondents Nos. 1 to 4 have stated that they have agreed to sell, which is contradicting the statement of respondent No. 14. 17. Memo of objections dated July 6, 2018 filed by respondents Nos. 1 to 4 against the report of the learned Advocate Commissioner 17.1 It is submitted in paragraph 1 of the objections that the Tribunal vide its order dated July 21, 2017 has appointed Shri K. Ram Murthy, advocate as Advocate Commissioner to visit the factory of respondent No. 1 and report the actual position, take inventory of movable and immovable properties. The learned Advocate Commissioner has submitted his report. 17.2 It is alleged in paragraph 2 of the objections that learned Advocate Commissioner has never served these respondents or their counsel with any written notice about his scheduled visit to the company. Therefore, these respondents could not assist learned Advocate Commissioner. 17.3 It is averred in paragraph 4 of the objections that the statement of learned Advocate Commissioner that documents pertaining to mo....
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....he Central act of oppression alleged in the petition by the petitioner is sale of 400 acres of land belonging to respondent No. 1-company at a throwaway price of Rs. 16 crores, the market value of which was Rs. 120 crores and ready-reckoner value was Rs. 60 crores. The said transaction is admitted by respondent No. 1-company and its majority of shareholders. However, they sought to justify the said action as under : (a) The need to sell the land of 400 acres of at Rs. 16 crores, the market value of which was Rs. 120 crores, was due to alleged settlement with the secured creditors of respondent No. 1 ; the sale proceeds alleged received by the company were used to fund the said settlement with the secured creditors of respondent No. 1-company. (b) The low price of Rs. 16 crores it has got is because it was the subject-matter of proceedings under the Land Ceiling Act. The petitioner contends that both the above reasons are fraudulent and deceitful. It is contended by the petitioner that on the contrary respondent No. 1 admits in its counter that : (a) There is huge unsecured liabilities of over Rs. 40 crores ; (b) The company does not have....
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....e year 2016-17 is shown as "Zero". The petitioner alleges underhand dealing between the respondents. 21. Written submissions dated November 27, 2019 filed on behalf of respondent No. 14 21.1 In paragraph I(a) of the written submissions the respondent has relied on paragraph 14 of order dated March 13, 2017 passed by the National Company Law Tribunal, Hyderabad, in C. P. No. 109 of 2012, which reads as under : "A person becomes a member/shareholder of the company when his name is entered in the register of members of the company." The petitioner's claim made before his becoming a shareholder, viz., before May 20, 2015 is liable to be rejected in view of the order of the National Company Law Tribunal, Hyderabad. Hence this petition be rejected. 21.2 In paragraph I(c) of the written submissions the respondent has cited a decision in the matter of Bellador Silk Ltd., In re [1965] 1 All ER 667 (Ch D), to contend that when a petition is filed with an oblique motive it is not maintainable. The said judgment has been relied in several judgments subsequently, namely, (i) Palghat Exports P. Ltd. v. T. V. Chandran [1994] 79 Comp Cas 213 ....
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.... at pages 237. 21.7 In paragraph III(e) of the written submissions the respondent has cited the decision of the erstwhile Company Law Board dated August 8, 2011, C. P. No. 1081 of 2011 and C. P. No. 1092 of 2012 to contend that the conduct of the petitioner is mala fide and that the petitioner has not come to the Tribunal with clean hands, but with the sole objective of profiting from the dispute between the family members of promoters. 21.8 In paragraph III(f) of the written submissions the respondent has contended that the present petition is not presented with the genuine object of obtaining relief claimed but with the object of exerting pressure in order to achieve a collateral purpose, which is an abuse of process of the Tribunal. In this connection the respondent cited the decision of the Chancery Division in Bellador Silk Ltd., In re [1965] 1 All ER 667 (Ch D). 21.9 In paragraph III(g) of the written submissions the respondent has contended that the petitioner has filed the present petition for the collateral purpose of claiming inflated prices for its shares. The petitioner had even ignored the efforts of reconciliation initiated by respondent No.....
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....an extent of 400 acres of land belonging to the first respondent-company was sold at a throw away price of Rs. 16 crores whose market value was Rs. 120 crores and Ready Reckoner value was Rs. 60 crores. This transaction under an agreement of sale was completed in other respects including receiving of full consideration except formal execution of deed of conveyance. Learned counsel contended, sale of this major chunk of land of first respondent-company is against the interim order dated October 23, 2008 passed by the Company Law Board in C. P. No. 26 of 2008 wherein the respondents were restrained from dealing with the assets of respondent No. 1-company. Learned counsel contended, the sale of land is also challenged on the ground that this land was sold to a related party, i. e., respondent No. 14 herein. Learned counsel contended, the majority shareholders were involved in the sale of land to the related party and the same was not even informed to the petitioner who is share-holder. It is not in dispute that according to the respondents, the petitioner was holding 30 per cent. of equity shareholding. Learned counsel contended, before going for sale, the first respondent-company oug....
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....1-company failed to transfer shares in favour of the petitioner, it moved the Company Law Board and obtained order dated August 16, 2013 directing the company and its directors to transfer the shares in the name of petitioner. They did not comply the order, then petitioner moved contempt proceedings and finally respondent No. 1 transferred the shares in favour of the petitioner on May 20, 2015. Thus, learned counsel contended, the act of respondents Nos. 1 to 4 in selling the land at an undervalued price to respondent No. 14 is nothing but an act of oppression and mismanagement. No extraordinary general meeting was held for sale of the land. The contention of learned counsel, the value of the land as per Ready Reckoner is Rs. 15 lakhs per acre. However, market value was Rs. 30 lakhs, whereas the land was sold at Rs. 4 lakhs per acre. Thus, there was no approval of the shareholders for sale of the land. No extraordinary general meeting was conducted and the board was disqualified. 26. Learned counsel contended, the first respondent-company has converted partly paid-up shares which was issued in the year 2002 into fully paid-up shares despite the fact that board of respondent No. ....
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....the proceedings initiated under Land Ceiling Act. Learned counsel contended, there is no oppression and mismanagement. The petition is only filed to pressurize the respondent-company and other respondents to meet the unlawful demand of the petitioner. 28. Learned counsel contended, the contempt petitions filed against the Company Law Board order dated October 23, 2008 were all dismissed by this Tribunal. It is baseless to contend that members of the Board became disqualified. Learned counsel contended, respondent No. 1-company was declared possessing excess holding of 22.67 standard holding. It was held by Land Ceiling Officer that the company is entitled to only one standard holding which is equivalent to 55 acres. The company filed appeal before the hon'ble Land Reforms Appellate Tribunal bearing L. R. A. No. 14 of 2007 which was remanded to the Revenue Divisional Officer. Against the said orders of LRAT, the State Government preferred C. R. P. No. 686 of 2012 to the hon'ble High Court, which is pending. Learned counsel contended, sale has not taken place and therefore it is baseless to contend that the extraordinary general meeting was not called for sale of the land.....
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....l entered into with the secured creditors of respondent No. 1-company. The reason for sale of the property at the price offered by respondent No. 14 is that the said property was involved in the land ceiling proceedings. Therefore, respondent No. 14 purchased this piece of land for the price at which it was willing to purchase. 32. It is not in dispute that the land sold to respondent No. 14 under an agreement of sale is involved in the Land Ceiling Proceedings. Respondents Nos. 1 to 4 are contending that the Land Ceiling Officer-cum-Revenue Divisional Officer found respondent No. 1-company was holding land over and above the limit prescribed under Ceiling Act. The case of respondents Nos. 1 to 4 is that the Land Ceiling Officer found respondent No. 1 possessing excess land of 22.67 standing holdings. The case of respondents Nos. 1 to 4 is that the Land Ceiling Officer declared respondent No. 1-company is entitled to one standard holding, which is equivalent to 55 acres. An appeal was filed before the Land Reforms Appellate Tribunal (LRAT), which has again remanded the matter to the Land Ceiling Officer-cum-Revenue Divisional Officer. However, the Government had preferred CRP ag....
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....ssing resolution authorising the Board to sell 400 acres of land to respondent No. 14. By the alleged date of entering into transaction with respondent No. 14, the petitioner became shareholder. Being aware, the petitioner purchased the shares from financial institutions, yet there was no registration of shares in favour of the petitioner. However, the petitioner was forced to approach the erstwhile Company Law Board seeking appropriate direction and finally the shares were registered in the name of the petitioner on May 20, 2015. Thus, respondents Nos. 1 to 4 have not filed any proof that the board was authorised to sell 400 acres of land of respondent No. 1-company to respondent No. 14 and there was no resolution fixing the price of land at which the company has to sell the land to any prospective buyer. The petitioner is a member of respondent No. 1-company. According to him his percentage of shareholding in the company was 40.11 per cent. Of course, this percentage of shareholding further came down following conversion of partly paid shares into fully paid shares. The fact remains that the petitioner was a shareholder. Whether his shareholding was 40.11 per cent. or less than t....
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....m being produced. The petitioner being a shareholder is entitled to have the information related to sale of a big chunk of land of respondent No. 1-company. The majority shareholders are running the company. Thus, the petitioner, a minority shareholder is being oppressed. Thus, neither proof of extraordinary general meeting nor proof of notice of service to the petitioner, nor copy of the alleged agreement of sale is filed. 36. The next contention of the petitioner is that respondents Nos. 1 to 4 have not filed any documents showing any settlement with the secured creditors of respondent No. 1-company. No proof about terms of settlement with the secured financial creditors. It is the case of respondents Nos. 1 to 4 that in order to meet the one-time settlement proposal entered with secured financial creditors, respondent No. 1-company was forced to sell the land. It is the case of respondents Nos. 1 to 4 that respondent No. 1-company owed Rs. 612 crores to the secured creditors. Besides there were other liabilities to other creditors. There was absolutely no difficulty for respondents Nos. 1 to 4 to produce all the documents connected with the one-time settlement proposal entere....
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.... out of competition. Surprisingly, there was no newspaper publication inviting participation of members of public. 39. The contention of learned counsel for respondents Nos. 1 to 4 is that there was no procedure prescribed that notice should be published in newspapers for sale. In all prudence, when the company proposes to sell 400 acres of land, notice could have been published in newspapers in order to get an attractive price for the land. Thus, respondent No. 1-company has not properly conducted the sale transaction and the procedure adopted by respondent No. 1-company is not in tune with the established practice. This is also one of the grounds to set aside the sale entered with respondent No. 14. 40. The serious contention of the petitioner is that the land was allegedly sold for Rs. 4 lakhs per acres bringing the total sale consideration at Rs. 16 crores. Learned counsel for the petitioner would contend that the sale price as per the Ready Reckoner was Rs. 15 lakhs per acre. This extent of land, if sold at Rs. 15 lakhs per acre, it would have fetched Rs. 60 crores. Learned counsel contended that the market value is higher than the Ready Reckoner price. The market value ....
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.... given as partly-paid shares. Rs. 4 was collected for each share of the value of Rs. 10 at the first instance. Thus, the partly-paid shares were converted into fully-paid shares after receiving balance of Rs. 6 per share. This was done only to meet with the one-time settlement proposal requirements. Of course, there is material placed by respondents Nos. 1 to 4 that respondent No. 1-company was in debt trap. The petitioner cannot question the conversion of partly-paid shares into fully-paid shares, because need arose for conversion in order to raise money for clearing debt liabilities of respondent No. 1-company. Therefore, this cannot be held as an act of oppression and mismanagement. In fact, the partly-paid shares were issued long prior to the petitioner acquiring the shares in respondent No. 1-company. Therefore, he cannot question issuance of partly-paid shares when he was not a member of respondent No. 1-company. As there was need to raise money, partly-paid shares were converted into fully-paid shares by collecting balance. How this conversion can be said to be oppressive against the petitioner. 42. The petitioner prayed the Tribunal, in alternative, to provide him exist ....
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.... Land Ceiling Proceedings started against respondent No. 1-company. Therefore, valuation cannot be taken unless ownership of the lands of respondent No. 1-company is decided. It is also difficult to assess the value because ownership of the lands is yet to be determined. However, it is open to the petitioner to sell its shares at the price at which it is willing to sell to the existing share-holders and it is open to the existing shareholders to purchase shares of the petitioner at the rate offered by it. In case the existing shareholders do not wish to purchase shares at the price offered by the petitioner, then the petitioner is allowed to sell its shareholding to third party, if it wants to exit from respondent No. 1-company. 47. The alternative relief prayed for by the petitioner to wind up respondent No. 1-company cannot be granted for the reason that a big asset of respondent No. 1-company, i. e., vast extent of land is involved in the Land Ceiling proceedings and the matter is pending in the hon'ble High Court of Telangana and therefore, respondent No. 1-company cannot be ordered to be wound up. The issue relating to holding of the land by respondent No. 1-company is ....