TaxTMI 
TaxTMI 
2021 (1) TMI 114
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....-l Company, direct R-2 to transfer the remaining 8% shareholding being the difference between the 33% shareholding of R-l as per agreement executed in the year 2007 and 25% shareholding actually allotted to the petitioners and also for an order to investigate the affairs of the R-l Company qua the management handled by the R-2, 3 & 4 together with the cost and during the pendency of the main application the petitioners' also prayed for following interim reliefs:- a. Pass an ad interim ex parte order directing the Respondent No. 1 to 5 to maintain status quo in respect of the Board of Directors and shareholding of the Respondent No. 1 Company. b. Pass an ad interim ex parte order directing the Respondent No. 1 to 5 to maintain the status quo and not interfere to the peaceful possession of the petitioner held on behalf of Respondent No. 1 Company pertaining to the land admeasuring 70 acres (Aprox.) established on Khasra bearing No. 924-27 No. 929/2, 930, 933, 934, 936, 937, 938/1-2, 955/1-9533/3, 959/3, 960, 961/2, 963/2, 964, 965, 966, 967/1, 967/2, 1112, 1154, 1155, 1157, 1159/1, 1159/2 admeasuring 26.76 hectare (Approx.) situated at Village Mahua Kheraganj Te....
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....local commissioner to take possession to the statutory records of the Respondent No. 1 Company. j. Pass an ad interim ex parte order to direct the Respondent No. 1 to 5 to permit the petitioners to access the statutory records of the Respondent No. 1 Company, including of purported board meeting dated December 3, 2019 and k. Pass an other interim orders that are deemed expedient by this Hon'ble Tribunal. 2. Facts of the case in short is that the respondent No. 1 Company owns a land situated on Khasra bearing No. 924-27 No. 929/2, 930, 933, 934, 936, 937, 938/1-2, 955/1-9533/3, 959/3, 960, 961/2, 963/2, 964, 965, 966, 967/1, 967/2, 1112, 1154, 1155, 1157, 1159/1, 1159/2 admeasuring 26.76 hectare (Approx.) situated at Village Mahua Kheraganj Tehsil Kashipur, District Udham Singh Nagar, Uttarakhand (hereinafter referred to as "said Land"). The said land was acquired and purchased by the Respondent No. 1 Company in the year 2007 and some component of the said land was acquired and purchased thereafter. 3. Further, Respondent No. 2 and Respondent No. 3, in furtherance of their nefarious designs, entered into a purported lease agreement dated 03.12.2019 on beh....
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....anaging the affairs of R-1 Company. No notice for the said board meeting are ever given by the R-2 & 3 to any of the other directors including the petitioners. 8. Further, in view of agreement dated 23.07.2007, which was entered between petitioner No. 1, respondent No. 2 and respondent No. 7 and Sh. Madhusudhan Kejriwal, it was agreed to jointly invest l/3rd each in the respondent No. 1 Company with an understanding that the profits of the Respondent No. 1 Company shall also be shared in the same ratio. 9. Further, Sh. Madhusudhan Kejriwal thereafter resigned from the Directorship of the said company and the same was approved and accepted by Board Resolution dated 16.03.2009. 10. Further, it has come to the knowledge of the petitioner that R-2 in the capacity of Director of the R-1 Company in collusion with R-3 fabricated a purported Board Resolution dated 03.12.2019 by that resolution authorized Mr. Sanjay Singh S/o Late Shri Ganga Prasad Singh as a purported authorized representative to execute a purported lease agreement concerning the said property and the said Mr. Sanjay Singh on 03.12.2019 executed the lease deed for 5 years acting as lessor on behalf of R-1 Company ....
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....e petitioner claimed that the petitioner have a prima facie case and the balance of convenience is also in favor of petitioners and irreparable loss and injury will be caused to the petitioners by the acts of concerned respondents. 20. We have heard Mr. Virender Ganda, Learned Senior Advocate for petitioners, Mr. Siddharth, Advocate for R-1, 2, 3, 4, 6 & 7 and Mr. Gursat Singh Advocate for R-5 and in course of hearing the R-1, 2, 3, 4, 6 & 7 jointly and R-5 separately filed the written submissions and petitioners have also filed the written submission. R-1, 2 ,3, 4, 6 & 7 has also filed the documents in course of hearing. 21. Ld. Counsel for petitioners in course of his arguments submitted that at present, he will make his submissions only in respect of the prayer which is confined to interim relief and he further submitted that so far the main relief is concerned he shall place it later on, therefore, we would like to decide the issue of interim relief by this order. 22. Ld. Senior Counsel for petitioners raised all the facts mentioned in the application and submitted that no notice is provided to the petitioner No. 1 therefore, there is breach of Section 101 of Companies....
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....e said amount was credited in the account of R-l Company, whereas the petitioners have produced bank account of the R-1 Company to show that no such transaction has been made. Therefore, the lease deed was executed without receiving any consideration amount. He further submitted that since Rs. 2 crores as claimed by the respondent to be deposited by them is not in pursuant to any contractual provisions, therefore, R-l has no contractual rights to retain the amount or restrain the Respondent No. 5 from claiming the said amount. 27. He further submitted that the respondents in its written submissions submitted that an isolated event cannot be treated as oppression and mismanagement, the decision upon which the respondent placed reliance is not applicable because it is settled principle of law of the Companies Act that it is not the number of breaches, but the nature, gravity and consequences of the breach that the Hon'ble Tribunal is to consider and in this regard, he placed reliance upon following decisions:- K. Muthusamy & Another vs. S. Balasubramanian & Others Company Appeal No. 6 of @ Para 21 -24 - Page No. 29 to 30 & Para 29 - Page No. 31 of this writte....
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....egistered and he further submitted that the petitioner is in default as per Section 167 of the Companies Act, 2013 because he failed to attend the consecutive meetings of the Board of Directors within a span of 12 months during Financial Year 2019-2020 and that is the reason petitioner has challenged only resolution of one board meeting. 31. He further submitted that the funds received from the lease deed dated 25.06.2020 will also to act as the benefit the petitioners as shareholder. He further submitted that only out of 27 hectares, 5.659 hectares that is the portion of land has been leased and the same was necessitated with, because R-1 Company was badly in needs of funds and he further submitted that earlier the said property was also given on lease. He further submitted that there is no related party transaction rather in R-1 and R-5, there are other different shareholders and directors in the company except R-2 and further R- 2 has 25 % shareholding and R-3 has 12.50 % shareholding comes only to a minority shareholding in R-5 company. Therefore, the lease deed is valid and duly registered and Mr. Sanjay Singh was authorized to execute the lease deed as per resolution dated....
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....act shall not apply and shall apply in such exception and he referred Sr. 1, 13, 15 which relates to Section 2(76)(viii) with respect to main application of Section 188, Section 184(2) and Section 188(1) second proviso of Section 188(1). He further submitted that Section 242(g) of the Companies Act, 2013 is not applicable, therefore, the present petition is not maintainable. 35. In reply to the submissions, Ld. counsel for petitioners submitted that so far the Section 242(g) is concerned although at present the petitioners have prayed for interim relief and not the final relief but so far submission raised on behalf of respondents is concerned, this Sub Section g(242) is applicable from the date of knowledge and not from the date of execution of documents. 36. He further submitted that if the interim protection is not granted then irreparable loss will be caused to the petitioners. 37. Mr. Gursat Singh, on behalf of R-5 submitted that since, R-5 is not a shareholder of the R-1 company therefore, they are not a necessary party to this proceeding, so, their name may be strike off from the memo of parties. He further submitted that they have paid Rs. 2 crores to R-1 company a....
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....become vacant in all the companies, other than the company which is in default under that sub-section. (b) he absents himself from all the meetings of the Board of Directors held during a period of twelve months with or without seeking leave of absence of the Board; (c) he acts in contravention of the provisions of section 184 relating to entering into contracts or arrangements in which he is directly or indirectly interested; (d) he fails to disclose his interest in any contract or arrangement in which he is directly or indirectly interested, in contravention of the provisions of section 184; (e) he becomes disqualified by an order of a court or the Tribunal; (f) he is convicted by a court of any offence, whether involving moral turpitude or otherwise and sentenced in respect thereof to imprisonment for not less than six months: Provided that the office shall not be vacated by the director in case of orders referred to in clauses (e) and (f)- (1) for thirty days from the date of conviction or order of disqualification; (ii) where an appeal or petition is preferred within thirty days as aforesaid against the co....
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....nto the contract/arrangement in which they directly or indirectly interested and they failed to disclose their interest, therefore, in view of Section 167 (c) & (d) they are also disqualified from the post of Directors and Ld. Senior Counsel for petitioners also placed reliance upon Section 184(1) of the Companies Act, 2013 which relates to the disclosure of interest by the Director, since at present, we are not going to decide the main prayer made in the application, therefore, we shall consider these submissions at the time of final hearing of the case but on the basis of averments and submissions made on behalf of the parties, we find, both the parties are placing reliance upon Section 167 Company Act, 2013 and claimed that they becomes disqualified to be continued as a director of the company. Admittedly, the respondents have not sent the notice as required under Section 101 of the Companies Act, 2013 and in the absence of the petitioners, the resolution was passed on 03.12.2019 and authorized Mr. Sanjay Singh to execute the lease deed and we further find when the petitioner filed the application at that time there was no registered lease deed rather lease deed was executed on ....
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....If they challenged the act of the respondents on the ground that without informing them or without having valid resolution a lease deed was executed then on what basis, the petitioners claimed before us that they have obtained the possession by deputing a security guard on behalf of R-1 Company without having valid resolution, therefore, we are of the considered view that the claim of the petitioners is that they have come over the possession of land in question on behalf of R-1 company by deputing a security guard, in our considered view is not liable to be accepted, mere deputing a security guard or mere filing a photographs of security guard in order to show that he is standing over the land in question to protect the interest of R-1 company, in our considered view cannot be treated as a possession for the purpose of obtaining the protection under the law. Therefore, we are unable to accept this contention of Ld. Senior counsel for petitioners that petitioners are in possession of the land in question on behalf of R-1. 45. Now coming to the claim of the respondents, they claimed that by the registered lease deed, R-5 came into the possession of the land from 01/12/2019, of co....