TaxTMI 
TaxTMI 
2019 (8) TMI 1628
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.... the Respondent/ Petitioner has filed a memo dated 23.08.2019, by inter alia seeking to suspend the operation of said order for a period of 15 days, in order to approach the Hon'ble National Company Law Appellate Tribunal, New Delhi, in the interest of justice. Though, he has asked suspension of order for 15 days, he has restricted his relief till 27.08.2019. He has relied upon the judgments of Hon'ble Supreme Court are as follows: > Sudarshan Trading Company Limited, Bangalore Vs. Mrs. L.D'Souza 1983 SCC Online Kar 213: AIR 1984 Kar 214: (1984) 2 Kant LJ 132 3. Shri K.G.Raghavan, and Sri Arun Kumar learned Senior Counsels for the Applicants/ Respondent No. 4 & 5 , have strongly opposed to suspending said order as they have already suffered adverse add Interim order dated 12.06.2019 till date and thus urged the Tribunal not to suspend the order and relied upon judgments rendered in Hon'ble High Court of Karnataka in MFA 6200/2016 for the date of order 27.06.2017. 4. This Tribunal, at the time of admission, passed ad-interim order dated 12.06.2019, and the same was questioned before the Hon'ble High court of Karnataka by filing W.P. No.28376 of 201....
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....st M/S. GE Triveni Limited & 10 others (Respondents), under Sections 210, 213, 219, 228, 241 and 242 of the Companies Act, 2013, by inter alia seeking the following reliefs: a) To direct an investigation into the affairs of the Company and Respondents No.2 to 5 in order to determine the full extent to which Respondent No.5 starved the Company of business and/or made financial gains themselves by inter alia: i. Suppressing sales inquiries from the Company, ii. Failing to promote the Company's business, iii. Competing with the Company's business, iv. Deliberately refusing to share technology which would make the Company's products competitive in the market. b) To direct Respondent No.2 to 11 to provide the necessary support and cooperation for proper conduct of the above-mentioned investigation; c) To restrain Respondent No.5 from altering its shareholding composition in Respondent No.4 or causing the same to be altered in any manner whatsoever; d) To restrain Respondent No.2 to 5 from soliciting the employees of the Petitioner and the Company; e) To frame a suitable scheme/ arrangement to be....
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....ectric Company, a corporation organized and existing under the laws of the State of New York, United States of America. ("GENP TLA") Nuovo Pignone S.P.A ("GENP") is an Affiliate of General Electric Company. Article 1.1 defined "Affiliate" which means (a) with regard to Party A, any person directly or indirectly Controlling or controlled by Party A or under direct or indirect common Control by any of the party A Promoters (as defined Below); (b) with regards to Party B any person directly or indirectly controlled by GE, and (c) with respect to any specified person (other than Party A and party B), any person that, at the time of determination, directly or indirectly through one or more intermediaries Controls, is Controlled by or is under direct or indirect common Control with such specific person. For the avoidance of doubt, Spinco (as defined below) shall be considered to be an Affiliated of Party and the Company shall not be considered to be an Affiliated of Party A or Party B for the purpose of this Contract. As per Article 2.1 (B), a Company will be incorporated with an initial authorized share capital of divided into 25,000,000 shares of face value of Rs. 10/- each and subscri....
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....B), any person that, at the time of determination, directly or indirectly through one or more intermediaries Controls, is Controlled by or is under direct or indirect common Control with such specific person. For the avoidance of doubt, shall be considered to be an Affiliated of Party and the Company shall not be considered to be an Affiliated of Party A or Party B for the purpose of this Contract. " 7) Part Ill deals with share capital, which reads as under "The authorised share capital of the Company shall be such amount and be divided into such shares as may, from time to time, be provided in Clause V of the Memorandum of Association ("Share Capital") The paid up share capital of the Company shall be mutually agreed by the shareholders in the contract or from time to time. Provided however that the shareholder ratio of the shareholders in the Company shall always be as follows: Party A or its Affiliate: 50% plus 1 share Party B or its Affiliate: 50% minus 1 share The Company shall issue share certificates to each shareholder for the shares subscribed in accordance with Article 5, as per the Applicable Law. Such certi....
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....on dated 22.07.2019, by inter alia contending as follow: 1) It is alleged that Applicants / Respondent Nos.4 & 5 are barred by the principles of waiver, estoppels and acquiescence from questioning jurisdiction of this Adjudicating Authority having responded to the Petition. The Respondent No.4 & 5 , after filing response to the CP and IAS, is deemed to have accepted the contents of those pleadings. In any event, at this stage, the contents of these pleadings must be accepted as true and correct on a demurrer. As such, Respondent No.4 is not entitled to an order vacating the ad interim reliefs granted through Order passed by this Tribunal. 2) It is asserted that Respondent No.4 has failed to provide material in support of its averment that grave injustice and irreparable damage would be caused to the Respondent No.4 & 5 if the Order is not vacated by the Tribunal. The Application is bereft of any material that would show any prejudice/ hardship that would be caused to the Respondent No.4 if the interim order is not vacated. The Petitioner of Company Petition, on the other hand, demonstrates that the business of the joint venture Company would in fact come to a stan....
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....4 and BHGE is USA. It is denied that a transaction of divestrnent by Respondent No.5 in Respondent No.4 and its parent Company, does not fall within the jurisdiction of this Tribunal. It is denied that this Tribunal does not have extra-territorial jurisdiction. It is denied that Respondent No.4 is not amenable to the jurisdiction of this Tribunal. It is denied that Respondent No.4 is not a shareholder in Respondent No. 1 and further denied that Respondent No.4 is governed and regulated solely under the laws of the USA. It is denied that the Order dated 12.06.2019 affects third parties such as the public shareholders of Respondent No.5 and BHGE. 7) After directions of the Hon'ble High Court of Karnataka to the above IAS, thereafter the matter is listed in this Tribunal on various dates viz.08.08.2019, 13.08.2019 & 19.08.2019, and arguments are concluded by both parties on 19.08.2019, and the same was reserved for orders on 19.08.2019. 5. Heard Shri K.G.Raghavan, learned Senior Counsel for Applicant/ Respondent No.5, and Shri Arun Kumar, learned Senior Counsel for Applicant/ Respondent No.4 and Shri Udaya Holla, and learned Senior Counsel for Respondent/ Petitioner. W....
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....ny Petition and they are de facto and de jure of the RI Company. Therefore, it is necessary to lift the corporate veil to find out their modus operandi being adopted to interfere in the affairs of Respondent No. 1 Company by violating assurances and commitments made as per JVC and Memo and Articles of Association of Company in question. The Learned Senior Counsel further asserted that the main Company Petition is filed under Sections 210, 213, 219, 228, 241 and 242 of the Companies Act, 2013, by inter alia seeking to order investigation into the affairs of the Respondent No.2 to 5 in order to determine the full extent to which Respondent No.5 starved the Company of its business. The Learned Senior Counsel further relied upon section 210 of the Act, which empowers the Central Government to order investigation into the affairs of the Company; Section 213, which empowers the Tribunal to order investigation if it is satisfied that there are. circumstances suggesting that the business of the Company being conducted with intent to defraud its creditors, members or any other persons etc; Section 219 deals with the powers of inspector to conduct investigation into affairs of related Compan....
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.... 12. It is relevant to refer relevant Sections of Companies Act, 2013 with regard to jurisdiction of the Tribunal. Section 1 (4) of the Companies Act, 2013, which says that the provisions of this Act shall apply to the Companies incorporated under this Act or under any previous Company law; insurance Companies except in so far as the said provisions are inconsistent with the provisions of the Insurance Act, 1938 or the Insurance Regulatory and Development Authority Act, 1999, banking Companies, except in so far as the said provisions are inconsistent with the provisions of the Banking Regulation Act, 1949, companies engaged in the generation or supply of electricity, except in so far as the paid provisions are inconsistent with the provisions of the Electricity Act, 2003 or any other Company governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with provisions of such special Act, and such body corporate, incorporated by any Act for the time being in force, as the Central Government may by notification, specify in this behalf, subject to such exceptions modifications or adaptation, as may be specified in the notification ....
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.... i. The Marketing and Sales Service Agreement dated November 1, 2010 ii. The Technology License Agreement dated November, 1, 2010 iii. Trade and Trade name Agreement dated November1, 2010 iv. Service Legal Agreement dated April 6, 2017; and v. Ancillary Agreements to the Joint Venture Agreement dated April 15, 2010 will remain fully enforceable on their terms. 14. Shri Udaya Holla, the learned Senior Counsel for Petitioner/ Respondent has filed a bunch of documents consisting of 133 pages under the title 'Gon variance compiZation" enclosing various correspondence/emails/press report made between the Petitioner and Respondent No.4 and 5, to show that Respondent No.4 and 5 are de facto and de jure of the affairs of the Respondent No. 1 Company. However, the facts remains that Respondent No.4 and Respondent No.5 are a foreign Companies situated outside India and there is no agreement directly between the Applicants/ Respondents and Respondent No. 1 Company and the Petitioner. Therefore, the correspondence would not substantiate and confer any right on the Responden t/ Petitioner to seek any relief on the Applicants/ Respondent Nos. 4 & 5. ....