TaxTMI 
TaxTMI 
2021 (3) TMI 307
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....mpany Law Tribunal [hereinafter referred to as the 'NCLT']. FACTS IN BRIEF: 2. The facts of the case have been noted elaborately in the impugned judgment, and therefore, shorn of unnecessary details, we are noting the factual background only to the extent it is relevant for deciding the present appeal: 2.1 In 1945, a prominent builder and real estate developer in Delhi, (Late) Sir Sobha Singh, incorporated an eponymous, family-owned private company named Sir Sobha Singh & Sons Pvt. Ltd [hereinafter referred to as, 'Respondent No. 1']. All his family members and descendants were made shareholders, including the Appellant herein, and its Board of Directors have always been chosen from amongst them. Respondent No. 1 is engaged in real estate activities such as buying, selling and renting of properties, and has, inter alia, built Sujan Singh Park as Delhi's first housing complex, consisting of 84 residential flats. The land thereunder is also leased in the name of Respondent No. 1. 2.2 The Appellant herein claims that it was decided that both male and female descendants of Late Sir Sobha Singh, up to the fourth generation, will receive a flat each in Sujan Singh Park. To this effec....
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....ntiff/ Appellant in the prayer to the suit had sought mandatory injunction instead. It was held by the learned Single Judge that if a relief of injunction can be obtained by any other usual mode of proceeding, then Section 41(h) of the Specific Relief Act, 1963 debars granting of any injunction. On this basis, the learned Single Judge rejected the claim of the Plaintiff/Appellant seeking implementation of family settlement. In this regard, it was opined that the Plaintiff's reliance on the case of Deepa Anant Bandekar v. Rajaram Bandekar (Sirigao) Mines Pvt. Ltd., (1990 SCC OnLine Bom 435: (1992) 74 Comp Cas 42) [hereinafter referred to as, 'Deepa Anant-1990' case] was misplaced, as the said case was not confirmed in appeal, as per the subsequent decision in Deepa Anant Bandekar v. Rajaram Bandekar (Sirigao) Mines Pvt. Ltd., (1994 SCC OnLine Bom 602:(1994) 80 Comp Cas 491) [hereinafter referred to as, 'Deepa Anant-1994' case]. 3.2 The Defendant/Respondent No. 1 raised doubts as to whether the Plaintiff/Appellant has a legally enforceable right in approaching the civil courts for remedy. In this regard, it was observed that an action by a shareholder against a Company falls squarel....
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....alia fraud, misrepresentation and diversion of funds, by making specific pleading to that effect. In this regard, reliance was placed upon Singer India Ltd v. Chander Mohan Chand, (2004) 7 SCC 1; Elof Hansson (I) Pvt. Ltd. v. Shree Acids & Chemicals Ltd., 2012 SCC OnLine Del 572 (DB); Saga Lifestyle Pvt. Ltd. v. Bang & Olufsen A/S, 2019 SCC OnLine Del 8412; Anirban Roy v. Ram Kishan Gupta, MANU/DE/3524/2017; VK Uppal v. Akshay International, 2010 SCC OnLine Del 538; R.K. Chaddha v. State of U.P., 2014 SCC OnLine All 6248 (DB); M. V. Sea Success I v. Liverpool and London Steamship Protection and Indemnity Association Ltd., 2001 SCC OnLine Bom 1019 (DB); Binatone Computers Pvt. Ltd. v. Setech Electronic Ltd., 2009 SCC OnLine Del 2522; Kimiya Shipping Inc. Vs. M. V. Western Light, 2014 SCC OnLine Bom 257, and Gopi Vallabh Solutions Pvt. Ltd. Vs. State of West Bengal, 2018 SCC OnLine Cal 9035. 3.6 The arguments advanced by the Plaintiff under Contract Law were found to be without merit. The Plaintiff/Appellant sought to plead the implementation of partial-acceptance of offer made to him by the Respondent No. 1 by e-mail. It was held that the plea that an offer was accepted in part (an....
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....s to the suit who are unquestionably, family members. 4.4 The initiation of oppression and mismanagement [hereinafter referred to as, 'O&M'] proceedings by the Appellant's father against the Respondent No. 1 before the NCLT is an immaterial factor in non-suiting the Appellant. The aforesaid fact was not suppressed by the Appellant, and it has been incorrectly recorded in the impugned judgment. Without prejudice to the stand of the Appellant regarding family arrangement, it was submitted that the Appellant was completely unaware of the initiation of the said proceedings. In fact, no such fact was pleaded by the Respondents in their written statement, yet, the learned Single Judge without considering this aspect, wrongly held that the Appellant had suppressed material fact. The learned Single Judge further failed to consider that the rights of the Appellant, being an independent shareholder, can in no manner be scuttled, owing to the fact that his father had pursued a remedy before the NCLT. It was emphasised that the Appellant was not a party to the said proceedings. Furthermore, the controversy pending therein do not pertain to the reliefs sought by the Appellant in the present in....
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....sent case was unwarranted. Consequently, the impugned judgment is liable to be set-aside. ANALYSIS: A. WHETHER A PLEA OF FAMILY SETTLEMENT WAS MADE IN THE SUIT? 5. The learned Single Judge has held the suit to be not maintainable. This finding is premised on the lack of a specific plea of family settlement in the plaint. After careful examination of the pleadings in the suit, the learned Single Judge concluded that the suit is not founded on the purported existence or violation of any family settlement. The Appellant controverts this finding by contending that the tone and tenor of the suit indicates to the contrary, and that the learned Single Judge ignored the averments and documents placed on record. In particular, attention was invited to paras 811 of the plaint, which according to the counsel, refers to a family settlement. Paras 8-11 of the plaint read as under: "8. That as the family members of Sir Shobha Singh had held the shares in the Company, therefore, in order to extend benefit to the shareholders of the Defendant Company, it was decided that the property viz. flats of the Defendant. Company at Sujjan Singh Park were to be allotted, to the family members and share....
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....990 directing Defendant No. 1 to put Plaintiff in possession of flat No. D-38, DBlock Apartments, Sujan Singh Park, New Delhi as allotted to the Plaintiff and to execute and register all the necessary documents, or to allot any similar flat in the same location with the same specifications in favor of the Plaintiff and to execute all necessary documents in this regard. (b) Pass a decree of cancellation thereby cancelling the allotment of Flat No. B-15, in the B-Block Apartments, Sujan Singh Park, New Delhi allotted to Defendant No. 2 being in violation to the resolution dated 21.07.1990 is illegal, null and void. (c) Pass a decree for permanent injunction restraining Defendants permanently from creating any third party right, leasing, renting, sub-letting, alienating or allotting any flat in favour of any third party or any person appearing in the list as prepared pursuant to the resolution dated 21.07.1990 in the Apartment at Sujan Singh Park, New Delhi. (d) Pass a decree for permanent injunction/ restraining Defendant No. 2, its agent, servants, nominee, assignee, licencee permanently from creating any third party right, leasing, renting, sub-letting, alienating flat No. D3....
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....t sufficient to allow the matter to proceed for trial. The law on pleadings is well-settled. Order VI Rule 2 of the CPC requires that the pleadings should contain a statement in a concise form of material facts which the party relies upon for pleading his case or defence. The material facts are those which must be proved in order to establish Plaintiff/Appellant's right to the relief sought for in the plaint, or the Respondent No. 1's defence in the written statement. The narration of material facts is essential to disclose the complete cause of action. It needs no emphasis to say that a case can only be decided on the particulars laid out in the pleadings, and a relief not founded thereon, cannot be granted. Parties cannot travel beyond the pleadings and necessary material facts must be stated in support of the case set-up. There can be no departure from them in evidence. In our opinion, the Appellant has not narrated any material facts in relation to the family settlement. In absence of pleadings, evidence cannot be permitted to be adduced. We cannot see any accidental slip or omission on the part of the Appellant in drafting the suit, deserving laxity. The suit has been drafted ....
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....e also proceeding on that presumption and testing the merit of Appellant's contention. 10. Mr. Rao makes a nuanced submission by contending that a family arrangement can be binding on a company and that the NCLT does not wield jurisdiction to grant the relief as sought for in the Appellant's suit, i.e. allotment of flats in terms of family settlement/ arrangement. In this vein it is contended that the family settlement/ arrangement is visible from the conduct of Respondent No.1. 11. In our opinion, this argument does not help the case of the Appellant, as the proposition is hinged on the existence of a family settlement, which, as discussed above, is not satisfactorily made out in the pleadings. On this issue, the learned Single Judge rightly concluded that even if some steps are taken in furtherance of an inter-se understanding borne out of the actions of Respondents, it would not result in any enforceable right in favour of the Appellant. We, therefore, have no hesitation to say that the suit, as framed, is not premised on the plea of family settlement and remains as one seeking some perceived right stated to be flowing from the tenor of a purported Board Resolution. 12. The n....
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....ere cannot be any dispute that as on this day, the civil remedy would be completely ousted under Section 430 of the Companies Act, 2013. Relegating the parties to continue with the civil suit would thus not be appropriate remedy, considering the manner in which Section 430 of the Act is couched and the appropriate course for the Appellant would be to avail its remedy before the NCLT. Further even if one were to examine the issue is the context of Companies Act, 1956, there is sufficient case law that holds that the jurisdiction of the Civil Court in matters relating purely to issues pertaining the management of the company can not be gone into any civil suit. Here it also becomes relevant that since the father of the Appellant was pursuing a remedy before the NCLT, the appropriate course of action for the Appellant is to approach the said forum. We therefore, do not find any error in the reasoning of the learned Single Judge on this count, as well. 14. We also do not find merit in the submission of the Appellant that the Board Resolution was in line with the Article/ Memorandum of Company. This contention is advanced merely on the basis of the pleadings without placing any materia....