TaxTMI 
TaxTMI 
2021 (3) TMI 474
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....uke, Advocate (for R11 and 18) Shri Mohammed Fazil MP, GP (for R 12&13) ORDER This Application IA.198.KOB.2020 has been filed under Rule 32 of NCLT Rules 2016 by the Applicant P.J. Mathews against the Respondents Jatayupara Tourism Private Limited and 22 others seeking the following reliefs: a. Issue necessary directions to the Board of Directors of Respondent No 1 to obtain the approval of its shareholders pursuant to Section 188 of the Companies Act, 2013, before leasing or otherwise disposing of its assets or properties of any kind in favour of Respondent No 6 or Respondent No.2 or any other persons. b. Issue necessary directions to the Board of Directors of Respondent No 1 to pass necessary resolution pursuant to provisions of Section 180 of the Companies Act, 2013 before leasing or otherwise disposing of the whole or substantially the whole of the undertaking of the Respondent No.1 company in favour of Respondent No 6 or Respondent No 2 or any other persons. c. To pass an order under Section 221 of the Companies Act, 2013 to freeze the removal, transfer or disposal of funds, assets, properties of the Respondent No 1, till the approval of shareh....
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....9 (Thirty Thousand Nine Hundred and Nine) Equity shares of Rs. 100. (Rupees One Hundred Only) each to the Respondent No. 6. Based on the terms of the said agreement and on receipt of the operational right for 30 years, the promoters of the Respondent No.1 had approached several investors to raise the required capital to complete the project in a time bound manner. 4. It is again stated that the Respondent No. 1 had created tangible and intangible assets having a written Down Value of Rs. 10,54,45,782.67 (Ten Crore Fifty Four Lakh Forty Five Thousand Seven Hundred and Eighty Two and Six Seven Only) out of the investments made by the shareholders of Respondent No. 1 is the full and absolute owner of the assets installed at "Jatayupara Project" as appearing in the audited financial statements for the Financial year 2018-2019. However, after utilizing the funds brought in by the shareholders of the Respondent No. 1 to illegally amass wealth in Respondent No 6,7,8, 9 & 10, which are the family concerns of Respondent No. 2, the Respondent No. 6, under the influence of Respondent No. 2, had issued a unilateral termination notice of the bipartite agreement dated 23rd September, 2015 to ....
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.... 2 and 6 were in control and custody of the entire project site where the entire assets of the Respondent No. 1 is installed and maintained. On re-commencement of the Operations on 12th October, 2020, the Respondent No. 6 had in violation of the provisions of Section 180 and 188 of the Act, had taken over the operational right from the Respondent No. 1 and collected the billing revenue in an unidentified bank account through an illegally created website. 10. The Petitioners stated that the Respondent No.1 had blatantly violated the provisions of Section 180 and 188 of the Companies Act, 2013 and thereby caused the Respondent No 2,3,4,5 and 6 to take the adverse possession of the entire assets of Respondent No. 1, which are solely created out of the investments made by the shareholders of the Respondent No. 1, and thereby caused prejudice, irreparable injury and damage to Respondent No.1 and its shareholders. Submissions of Respondents Nos. 2,3,4,5,6,7,9 and 10 11. Respondents Nos. 2,3,4,5,6,7,9 and 10 filed their counter and stated that the petitioners were deputed by the Board of Directors of the Respondent No.1 company as per the decision of Board meeting held on 14.3.20....
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....The Respondents stated that the conditions for sub licensing the right of operation of the project was to allot 45% equity shares in Respondent No.1 to Respondent No.6 at all times for consideration other than cash. 16. The statement in E Form Pass-3 (Annexure 2) about "operation rights of 30 years on the leased land" will not amount to lease. It is only right doing things under supervision of lessee. A lease over an immovable property can be created only by a registered document. No such Lease Deed was executed in favour of the Respondent No.1 as the Concession Agreement and Lease Deed prohibit sub lease in any form. 17. The main assurances given by the Respondent No.1 to the Respondents Nos.6 and 8 company for securing the sub contract for operation, management and marketing of the project were violated and some of the shareholders of the Respondent No.1 company has made attempts to hijack the project to their control absolutely and hence the Respondent Nos.6 and 8 has terminated the sub licence. 18. No funds were unauthorizedly diverted from Respondent No.1 company to Respondents Nos.6, 7, 8, 9 and 10 as alleged by the petitioners. 19. It is further stated that Except R....
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....ng sold and the amounts are deposited. Every paise of entry fee are properly accounted safely kept in the account of the Respondent No.6 company with all transparency. 24. The petitioners have no right to complain of the new billing system. It has to be changed in the light of termination of the sub licence as the Respondent No.6 company has no right to the ticketing through its accounts as done before the termination of the sub licence. The business income is never diverted to any unauthorized sources as alleged. Annexure 8 appears to be a bogus document and Annexure 9 is owned by the Respondent No.6 company. 25. The loan of rupees three crores is availed by making the Respondent Nos. 6 and 8 companies as co-obligant and after taking the residential property of Respondent No.2 as collateral security. Being a co-obligant of the loan account becomes NPA the same will affect the Respondents Nos.6 and 8 as well. The business income is rooted through the account of the Respondent No.6 with the bank which has advanced the loan. 26. Due to the illegal acts on the part of the petitioners and their associates the Respondent No.1 company has lost its main object clause in its Memor....