TaxTMI 
TaxTMI 
2021 (6) TMI 344
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....ows. a) According to the petitioner, R3 & R4 are its nominee directors. They acted in collusion with Respondent No. 5 and transferred some of the shares of the petitioner to respondent No. 2 without petitioner's consent. b) According to the petitioner its nominee directors R3 & R4 exceeded their authority as nominee directors, hence their action of transferring of shares of the petitioner in R1 Company to R2, was illegal and immaterial. c) That R4 allegedly on behalf of the Petitioner Company entered into a MoU dated 04.03.2020 with the R2 Company for purported sale of 60,00,000 (Sixty Lakhs) Equity shares held by the Petitioner in R1 Company to the R2. That the Petitioner Company had never authorized the R4 to enter into any such MoU for transfer of 60,00,000 equity shares. The R4 had fraudulently in collusion with the R2 to R7 had executed the MoU and subsequently also executed a Share Transfer Form (i.e., Form SH-4) for transfer of shares. 4. MA No. 5/2021 is filed by original Respondent No. 2 in main Company Petition (hereinafter referred as R2) with a prayer to refer the dispute in the petition to the arbitration as per the clause 18 of the Share Holding Agreement d....
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....Company. In March 2020, some of the shares of the petitioner company were transferred to R2. The question before us is whether R3 & R4 being nominee directors of the petitioner in R1 Company have exceeded their authority as the nominee directors, when they transferred some of the shares of the petitioner in R1 Company to R2. b. We have gone through the pleadings and materials on record as produced by the petitioner. We did not find any document restraining R3 & R4 being nominee directors of the petitioner from taking any decision, much less the decision of selling some of the petitioner's shares in R1 Company to R2. The Petitioner's allegations that they had colluded with the other Respondents appear to be vague for want of assertive material. Moreover it would be a dispute in between the petitioner on one hand and R3 & R4 on the other. How R2 can be held responsible for that? c. At this stage we refrain from recording any finding on such transfer of shares by R3 & R4. Suffice to note the fact that since R3 & R4 were not specifically restrained by the petitioner acting on its behalf while acting as its nominee Directors in R1 Company, we hold that, such transfer of shar....
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....ave decided to resolve such dispute through private forum. d. On this aspect both learned counsels relied on a number of rulings. According to learned counsel for the petitioner, when there are allegations of fraud misfeasance etc., the dispute can't be referred to the arbitrator. As against this the learned senior counsel for the respondent submitted that the allegations of fraud are baseless. The parties are bound by the agreement where in specific clause to refer the dispute to the arbitrator is included. In such situation and in view of Sec. 8 of Arbitration & Conciliation 1996 the dispute as appears from material on record, has to be referred to the arbitrator. e. We have already noted that whether transfer of shares was valid or not is the dispute within jurisdiction of this Tribunal. As far as allegation of fraud is concerned, it appears to us that the nominee directors of the petitioner company transferring shares owned by the petitioner in R1 Company in favor of R2 cannot be said to be fraudulent transaction at this stage for want of sufficient material. We have every doubt in our mind whether such act of nominee directors amounts to fraud without there being suffi....
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....simpliciter levelled against R3, R4 & R5, are sufficient to hold prima-facie that such allegations may not stand to legal scrutiny for want of sufficient material. The petitioner and R2 have entered into MO A dated 14.11.2017 and shareholding agreement dated 17.01.2018 whereby the R1 has been formed. Both the petitioner and respondents have agreed that the dispute that would arise out of Joint venture activities of R1 Company shall be referred to the arbitration. In view of this we hold that except the dispute relating to transfer of shares by R3, R4 in favor of R2 and dispute relating to sale of rights issues, other disputes in between the parties can be referred to the arbitrator as the parties have already chosen private forum to resolve such disputes. Hence we hold that the matter "in dispute" except allegation of transfer of shares and rights issues has to be referred to the arbitrator. We answer Point No. 2 in the affirmative. POINT No. III a. It is submitted by the learned counsel for the petitioner that this Tribunal heard the petitioner and respondents on point of passing interim order. The matter was reserved for such order. Meantime on 19.03.2021 itself the responden....