TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 149
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....any encumbrance by the respondents on the shareholding and assets of respondent No. 1-Orient Craft Limited and its subsidiaries i.e. O.C. Fashion Private Limited ('OCFPL') and Orient Craft Exchange Limited ('OCEL'). 3. In his application, the applicant has further alleged that the applicant has received an email from respondent No. 2 dated 10.11.2021 and another email dated 01.12.2021 from respondent No. 2 coercing him to accede to the unlawful demands for selling the Chopanki land (in short 'land in question') of respondent No. 1. One of the major allegations of the applicant is that respondent Nos. 2 and 3 have certain understanding with the buyers of the land in question for gaining monetary benefit out of the transaction. 4. Main petition under Section 241-242 of the Companies Act, 2013 (for short the '2013 Act') bearing CP No. 81/Chd/Hry/2021 dated 16.09.2021 is pending with us, which was filed by Mr. Anoop Thatai (present applicant) against the respondents, Orient Craft Ltd. and others. The respondents in the CP No. 81/Chd/Hry/2021 are same as those in IA(CA) No. 10/2021. In the CP No. 81/Chd/Hry/2021, the applicant, amongst other things, has....
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....No. 1 by respondent No. 2 is an oppressive act and is in breach of Resolution Plan. The mandatory requirement of the Board Resolution in favor of the Director so as to bind the company by the actions of that Director was also not preferred. Respondent No. 2 has proceeded with selling of the plots which is breach of Resolution Plan since it violates the mandatory requirement of AMC which was constituted to oversee any Asset Monetization of Respondent No. 1/Company. 8.2 It is also submitted by the applicant that the plots are being sold by the respondent No. 2 at a price which is much lower than the market price. It is pointed out that the Rajasthan State Industrial Development and Investment Corporation ('RIICO') by its notice dated 11.11.2021, has indicated the reserve price for auction the plots in the same location at Rs. 13,000 per square meter. The respondents rush to sell the land at a price far below the market price evinces their mala fide. 8.3 The applicant has stated that though he is well aware of the representations given to JLF, the same did not entitle Respondent No. 2 to bypass the Board of Respondent No. 1 and coerce the applicant into giving his sanction....
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....lan and to help in reducing the debts of the respondent No. 1. 14. The contesting respondents have further stated that the applicant was aware of the sale of the land in question and was involved in the discussions with the banks in relation to the sale of the land in question since August 2020. He also participated in the first joint lenders meeting dated 28.08.2020. 15. The contesting respondents further allege that the applicant is running businesses in competition with the respondent and has a vested interest in respondent's failing to service its dues to the consortium of lenders. It is further stated that the sale of the Bhiwadi property was a commercial decision taken by all the promoters including the petitioner which was duly approved by the banks as well. 16. In the written submissions dated 21.12.2021, respondent No. 1, 2 and 3 have stated that: 16.1 The applicant's stance that he is ignorant of the sale of the land situated at Bhiwadi/Chaupanki it is not factually correct; i. the reply by respondent No. 4 corroborates the fact that all the three promoter groups, including the applicant were very well aware about the decisions to sell the land at Bhiwadi/C....
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....e NCLT or before this appellate tribunal, arising under sections 241 and 242 of the new act, read with rule 11, irrespective of what the parties plead, say or do, the paramount consideration of the Tribunal, is to keep in view as to what is in the interest of the company. The interest of parties is subservient to interest of company. It is necessary for the tribunal to first consider interest of the company. The health of the company reflects on the health of the economy and that is what matters'. 19. The respondents have also placed reliance on the findings in the case of Engineers India Ltd. vs. State of A.P. Writ Petition No. 32971 of 2016 (Para 36) which defined an escrow account as "financial instrument or an asset is kept with a third party on behalf of two parties, for the purpose of completion of a transaction. The most important aspect of an escrow is that funds are held by the escrow agent until it receives appropriate instructions or until pre-determined contractual obligations have been fulfilled." 20. In his reply Respondent No. 4 has stated that: 20.1 Respondent No. 4 is a joint managing director and a minority shareholder in the respondent No. 1 company holdi....
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....are in place as well as processes and procedures are complied with by respondent No. 1 company to the satisfaction of the entire group. 21. We have carefully gone through the rival arguments before us. As observed earlier, the parties to this present IA are also parties to the main petition No. 81/2021, pending before this Tribunal. 22. Before analyzing the rival contentions before us, it is pertinent to point out that the financials before us confirm that respondent No. 1, Orient Craft Ltd. has suffered heavy losses. It also shows that all the three groups in the management had unitedly tried to reduce its debt by getting into negotiations with the lending banks. The minutes of the JLA Meetings indicate that all the three groups involved in the running of this company have participated in these JLA proceedings. The applicant has also admitted that he is aware of the proposals regarding the sale of assets. 23. When the current hearings started, we were given to understand that the parties involved have been trying to settle the matter amicably. As no solution was forthcoming, and the company has strict timelines for repayment of debts with the banks, we are constrained to pass t....
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.... resolution to that effect. 27. Keeping in view the discussion foregoing, respondents including Respondent No. 2 & 3 are required to be temporarily restrained from changing the share holding pattern and assets of Respondent No. 1 including land the land in question except with the prior approval of the Board of Directors or till the final disposal of the main CP No. 81/Chd/Hry/2021. 28. Now adverting to CA No. 207/2021, this application is filed under Rule 11 of the NCLT Rules by the applicant i.e. Prominent Enterprise Private Limited ('PEPL') seeking directions from this authority for the implementation of an order dated 30.09.2021, passed by this Tribunal. In the said order, this Tribunal had sanctioned a Scheme of Arrangement demerging Orient Craft infrastructure Ltd. Consequent to the demerger, the resulting companies are i) Prominent Enterprises Private Limited, Resulting Company No. 1 (Applicant herein); ii) O.C. Fashion Private Ltd. ('OCFPL'), Resulting Company No. 2; iii) Orient Craft Exchange Ltd. ('OCEL'), Resulting Company No. 3; and iv) Balyani Developers Private Limited ('BDPL'), Resulting Company No. 4. 29. It is also stated that a p....