TaxTMI 
TaxTMI 
2022 (4) TMI 434
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....shareholders and the public; b) Declare that the majority shareholders have acted in a manner oppressive to the minority shareholders of the company; c) Pass an order restraining the Company from removing the petitioner from the office of director in the company until his entire investment in the Company is repaid with applicable interest; d) Order winding up of the company on the grounds that it is just and equitable to do so; e) The Board of directors of the company be superseded and an Administrator or special office be appointed to take charge of the management and affairs of the company and its assets and properties. Or alternatively a committee to be constituted by this Hon'ble Tribunal consisting of representatives of the petitioner to function as Administrator for management and control of the affairs of the company and its assets and properties on such terms and conditions as the Hon'ble Tribunal may deem fit and proper. f) To restrain the company and respondents 2 to 4 from making further borrowings or encumbering or alienating any of the assets or properties of the Company in any manner whatsoever; g) To direc....
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....owever, the 1st Respondent Company and Respondents 2 to 4 have neither acquired the machinery nor accounted the loan given to the company neither have they issued shares for the amount to the Petitioner. 4. It is stated that after collecting a sum of Rs. 14 lakh from the Petitioner, the majority shareholders and executive management of the 1st Respondent Company comprising Respondents 2 and 3 did not issue shares for the said value to the Petitioner nor was the amount accounted in the books of the company. The Petitioner has till date been issued shares worth Rs. 1,00,000/- only. Accordingly, the Petitioner now holds 20 % of the fully paid-up equity shares of the company and is a director along with Respondents 2 to 4. It is further stated that the Petitioner was based in Kolkata. The day to day management of the company was being carried on by respondents Nos. 2 & 3 along with Mr. Rajeev. While so Mr. Rajeev, who was a shareholder and director in the company passed away and his 10 % shareholding in the company has devolved on his legal heirs who are also minority shareholders along with the petitioner. In the meantime, the company had inducted one Mr. Francis Wilson, the fourth....
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....s financial position of the company, the majority shareholders are now fraudulently and malafidely conspiring to remove the Petitioner from the Board of the Company so that they can further their illegal designs of further raising finance and encumbering the assets of the 1st Respondent Company and siphon off the funds. The majority shareholders have now illegally called for an Extra Ordinary General meeting to be convened on 03-10-2020 with the sole agenda of removing the petitioner from the office of Director. The entire process of convening such an Extra Ordinary General Meeting is tainted with malafides, illegality and is in violation of the provisions of the Act and Rules. The only purpose of convening the meeting is to stifle the voice of the minority shareholders by removing the petitioner from the board. The Extra-Ordinary General Body Meeting of the 1st Respondent Company is being convened purportedly based on requisition received from Respondent No. 4, who is one of the majority shareholders. The notice purportedly received from the 4th Respondent does not requisition an Extra Ordinary General Meeting or indicate any urgency for removal of the petitioner from his office o....
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.... of soliciting investment from the petitioner that he will offer the office of director and will continue to be a director as long as his investment in the company continues. 8. It is stated that the financial substratum of the 1st Respondent Company has been wiped off through accumulated losses and is beyond revival. The Board of directors of the 1st Respondent Company have themselves resolved to wind up the company. Hence, the Petitioner prayed for winding up for of the Company in accordance with law. Submissions by the Respondents 9. The Respondents filed counter and stated that the former Managing Director of the company Mr. Sajeev Alat was working in Qatar in a five-star hotel as a purchasing manager, at a high salary. He met Mr. Chulani, Rajeev and Madhu in Dubai food exhibition and Mr. Rajeev Alat his twin brother introduced Sajeev to Mr. Chulani and Mr. Madhu Kumar and after couple of weeks they called the 3rd Respondent to form the newly proposed firm and to manage the whole operations in Kerala. Accepting this offer the 3rd Respondent resigned from his current job from Qatar and started the process of developing the Venad Foods and continue the existing export bu....
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....quest of the other directors for further investment in the 1st Respondent company, the petitioner had further extended an unsecured loan of Rs. 50 lakh to the 1st Respondent Company on the assurance that the loan will be repaid on demand and the Petitioner will be a director of the company until his entire investment is repaid. The Petitioner had further advanced a sum of Rs. 4 lakh to the 1st Respondent Company for purchase of machinery from Anakkara another concern engaged in the same line of business and for acquiring the shares of Mr. Madhukumar who wanted to exit from the 1st Respondent Company. However, the Respondent Company and Respondents 2 to 4 have neither acquired the machinery or accounted the loan given to the 1st Respondent Company neither have they issued shares for the amount. 13. It is further stated that the Promoters of the 1st Respondent Company have a revival team by including new investors and this Tribunal has to look into the revival of the company which has a fair chance being in food sector and also generate jobs for many. Winding up the company will not serve any purpose. It is also stated that the Petitioner is having ulterior motives and suppress vi....
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....e period under review, the Company has not declared or paid dividend to its shareholders. xii. During the financial years under review, the company has not made any inter corporate loans and investments. Hence, the Compliance under section 186 of the Act was not required. xiii. During the period under review, the Company was not required to credit unpaid dividends and other amounts to Investor Education Protection Fund. xiv. The Company is not a listed Company, therefore the provisions of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 are not applicable to the Company. xv. The company at present is having a fixed asset consisting of factory building. The building value shown as per the balance sheet as at 31.03.2019 is Rs. 57,13,542/- The land belongs to Kinfra, a State Government unit on a lease for a period of 99 years. Against the loan amount of Rs. 50 lakh which is for the purpose of building construction invested by Sri Thahil Lal Chand Chulani in 2013, the building cost as per available bills and invoices produced for verification is totalling to only Rs. 29,39,605/-. xvi.....
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....thstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities, and shares in respect of which he is a contributory or some of them were either originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up or have devolved on him through the death of a former holder. (4) The Registrar shall be entitled to present a petition for winding up under sub-section (1) on any of the grounds specified in sub-section (1) of section 271, except on the grounds specified in clause (b), clause (d) or clause (g) of that sub-section: Provided that the Registrar shall not present a petition on the ground that the company is unable to pay its debts unless it appears to him either from the financial condition of the company as disclosed in its balance sheet or from the report of an inspector appointed under section 210 that the company is unable to pay its debts: Provided further that the Regis....
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.... for an amount equal to or in excess of those assets, or that the company has no assets. (2) Where a petition is presented on the ground that it is just and equitable that the company should be wound up, the Tribunal may refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy. 19. In the result, by exercising powers conferred on this Tribunal under Section 273 of the Companies Act, 2013 and other extant provisions of Companies Act, 2013, we are of the opinion that it is a fit case for winding up of the company as the Auditors Report is very clear on that count. 20. In order to take a decision on the winding up of the 1st Respondent Company M/s. Venad Food Processing and Exports Private Limited the following order is passed:- ORDER i. This Tribunal as per Section 275(2) decided to take a name from the panel of Insolvency Professional for the Kochi Bench for the period from 01.01.2022 and 30.06.2022 and appoints Mr. Najeeb T.P. having Registration No. IBBI/IPA-002/IP-N01014/202....