TaxTMI 
TaxTMI 
2023 (10) TMI 1221
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....hareholders of the Defendant No. 4-Company hereinafter referred to as "Hexagon". Whereas Defendant No. 1 hereinafter referred to as "Arcadia" is lender, who has financed loan to Hexagon. In between them, there are following documents executed :- a) Memorandum of Understanding thereof 29/08/2013 and 13/07/2015. b) Share Transfer Agreement c) Shareholders' Agreement dated 29/08/2013. 3. In consideration of the loan, the shares possessed by Defendant Nos. 5 and 6 in the Company Hexagon were transferred in the name of the lender Defendant No. 1-Arcadia. They have agreed to re-transfer the shares once the money will be repaid. This is the area of dispute in the present suit. Furthermore, the said Arcadia has also obtained loan from Kotak Mahindra Bank Limited. Company-Hexagon has offered their two flats by way of Corporate guarantee for repayment of the said loan. Those flats are subject matter of a dispute before DRT, Mumbai. 4. As shares are transferred in the name of the Arcadia, the said Company has nominated Defendant Nos. 2 and 3 on the board of the Directors of the D-4-Hexagon. Now the present suit is filed by one of the shareholder of the Hexagon....
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....nt is perused, we may find that the averments of the Plaintiff are as follows :- Grievances about shares a) Borrower-Arcadia though agreed to advance a loan of Rs. 13,50,00,000/- in fact have advanced only a loan of Rs. 10,32,40,000/-; b) When Arcadia has not fulfilled their promise as per the Memorandum of understanding, the transfer of the shares belonging to Defendant Nos. 5 and 6 in the Company Hexagon has not taken place. c) Arcadia has not taken any action against Hexagon for recovery of the loan amount and simply on the basis of the transfer of the shares in their name wants to oust the Plaintiff and its nominees from the board of directors of the Hexagon. In other words, Arcadia wants to take control on the entire company. Grievances about corporate guarantee. d) Arcadia is defaulter of Kotak Mahindra Bank Limited and instead of repaying the loan, they have created such a situation due to which the Corporate guarantee offered by Hexagon in respect of two flats will be encashed by Kotak Mahindra Bank Limited by selling those flats. e) Plaintiff and Defendant Nos. 5, 6 and 7 are residing in those flats and if their poss....
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....g two flats by way of Corporate guarantee is subject matter before DRT and in fact no reliefs are claimed in respect of those two flats and this will be outside the jurisdiction of this Court. e) Further, he submitted that those two flats if at all are to be sold it is by Kotak Mahindra Bank Limited and not by them. He further submitted that independently he also has right to sell those flats if Hexagon will not pay the amount of the arrears of loan within 30 days on the receipt of the notice and in fact they have already issued the notice on 29/12/2022. It is part of their affidavit-in-reply and the Plaintiff has not dealt with it. About Memorandum of Understanding. f) He submitted that the Memorandum of Understanding executed on 13/07/2015 mentions that there is an outstanding of Rs. 15,20,83,733/-. He also contends that there is no merit in the grievance raised for not financing entire amount for the reason that it was not raised at any time earlier. g) He submitted that the transfer of the shares has already taken place. He invited my attention to three of the documents. About arbitration clause. h) According to him, there i....
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....putting conditions. p) Reliance is placed on observations in case of Gujarat Bottling Co. Ltd. and Ors. Vs. Coca Cola Company and Ors. Manu/SC/0472/1995, para nos. 46 and 50. It talks about balancing the need of the of both of the parties and if required putting the Plaintiff into conditions. It also talks about refusing the equitable relief if the Plaintiff is not fair in his dealing. 11. By way of reply, learned Advocate for the Plaintiff made following submissions :- a) The issue arisen in the plaint and in the interim application are outside the purview of the tribunal and to buttress his submission he relied upon the following judgments:- i) Aruna Oswal Vs. Pankaj Oswal and Others (2020) 8 SCC 79 (Para 25) It is observed more specifically para no. 25 that the claim made on the basis of the inheritance to share cannot be decided in the proceedings under Sections 241/242 of the Companies Act (It is on the basis of observations from the earlier judgment). ii) Pradip R. Kamdar and Anr. Vs. Rajiv Sanghvi and Others which is affirmed by the Division Bench in 2022 SCC Online Bom 3147. If the parties intend to enforce contractual obligations, the....
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....Securatization application. It is true that the Plaintiff has pleaded about these facts only to show the consequences if Arcadia will take control and management of the Hexagon. For that purpose the averments in para no. 25 of the plaint is relied upon. It is true that two issues are involved:- Holding of the Extra Ordinary General meeting. 15. While dealing with this issue there are two aspects. One is factual and another is legal aspects. Only when Arcadia will fail on legal aspects, then only factual aspects can be gone into. Factual aspects 16. Firstly, Arcadia gave a notice dated 29/11/22 to Board of Directors of Hexagon to call EOGM. Then Arcadia themselves called extra ordinary general meeting on 20/2/23 and it was subject matter of earlier interim application. However the meeting was not held. There is subsequent notice dated 15/7/23 to hold extra ordinary general meeting on 25/7/23 and it is subject matter of present interim application. As said above the holding of requisition meeting is challenged on various grounds by plaintiff. 17. One of the ground is non fulfillment of terms of MoU. There are two MoUs. They are :-- a. MoU dated 29/8/2013 menti....
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....ited my attention to few of the documents. They are as follows :- (i) A copy of the letter sent by Hexagon to nominee Director Nitin Brahmabhat, dated 28/05/2013 sending copy of agreement in respect of two flats for bank loan purpose and about executing final Memorandum of Understanding once the bank will approve them. (ii) No objection certificate given by the builder to the Kotak Mahindra Bank in respect of the mortgage of flat No. 39A. (iii) Copy of resolution passed by Hexagon for issuing corporate guarantee and mortgage of two flats as a security for repayment of load of Rs. 21 crores availed by Arcadia from Kotak Mahindra Bank Ltd., 21. Whereas contention of the Plaintiff is that they got knowledge of these documents when direction was given on 28/07/2021 by the Division bench of this Court in Writ Petition (L) No. 15950 of 2021 filed by the plaintiff. This is disputed on behalf of the Arcadia. 22. Prima-facie the allegation about the transaction of two flats is found to be after thought. Because how the documents referred above could have been executed in the year 2013. The issue relating to mortgage of the flats is certainly outside the purv....
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....ding before the DRT arises, certainly the interest of the Hexagon needs to be protected to certain extent. The issue raised about notice by India bulls to the Hexagon cannot be considered in this application. So also I am not impressed by the argument of by plaintiff's counsel about newspaper articles about the antecedents of directors of Arcadia. 26. This Court is aware that the issue of those flats is not subject matter of the inquiry before this Court. However, when it is question of taking decision by Arcadia being in management of the Hexagon, on limited extent, this Court can certainly interfere. It may also happen that the Arcadia being in control of the Hexagon may pass a resolution about their possible stand before DRT or may even submit to the Orders of DRT. In any eventuality, I think the interest of the Plaintiff and shareholder of the Hexagon needs to be protected. 27. It is no doubt true that in a case before the Invesco Developing Markets Fund and Ors. (supra) and the Life Insurance Corporation of India (supra) such issues have not arisen. It is plain issue of the conduct of holding the meeting at the instance of the shareholder. Those issues are different from....