TaxTMI 
TaxTMI 
2024 (9) TMI 1426
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.... R-1 to 4 Mr. Subornadeep Bhattacharjee, Advocate JUDGMENT ( Hybrid Mode ) [ Per : Arun Baroka , Member ( Technical ) ] This is an appeal under Section 421 of the Companies Act, 2013 against Impugned Order dated 20.11.2023 passed in CA No.179/2023 in CP No. 99/CHD/HRY/2023 titled as "Adesh Gupta & Ors. Vs Liberty Shoes Limited & Ors." by the Hon'ble NCLT, Chandigarh Bench. Submissions of the Appellant 2. Appellant No. 1 was the Key Managerial Personnel, CEO & Executive Director, and representative of promoter shareholders of Respondent No. 1/ M/s Liberty Shoes Limited. The Appellant had a lifelong association with M/s Liberty Shoes Limited. 3. It is contended between 2014 and 2023, as CEO and Executive Director on the Board of Respondent No. 1, Appellant No. 1, consistently issued emails advising and complaining about fund diversion, fraud, breaches of corporate governance, and non-compliance with statutory obligations. His advice was sometimes received positively, sometimes negatively. Despite this, Appellant No. 1 continued his efforts to ensure compliance and prevent fund and resource misuse, although his efforts were not always appreciated, particularly by the perpetrato....
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....EO by majority vote. Since becoming CEO of M/s Liberty Shoes Limited in the year 2004, Appellant No. 1 has been continuously making innovative, modern, and futuristic decisions. Thus, Appellant No. 1 is recognized as a dynamic leader and one of the most prominent business figures in the footwear and allied industry. Appellant No.1 even diversified into perfumes, exports, etc. The fame of Appellant No. 1 and the fortune of Liberty Group manifolded under the leadership of Appellant No. 1. Since 2004, Appellant No. 1 has had the largest role in managing the business. Appellant No. 1 owns 95000 equity shares in M/s Liberty Shoes Limited and has steered the company and the group companies and businesses to the present heights. Liberty Shoes and its group companies are household names in India and abroad, all due to the untiring efforts, and business acumen of Appellant No. 1. Appellant No. 1 holds an immense and enviable reputation. Appellant No. 1 is now a man of about 60 years and has worked honestly and diligently to establish his present reputation as an honest, diligent, visionary global leader who has steered his team. Due to the efforts of the promoters and Appellant No. 1, the R....
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....aid various emails, communications, etc. written to the Board. Appellant No. 1 in his communications has always been corrective, suggestive, and in the best interest of the Company and was based on facts. Appellant No. 1, being in charge, had to comply with his legal obligations being Key Managerial Personnel to point out illegalities/violations that came to his notice, however, the tone and tenor of Appellant No. 1 in his communications were never to disparage or demean or defame anybody. The emails and communications of Appellant No. 1 were always addressed to the relevant persons so that the same is strictly in the interest of the company. That various wrongdoings and identity of the wrongdoers apart from the Defendants, remain to be identified. The wrongdoers intend to obstruct information coming to Appellant No. 1 and working of Appellant No. 1 to identify and remedy the wrongs that are being committed in the company, M/s Liberty Shoes Limited. 8. Appellant No. 1 also, through various emails, unearthed and addressed the fraudulent activities, siphoning, diversion, and misappropriation of funds at the Gharaunda plant of M/s Liberty Shoes Limited by the Respondents, in particul....
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....espondents Nos. 2 and 3 published and circulated the defamatory communications with bad intent. The defamatory communications were deliberately circulated widely to ensure maximum damage to Appellant No. 1. Respondents have not acted in the best interests of the Respondent No. 1 Company and, in fact, have time and again hindered the growth and functioning of the Respondent No. 1 Company. Even earlier on 09.11.2022, Respondent Nos. 2-3 had conspired to show that there was an agenda item for the removal of Appellant No. 1, however, that agenda item was never a part of the meeting. Appellant No. 1 replied to it in detail, the said attempt was illegal and was not taken by the Board. 11. Appellant No. 1's wife's 60th birthday was on 13.07.23. It was well known amongst all that Appellant No. 1 would be overseas from 10.07.2023 for about a week. Appellant No.1 returned on 15.07.2023. However, Appellant No. 1 joined his work effectively from 21.07.2023 when he read the alleged defamatory communication dated 10.07.2023. On 10.07.2023, Respondent No. 2 issued a frivolous show cause notice, which was widely circulated only to defame Appellant No. 1. It contains false facts and is tar....
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.... have not acted in the best interests of the Respondent No. 1 Company and in fact, have time and again hindered the growth and functioning of the Respondent No. 1 Company. 14. Appellant No. 1 was compelled to approach Hon'ble Delhi High Court, against Respondent Nos. 2 and 3 for their unlawful actions vide show cause notice dated 10.07.2023 and email dated 25.07.2023 (containing defamatory material against Appellant No. 1) and they were compelled to seek a post facto ratification (vide Board Resolution Dated 11.08.2023) to give a feeble defence to their unlawful actions of declaring that Appellant No. 1 is removed as Executive Director and CEO. It would be important to note here that post the defamatory emails, Appellant No. 1 participated in subsequent Board Meetings as Executive Director and CEO. That the Hon'ble Delhi High Court vide order dated 14.08.2023 restrained the Respondents from circulating the defamatory and unauthorized communications any further. 15. That owing to Appellant No.1 constantly reporting the misdeeds of the Respondents in running the affairs of the Respondent No. 1 Company, Respondent Nos. 1 and 2 connived with other wrongdoers for malicious rea....
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....rom related parties have grown significantly, all this is due to the oppression by the Respondents. That there has been siphoning of monies and diversion of funds through related party transactions. Transactions with related parties like LFO Liberty Fashion Outfits (Raman Bansal), Anything Skool Limited (Vivek Bansal), Total Print & Packing (Ayush Bansal), Core Innovative Designs LLP (wife of Anupam Bansal), etc. have led to financial embezzlements and siphoning of funds of hefty amounts. As per the related party transaction policy of the Company, related party transactions are to be referred to the Audit Committee for their review and approval. However, it is pertinent to note that the members of the Audit Committee of the Company are only those who have indulged in the siphoning of monies in the name of related party transactions like Respondent No. 2. 17. Four shareholders who are KMP/Directors served a special notice dated 12.08.2023 but later realized that serving such notice will debar shareholders or directors with a vested interest in a resolution from voting on that particular agenda item during a meeting. Considering this, the promoters who issued the initial special not....
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....the Company to reach great heights, without whom its survival would have been difficult. This notice overlooks the distinct areas of expertise that define Appellant No. 1 and neglects to acknowledge the proficiency he brings to each skill set. The allegation that Appellant No. 1 was not performing well in his role as CEO is utterly false and baseless. Appellant No. 1 is responsible for B2B, B2G, exports, lifestyle (perfumes) business and that these businesses generate 80% of the revenue for Respondent No. 1 and consume 20% expenses. The retail, wholesale, showrooms, e-commerce, fashion footwear, and B2C segments are handled by the other 6 directors and consume 80% of expenses and generate 20% of revenue and the said units are in losses and are money drain for the company. The businesses handled by Appellant No. 1 have grown immensely, generate cash profits, and do not have bad debts. 20. Appellant No. 1 was liable to remain Director by rotation representing Respondent No. 1 till March 2024. The Respondents attempted to remove Appellant No. 1, by levying false allegations, however, the Respondents were not able to remove Appellant No. 1 as the role and contribution of Appellant No.....
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....sactions, (f) scheming and falsely portraying that Petitioner has been stripped off from the role of Executive Director/KMP in the presence of employees and vendors, without adhering to proper legal procedures all with the intent of tarnishing and defaming his reputation, (g) colluding with each other for sending the special notice for removal of Petitioner in about three successive but failed attempts under Section 169 Companies Act to remove him as CEO and Executive Director by imposing false allegations and then withdrawing them, (h) colluding with each other to remove the Petitioner as CEO and Executive Director in the recent effort in the AGM to be held on 30.9.23, on sham allegations that the company is not performing well as compared to its peers without analyzing the true facts and circumstances behind such performance, (i) indulging in oppressive conduct with the staff to ensure that the diligent, professional, and domain expert staff is removed and sycophants of the Respondents are only retained, (j) indulging in breach of the licence agreement and shortfall of license fee leading to termination of Trademark Licence Agreement dated 03.04.2013 with Liberty Footwear Co. 23....
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.... board meetings when he observed that share prices in a short span had reached Rs. 375/- on 14.10.2022 from a mere Rs. 162 per share on 08.04.2022 and friends and family of Mr. Anupam Bansal invested heavily. To inflate the share price, the company gave dividends twice a year, which artificially inflated the share price. Appellants established by cogent evidence that owing to the constant breaches and defaults at the end of the Respondents, the Trademark License Agreement dated 03.04.2013 with Liberty Footwear Co. came to be terminated. The breaches and defaults at the end of the Respondents were, (a) delay in payment of license fee and interest on delayed payments; (b) failure to provide audited annual accounts and allow inspection; and (c) outsource manufacturing without sub-license. Appellants established, by cogent, evidence that defamatory emails stating all powers of the Petitioner have been taken away were circulated against Appellant No. 1, while the Appellant No. 1 was Executive Director and CEO, under which Petitioner was compelled to approach Hon'ble High Court of Delhi, wherein vide order dated 14.08.2023 the Hon'ble High Court of Delhi restrained the Respondent....
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....of the Petitioner, on the other hand, the annual report acknowledges the skills and resource person in the Petitioner in every area required by the company. This established that the majority was attempting to prevent appropriate representation of the Appellants on the board and Appellant No. 1 was the only representative of the Appellants. 26. The Appellants placed reliance upon the judgment of Hon'ble NCLAT in the matter "Manoj Bathla & Ors. v. Vishwanath Bathla & Ors." in Company Appeal (AT) No. 399 of 2018, wherein the Hon'ble NCLAT upheld the waiver on the grounds of oppression and mismanagement indulged in by the respondents, even though the Petitioner was merely a 0.33% shareholder. 27. Appellant had filed the following before the NCLT : 27.1 CA No. 183/2023 in CP No. 99/CHD/HRY/2023 titled "Adesh Gupta Vs Liberty Shoes Limited & Ors." with the prayers of CA No. 183/2023 reproduced hereinafter: (a) pass an order allowing the present Application; (b) pass an order granting the leave to the Applicant to add additional facts and Grounds as stated under the present Application in C.P. No.99/CHG/HRY/2023; (c) pass such other and further orders or directions, as may be ....
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.... the claim/complaint. Therefore, the issue relating to the directorial complaint could not have formed the basis for the refusal of waiver. For Grant of Waiver under Section 244 of the Companies Act, 2013, directorial complaint or prima facie case could not be looked into. Grant of Waiver under Section 244 of the Companies Act, 2013 cannot be dismissed on the presumption of dismissal of the Company Petition on merits. Adjudicating Authority under the Impugned Order dated 20.11.2023 erred in looking into the merits of the Company Petition No. 99/CHD/HRY/2023. 30. Hon'ble Appellate Tribunal in Cyrus Investments Pvt. Ltd. and Ors. Vs Tata Sons Limited and Ors. (supra) held in Para 144 that "Therefore, before the grant of waiver, the question of forming opinion by Tribunal on an application made under Section 241 and to pass any order as it thinks fit does not arise. If the Tribunal intends to decide the application under Section 241 on merit, it is required to waive the requirement as prescribed under sub-section (1) of Section 244". It was further held in Para 145 that "For the reasons aforesaid, we hold that the Tribunal cannot deliberate on the merit of a (proposed) applic....
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....o other promoters have the requisite shareholding for preferring a Company Petition under Section 241 of the Companies Act, 2013. That this is one of the exceptional and compelling circumstances, which merited the grant of 'waiver'. 33. Furthermore, the issue relating to waiver was not the subject matter of the Civil Appeal No. 440-441 of 2021 decided by the Hon'ble Supreme Court in the final judgment titled Tata Consultancy Services Limited vs. Cyrus Investments Private Limited was allowed based on the merits of the case and there was no issue relating to the grant of waiver as the order dated 21.9.2017 passed by the Hon'ble Appellate Tribunal regarding the grant of waiver was never challenged and therefore attained finality, and is now settled law. 34. It is therefore completely incorrect on the part of the Respondents herein to rely on the judgment of the Hon'ble Supreme Court as above. Even now this argument that the Petition relates to the directorial complaint and is hence not maintainable, is neither legally correct nor available to the respondents. 35. At least 32 emails were written by the Petitioner to the management and the board of directors betwe....
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....rvice provider, M/s Link Intime India Pvt. Ltd., who issued URLs and serial numbers to the nine shareholders. None of the Appellants submitted any request to the Company or Link In time. 38. The Appeal challenges an NCLT Order dismissing the Appellants' Application for a waiver under Section 244(1)(b) of the Companies Act, 2013. The Respondents argue that the Appellants lack valid grounds for such a waiver and that the Petition is an attempt to retaliate for the lawful removal of the Appellant as CEO/Executive Director. The Appellants collectively hold 5.83% of the company's shares, with the primary Appellant holding only 0.56%. The Respondents highlight that these figures do not justify the relief sought under Sections 241 and 242 of the Companies Act. 39. Respondents detail various alleged misconducts by the Appellant, including unauthorized financial transactions, violation of board decisions, and mismanagement, which justified the Appellant's removal. The Appellant's removal as Executive Director was ratified by an overwhelming majority of shareholders during the company's AGM. Respondents argue that this decision reflects the collective wisdom of the shareholders and sho....
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....ntation was denied during the AGM. 44. The Appellant has relied upon Paragraph 145 of the Judgment of this Hon'ble Appellate Tribunal in the case of Cyrus Investments Pvt. Ltd. & Anr. v. Tata Sons Ltd. (supra) to argue that the Hon'ble Tribunal while deciding an application seeking waiver cannot touch upon the merits of the case including evaluating that directorial complaint is the basis of the case. This argument is based upon a selective and self-serving reading and interpretation of Paragraph 145. Paragraph 145 cannot be read in isolation and has to be read in conjunction with Paragraphs 149 as well as 150 and more importantly Paragraph 151 of the Judgment. These passages from the Judgment clearly emphasize that the Tribunal has to form an opinion as to whether the grievances raised in a case are genuinely that of oppression and mismanagement and exceptional circumstances before grant of waiver. In other words, the Tribunal has to apply its mind for the formation of the opinion. Viewed from this standpoint, Paragraph 145 has to be regarded as obiter dicta and merely illustrative and needs to be reconciled with Paragraph 151 which sets out the actual conclusions set out....
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.... oppression and mismanagement against the Company is mis- conceived for two reasons : "(1) Section 166 (2) imposes a positive mandate and obligation upon a director of a company to promote the objects of the company for the benefit of its members as a whole and protect the interests of the company, its employees, and the shareholders. Section 166 (3) requires a director to exercise duties with due and reasonable care, skill, and diligence and exercise independent judgment. (ii) There is no bar under Section 166 precluding a director from approaching the Tribunal or any court." 51. In case the Appellant was serious about the allegations, it could have approached the Hon'ble Tribunal before the initiation of his removal from the position of director. The Appellant chose not to initiate any proceedings and eventually added allegations in the Company Petition to give it a hue of mismanagement to mask the real color of personal interest and vendetta. 52. In the present case, the Tribunal, while dealing with the issue of waiver, proceeded to examine the primary basis for seeking the waiver from the facts and circumstances of the case. Owing to the Appellant restricting its case....
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.... upon by the Appellant as evidence for alleged mismanagement pertain to the period before May 2023. The Appellant did not approach the Tribunal anytime thereafter. 59. In conclusion, Respondents assert that the Appellants' appeal lacks merit and should be dismissed. The NCLT's decision to dismiss the petition was based on a thorough assessment of the facts and applicable law. Respondents respectfully request that this Hon'ble Tribunal uphold the NCLT's Order and dismiss the Appeal in its entirety. 60. In conclusion, the Respondents assert that the Appellants' appeal lacks merit and should be dismissed. The NCLT's decision to dismiss the petition was grounded in a thorough assessment of the facts and applicable law. The Appellants failed to meet the statutory requirements under Section 244 of the Companies Act, 2013, and could not substantiate their claims of oppression and mismanagement with credible evidence. 61. The NCLT correctly exercised its discretion in denying the waiver under Section 244(1)(b), recognizing that the Appellants' allegations were unsubstantiated and primarily driven by personal grievances rather than genuine concerns for the com....
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....other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members: Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation.-For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member. 2) Where any members of a company are entitled to make an application under sub-section (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them. " Application for relief for Oppression & Mismanagement 241. Application to Tribunal for relief in cases of oppression, etc.-(1) Any member of a company who complains that- (a) the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company; or ....
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...., upon such terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the circumstances of the case; (f) the termination, setting aside or modification of any agreement between the company and any person other than those referred to in clause (e): Provided that no such agreement shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned; (g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference; (h) removal of the managing director, manager or any of the directors of the company; (i) recovery of undue gains made by any managing director, manager or director during the period of his appointment as such and the manner of utilisation of the recovery including transfer to Investor Education and Protection Fund or repayment to identifiable victims; (j) the manner in which the managing director or manager of ....
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....rote to the Appellant that certain shareholder had sent special notice under Section 169 of the Companies Act, 2013 dated 20.09.2023 and 21.09.2023, seeking the removal of Respondent Nos. 2 to 4 as Executive Directors of the Respondent No. 1 Company. On 25.07.2023, Respondent No.3 circulated a defamatory email stating that all powers of the Appellant have been taken away. The Appellant was compelled to approach Hon'ble High Court of Delhi, which vide order dated 14.08.2023, restrained the Respondents from circulating the defamatory and unauthorized communications. The Appellant contends that extensive engagement in related party transactions and alignment with the people of the same interest within Respondent No.1 Company constitutes a form of oppression and mismanagement, and led to financial embezzlements and siphoning of funds of hefty amounts. Through these submissions, the Appellant seeks the waiver of requirements mentioned in Sections 244(1)(a) and also (b) of the Act, so that he can file an application under Section 241 of the Act. 69. Appellant contends that only as a counterblast, the Respondents have attempted to remove the Appellant from the Board and are trying to con....
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....k Statements for the last two years, in violation of his roles and responsibilities as the CEO and Executive Director of the company as mandatorily required under Section 134 of the Companies Act, 2013. vii. Paying INR 60-70 lacs to E&Y hired by the Petitioner for restructuring the business of the company, without any prior approval of the Board. viii. Setting up a venture of perfume division in Liberty Shoes Ltd. and investing INR 10 crores of the Company's profit with minimal profit and siphoning off the investment in the process. ix. Unlawful transfer of an amount of INR 2,70,72,604/- to M/s Deepak Kumar & Sons, M/s S.S. Industries, and M/s Mansarovar Industries at Panipat in violation of the resolution dated 16.06.2023." 72. On 08.09.2023, the Respondent No.1 Company circulated a notice dated 05.09.2023 for AGM along with a special notice dated 02.09.2023 received from Respondent No.21 for removal of the Appellant in compliance on Section 102(5) read with Section 169 of the Companies Act, to which the Appellant replied via letter dated 18.09.2023. Further, on 20.09.2023 special notices were also sent to Respondent No. 21 by Appellant Nos. 2, 3, and by Sh. Harish Kuma....
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....nd (proposed) application under Section 241 and required to record reasons reflecting its satisfaction. 150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any of the requirements specified in clauses (a) and (b) of sub-section (1) of Section 244. Such opinion required to be formed on the basis of the (proposed) application under Section 241 and to form opinion whether allegation pertains to 'oppression and mismanagement' of the company or its members. The merit cannot be decided till the Tribunal waives the requirement and enable the members to file application under Section 241. 151. Normally, the following factors are required to be noticed by the Tribunal before forming its opinion as to whether the application merits 'waiver' of all or one or other requirement as specified in clauses (a) and (b) of sub-section (1) Section 244 : - (i) Whether the applicants are member(s) of the company in question? If the answer is in negative i.e. the applicant(s) are not member(s), the application is to be rejected outright.....
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.... exceptional circumstance made out to grant 'waiver', so as to enable members to file application under Section 241 etc. This exceptional circumstance could be the economic values of the shares, nature of the shareholding pattern etc. 75. We note that the above-mentioned judgment is not helpful for the Appellant's case. While dealing with an application for a waiver under Section 244, the NCLT is very much empowered to make a preliminary assessment to determine whether the Petition falls within the purview of Sections 241 and 244. While the NCLAT in the Cyrus Investments (supra) case did hold that the merits of the case should not be considered at the waiver stage, but this does not preclude the NCLT from determining whether the Petition falls within the ambit of Sections 241 and 244. We note that in the instant case, the waiver was refused based on the finding that the Petitioner has no prima facie case as the primary complaint in the petition relates to the directorship of the Petitioner, and hence the complaint is directorial. 76. Furthermore, the judgment of Hon'ble Supreme Court in Tata Consultancy Services (supra), helps us to decide the present case. The re....
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....ecifically confer the power of reinstatement, nor we would add that there is any scope for holding that such a power to reinstate can be implied or inferred from any of the powers specifically conferred." [ Emphasis supplied ] 77. Hon'ble Supreme Court has noticed that mere termination of Directorship cannot be projected as something that would trigger the just and equitable clause for winding up or to grant relief under Sections 241 and 242. In a petition under Section 241, the Tribunal cannot ask whether the removal of a Director was legally valid and/or justified. The important question is whether such a removal tantamounts to an oppressive or prejudicial conduct. The Hon'ble Supreme Court in the above matter has made it clear that mere removal/termination of the Director cannot be projected as something that would trigger the just and equitable Clause (2) to grant relief under Sections 241 and 242 of the Act. It is noted that the removal of the CEO / Executive Director at the AGM was not a motion by the management of the Company, but by another shareholder of the Company i.e. Respondent No.21. 78. In this case, it is noticed that there are ongoing complaints and counter-comp....
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....f the Board. viii. Setting up a venture of perfume division in Liberty Shoes Ltd. and investing INR 10 crores of the Company's profit and siphoning off the investment in the process. ix. Unlawful transfer of an amount of INR 2,70,72,604/- to M/s Deepak Kumar & Sons, M/s S.S. Industries, and M/s Mansarovar Industries at Panipat in violation of the resolution dated 16.06.2023." 81. The Appellants on the other hand, have alleged various acts of oppression and mismanagement by the Respondent himself which were noted earlier. 82. Appellant No. 1 was one of the key management person at the helm of the affairs of the company and his pursuing allegations of oppression and mismanagement on the eve of his removal raises questions. If he was having any case of oppression and mismanagement at the hands of the contesting Respondents or other Directors, then he could have preferred such petition under Sections 241 and 242, much prior to his removal as CEO / Executive Director on 30.09.2023. 83. In fact, Appellant No.1 was himself the CEO for a long time. Had he taken timely action, things would not have reached such an impasse. During the immediate period before filing of the petition....
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....e as the facts are distinguishable in this case. In that case, this Tribunal upheld the waiver granted on the grounds of oppression and mismanagement indulged in by the Respondents, even though the Petitioner was merely a 0.33% shareholder. It was noted that: "When the status of Respondent No.1 being a shareholder with 25% shareholding Company Appeal (AT) No. 399 of 2018 at the time of incorporation of the Company and also being one of the founding Directors of the Company is admitted, it cannot be contended that he ceased to be a "member" upon reduction of his share capital and that too when the transfer of shareholding is alleged to be clandestine and product of fabrication and forgery." 87. Furthermore, this Tribunal in the case of Jithendra Parlapalli Vs. Jithendra Parlapalli and Ors (supra) had held that : "It cannot be forgotten that a 'Directorial Complaint', cannot be a basis for filing a 'Petition', under Section 241 & 242 of the Companies Act, 2013, as 'complaints', in such a 'Petition', should relate to the 'Rights', in the 'status/capacity' of a 'Member'" 88. Appellant relies upon the conclusion in Cyrus Inve....