TaxTMI 
TaxTMI 
2024 (12) TMI 848
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.... Miscellaneous Application No. 227 / 2019, as it was preferred in CP No. 13 / 2016, by virtue of which, certain elaborations have been made to an earlier order of 07.08.2018 in the same Company Petition i.e. CP No. 13 / 2016. 2. The short question, which would be involving consideration in the instant Company Appeal are; (a) Whether, the recourse to filing of a Miscellaneous Application for orders, would fall to be within the terms of the compromise and the compromise order dated 07.08.2018. (b) Whether the liberty granted in the Settlement, if it is to be read with the compromise order of 07.08.2018, could permit the Applicants to do something indirectly which they are not otherwise able to do directly, owing to the stipulations of the compromise as captured in the Order dated 07.08.2018. (c) As to whether the extension of Order by resorting to the proceedings by filing the Miscellaneous Application, could at all be permitted to be carried, beyond the terms of the compromise or settlement, which may have a bearing of revival of power of the erstwhile Director, who otherwise, stands removed from the post of Managing Director, ever since 2015 as a conse....
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....uled Properties', classification, etc." 6. The compromise thus entered into specifically conferred the right of negotiation limited with regards to the sale of the property to Petitioners in Company Petition / Respondents herein, which was given in the Schedule of the compromise and in relation thereto, it was unanimously resolved, that the parties have unanimously agreed that the Petitioner No. 1 / Respondent No. 1 herein, Mr. R.P. Trivikram (who was the erstwhile Managing Director having been removed from his post way back in 2015), would be involved in all negotiations and transaction of sale of the Scheduled properties, detailed in the compromise. 7. Based on the said compromise, the rights settled were in relation to the property, given in the Schedule of the Compromise, which is extracted hereunder: "All that piece and parcel of properties situated in; 1. Sy. Nos. 71, 79, 80, 81 and 90, Chikkabanavara Village, Yeshwantpur, Hobli, Bengaluru North Taluk, measuring 21 Acres and 21 Gunthas. 2. Sy. Nos. 75, 76, 79 and 80, Soladevanahalli Village, Hesaraghatta Hobli, measuring 16 Acres and 16 Gunthas. (1 and 2 totally measuring 37 Acres and....
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....ing decision on the issues arises in implementation of the terms & conditions of the said Compromise Memo; h) The Executor/Observer is also at liberty to take technical assistance from any professional, and the fee as fixed to those professional is to be borne by the Company. i) All the I.A Nos. 67/2018; 93/2018; 94/2018 & 174/2018, are stand disposed of including any pending I.A. No order as costs." 10. Owing to the Settlement, which was again referred to in the Order of 07.08.2018, which was exclusively Judgment of 07.08.2018, was exclusively based on the compromise of 14.06.2017, the Tribunal appointed one Mr. B. N. Harish, the Retired Regional Director, Ministry of Corporate Affairs, to execute the terms and conditions of the Joint Compromise Petition dated 14.06.2017. It naturally follows that, as far as the ambit of exercise of powers of Mr. B.N. Harish was concerned, it was limited to the extent to be an Executor / Observer to the terms and conditions of the Joint Compromise Petition dated 14.06.2017. 11. The controversy germinates from this point, where in accordance with the Compromise as per Clause 5(c) "all sale negotiations and transactions for t....
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.... 07.08.2018, where the liberty was granted to file Miscellaneous Application, preferred an application numbered as IA No. 229 / 2019 in a Company Petition No. 13 / 2016, which stood already decided. 18. In the Application thus preferred, the Applicants had prayed for the following reliefs: "a. To Supersede the Board of R1 Company by appointing the Executor Mr. B.N. Harish as the Administrator of the Company vesting with him all the powers with respect to management and any aspect of the affairs of the R1 Company. b. To Appoint and declare the present Executor B N Harish as an / a joint authorized signatory to all the bank accounts including the Escrow Account bearing Current Account No. 36984343328, State Bank of India, Malagala Road Branch, Nagarbhavi, Bengaluru whether or not any Board Resolution to this effect is passed by the Board of R1 Company. c. and to pass such other order or orders in the facts and circumstances of the case in the interests of justice and equity." 19. The relief thus extracted above, if considered in the context of power given to Mr. R.P. Trivikram under the terms of Settlement as contained under Clause (c) which has to be....
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....ransactions." 23. If sub relief 1 is taken into consideration, in fact it uses the language in a manner as if, the Respondent No. 1 Mr. R.P. Trivikram has to be indirectly inducted into a position in a manner so as to enable him to manage the affairs of the Company of Respondent No. 1 and this conferment of power given to Mr. R.P. Trivikram, happens to be in supersession, to the cessation of his status as a Managing Director by the orders of the Registrar of Companies, beside being in excess to the powers which was reserved by the terms of the compromise, as well as the directions given by the Order of 07.08.2018. 24. In view of what has been observed above, the argument as extended by the learned counsel for the Respondent, that in fact, the directions given in the Impugned Order only intends to meet the terms of Settlement of Sub Clause (d) of Para 5 of the Settlement is absolutely a mis-normer for the reason being that the power of Mr. R.P. Trivikram, was not a power which was enshrined to him in relation to the affairs contemplated under Sub Clause (d) of Para 5 of the Settlement of 14.06.2017. 25. So far as Mr. R.P. Trivikram is concerned, his role, post the Settlemen....