AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1188
X X X X Extracts X X X X
X X X X Extracts X X X X
....in and Mr. Navin Bhatia i/b. Wadia Ghandy & Co. for Respondent Nos. 10 to 14 and 21 to 23 in Company Appeal No.11 of 2006. JUDGEMENT : 1. These two appeals have been filed under Section 10F of the Companies Act, 1956, challenging the order dated 19.09.2006 passed by the Company Law Board, Principal Bench, New Delhi (hereinafter referred to as 'CLB'), taking exception to different parts of the same order. While the appellants in Appeal No.6 of 2006 are aggrieved by the direction contained in the impugned order of the CLB, declaring that the original petitioner before CLB i.e. Aasia Properties Development Limited (respondent No.1) in the said appeal was entitled to nominate one director on the Board of the Company - Juhu Beach Resorts Limited, the appellant in Appeal No.11 of 2006 i.e. the aforementioned Aasia Properties Development Limited, now known as Hinduja Realty Ventures Ltd., is aggrieved by the findings rendered by the CLB on the aspect of manipulations of records of the Company relevant for the date of acquisition of 1/3rd shares of the Company by the said petitioner, as also denial of prayer for representation on the Board of the Company. The appellants in both t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....08.1982. On the other hand, Rahejas claim that such transfer of shares to the extent of 1/3rd shares took place in favour of Aasia Properties on 28.01.1983. In the meanwhile, on 15.01.1983, the aforesaid Shah Group transferred its shares in favour of B. Raheja Group and according to Rahejas, the effect of the same was that the K. Raheja Group and B. Raheja Group together had 2/3rd shares, while Aasia Properties had 1/3rd shares in the Company. 5. It is the case of Aasia Properties that thereafter there were further transfer of shares by Rahejas, keeping Aasia Properties in the dark and that, such transfer of shares was in the teeth of Article 38 of the Articles of Association of the Company. In fact, on the basis that Aasia Properties had acquired 1/3rd shares on 30.08.1982 in the Company, it claimed that even transfer of 1/3rd shares by the Shah Group to the B. Raheja Group was illegal as it was in the teeth of Article 38 of the Articles of Association. The said Article pertains to the right of existing shareholders to be offered such shares for purchase before being offered to third parties. Between 1983 and 1989, the Company set up a five-star hotel on its land located at Juhu ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., including registers, were levelled against the Company and particularly, the Rahejas. On this basis, Aasia Properties sought a declaration that certain transfers of shares, in the year 1983, were null and void and that, transfers of shares made subsequently were also null and void. It was also prayed that a nominee of Aasia Properties ought to be appointed on the Board of the Company and that, the management agreement executed by the Company ought to be declared as null and void. The respondents in the said petition filed their replies and on 19.09.2006, the CLB passed the impugned order. 9. In the said order, the CLB found that although there were indeed discrepancies in the records of the company, including the register of members and the register recording share transfers, it was found that Aasia Properties, as the petitioner, was required to prove its own case with cogent evidence and that, reliance placed on such discrepancies would not take the case of Aasia Properties any further. In this backdrop, it was found that since the share certificates bearing the seal of the Registrar of Companies (ROC) were dated 28.01.1983, the claim of Aasia Properties that 1/3rd shares were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the CLB in the impugned order. Aggrieved by the aforesaid order of the CLB dated 19.09.2006, both Rahejas and Aasia Properties have filed the aforesaid appeals. Both the parties had filed applications seeking interim reliefs / directions. 11. On 20.11.2008, this Court considered the interim applications filed by the rival parties. The reliefs sought in the application filed by Aasia Properties were not granted, while the application filed by Rahejas was allowed to the extent that the direction contained in the impugned order of the CLB, declaring that Aasia Properties had the right to nominate one non-functional director on the Board of the Company, was stayed. Consequently, during the pendency of these appeals, the only effective relief granted by the CLB in favour of Aasia Properties remained stayed. The appeals were already admitted and they have now come up for final hearing. 12. Mr. Devitre, learned senior counsel appearing for the appellants in Company Appeal No.6 of 2006 and respondent Nos.2, 3, 6, 7, 17, 18, 19 and 20 in Company Appeal No.11 of 2006, submitted that in the facts and circumstances of the present case, the CLB ought not to have granted the relief of declari....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 84 and 108 of the Companies Act, to contend that the said provisions were correctly applied in the impugned order to hold against Aasia Properties. In this regard, reliance was placed on the judgement of the Supreme Court in the case of Mannalal Khetan and others vs. Kedar Nath Khetan and others, (1977) 2 SCC 424, to emphasize that unless a proper instrument of transfer, duly stamped and executed, was produced, the company could not have entered the transfer of shares in favour of Aasia Properties in the register of share transfers. 14. It was further submitted that even according to Aasia Properties, it became aware about the share transfer by Shah Group and the fact that Ashok Hinduja had ceased to be a director, at least in the year 1989 and yet, no steps were taken for redressal of its grievance. The contention that it could not take any steps earlier as it was misled into believing that any such step would not meet with success, is wholly unsustainable. In any case, the presumption arising under Section 84 of the Companies Act, was not rebutted by Aasia Properties and therefore, the findings rendered by the CLB in that regard, cannot be interfered with. 15. As regards inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....identified, while in the present case, the facts are clearly distinguishable. 17. It was further submitted that the CLB committed a grave error in declaring that Aasia Properties had the right to nominate a non-functional director on the Board of the Company on equitable considerations, despite having rejected its claim of having become 1/3rd shareholder on an oral understanding that it would have a right to nominate a director on the Board. It was submitted that the law pertaining to jurisdiction to be exercised by the CLB under Section 397 read with Section 402 of the Companies Act, was completely misinterpreted to hold that a direction for nomination of a non-functional director was for the purposes of doing 'substantial justice'. It was submitted that equitable considerations could not have a place in such a situation, where neither the Articles of Association of the Company, nor any provision under the Companies Act, justify such a direction issued by the CLB. 18. Reference was made to relevant judgements in this context and it was submitted that the same were not taken into consideration by the CLB, while holding in favour of Aasia Properties to the aforesaid limited extent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....B. It was submitted that the CLB committed a grave error in holding that once oppression was established under Section 397 of the Companies Act, the winding-up of the company on just and equitable ground would be automatic and all that the CLB was required to do was to form an opinion that such winding-up of the company would be in the interest of the company/shareholders. It was submitted that this finding was in the teeth of the settled position of law and unless the twin requirements under Section 397 of the company are satisfied, there is no question of the CLB exercising jurisdiction to pass any order. On this basis, it was said that a jurisdictional error was committed by the CLB. 22. It was submitted that the Supreme Court, in its judgements in Shanti Prasad Jain vs. Kalinga Tubes Ltd., AIR 1965 SC 1535; Needle Industries (India) Ltd. and others vs. Needle Industries Newey (India) Holding Ltd. and others, (1981) 3 SCC 333; Sangramsinh P. Gaekwad and others vs. Shantadevi P. Gaekwad (dead) through LRs and others, (2005) 11 SCC 314; Kamal Kumar Dutta and another vs. Ruby General Hospital Ltd. and others, (2006) 7 SCC 613; and Hanuman Prasad Bagri and others vs. Bagress Cereal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the fact that the requirements of Section 397 of the Companies Act were not satisfied. On this basis, it was submitted that Company Appeal No.06 of 2006 deserves to be allowed and Company Appeal No.11 of 2006 deserves to be dismissed. 25. Mr. Navroz Seervai, learned senior counsel appearing for Aasia Properties i.e. respondent No.1 in Company Appeal No.06 of 2006 and appellant in Company Appeal No.11 of 2006, submitted that the CLB in the present case, committed grave error and rendered perverse finding on the most crucial aspect of the matter pertaining to the date when the shares were transferred and Aasia Properties became 1/3rd shareholder in the Company. In this context, the learned senior counsel appearing for Aasia Properties copiously referred to the register of members, register of transfer of shares and minutes book of the company, to impress upon this Court that there were widespread additions, alterations, deletions and omissions in the said record, demonstrating blatant manipulation by the Company at the behest of Rahejas. It was submitted that the said discrepancies clearly demonstrated the fraud committed upon Aasia Properties. The shares were transferred in favou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ugh the CLB found that the requirement of Article 38 of the Articles of Association did not appear to be expressly satisfied in the transfer of shares subsequent to 28.01.1983, no purpose would be served by cancelling such transfer of shares. It was submitted that the CLB committed grave error in holding that it would be a fruitless exercise to do so, simply for the reason that the right of pre-emption was a right vested in Aasia Properties, which could not have been violated by Rahejas and therefore, the petition filed before the CLB ought to have been allowed. Reliance was placed on the judgement of the Surpeme Court in the case of Vijayalakshmi (Smt) vs. B. Himantharaja Chetty and another (supra), on the aspect of right of pre-emption. 28. It was further submitted that there was sufficient material before the CLB to accept the oral understanding relied upon by Aasia Properties for the right to nominate its director on the Board of the Company. Much emphasis was placed on the assertion that Ashok Hinduja of Aasia Properties was appointed as an additional director on the understanding that Aasia Properties would be purchasing shares in the Company and that it would be investing h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id relief, so that it is in a position to access the records of the company and to consider whether steps taken by the Company are in the interest thereof. It was submitted that the vehemence with which Rahejas, who are 2/3rd shareholders, are opposing such limited relief granted to Aasia Properties (1/3rd shareholder), shows that the finding regarding oppression, rendered by the CLB, is justified. 31. On the question of limitation, it was submitted that there was no substance in the contention raised on behalf of Rahejas. The CLB correctly found that only when the records became available in the entirety in the year 2004 to the original petitioner i.e. Aasia Properties, that it came to know about the manipulations and fraud, giving rise to the cause of action to file the petition before the CLB. The oppressive acts of Rahejas were continuous and hence, there was no question of the petition filed by Aasia Properties before the CLB, being dismissed on the ground of limitation. 32. On this basis, it was submitted that Company Appeal No.06 of 2006 deserved to be dismissed and Company Appeal No. 11 of 2006 deserved to be allowed, as a consequence of which the original company petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat once oppression is established while exercising jurisdiction under Section 397 of the Companies Act, the winding up of the Company on just and equitable grounds is automatic and the CLB is only required to form an opinion that such winding up would not be in the interest of the company / shareholders, in the teeth of the settled position of law laid down by the Supreme Court? H. Whether the CLB correctly applied the ratio of judgements of the Supreme Court in the cases of Shanti Prasad Jain Vs. Kalinga Tubes Limited (supra), Needle Industries (India) Limited Vs. Needle Industries Newey (I) Holding Limited and others (supra), Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad (dead) through LRs (supra), Kamal Kumar Dutta Vs. Ruby General Hospital Limited (supra) and Hanuman Prasad Bagri and others Vs. Bagress Cereals Private Limited and others (supra)? I. Whether the original petitioner i.e. Aasia Properties is justified in contending that even if the requirements of Section 397 of the Companies Act are not satisfied and although powers under Section 402 thereof cannot be exercised, the CLB can still exercise power beyond the scope of the said provisions for doing justice betw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ous allegations of manipulation and fraud were made against the Company, particularly Rahejas and it was alleged that when it was clear that entries were erased and new entries were made and in some instances, there was overwriting, it was clear that such steps had been taken only to deprive Aasia Properties of its claim of being a 1/3rd shareholder in the Company from 30.08.1982 onwards. Much emphasis was placed on the manner in which such alleged fraud had been committed. 38. On the other hand, the learned senior counsel appearing for Rahejas submitted that certain additions and modifications in the register were obvious and that, those were undertaken to correct certain mistakes. It was submitted that, at worst, registers were not maintained in the manner expected. It is relevant to note that even the CLB in the impugned order observed that the said state of affairs indicated that the maintenance of records in the company was not upto the mark. This Court is inclined to agree with the said finding rendered by the CLB. 39. At the same time, the party that approaches the Court (in this case the 'CLB') is required to stand on its own legs and to produce positive evidence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in the register. Emphasis was placed on the words 'shall not register' to hold that the same are of mandatory character. Rahejas are justified in relying upon the said position of law to contend that Aasia Properties, in the present case, failed to justify its claim of having become 1/3rd shareholder of the Company on 30.08.1982. Therefore, questions 'A', 'B' and 'C' are answered against Aasia Properties. 41. Questions 'D', 'E' and 'F' pertain to the interpretation and effect of Article 38 of the Articles of Association relating to right of pre-emption of purchasing the shares, when any shareholder intends to transfer the shares to a third party. In order to consider the rival submissions and to answer these questions, it would be appropriate to refer to Article 38 of the Articles of Association. It reads as follows:- "38. A share may be transferred by the member or other persons entitled to transfer the same, to any member selected by the Transferor or a person approved by the holders of not less than two third of the issued Share Capital of the Company, but save as aforesaid, and save as provided by Articles 42 to 45 he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t cannot be accepted that while calculating 2/3rd of the issued share capital of the Company, the shareholder, desirous of transferring its share, would not be taken into account. Thus, the aforesaid submission is rejected. 45. There is also substance in the approach adopted by the CLB that even if express consent of 2/3rd shareholders was not manifested by the material on record, the entire exercise would be fruitless, for the reason that Raheja Group admittedly had 2/3rd shareholding in the Company. It is also of no consequence for Aasia Properties to contend that if the transfers made subsequent to 28.01.1983 are to be set aside by applying Article 38 of the Articles of Association, such shares would automatically stand transferred to Aasia Properties. This is because even if the contention raised on behalf of Aasia Properties on the interpretation of application of Article 38 of the Articles of Association, is to be accepted, the transferred shares would revert back to the transferors. There is no reason why the said shares would inure to the benefit of Aasia Properties, for it to claim an increase in its percentage of shareholding. 46. There is no substance in the contention....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under this section, provided such members have a right so to apply in virtue of section 399. (2) If, on any application under sub-section (1), the Court is of opinion- (a) that the company's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up, the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit. 402. Powers of Tribunal on application under section 397 or 398. - Without prejudice to the generality of the powers of the Tribunal under section 397 or 398, any order under either section may provide for- (a) the regulation of the conduct of the company's affairs in future; (b) the purchase of the shares or interests of any members of the company by other members thereof or by the company; (c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the material in each individual case. 50. Section 402 of the Companies Act, quoted hereinabove, specifically shows that power thereunder can be exercised by the CLB upon requirements of Section 397 thereof being satisfied and issue directions over and above, in terms of clauses (a) to (g) of the said provision. Clause (g) refers to any matter which the CLB considers, in its opinion, to be just and equitable. It is evident that the exercise of power by the CLB under Sections 397 and 402 of the Companies Act is intertwined and unless the twin requirements of Section 397 are satisfied, the powers of wide amplitude under Section 402 cannot be resorted to. In the case of Shanti Prasad Jain Vs. Kalinga Tubes Limited (supra), the Supreme Court took note of the aforesaid position and held as follows:- "13. ... It gives a right to members of a company who comply with the conditions of Section 399 to apply to the court for relief under Section 402 of the Act or such other reliefs as may be suitable in the circumstances of the case, if the affairs of a company are being conducted in a manner oppressive to any member or members including any one or more of those applying. The court then ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n option with the Tribunal if it considers that in order to bring to an end the matters complained of, it can pass orders for winding up if it is just and equitable or it can pass such order as it thinks fit. It does not necessarily mean that in every case such winding-up order need be passed. Similarly, under Section 398 also, if the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company or that a material change not being a change brought about by, or in the interests of any creditors including debenture-holders, or any class of shareholders of the company, has taken place in the management or control of the company whether by an alteration in its Board of Directors, or Manager or in the ownership of the company's shares, or if it has no share capital, in its membership, or in any other manner whatsoever and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company, the Tribunal can order winding up of the company in order to bring to an end of all thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the interest of the company / shareholders. This Court is of the opinion that the aforesaid finding rendered by the CLB is unsustainable in the light of the settled position of law. It is wrongly held by the CLB that winding up on just and equitable grounds would be 'automatic' upon it being established that oppression had occurred. Under Section 397 of the Companies Act, the CLB is required to render findings on both clauses (a) and (b) of sub-section (2) of Section 397 upon proper application of mind to the material on record and there is no question of clause (b) being automatically satisfied upon the requirement of clause (a) being satisfied. The learned senior counsel appearing for Rahejas are justified in raising strong objection to the aforesaid finding of the CLB. Hence, the said finding deserves to be set aside and it is accordingly set aside. 53. In this situation, it was vehemently submitted on behalf of Aasia Properties that even if the settled position of law indeed indicates that both the twin requirements are to be satisfied under Section 397 (2) (a) and (b) of the Companies Act, it is also a settled position of law that even if the requirements are not sat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rd to the exigencies of the situation and the court must arrive at a conclusion upon analysing the materials brought on record that the affairs of the company were such that it would be just and equitable to order winding up thereof and that the majority acting through the Board of Directors by reason of abusing their dominant position had oppressed the minority shareholders. The conduct, thus, complained of must be such so as to oppress a minority of the members including the petitioners vis-a-vis the entire body of shareholders which a fortiori must be an act of the majority. Furthermore, the fact situation obtaining in the case must enable the court to invoke just and equitable rules even if a case has been made out for winding up for passing an order of winding up of the company but such winding-up order would be unfair to the minority members. The interest of the company vis-a-vis the shareholders must be uppermost in the mind of the court while granting a relief under the aforementioned provisions of the Companies Act, 1956." 56. It is to be noted that the learned senior counsel appearing for Aasia Properties emphasized that the said judgement of the Supreme Court in the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... type indicated in the impugned order could be reconstituted by the court or not and whether the court had power to frame an article inconsistent with the provisions of section 255 of the Act or not must in the ultimate analysis depend upon the true ambit of the powers of the court under section 397 or 398 read with section 402, for, if these sections confer upon the court jurisdiction and powers of the widest amplitude to pass appropriate orders which the circumstances of the case may require, it would be difficult to accept Mr. Sen's submissions that the impugned orders and directions are liable to be set aside on the basis that the reconstituted board or modified article 95 was not in consonance with section 255 of the Act. To correctly appreciate the ambit of the court's jurisdiction and the amplitude of the court's powers under sections 397 and 398 read with section 402 of the Companies Act, 1956, it will be necessary to consider the entire scheme of the Act pertaining to corporate management of companies. At the outset, it may be stated that all these concerned provisions occur in Part VI of the Act which deals with the management and administration of companies. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 397, 398 and 402) should be read as subject to the provisions contained in the other chapters which deal with normal corporate management of a company and, in our view, in the context of this scheme having regard to the object that is sought to be achieved by sections 397 and 398 read with section 402, the powers of the court thereunder cannot be so read. Further, an analysis of the sections contained in Chapter VI of Part VI of the Act will also indicate that the powers of the court under section 397 or 398 read with section 402 cannot be read as being subject to the other provisions contained in sections dealing with usual corporate management of a company in normal circumstances. As stated earlier, Chapter VI deals with the prevention of oppression and mismanagement and the provisions therein have been divided under two heads under head A powers have been conferred upon the court to deal with cases of oppression and mismanagement in a company falling under sections 397 and 398 of the Act while under head B similar powers have been given to the Central Government to deal with cases of oppression and mismanagement in a company but it will be clear that some limitations have been ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted in a manner prejudicial to public interest or in a manner prejudicial to the interests of the company, "with a view to bringing to an end or preventing the matters complained of or apprehended". Both the wide nature of the power conferred on the court and the object or objects sought to be achieved by the exercise of such power are clearly indicated in sections 397 and 398. Without prejudice to the generality of the powers conferred on the court under these sections, section 402 proceeds to indicate what type of orders the court could pass and clauses (a) to (g) are clearly illustrative and not exhaustive of the type of such orders. Clauses (a) and (g) indicate the widest amplitude of the court's power: under clause (a) the court's order may provide for the regulation of the conduct of the company's affairs in future and under clause (g) the court's order may provide for any other matter for which in the opinion of the court it is just and equitable that provision should be made. An examination of the aforesaid sections clearly brings out two aspects, first, the very wide nature of the power conferred on the court, and, secondly, the object that is sought to be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olders from acts of oppression and mismanagement or preventing its affairs being conducted in a manner prejudicial to public interest and if that be the objective the court must have power to interfere with the normal corporate management of the company. If under section 398 read with section 402 the court is required by its order to provide for the regulation of the conduct of the company's affairs in future because of oppression or mismanagement that has occurred during the course of normal corporate management, the court must have the power to supplant the entire corporate management, or rather corporate mismanagement by resorting to non-corporate management which may take the form of appointing an administrator or a special officer or a committee of advisers, etc., who could be in charge of the affairs of the company. If the court were to have no such power the very object of the section would be defeated. We must observe in fairness to Mr. Sen that it was not disputed by him that the powers of the court under section 398 read with section 402 of the Companies Act were wide enough to enable the court to appoint an administrator or a special officer or a committee of adviser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fied, for the Court to exercise such powers of widest amplitude in the context of Section 402 of the Companies Act. Therefore, reliance placed on behalf of Aasia Properties on the said judgement cannot take its case any further. 59. Even if much emphasis is placed on behalf of Aasia Properties on paragraph 172 of the judgement of the Supreme Court in Needle Industries (India) Ltd. and others vs. Needle Industries Newey (India) Holding Ltd. and others (supra) and paragraph 199 of Sangramsinh P. Gaekwad vs. Shantadevi P. Gaekwad (dead) through LRs (supra), wherein the Supreme Court has indicated that the Court would always have the power to do substantial justice between the parties, observations made in other portions of the said judgements cannot be ignored. Paragraphs 196 to 201 of the judgement in the case of Sangramsinh P. Gaekwad vs. Shantadevi P. Gaekwad (dead) through LRs (supra) read as follows:- "196. The court in an application under Sections 397 and 398 may also look to the conduct of the parties. While enunciating the doctrine of prejudice and unfairness borne in Section 459 of the English Companies Act, the Court stressed the existence of prejudice to the minority wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oners, the court is not powerless under Section 397 of the Act to do substantial justice between the parties and, therefore, on the facts available in the case the order made by the learned Company Judge should have been maintained. It is pleaded that it is not possible for the petitioners and the respondents to carry on business of the Company together and the only solution is that one group of shareholders should purchase the shares of the other group and that the petitioners have no objection in selling shares of their group at a proper value. 3. Section 397(2) of the Act provides that an order would be made on an application made under sub-section (1) if the court is of the opinion - (1) that the Company's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive of any member or members; (2) that the facts would justify the making of a winding-up order on the ground that it was just and equitable that the Company should be wound up; and (3) that the winding-up order would unfairly prejudice the applicants. No case appears to have been made out that the Company's affairs are being conducted in a manner prejudicial to public....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his Court is unable to agree with the finding rendered by the CLB in paragraph 30 of the impugned order and questions 'G' to 'I' are answered accordingly. 63. Question 'J' pertains to the direction issued by the CLB in the impugned order, declaring that Aasia Properties has right to nominate a non-functional director on the Board of the Company. This direction has been issued despite rendering a specific finding against Aasia Properties that it failed to prove any oral understanding or arrangement about its right to nominate the director on the Board of the Company. The CLB considered the entire material on record and came to a considered conclusion that there could be no legitimate expectation on the part of Aasia Properties and that it failed to make out its case of an 'oral understanding' about right to nominate a director on the Board of the Company. This Court has also considered the material on record and it is found that no such oral understanding or arrangement can be discerned from the material on record. The Additional Director - Ashok Hinduja, initially appointed, was not confirmed and / or resigned as per record of the Company. This came....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uities were to be considered. But, the CLB ignored all these factors and proceeded on equitable considerations to hold in paragraph 29 of the impugned order that, in the light of the long association of Aasia Properties as 1/3rd shareholder and it being an investor, denial of 'equitable right to have a nominee on the Board' was an act of oppression. Strangely, the CLB invented its own case of oppression, despite having rejected the claim with which the original petitioner i.e. Aasia Properties had approached the CLB as regards the theory of oppression. Thereupon, the CLB compounded the error by holding in paragraph 30 that, once oppression was established, winding up on just and equitable grounds was automatic and thereupon granted the impugned declaration of the right of Aasia Properties to have its nominee as a non-functional director on the Board of the Company. The said approach adopted by the CLB is found to be unsustainable and hence it is liable to be set aside. 65. This Court is of the opinion that the impugned direction issued by the CLB granting limited relief to Aasia Properties cannot be justified on the ground that being the 1/3rd shareholder, it has the right....