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2015 (5) TMI 556 - COMPANY LAW BOARD MUMBAICharges of oppression and mismanagement under Section 397/398 read with Sections 399, 402, 403 & 406 of the Companies Act, 1956 - Application to pass ad-interim orders - Matter already under consideration of BIFR under the SICA - SICA being a Special Act shall prevail over the provisions of the Companies Act - Held that:- It is clear that in this case the Dalmia Group is making an attempt to abuse the process of law. Prima facie, it is established that the Respondent Nos.2 and 3, firstly, entered into an MOU with Seth Developers Pvt. Ltd. and Suraksha Realty Ltd. without following due course of law. The Respondent Nos.2 and 3 extracted huge amounts from the said Companies under the MOU for sale/development of the Vile Parle Property and then the Company entered into an MOU with M/s Arrow Engineering Pvt. Ltd. and further extracted the monies. Now, the Respondents are trying to enter into a new transaction with M/s. Parmida Developers Ltd. in contravention of the provisions contained in Section 173 (1) of the Act. Furthermore, there is ample prima facie material is available on record which clearly establishes that the amounts received in the name of the Company have been siphoned off by the Dalmia Group for their own personal benefits/group entities. Suffice it to say, at this stage, the actions and deeds of M/s Dalmia Group speak a lots of falsehood and unethical means for achieving their goals, which can hardly be approved. A prima facie case, therefore, is established in favour of the Petitioners. However, it is a settled proposition of law that while granting an ad- interim injunction order, the Court is required to examine, not only the "prima facie case" but also the other factors, like balance of convenience and "question of irreparable loss". In a catena of decisions, it is laid down that the satisfaction of the court that there is a prima facie case by itself is not a sufficient ground to grant an ad-interim injunction. The court further has to satisfy itself that non-interference by the court would result in irreparable injury to the party seeking relief(s) and there is no other remedy available to the party except one to grant ad-interim injunction. The court while granting or refusing to grant ad-interim injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused as compared to that which is likely to be caused to the other side if the injunction is granted. Further, the balance of convenience must also be in favour of the person seeking ad interim injunction. In the present case, the examination of the resolution under challenge passed by the Board of Directors itself suggests that the proposed Agreement/MOU sought to be implemented by the Company is subject to the approval of BIFR and Hon'ble Supreme Court in the pending matters. Therefore, the MOU, if implemented by the Company, will be non-est and void, until both the Forums approve the impugned resolution. For the said reason, the question of irreparable loss to the petition does not arise. Further, the balance of convenience is also not in favour of the Petitioners. No prejudice is going to be caused to the Petitioners as they are adequately protected by the interim orders of the Hon'ble BIFR and Hon'ble Supreme Court as referred to hereinabove. In addition, upon a careful consideration of the aforesaid proposition of law, propounded by the Hon'ble Supreme Court, I am of the considered view, that to upkeep the strict standard of judicial discipline and propriety, it would be unjust and inappropriate to pass ad-interim orders at this stage. Now, I proceed to consider to effect of the law propounded by the Hon'ble Supreme Court in the cases of Tata Motors [2008 (5) TMI 423 - SUPREME COURT OF INDIA] and Raheja Universal [2012 (10) TMI 233 - SUPREME COURT], on the question of maintainability of the petition. The next question therefore arises to answer is as to whether the present petition deserves to be dismissed due to overriding provisions of the SICA, as sought to be contended by the Ld. Sr. Counsel appearing for the Company. Having given my thoughtful consideration, I am of the view that although, the provisions of the SICA prevail over the provisions of the Companies Act as held in the cases referred to above yet, it would not be appropriate to dismiss the petition on this ground alone. To my mind, the proper recourse available to the petitioners in law is to seek approval/permission from the BIFR for further prosecution of the present petition. - Application for ad-interim orders rejected.
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