Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2013 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (10) TMI 336 - HC - Companies LawMaintability of appeal - Whether the petitioner (ITNL) before the CLB was a member of the SPV so that it can maintain an action under sections 111A, 397, 398 read with sections 402 and 403 of the Act - Held that:- ITNL also gave two bank guarantees amounting to app. Rs. 20 crores. The finding of the CLB that Mukund Sapre did not attend the board meetings because there was no background material/documentation supplied with regard to them and also the finding that the petitioner before it had sent a specific request to include the item relating to the allotment of shares in the agenda for the meeting to be held on 20-8-2012 are findings of fact; they are not challenged on the ground of perversity. The learned counsel for the appellants placed reliance on the judgment of the Supreme Court in Chatterjee Petrochem (I) Pvt. Ltd. vs. Haldia Petrochemicals (2011 (9) TMI 842 - SUPREME COURT OF INDIA). Non-allotment of shares in that case was on account of the fact that theperson who claimed to be a member did not attend the meeting. That single fact alone cannot turn the present case. All the facts, including the conduct of the company in treating the person as a member/shareholder, the entries made in the balance-sheet, the reasons for not attending the meeting in which the shares were to be allotted, whether there was any clear and unambiguous abandonment of the claim and similar such facts have to be cumulatively considered; the inference or conclusion would depend upon the facts and circumstances and the conduct of the parties in each case. It would be unsafe to match the colour of one case with that of the other indiscriminately - CLB was right in its view that ITNL was a “member” for the purpose of maintaining an action under sections 111A, 397 and 398, 399 read with sections 402 and 403 of the Companies Act. Oppression and mismanagement - Rectification of the register of members - Held that:- a complicated matter involving serious questions such as fraud or malpractice, manipulation of accounts and finances, etc., requiring detailed investigation and production of elaborate evidence, would be more appropriately tried and decided by a Court of law and not by an arbitrator. It is submitted that there are serious manipulations committed by the appellants such as siphoning off the monies from the SPV to RAHI, back dating board resolutions, fabrication of board resolutions, etc. and in such a situation it would be more appropriate if the CLB decides the matter and not the arbitrator. This argument would arise for consideration only if there was a provision for arbitration of the dispute and it is a question of balancing which course to pursue – whether to pursue the dispute in the Court or the CLB, or to go before the arbitrator. Such a situation does not arise on the facts of the present case and, therefore, this argument need not be addressed by me. In the present case, the petition is pending decision before the CLB in which all these allegations will have to per force be examined. Moreover, proceedings under Section 11 of the Arbitration and Conciliation Act are stated to be pending before this Court and, therefore, it would not be appropriate to say anything more with reference to this argument - Appeal dismissed.
|