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2017 (4) TMI 1579 - Tri - Insolvency and BankruptcyOppression and mismanagement - implementation with the terms and conditions of MOU or not - fixation of fair market value of the shares of the first respondent company - Whether affairs of the first respondent company have been conducted in a manner prejudicial to public interest or prejudicial to the petitioner group members or in a manner prejudicial to the interest of the company? - Whether any material change which is not in the interest of the company or creditors or shareholders or debenture holders have taken place in the management or in the control of the company which is likely that affairs of the company could be conducted in a manner prejudicial to the interest of the company or its members or classified members? - Whether it is just equitable to wind up the company or not with a view to end the controversies agitated and if so instead of passing winding up order this Tribunal under section 402 of the Companies Act, 1956 pass any other equitable order? HELD THAT:- Even as per the MOU, petitioner has agreed to sell his shares to respondents 2 and 6. Value fixed in the MOU is face value of shares. It is not the case of the parties to the MOU that it has been completely acted upon. On the ground that respondent 6 and Mrs. Monika Ruchandani transfer or agree to transfer their shares it cannot be said the petitioner has to follow the same course of action - Finding of the Tribunal is that there are acts of oppression and mismanagement by the respondents 2 to 5 on the petitioner's group who are minority shareholders of the first respondent company and on the petitioner who is director of the company. Section 402 gives power to this Tribunal to pass such orders or directions. In the case on hand, there is finding of oppression and mismanagement. Petitioner himself came forward to sell out his shares for a value determined by the independent valuer. Petitioner's group and respondents are members of the same family and it is their family owned Company. There exists dispute between petitioner's group and respondents' group since death of Bhagwandas Ruchandani and at one point of time it was sought to be resolved by entering into MOU which was not implemented. Therefore, function of the Company Law Tribunal is first to see interest of the company vis-à-vis shareholders are saved. The Company Law Tribunal must find out whether any remedy is available other than winding up. The Tribunal may not shut out its powers only on sheer technicality. The petitioner and respondents belong to same family, instead of straight away appointing an independent valuer to assess the value of shares, it is just and expedient to direct the petitioner and respondents 2 to 5 to come to an understanding regarding fair value of the shares of the first respondent company as on the date of filing of petition at which the same can be sold. Petitioner and his group persons, if they are willing, they can sell their shares to respondents as per the value fixed by mutual agreement - In case no mutual agreement on the fair value of the shares of the first respondent company is arrived and the sale of shares did not complete within a period of 90 days from the date of this order, petitioner, if he is willing to sell his shares, he is at liberty to file an application before this Tribunal to appoint an independent valuer to fix fair value of shares of the first respondent company as on the date of filing the petition and, in such application this Tribunal shall pass necessary orders regarding appointment of independent valuer and regarding the manner and mode of sale of shares of petitioner group to respondents 2 to 5 and transfer of such shares. Petition disposed off.
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