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2019 (5) TMI 1354 - NATIONAL COMPANY LAW TRIBUNAL CHANDIGARH BENCH, CHANDIGARHOppression and Mismanagement - Restraint from alienating, encumbering, transferring, selling, disposing, parting, or creating any third party interest right, title of any nature whatsoever upon the assets of M/s Guild Builders Pvt. Ltd. (Guild) including pledging of shares of Omaxe Ltd. (Omaxe) held by Guild - HELD THAT:- The instances of oppression and mismanagement are given in para 7 thereof. It is stated that through a chain of unfair and inequitable acts, all grossly oppressive, the petitioner No.1 (representing interest of petitioners) has been systematically ousted by the respondent No.2 from the affairs of Guild and through it of Omaxe to gain control over the company and all its subsidiaries. It is further stated that Guild has failed to safeguard its interest as shareholders of Omaxe and that the primary source of income of Guild is dividend and Guild did not object to nonpayment of dividend to promoter shareholders (including Guild) in 2017. Oppressive and illegal actions while holding 15Annual General Meeting and failure to provide information sought by the shareholders were also stated to be made. Notice of the petition was directed to be issued by order dated 19.09.2018. The petitioners have contended that as a result of continuous and indiscriminate pledging of shares of Omaxe held by Guild coupled with failure of Guild to question the decision of declaration of dividend by Omaxe only to public shareholders has resulted in erosion of net worth and valuation of Guild and consequently loss to the petitioners and that any default in the loans by Omaxe and consequent invocation of pledge would result in irreparable loss to the petitioners, especially when the petitioners have no control in the management of Guild or Omaxe. As regards the pledging of shares of Omaxe, Guild has stated that during the period when the petitioner No.1 was Joint Managing Director, he never objected to the practice of pledging. As regards non declaration of dividend for the Financial Years 2017 and 2018, it is submitted that Omaxe has duly explained the rationale behind the non-declaration of dividend in its AGMs being due to the impact of GST, RERA on real estate sector and the consequent market crash and that Guild did not vote in the said resolution. We hold that a prima facie case for interim relief is made out in view of the petitioner’s contention that the pledging of shares of Omaxe Ltd. held by Guild is resulting in erosion of net worth and valuation of Guild and consequent loss to the petitioners. Taking into consideration that the shareholding of the petitioners in Guild is 24.64%, we direct that Guild will not make any type of encumbrance whether by way of pledge/lien/Non Disposal Undertaking or otherwise of 1,48,59,726 shares of Omaxe held by Guild except on account of top-up required and/or margin calls. We further direct that in case further pledge of the shares is required in order to top-up and/or margin calls, Guild would file the statement to that effect before this Tribunal within one week of doing so with copy advance to the counsel opposite - The directions given by order dated 19.09.2018 that Guild shall not issue fresh equity shares are continued. The remaining prayers for interim relief are declined. Application disposed off.
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