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2019 (4) TMI 487 - AT - Companies LawOppression and mismanagement - allotment of 90000 shares and consequently appellant's shareholding has come down from 50% to 5% - scope of passing special resolution - HELD THAT:- Special resolution can be passed only in the AGM or EOGM where all the shareholders will have a say. That is so, even if the shares have to be issued as Employees Stock Option in terms of Section 62(1)(b), a special resolution is envisaged under the law. Therefore, in case shares are not issued under Section 62(1)(a), the law envisaged that special resolution is must whenever the shares are to be issued under Section 62(1)(b) or 62(1)(c). No such material has been produced or pleaded before this Tribunal that the special resolution has been passed. Neither any material has been placed before the Tribunal that the fair price has been determined on the basis of the registered valuer. It is noted that the allotment has been done at the face value of ₹ 10/-. In the absence of fair value it cannot be determined that the ₹ 10/- is the fair value of the equity share. We are of the opinion that compliance of Section 62(1)(c) ensures that the allotment is done to any person at a price which is not prejudicial to the interest of other shareholder or to the interest of the company. Though enough has been pleaded to justify allotment of 90000 shares to 2nd respondent but not a single evidence has been pleaded or produced to show that the compliance of Section 62(1)(c) has been done. NCLT has not dealt with this issue and completely ignored the legal provision applicable on the date of issue of the shares. In view of the position, allotment of 90000 shares to 2nd respondent cannot be held to be validly done. We are of the opinion that the exercise carried out is not only illegal but oppressive to the appellant. As the company is ongoing it would not be in the interest of the company or in the interest of shareholder to be wound up. Petition allowed in part.
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