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TMI Blog2010 (8) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... referred as "the Act". The cause of action, the reliefs and the respondents in these two cases being the same, I pass a common order, instead of separate orders. 4. This Bench already passed an order on May 17, 2010, in these applications by placing the operative portion of the common order in the attendance sheets of this Bench in both the applications with a view to bring the operative portion of the order to the notice of the parties before correction of the order with reasons. Since the applicant herein perhaps remaining in the belief that the order in the attendance sheet alone is the order passed in these applications, might have moved a section 10F appeal before the hon'ble High Court at Calcutta assailing it as non-reasoned order. In pursuance of the said appeal, the hon'ble High Court of Calcutta passed an order on June 24, 2010 clarifying that at the foot of the impugned order as vide separate order is not enough to get the understanding that the impugned order is the operative part of the order in detail. In view of the same, the impugned order was set aside as non-reasoned order. The honourable High Court further observed at the bottom of the first paragraph in page No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asing out Rampur Texpro Unit godown, failing which huge loss will be incurred to respondent No. 5 company and also respondent No. 1 company, as investment is required for maintenance of Rampur Texpro Unit. 8. Whereas to this, the petitioners filed a reply stating that the very case of the petitioners is that there is lack of probity in incorporating respondents Nos. 4 and 5 companies and transferring primary assets of respondent No.1 company to these respondents Nos. 4 and 5 companies, in case any third party rights are created over the said units, the interest of the petitioners will be affected for they, together, happen to be the holders of 36 per cent. of the shareholding of respondent No. 1 company. 9. Respondent No. 5 argued that the company remained absent by the time the Principal Bench of the Company Law Board passed an order dated January 12, 2010 restraining respondent No. 5 from creating any third party rights over Rampur Texpro Unit transferred to respondent No. 5. Immediately thereafter, respondent No. 5 received two separate offers from two companies' viz., M/s. Pidilite Industries through Vinnik Associates for 40,000 square feet space of the warehouse of Rampur Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpro Unit, thereby sought for modification. 12. Learned counsel for respondent No. 5, in the second spell, additionally argued on two counts stating that (i) the petitioners indicated in their reply affidavit stating that respondent No. 1 could have generated the income from the said godown as is now purportedly the intention of respondent No. 5, thereby it could not be construed that the petitioners are against leasing out the property for generating income over it if it is leased out by respondent No. 1 company ; (ii) this Bench may pass an order permitting respondent No. 5 company to lease out the property and to deposit the proceeds in the account of the company ordering not to withdraw the same until the disposal of the petition so that respondent No. 5 company could earn something out of the property remained idle for years together. 13. Whereas the petitioner's counsel argued that the order passed by the Principal Bench on hearing on either side, thereby it cannot be modified just because respondent No. 5 absent at the time of hearing because it is not an ex parte order, moreover once notice served upon the party, duty is cast upon respondent No. 5 to present before the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two companies. Respondent No. 5 further stated that it has been incurring monthly expenses of two lakhs of rupees for the upkeep of the said idle space towards watch and ward charges, electricity, municipality charges etc. The letter of Vinnik Associates dated January 5, 2010 (annexure A) did not disclose on what date it was received, the letter of M/s. Drive India Enterprise Solutions Ltd. dated January 9, 2010 (annexure B) also did not disclose on what date it was received. The property, which could not get any offers all these years, all of a sudden, got these offers, for giving earning to the company just after these petitioners initiated proceedings against the respondents. Since the petitioners disputed these offers as set up offers to circumvent the order passed by the Principal Bench by creating third party rights, this Bench cannot rely upon these disputed facts unless they are proved. (iii) Learned counsel for respondent No. 5 argued that Rampur Texpro Unit transferred to respondent No. 5 company being a closed unit, the provisions of section 293(1)(a) of the Act are not applicable in the present case as per citation in between Pramod Kumar Mittal (supra). In this citat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eadings of the petitioners as mentioned above indicate that respondent No. 5 could lease out the property to third party. As an answer to this point, I may put it like this, if "X" is ready to accept "A" to lease property to "B", it cannot be construed that "X" is also ready to accept "B" to lease property to "C", hence the pleading of the petitioners cannot be said as indicating petitioners' willingness to lease out property to third party by respondent No. 5. The very case of the petitioners is respondent No. 3 used the resources of the company for his personal benefit by creating respondent No. 5 company with his brother as a director and permitting him in turn to lease out the property to third party. That being the case, it cannot be said that the pleadings made by the petitioners indicate the petitioners are not against respondent No. 5 leasing out property to third parties. Therefore I agree with the ratio in Firestone Tyre & Rubber Co. (supra) to state that possibility of interestedness of a director, directly or indirectly, is enough to invoke section 300(1) of the Companies Act for the section happens to be prohibitory in nature but not disqualifying in nature. (v) Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 5 did not deny the allegation of relationship between Jayanta Pujara and respondent No. 3. Since one Jayanta Pujara, brother of respondent No. 3, is noticed as one of the directors of respondent No. 5 company, the right accrued to respondent No. 5 through business trade agreement itself is clouded with oppression and mismanagement ; thereby respondent No. 5 creating rights to third parties cannot be considered as just and reasonable at this stage, indeed it will become irreparable loss and injury to the petitioners and also third parties to whom respondent No. 5 intending to lease out the asset, in case the Bench held the case of the petitioners as correct in the final order. As the property remained idle for years together, remaining few more months waiting until the arrival of the main order may not cause prejudice to the company. Since probabilities, such as interestedness of respondent No. 3 in the capacity of director, discloses prima facie case on the face of record, the restraint order passed cannot be vacated in the shade of business like approach causing prejudice to the members of the company and multiplication of litigation. When I go through the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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