TMI Blog2014 (6) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... sed settlement does not get through by the shareholders of the Company in the EOGM, that may be held by the Company for the purpose, the Petitioners may suffer irreparable loss as compared to the Ajay Singh Group. Therefore, in my considered view, both the factors are found in favour of the Petitioners. - Decided in favour of applicants. - C.A. Nos. 340 of 2013 & 1 of 2014 & C. P. Nos. 90 & 91 of 2013 - - - Dated:- 24-2-2014 - Ashok Kumar Tripathi, J. For the Appearing Parties : Janak Dwarkadas, Prateek Seksaria, Ayush Agarwala, Ms. Ayushi Agarwal, Mardhur Rai, Ms. Jyoti Ghorpade, Rahul Chitnis, Ms. Manorama Mohanty, Ms. Kavita Srivastav and S.K. Srivastav. ORDER:- 1. By this order, I propose to deal with the interim prayer sought for in the Company Application being C.A No. 340 of 2013 filed in the C.P No. 90 of 2013 and C.A No. 1 of 2014 filed in the C.P No.91 of 2013 respectively. 2. In both the CAs the prayers are as follows : C.A No.340 of 2013 In C.P No.90 Of 2013 a. to pass an order thereby allotment if any of the 50,000,000 Class C equity shares of Respondent No. 1 Company bearing a nominal value of Rs.10/- purported to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea of 204 acres with all structures thereon and plant and machinery located at Surajpur Industries Area, Greater Noida, Ghaziabad, (now Gautambudh Nagar), Uttar Pradesh (hereinafter referred to as subject property ). 5. It appears that M/s Cross Links submitted an offer before the Debts Recovery Tribunal, Mumbai for the purchase of the subject property, M/s Cross Links was permitted to purchase the subject property, being the highest bidder and M/s Cross Links nominated the Company as its nominee in whose favour the transaction of sale was to be completed. It is matter of record that the Consent Terms were entered into between the ARCIL and the Company, whereby the Company agreed to comply with the terms and conditions of sale as contained therein in a time bound manner. In pursuance thereto, DRT Receiver, Mumbai was directed to handover forthwith the subject property to the Company on 16/10/2007. Accordingly, the possession of the subject property was handed over and the possession certificate dated 26/10/2007 was accordingly issued in favour of the Company. 6. However, on account of the violation of the terms and conditions of the Consent Terms, the ARCIL sought the cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprehend that in case, an EOGM is called for holding discussions and approval of proposal for amicable settlement, if any, arrived at between the Company and the ARCIL, the Ajay Singh Group by virtue of allotment of 50,00,000 equity shares of the Company in Favour of M/s Cross Links, a company promoted by them only and is nothing but their alter ego, by misusing their pre-dominant position may take such decisions which may frustrate the entire settlement. The Ld. Counsel further submits that since the purported allotment of impugned shares in favour of M/s Cross Links is under challenge in both the CPs inter alia on the ground that the allotment of the impugned shares has been made contrary to the provisions of the Companies Act, and therefore such allotment is liable to be set aside being void, non-est and illegal and therefore, it is submitted that till such issue as to the validity of the alleged and purported allotment of shares is determined by this Hon'ble Board, an order may be passed thereby staying the allotment of the 50,00,000 Class C equity shares of Respondent No. 1 Company bearing a nominal value of Rs.10/- purported to be allotted to M/s Cross links pursuant to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. Because, the shares of value of Rs.10/- per share were allotted to M/s Cross Links at Rs. 1/- per share, which was substantially lower than the rate at which the shares were allotted to the Respondent Nos.7 and 8 who are investors in Respondent No. 1. d. Because, the said allotment of shares is in violation of clause 3(c) (v) and clause 6 of Schedule 5 of the Share Subscription and Shareholders Agreement dated 25/09/2007. e. Because, the said allotment of share is in violation of clauses 8.5, 8.6 8.6.7 and 8.6.10 of the Share Subscription and Shareholders Agreement dated 29/12/2013. 16. In light of the above, I proceed to examine the merits of the case on prima facie basis. 17. It is not in dispute that the family members of Ajay Singh Group are the directors of M/s Cross Links and collectively hold 99.35 % shareholding in M/s Cross Links. It is matter of record that the Ajay Singh Group through e-mail served a notice for the impugned Board Meeting dated 21/05/2013. However, admittedly, the agenda of the said Board Meeting, contained in the notice, did not mention the allotment of the shares to M/s Cross Links at all. 18. It is further the case of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oters;' 21. Similarly, there is a clause 8.5 and 8.6 with respect to Share Purchase, the Share Subscription and Share Holders Agreement dated 29/12/2008. Clause 8.5 provides as under: Valuation Protection: No equity or any instrument convertible into equity shall be offered to a party in the company and/or its Land- bearing Subsidiary as the case may be at a value lower than the one offered to the investors in the Company and/or its Land Bearing Subsidiary as on Execution Date, as the case may be save and except the Employee Stock Option Plan that the Company and/or its Land Bearing Subsidiary, as the case may be may grant which shall not exceed 5% of the paid up share capital of the Company and/or its Land-bearing Subsidiary, as the case may be. Clause 8.6 provides as under: - Super Majority items: Notwithstanding anything contained in this Agreement the Company and for its Land-bearing Subsidiary as the case may be (whether acting through its shareholders at a general meeting or through its Board or any committees thereof) shall not discuss, deliberate, approve or take any actions with respect to any of the following Super Majority Items wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
