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TMI Blog2015 (11) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... filed this CA 31(MB) 2015 to implead Magnum Landcon LLP and its partners as respondents to this Company Petition. Since this transaction was not in the notice of the petitioners by the time this Company Petition was filed, the Petitioners could not bring this fact to the notice of this Bench as on the date of filing Company Petition, therefore, they filed this application for impleadment of Magnum Landcon LLP as party to the proceedings and for an interim order restraining Magnum Landcon LLP and its partners from creating any third party rights any further in any manner whatsoever acting upon/in furtherance of the Purported Development Agreement and/or the purported Power of Attorney over Samarth property situated mentioned supra. 2. Senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner filed the agreement dated 13.10.2014 in between Respondent No-l company and Magnum Landcon LLP to show that Respondent No-1 company agreed to grant development rights Swami Samarth Property for a consideration of Rs. 9,51,00,000/- to a land admeasuring 4174 sq yards situated at Mughabads Street in Mumbai. In this Agreement, it is said R1 company not only granted development rights to Magnum, it has also have given right to it to sell, convey, assign and transfer right, title and interest of the property and also a right to mortgage for no consideration, Besides this, it has given a Power of Attorney to Magnum to approach State Government and Municipal Corporation or any other localities to act on behalf of R1 Company, since R2 has mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to maintain status quo over the Swami Samarth Property by the Magnum Landcon LLP pending disposal of the case in this application moved for impleadment of Magnum as party to the CP. 6. The counsel appeared on the Respondents behalf filed Vakalatnama stating that since development rights over the property mentioned supra was already transferred to Magnum Landcon LLP, the petitioners cannot seek any relief under Sections 397 & 398 of the Act 1956 and that too against a party who is neither a shareholder nor a director in R1 Company, then the only recourse to the petitioners is to file a suit for specific performance or for declaration to invalid transaction before Civil Court, because jurisdiction does not lie with this Bench u/s 397 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development rights to a third party at an undervaluation is prejudicial to the petitioners and the company as well. 9. The point for discussion here is whether this Bench could pass a restraint order against a person who is not a shareholder of R1 company. In 397 & 398 proceeding, first, it has to be seen whether the act of the persons in management of a company is prejudicial and oppressive against the member of the company, if the Tribunal is prima facie of the view that the act complained of is oppressive, then this Bench is competent to remedy the wrong which has caused oppression to the member or the company. In curing this wrong, if the Tribunal noticed third parties have nexus to any fraudulent act or oppressive act committed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Bench can decide this issue and even pass orders against the persons other than the company and other than the members of the company, the only caution is whether creation of third party rights is within the ambit of oppression or not, not more than that. Of course if third party rights created long before, then situation would become different, but when party comes before court of law within reasonable time after been informed of it, then courts have to go into it, otherwise it will become aberration of justice. To protect the rights of the parties, not to allow it further alienated, the Tribunals can pass restraint orders or status quo over the property pending disposal of the case. Though the petitioners are under obligation to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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