TMI Blog2015 (4) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... the affairs of the Company. It is a well established law that to maintain a petition under Section 397/398 of the Act, it must be established that the oppression complained of affected a person in his capacity or character as a member of the company as harsh and unfair treatment in any other capacity, such as a director or a creditor, is outside the purview of the said section; (b) there must be continuous acts constituting oppression up to the date of the petition; (c) the events have to be considered not in isolation, but as part of a continuous story; (d) it must be shown as a preliminary to the application of Section 397 that there are just and equitable grounds for winding up the company; (e) the conduct complained of can be said to be oppression only if it can be said that it is burdensome, harsh and wrongful and the oppression involves at least elements of lack of probity and fair dealing to a member in matters of proprietary right as a shareholder. Therefore, having regard to the facts of the case in hand, the necessary ingredients of the provision contained in Section 397 which provides that: "to wind up the company would unfairly prejudice such member or members, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Dalal, being one Surendra Dalal and the Respondent No. 2 were joined as partners in the said Kantilal Co. during 1969-71. The Petitioner is the paternal uncle of the Respondent No. 2 and grand uncle of the Respondent Nos. 3 and 4. 2.3. In 1985, the Respondent No. 1 Company was incorporated with the Petitioner and Kantilal Dalal as equal shareholders and a rice processing mill was installed and operated from Plot No. 1, Phase III, Badli Industries Estate, Samaypur Badli, Delhi-42. 2.4. The Petitioner is one of the promoters and founders of the Respondent No. 1 Company and one of the two subscribers to the Memorandum of Association of the Company. The Petitioner was also one of the first directors of the Company. The Petitioner holds 15000 fully paid up equity shares in the Company comprising 50% of the original issued paid up equity share capital of the Company. However, due to illegal increase of the authorised equity share capital and its allotment to the Respondent Nos. 2 to 4, which augmentation and allotment is impugned herein, the Petitioner's present shareholding is reduced to 5.08% of the issued equity share capital of the Company. 2.5. The said Kantilal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever subsequently ratified such appointment. 2.10. In the year 2007, on several occasions the Respondent No. 2 humiliated the Petitioner when he attended the office of the Company, which were also the operational office of the other joint entities. The Petitioner was being kept in dark about the goings on of the businesses. Around April 2007, the Respondent No. 2 came to the Petitioner and suggested that he should retire from the said Kantilal Co. and all the affiliated companies. The Petitioner, having realised by now that continuing business relations with the Respondent No. 2 was becoming increasingly unviable and stressful, asked the Respondent No. 2 to give full, correct and genuine details of all his dues in the said Kantilal Co. and all the affiliated companies, including the Company, and on payment thereof to provide him with a set of dissolution deeds and other necessary paper work. But that never happened as this was obviously not acceptable to the Respondent No. 2, whose Idea was to oust the Petitioner simplicitor without paying him his dues/value for his shareholding in any of the entities including the Company. The dissolution, thus, was not affected and the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100/- each. The Petitioner was never informed of any such alleged allotment of shares to the Respondent No. 2 nor was the Petitioner given any opportunity to purchase the additional shares when the Company sought to increase its issued capital by issuing additional shares. 2.14. Further, on 15/6/2010, a notice was issued by the Company to convene an EOGM, Consequently, an EOGM was held and the authorized share capital was further illegally increased to ₹ 3 crores vide a resolution passed in this EOGM. No notice of this EOGM was provided to the Petitioner. 2.15. On 12/8/2010, the Company issued additional 1,50,000 equity shares of ₹ 100/- each. These shares were illegally allotted to the Respondent Nos. 2 to 4. The Respondent No. 2 was allotted 1,47,000 equity shares of ₹ 100/- each while both the Respondent Nos. 3 and 4 were allotted 1500 equity shares of ₹ 100/- each respectively, thereby illegally increasing the shareholding of the Respondent No. 2 from 1,29,900 to 2,76,900 equity shares i.e. from 50% to 93.37%. Similarly, the shareholding of the Respondent No. 3 was increased from 100 equity shares to 1600 equity shares. 2.16. On 13/8/2010, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. 2.20. After the death of the said Kantilal on 8/3/2013. the Respondent No. 2 wrote to the Petitioner, ostensibly in his capacity of an executor of the Will of the said Kantilal Dalal and called upon the Petitioner to satisfy the claim of the Respondent No. 2 under the Award. When Petitioner pointed out the illegality and unenforceability of the Award and that the same infringes upon his rights and interests, the Respondent No. 2 claimed exclusive ownership of these joint entities and properties/assets, including the said Badli Plot. 2.21. Having come to know the said illegalities committed by the Respondent No. 2, the Petitioner filed appropriate proceedings, being Suit No. 470 of 2013 in the Hon'ble Bombay High Court for setting aside the said Award and for other incidental reliefs. 2.22. On 10/7/2013, a notice was issued convening an EOGM on 3/8/2013. On 11/7/2013, another notice was issued convening an EOGM on 2/8/2013. On 2/8/2013, an EOGM was held where a resolution to transfer 12 shares of the Respondent No. 2 to the Respondent Nos. 5 to 12 was illegally passed. The Petitioner was provided with no notice of such EOGM and had no knowledge of this transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice was received by the Respondents on the same day. Despite expiry of the notice period, the Respondents did not comply with any of the requisition under the said Notice. 2.27. On 25/9/2013, the Petitioner received a letter from the advocates of the Respondents seeking time to reply to the said Notice. However, feeling that the Respondents are merely buying time to fudge and fabricate the records of the Company to cover their tracks and defeat the rights of the Petitioner, he approached this Board for redressal of his grievances, by way of filing the instant petition, complaining therein the following acts of oppression and mismanagement purportedly committed by the Respondents in the conduct of affairs of the company :- a. Illegal increase in the authorized and paid up share capital of the company in the EOGM purportedly held on 15/2/2010 with malafide motives to reduce the shareholding of the Petitioner from 50% to 5.06%; b. Illegal allotment of further 1,50,000 shares on 30/3/2010, in favour of the Respondent No. 2 and further illegal transfer of 100 shares by the Respondent No. 2 in favour of the Respondent No. 3. c. Further illegal increase in the authorized shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst complaint as to the illegal increase in the authorized and paid up capital of the company in the EOGM purportedly held on 15/2/2010, it was argued on behalf of the Petitioner that the authorized share capital of the company was increased from ₹ 25.00 Lakhs to ₹ 1.50 Crores. Similarly, on 15/6/2010, once again the authorised share capital was also increased illegally from ₹ 1.50 Crores to ₹ 3.00 crores. Mr. Jagtiani, Ld. Sr. Counsel appearing for the Petitioner, submitted that the said increase in the authorized share capital is illegal for the following reasons: - i. The Petitioner was not served with any notices of the meetings of the company in which the alleged decisions to increase the authorized share capital and the allotment of further shares to the Respondent Nos. 2 to 4 were taken. According Mr. Jagtiani, the Respondent No. 2 has addressed letters to the Petitioner at Pondicherry address with respect to another Company namely M/s. Star Grain Pvt. Ltd. and disputes in relation to Khushnuma Apartments, which fact goes to show that the Respondent No. 2 was knowing that the Petitioner was residing at Pondicherry. ii. The Respondents claim tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shares to the Respondent No. 2 and his family. It is thus clear that the Shares have been issued to the Respondent No. 2 and his family only with an ulterior motive of reducing the shareholding percentage of the Petitioner and his derivative interest in the Badli Plot. viii. The transfer of 100 shares by Respondent No. 2 to Respondent No. 3 is in violation of rights of preemption as the shares so transferred were not offered to the Petitioner. 7. Based on the above, it was argued that the illegal increase in the authorized share capital and paid up capital by the Respondents in the EOGMs purportedly held on 15/2/2010 and 15/6/2010 is not only void, illegal and ineffective for the reasons stated herein above, but also the Resolutions passed in the said EOGMs are also illegal, being oppressive as the same were passed with a view to sideline the Petitioner from the affairs of the company by reducing his shareholding. Mr. Jagtiani, further submitted that pursuant to the illegal Increase in the authorized share capital and paid up capital, the Respondent No. 2 on 30/3/2010, illegally allotted 1,15,000 equity shares of ₹ 10/- each to himself and further he transferred 100 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent No. 2 has not provided any proof of service of such notices. c. The Respondents have not uploaded any records on the ROC website to show removal of the Petitioner as a Director. d. The Respondents have also not annexed any minutes of the meeting in which the purported decision to remove the Petitioner as a Director was allegedly taken. e. The Petitioner vide notice dated 21/9/2013 has sought inspection of all the records of the Company, which included the minutes of the meetings mentioned above. But, the Respondents did not grant inspection of the documents. f. The Respondents claim that the Petitioner was removed as a Director as he did not have a DIN and did not attend the meetings. It is submitted that non procurement of DIN is not a disqualification under Section 274 of the Companies Act and, hence, the Petitioner cannot be removed as a Director on that count. Further, as stated above, no notices of the Board Meetings were ever served upon the Petitioner. 9. Elaborating the next instance of acts of oppression, it was contended on behalf of the Petitioner that the Respondents illegally appointed the Respondent Nos. 3 and 4 as Directors with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of 12 shares on that date, whereas the resolution to transfer shares was passed only on 2/8/2013; that the Respondents claim that a Board Meeting was held on 11/7/2013 wherein the transfers were approved. This defence is an afterthought, as the Petitioner was not served with the notice of the meetings. The purported Minutes of the said Meeting are not uploaded on the website. The Respondents have not annexed the Minutes of the said meeting nor provided inspection of the same; that the Respondent No. 2 has transferred only 13 shares to 8 persons i.e. Respondent Nos. 5 to 12 in August, 2013. According to the Ld. Sr. Counsel, the number of shares and persons to whom the shares are transferred only suggest that the purported transfer was made only to debar the Petitioner from maintaining the petition under Sections 397 and 398 of the Companies Act by increasing the number of shareholders. According to the Petitioner, the transfer has been made after the Petitioner filed the legal proceedings. 12. The next allegation made by the Petitioner is in regard to the mismanagement of the company by way of siphoning and misappropriating of its funds. In this connection, it was argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Evidence Act, 1872, allows the Petitioner to question the validity of the Award dated 12/7/2010 which the Respondents seek to rely upon before this Board on the grounds of lack of jurisdiction, fraud, amongst others. The Ld. Sr. Counsel submits that the arbitration proceedings were only between the Respondent No. 2 and his father Mr. Kantilal Dalai relating to disputes with respect to the offshore bank balance. The Arbitrator has illegally awarded the shareholding of the Petitioner and the Badli Plot to the Respondent No. 2 and is, therefore, void. The Award has also been obtained by fraud by concealing facts as under the Award the Petitioner has been shown as a joint shareholder with the Respondent No. 2, which is contrary to the company records. As per the Company records, the Petitioner holds 50% share in his individual capacity. It is the case of the Petitioner that this Board is not bound by the Arbitral Award and must ignore the same for the aforesaid reasons. 16. It is further submitted on behalf of the Petitioner that the Respondent No. 2 has not adduced any documentary evidence, including bank statements, to show that he contributed ₹ 36,41,850/- out of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the state of affairs of the Respondent No. 1 and the same were refused by the Respondent No. 2. According to the Ld. Counsel, it is also an admitted position that in the year 2007, the Petitioner, under the professional advice from his Chartered Account, demanded inspection of the accounts of the Respondent No. 1 Company. It is the further case of the Petitioner that in June 2007, the Petitioner was prevented from entering into the office and joint family residence by the Respondent No. 2. 20. Referring to the above pleadings as set out in the Petition, the contention of the Respondents' Counsel is that it inconceivable that the purported Director, Promoter and Founder of the Company, who allegedly actively participated in the management of the Company, would not raise any objection for more than 7 years since 2007 after the Director being allegedly sidelined by the Respondent No. 2. It is submitted that the least a prudent person/shareholder/director would do is to raise a protest, file a FIR against such forceful removal or file proceedings to challenge the same. Further, it is submitted that the grievances with regard to the alleged illegal entries in the authorized Share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents that despite the Petitioner contending that he has not received any notices since 2007, at no point of time has he called upon the Respondent No. 1 Company to hold a Board Meeting or to issue notices calling for a Board Meeting which he ought to have done especially in light of his claiming to be a Director, Promoter and Founder of the Respondent No. 1 Company for a long duration of time. 25. According to the Ld. Sr. Counsel for the Respondents, the falsity in the Petitioner's case is evident from the fact that though he claims that no notices of board meetings were given since 2007, in the Notice dated 21/9/2013, the Petitioner has sought production of the minutes of Board Meetings from 2004. 26. It was further contended on behalf of the Respondents that the Petitioner himself has failed to apply for and obtain a Director Identification Number ( DIN ) under Section 266-A of the Companies Act, 1956 and has not shown any interest in doing so till date. 27. In addition to above, it was further submitted that the Petitioner has admittedly failed to attend Board Meetings at least since 2007 and was, therefore, liable to be removed from the directorship of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the fact from this Bench that vide Order dated 21/8/2013 passed by the Hon'ble High Court in Notice of Motion No. 1063 of 2013 in Suit No. 470 of 2013, the ad-interim reliefs were refused to the Petitioner, but also suppressed the Order dated 18/12/2014 in Chamber Summons No. 1297 of 2013 in Execution Application No. 1036 of 2013 by which the Petitioners objection to the execution of the aforesaid Award was rejected and the Chamber Summons of the Petitioner was dismissed. Therefore, it is submitted that by way of the present Petition, the Petitioner cannot and ought not be permitted to indirectly seek reliefs in respect of the Badli property, which reliefs has been refused in two separate proceedings filed before the Hon'ble High Court. 33. Next point argued by the Ld. Sr. Counsel for the Respondents is that by way of the present Petition, what the Petitioner wants to establish that he is a substantial shareholder of the Respondent No. 1 Company and is thereby entitled to a share in Badli property. It is, therefore, clear that the entire purpose and object of the Petitioner is to seek reliefs in respect of the Badli property. The Ld. Sr. Counsel submits that the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case and, therefore, cannot rely on the weakness of the Respondents case in any manner. 37. Lastly, it was submitted that the present Petition has clearly been filed with a malafide intent and with a view to claim a share in the Badli Property. It is, therefore, submitted that the present Petition deserves to be dismissed with costs. 38. In rejoinder arguments, answering to the Respondent No. 2's contentions that since the Petitioner has challenged the Award in the Hon'ble High Court as well as in the execution proceedings and therefore, he is precluded from filing the present petition on the same subject matter, it was argued on behalf of the Petitioner that the scope of Hon'ble High Court in the Civil Suit No. 470 of 2013 and the present petition are poles apart. According to the Ld. Sr. Counsel for the Petitioner, the suit challenges the Award, as a whole, whereas the present petition is challenging the usurpation of the Petitioners' indirect right to half the value of Badli Plot, as set out above. According to Mr. Jagtiani, the Petitioner in the suit has primarily sought relief for injunction to restrain the Respondent No. 2 from acting in furtherance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to file the present petition in terms of the provisions contained in Section 399 of the Act in this regard, it has to be noted that the Petitioner claims to be 50% shareholder in the total paid up capital of the company. According to him, by illegally increasing the authorized share capital and illegal allotment of further shares, the Respondents have diluted his shareholding from 30% to 5.08%. 41. It is a trite that in a petition where the allotment of further shares is challenged and the same is the subject matter of the petition, the original shareholding is the criteria to determine the eligibility of the Petitioner to file a petition as provided in Section 399 of the Act. Admittedly, prior to the alleged allotment of the shares, the Petitioner was 50% shareholder in the total paid up capital of the company. In my view, the Petitioner is, therefore, eligible to file the present petition in terms of Section 399 of the Act. In support of my finding I would like to rely on the following decisions:- i] Vijayan Rajesh v. M.S.P. Plantations Private Limited [2009] 151 Comp Cas 413 (Kar) wherein the Division Bench of the Karnataka High Court has held as follows: 32. The rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the petition is maintainable in accordance with law and also as held by the Company Law Board in Dinesh Sharma v. Vardaan Agrotech P. Ltd. [2007] 135 Comp Cas 133. Accordingly, the maintainability issue is answered in favour of the Petitioner. iii] Further, in the case of T.N.K. Govindaraju Chetty and Co. Vs. Kadri Mills (CBE) Limited [1999] 96 Comp Cas 871 (CLB), it has been held hereunder: 14. ....Allotment of shares to the exclusion of some shareholders has been held, by many High Courts and the Company Law Board itself, as an issue which could be agitated as an act of oppression, in a petition under Section 397/398. Therefore, we are of the view that when the holding of a petitioner is reduced below 10 per cent, due to further allotment of shares and such allotment itself is impugned in a petition under Section 397/398, the petition should be held to be maintainable on the strength of his holding before the further allotment of shares....... [Emphasis Supplied] iv] The above case of T.N.C. Govindaraju Chetty and Co. has been relied upon in the case of Prabhjit Singh Johar Vs. Johar Hotels P. Ltd [2010] 157 Camp Cas 98 (CLB) wherein it was held that: 56. . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay and laches as well as principles of estoppel and acquiescence as the Petitioner did not take any action since 2007. 44. Having critically examined the record, it is an established proposition of law that the provisions of Limitation Act, 1963 do not apply to the proceedings under Section 397/398 of the Companies Act. Therefore, the contention of the Respondents that the petition is barred by limitation does not survive. In so far as the question of delay and laches is concerned, it cannot be disputed that the same do not apply to the proceedings under Section 397/398 of the Act. But, in the present case, in my opinion, having regard to the facts and circumstances of the case, the said preliminary objection is not tenable. The facts of the present case have to be viewed in the background that the Company is a closely held family company and was one of the jointly owned companies of the Petitioner and the Respondent No. 2. The Respondent No. 2 is the nephew i.e., the real brother's son, of the Petitioner. The Petitioner and the Respondent No. 2 were the only members and directors acting on mutual trust. It is further matter of record that the Petitioner had shifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to their notice the various acts of mismanagement and oppression and also asked for inspection of the company's records, which was never granted despite his persistent demands even in the course of arguments before this Bench. Apart from the above, it is a settled proposition of law that if an act of oppression having continuous effect until the date of the petition, such petition is not hit by the principles of delay and laches. 45. It is pertinent to mention here that in the cases of Sangramsinh P. Gaekwad Ors. v. Shantadevi P. Gaekwad (dead) through L.Rs. Ors. (2005) 11 SCC 314 it has been held that an act of oppression is a continuous wrong until it is brought to end by passing an appropriate order. In the case of Pearson education Inc. V/s. Perntice Hall India (P) Ltd. Ors. (2006) DLT 450, it was held that if the act complained off amounting to oppression has a continuing effect, in that case, the question of limitation does not arise. In the case of Ramashankar Prosad V/s. Sindri Iron Foundry (P.) Ltd., [1966] AIR Cal 512, it was held that a petition under Section 397 would be maintainable if the effect of the alleged act of oppression persists indefinitely. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such vital fact was not to the knowledge of the Respondents or that the document could not have been in the knowledge of the Respondents, or that the document was not a public document, and (iii) lastly, that by suppression of such fact, orders were obtained which would not have been granted if the correct and true facts were pleaded. In this regard the following decision and the relevant observations therein are relevant to be cited :- (i) Enercon Gmbh vs. Enercon (India) Ltd. Ors. [2008] 143 Comp Cas 687 (CLB), wherein it has been held as follows :- In the present case, no relief has been granted as yet and whether the documents which are alleged to have been not been disclosed are material documents is a matter yet to be determined. Once the other side has produced all the documents then the question of suppression of material documents to apply the decision of the Supreme Court, does not arise.... ii) Dhanraj Mills Pvt. Ltd. and Anr. v. Global Trust Bank Ltd. Ors. (2003) 105 BOMLR 609, wherein it has been held as follows : But it is not the law that if particular document is not file court should immediately draw an inference that there is intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation of the Company are stated to be violated. Moreover undisputedly, the arbitration case is prior to the instant case. The Petitioner has already appeared and raised his objection in the competent forum. Therefore, it is not desirable on my part to deal with the issue as to the effect of arbitration case in these proceedings, I, therefore, refrain myself from making any comment on the alleged 50% claim of the Petitioner over the Company's asset and/or grant any reliefs with respect to the said asset of the Company either by way of division of asset or directed sale and dividing the consideration in equal proportion as sought by the Petitioner. This point is answered accordingly. 52. Now I proceed to consider the next issue i.e. the alleged illegal increase in the authorized and paid-up capital of the company in the EOGM purportedly held on 15/2/2010 and 12/08/2010 as also the allotment of further shares of 1,50,000 shares on 30/03/2010 in favour of the Respondent No. 2 and allotment of further 1,47,000 shares made on 12/08/2010 and I also proceed to consider the alleged illegal transfer of 100 shares by the Respondent No. 2 in favour of the Respondent No. 3 and 1500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly in maintaining their control over the company or in newly acquiring it, it does not amount to an abuse of their fiduciary power. What is objectionable is the use of such power simply or solely for the benefit of Directors or merely for an extraneous purpose like maintenance or acquisition of control over the affairs of the Company. Where the Directors seek, entering into an agreement to issue new shares, to prevent a majority shareholder from exercising control of the Company, they will not be held to have failed in their fiduciary duty to the Company if they act in good faith in what they believe, on reasonable grounds, to be the interests of the Company, but if the power to issue shares is exercised for an improper motive, the issue is liable to be set aside and it is immaterial that the issue is made in bonafide belief that it is in the interest of the Company. 56. It is well settled that the directors may exercise their powers bona fide and in the interest of the company. If the directors exercise their powers of allotment of shares bona fide and in the interest of the company. The said exercise of powers must be held to be proper and valid and the said exercise of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Petitioner as a director, are fabricated documents. Moreover, the said meetings are invalid for want of valid service of notice on the petitioner. The reasons for holding that the minutes of the said meetings are fabricated are corroborated by the following facts - (i) The Petitioner failed to trace any such Form 32 allegedly filed by the respondents with the ROC for his removal as a director nor could he find the alleged Form 61 and 62 allegedly filed by the respondents. Even in the prior search in April 2013, the Petitioner was unable to locate any of these documents pertaining to his removal. (ii) The form 32 for removal of directorship of the Petitioner annexed is hand written, whereas all other forms are computerized, which casts serious doubt on the genuineness of the document. (iii) The documents shown during inspection as copies of the purported Form 32, 61 and 62 were not even print outs from the ROC website. The Respondent No. 2 was called upon to produce the challan to show that these documents were actually filed with the ROC, which has not been produced. (iv) The purported notice of the Board meeting dated 2/5/2008 is neither issued on the letter h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the peculiar fact of the case. It is to be noted that the Petitioner and the Respondent No. 2 hold 50:50% share. If they are only allowed to be on the Board of Directors of the Company, in that case, a situation of dead lock may arise. Admittedly, the Company has only an immovable property i.e. Badli Plot. It is not carrying any business activities for the last several years. Looking to the peculiar facts of the case, the appointment of an Independent Chairman in my view is also not warranted nor it would serve any purpose, as the Company is defunct company. However, it will be open to the Petitioner to file an application with the CLB for appointment of an independent Chairman, at any subsequent stage, if the situation demands. In my view, the Induction of the Petitioner as a director of the Company would be sufficient to protect his interest. 61. I have also considered the impugned transfer of 12 equity shares by the Respondent No. 2 In favour of Respondent Nos. 5 to 12. In my opinion, the said transfer is also bad in law for two fold reason. The first reason is that it is in violation of the AOA of the Company which provides the right of preemption to the existing shareholder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that such winding up would not be in the interests of the Company/shareholders and, accordingly, to mould relief with a view to put an end to the matters complained of. 65. It is further a settled proposition of law that where any shareholder is denied his most valuable rights in utter disregard of the statutory provisions, the making of a winding up order, on the ground that it is just and equitable would be justified. Therefore, having regard to the facts of the case in hand, the necessary ingredients of the provision contained in Section 397 which provides that: to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up; also stands proved. 66. On a overall analysis of the facts of the case discussed hereinabove, in my opinion the Petitioner has succeeded to prove that the acts of the Respondents is burdensome, harsh and wrongful and lacks in probity and fair deal to the Petitioner. The effect of acts complained of is continuous in nature, the petition therefore deserves to be allowed. To bring an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
