9911796707
TMI Blog2018 (10) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... oshi, Adv. For The Defendant : Mr. Pawan Jhunjhunwala, Adv. And Mr. Sabyasachi Chowdhury, Adv. ORDER The Court : Learned Senior Counsel appearing for the petitioner, at the outset submits that this action is in the nature of a derivative action. For the sake of convenience, it may be noted that the plaintiff has a 17.52% shareholding in the defendant No. 1 Company and 0.06% shareholding in the defendant No. 11 Company. On the other hand, the defendant No. 1 Company has 33% shareholding in the defendant No. 11 Company, namely Century Textiles and Industries Limited. It is submitted on behalf of the plaintiffs/petitioners in support of the interlocutory application, that by virtue of shifting the Cement Division of the defendant No. 11 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that, the ratio of the worth of the shares of Ultra Tech and defendant No. 11, at least at the juncture when such notice was issued, was 8:1 whereas the scheme, if accepted, would reduce such worth to a much lesser value. It is further submitted that since the interest of the defendant No. 11- Company would be adversely affected if the share holders of the defendant No. 11 Company vote in favour of such scheme of demerger, it is in the interest of the defendant No. 11 Company that such injunction ought to be granted. It is also submitted that the present action is of a derivative nature since the controlling share holders and the management are acting in the interest of the majority share holders as well as company itself, which entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proper perspective, is entirely different from the prayers of the present interlocutory application. In the suit, a previous scheme was challenged and consequential reliefs were claimed. The proposed scheme in respect of which orders are being sought in the present application does not find any mention in the plaint and as such, the interlocutory application itself is beyond the purview of the suit itself. It is further argued that the well settled principle of law is that civil courts do not readily interfere with the indoor management of a company. Learned Senior Counsel cites a judgment reported at 2014 SCC Online Cal 19639, where a co-ordinate bench of this Court had observed that the appellate court therein had completely ignored th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic pre-requisite of there being a breach of an obligation, for the grant of mandatory injunctions, as contemplated in Section 39 of the 1963 Act, is entirely absent in the present case. It is further argued that what the plaintiff could not directly do as a miniscule shareholder in defendant no. 11 (0.06% share holding), the plaintiff is now trying to achieve with the blessings of the Court by way of the interlocutory orders prayed for. Learned Senior Counsel for the defendant no. 11 next cites Clause-6 of the explanatory statement under Section 230(3) read with Section 232(1) and (2) and 102 of the Companies Act, 2013 read with (Compromises, Arrangements and Amalgamation) Rules, 2016, given in the relevant notice for the proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff a benefit with the blessings of the Court, which the plaintiff could not otherwise get in accordance with law. Consequently, in order to be elevated to the claim of derivative action, a mis-management and/or oppression of a higher plane ought to have been exhibited by the plaintiff. In the present case, the prayers sought in the interlocutory application are in apprehension of a particular way in which the shareholders of defendant no. 1 company might vote, which would, in turn, allegedly affect the interest of the defendant no. 1 company. Such cause of action, even if existent, would in the opinion of the Court be far too remote to entitle the plaintiff to get an injunction as sought for, more so in the nature of a derivative claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present application, since what could not be achieved directly by participating in the voting to be held in the impugned proposed meeting, the petitioner has sought to get by way of an order of the Court. Accordingly, GA 2966 of 2018 is dismissed on contest without any order as to costs. It is made clear that, since the defendants/respondents were not invited to use any affidavit-in-opposition, the allegations made in the interlocutory application are deemed to be denied by the respondents. It is further made clear that this Court has not gone into the merits of the matter and the observations made herein were entirely for the purpose of adjudication of the present interlocutory application. Such observations will not bind any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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