TMI Blog2019 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... the acts complained of, as said above, cannot be adjudicated by the sole arbitrator since the powers available to this Tribunal cannot be exercised by him and the reliefs as sought in the petition are not arising out of any contractual obligation - Issues settled in favor of petitioner. Whether the petition is dressed up to suit the requirements under sections 241 and 242 of the Companies Act, 2013? - HELD THAT:- The facts stated in the petition relate to financial discrepancies, non-service of notice of the extraordinary general meeting/annual general meeting and appointment of directors, etc. The said contentions are such that the National Company Law Tribunal alone can hear and decide the said issues. Hence, the contention of the applicant that the main company petition is dressed up to suit the requirements under sections 240 and 241 of the Companies Act is not acceptable - the issue settled in favour of the petitioner in the main company petition. The company petition is maintainable - List the matter for final hearing on October 4, 2018. - M. A. No. 552 of 2018 In C. P. No. 1151/241-244/NCLT/MB/MAH/2018 - - - Dated:- 31-8-2018 - Haskara Pantula Mohan J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and Conciliation Act, 1996 before the hon'ble High Court of Delhi in O. M. P. (I) No. 4 of 2018 against respondent No. 1 and the applicant but with drawn the same on March 9, 2018 with the liberty to file the same before the court of competent jurisdiction. (e) On February 3, 2018 the applicant filed the petition under section 11 of the Arbitration and Conciliation Act, 1996 before the hon'ble High Court of Mumbai being Commercial Arbitration Application No. 138 of 2018 praying for appointment of sole arbitrator to decide all claims, dis putes and differences between the petitioner and the applicant. The hon'ble Bombay High Court has appointed sole arbitrator on the consent of both the parties. (f) On June 7, 2018 the petitioner filed an application under section 17 of the Arbitration and Conciliation Act, 1996 before the sole arbitrator, inter alia, praying that the applicant be directed to appoint two nominees of the petitioners as directors on the board of respondent No. 1, be restrained from selling, transferring or alienating any of the assets of YMS and grant inspection of the books and papers of respondent No. 1. (g) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers sought details of various expenses and also regarding ₹ 1.5 crores paid to respondent No. 2 but the respondent failed to respond. (c) When the petitioner recommended two nominees from their side, namely, Mr. Krishnamurthy and Mr. Awadesh Mishra during June, 2017 when two of their nominee directors resigned from respondent No. 1 due to personal reasons, respondent No. 2 refused to appoint them as nominee directors of the petitioner, thereby taken entire control of respondent No. 1 with respondents Nos. 2 and 3 (wife of respondent No. 2) as directors of respondent No. 1, which leads to not only oppression against the peti tioner but also mismanagement of respondent No. 1-company. (d) When respondent No. 2 denied access to the petitioner to the accounts of respondent No. 1 and usurped the profitable MTU Germany business which belong to the petitioner into respondent No. 2's owned proprietary concern thereby running the petitioner's business and the peti tioner was constrained to issue notice to respondent No. 2 on May 17, 2017 for breach of the memorandum of understanding dated August 21, 2015. (e) Respondent No. 1 has not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with two nominee directors of the petitioner on the board of directors at all times. (iv) Direct respondent No. 2 to transfer the assets and business of Yeoman Marine Services to respondent No. 1 as agreed under the memo randum of understanding dated August 21, 2015 and as mentioned in the memorandum of association of the company. (v) To pass an order thereby framing a scheme for the proper man agement and administration of respondent No. 1-company on such terms and conditions as this hon'ble Tribunal deems fit and proper. (vi) Pass an order directing the respondents to disclose all transac tions carried out on behalf of respondent No. 1-company with entities relating to respondent No. 2 and in case of any losses caused to respondent No. 1-company, respondents Nos. 2 and 3 be directed to make good such losses caused to respondent No. 1-company. (vii) Pass an order to carry out an independent audit in respect of the dealings and transactions of respondents Nos. 2 and 3 on behalf of respondent No. 1-company and an independent auditor be appointed by this hon'ble Tribunal to carry out such investigation and thereafter appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration and Conciliation Act before the sole arbitrator is with respect to an arbitration proceeding wherein respondent No. 2 is the claimant and the petitioner herein is the respondent. The contentions in the said proceedings before the sole arbitrator are purely arising out of contractual obligations between the parties therein and the same can be adjudicated by the sole arbitrator. Further, it is important to note that the petitioner herein who is the respondent in the said arbitration proceedings had dropped certain prayers from the application filed under section 17 of the Arbitration Act, which come under the purview of sections 241-242 of the Companies Act and the same are very much agitated in the main company petition. Also it does not amount to splitting of cause of action or forum shopping and furthermore the Tribunal has expansive and plenary powers to order and issue directions with respect to the management and operations of the company that an arbitrator would not have. The applicant herein who is respondent No. 2 in the company petition had relied upon the orders passed by the National Company Law Tribunal Principal Bench, in the case of Ramnish Kumar Sharma v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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