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2019 (5) TMI 1028

ured the Company with the help of banks and FIs - HELD THAT:- While the petitioners would now argue that the acts are oppressive in nature and what was before the civil courts was not the oppressive nature of the acts but only the legality thereof, I am not inclined to accept this fine distinction that is now sought to be created. The erstwhile Company Law Board did enjoy the same powers in substance as the National Company Law Tribunal constituted in its place now does. However, not once did the petitioners approached the Company Law Board complaining of oppression and mismanagement in the said affairs. They have raised this issue for the first time in this petition in 2017 only. The R1 in its note on submissions with reference to Guarantee Commission has stated that after completion of trial in the suit, when the suit was coming up for final hearing, the petitioners have sought liberty to withdraw the suit pending in the civil court. The petition to withdraw the civil suit was filed before this Tribunal, when it ought to have been filed before the civil court. The R1 has stated that this is contrary to the procedure prescribed in Order 23 Rule 1 CPC. Further, no liberty was grant .....

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pledge as contended by the petitioners? - HELD THAT:- The petitioners are blowing hot and cold at the same time. While on page 19 of the written synopsis, the P1 to P3 have stated that the Petitioners are not seeking any relief in relation to the bidding but are brining on record to demonstrate how the petitioners have been oppressed, on page 21 of the written synopsis, the Petitioners have stated that dismissal of writ petition challenging bid of POAL and its approval by ARCIL or challenge to scheme of rearrangement under section 391 of 1956 Act cannot be construed that the issue of oppression and mismanagement was decided. Therefore, this argument cannot be accepted. Whether the petitioners have made out any cases for ordering investigation of the affairs of the Company under section 213 of the 2013 Act? - HELD THAT:- I am not satisfied that there exist any circumstances that would justify making an order for investigation of the affairs of the R1 Company. Hence, there is no order for the investigation of the affairs of the R1 company. Petition disposed off. - CP NO. 42/241/HDB/2017 - 19-3-2019 - MR K. ANANTHA PADMANABHA SWAMY, MEMBER (JUDICIAL) For The Petitioner : Yogesh Kumar .....

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₹ 28,64,023/-deducted and deposited with revenue authorities of which petitioners availed benefit, as null and void. (h) Pass an order to declare that accounts for the financial year ended 31.03.2006 qua reversal of interest payable and not making provisions of interest on unsecured loan payable to petitioners as null and void. (i) Pass an order directing Respondents to forthwith make payment of outstanding loan of ₹ 27.50 crores along with interest upto date of payment @ ₹ 18% p.a. compounding to petitioners. (j) Pass an order to declare and annul voting rights exercised by IDBI in the AGM and EOGM held on 14.02.2005 based on the pledged shares of petitioners without invoking pledge being harsh, burdensome and oppressive. (k) Pass an order to declare and annul issue of 6 crores equity share to ACB (India) Limited and CellcapInfovin India Pvt. Limited on 19.02.2010. (l) Pass an order to declare and annual issue of 35 crore equity shares to ACB (India) Limited and Cellcaplnfovin India Pvt. Limited on 29.06.2010. (m) Pass an order to declare null and void all the resolutions passed by board or members of Respondent No.1 company against the interest of the petitioner .....

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tee loans whereas, the NTPC agreed to subscribe equity capital. (b) Subsequent to the promoter's agreement dated 29.06.1993, an EPC contract was entered into with Rolls Royce Consortium on 16.11.1993. (c) In the 1st AGM held on 25.04.1994, it was unanimously resolved to make payment of guarantee commissions to the individual who are willing to extend guarantee in favour of the FIs and Banks for the proposed financial assistance to the company for project finance. At the request of the FIs and Bank, the 1st petitioner had also confirmed that he would not receive any guarantee commissions unless instalment of principal and interest is paid to FIs. (d) As per the resolution made on 25.04.1994, the P1, P2 and P3 have extended personal guarantee in favour of State Bank of India (SBI) and also created charge on their personal immovable assets which are at present valued at one thousand crore rupees. The 2nd respondent refused to extend personal guarantee and subsequently refused to infuse equity capital. The NTPC also refused to subscribe equity capital. Those refusals also culminated into rescinding the promoter agreement dated 29.06.1993 by the board of directors in the meeting hel .....

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f guarantee commission attained finality upto the financial year 31.03.2002. The 52nd board meeting was also attended by the nominee directors and banks and FIs. The objections raised by the R2 was over-ruled and the banks and FIs categorically stated that the payment commission could be paid only after regularization of institutional dues. In the same meeting the petitioners group offered to resign from the company if they are discharged from their obligations under guarantee and mortgage of immovable properties, but the same was protested. (j) The 10th AGM was convened on 30.09.2003 and the directors from the petitioners' group were not re-elected except the 1st petitioner. Since, the directors of the petitioners' group were not re-elected, the petitioners have become minority in the board. (k) After the petitioners have become minority in the board, a resolution was passed on 01.11.2004 not to make provision for payment of guarantee commission to the petitioners' group in the books of account for the year ended 31.03.2003 on the sole ground that such payment is contrary to the loan agreement executed with FIs, even though an amount of ₹ 36,84,56,950/- was provi .....

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the Banks and FIs assigned their debt to ARCIL on 29.12.2005. Despite such assignment, the ARCIL has not taken any steps to appoint their nominee directors on the board of the company, which helped R2 to remove all the nominee directors of the FI and Bank by manipulating the minutes of EOGM dated 10.03.2006 and appoint his own persons on the board to gain majority. The ARCIL filed a civil Suit No. 692/2006 before the Bombay High Court, which passed an interim order in April 2006 that any resolution passed at the EOGM would not be effective without the approval of the ARCIL. However, on 24.04.2006 the ARCIL confirmed the forged and fabricated minutes of the EOGM dated 10.03.2006. However, IDBI, vide letter dated 27.04.2006, confirmed that no meeting took place on 10.03.2006. (s) Subsequently on 08.08.2006 the ARCIL commenced their action to handover the company to the R2 accordingly commenced bid for the project of the company. (t) On 02.10.2006, the R2 incorporated P1nnacle Overseas Assets Limited (POAL) (arrayed in the present petition as Respondent No.32) in the British Virgin Islands (BVI), which is a tax haven. POAL's shareholders were Cellcap Securities Limited and Lehman .....

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rt Delhi surreptitiously. (z) The AGM for the financial year ending 31.03.2015 was convened on 30.09.2015 and in the financials it was admitted liability of ₹ 27.50 crores which is illegally withheld by Respondent No. 1 under the garb of pending contempt petition. Further the R1 company written back interest on the loan of ₹ 1,22,65,870/- as at 31.03.2005 and since then no provision has been made for interest payable, which was being paid/accrued up to 31.03.2005. Further no provision has been made for guarantee commission payable. The petitioners as well as the shareholders supporting the petitioners have not been issued with any notice for any of the meetings. 3. The learned Counsel for the petitioners while reiterating the above facts submitted that the action of the R2 group and banks and FIs are burdensome, harsh and prejudicial to the interest of the petitioners and other shareholders. The learned Counsel relied upon the following judgments in support of his submission. (a) (para 47) Kamal Kumar Dutta v. Ruby General Hospital Ltd. [2006] 70 SCL 222 wherein the Supreme Court held that as we fail to understand the view taken by learned single judge of the High Court .....

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meeting are before the shareholders and they also know what is the nature of the concern or interest of the management in such items of business, the idea being that the shareholders may not be duped by the management unless they have formed their own judgment on the question after being placed in full possession of all material facts and apprised of the interest of the management in any particular action being taken. Having regard to the whole purpose and scope of the provision enacted in section 173, I am of the opinion that it is mandatory and not directory and that any disobedience to is requirements must lead to nullification of section 173, the meeting of the company would be invalid and so also would the resolution passed at that meeting be invalid. (e) Mehool Bhuva v. Indo Nippon Chemical Co. Ltd. [ 130 SCL 422 (Bombay CLB) - wherein it is held that - the duty of the company acting through its board to incorporate in the explanatory statement all the material facts, I am of the view, that the impugned notice does not meet the requirements of the provisions contained in section 173(2). Therefore, I hold that unless the requirements of section 173 are satisfied, the resolutio .....

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m 675/149 SCL 777 - wherein the Calcutta High Court held that in the light of the discussion above, I come to the irrefutable conclusion that including in section 434(1)I of the 2013 Act is extensive and expansive and not restrictive in nature. Ergo, Section 343(1)I of the 2013 Act that states all proceedings under the Companies Act 2013 including proceeding relating to.... would include all matters, without any exception, pending before the District Courts and High Courts and all such matters would have to be transferred to the NCLT. (k) In the matter of Deepak. C Shriram v. General Sales Ltd. [2001] 34 SCL 365 (CLB - New Delhi) - where in it is held that ……..it was at the instance of counsel for the respondents, that learned counsel undertook to withdraw the application and on that undertaking the arguments were proceeded with and within a few days the said application was withdrawn. A party cannot blow hot and old at the same time first insisting on withdrawal of the application and later claiming that such withdrawal would be a bar to proceed with the petition. Since, the practice of this board has been to proceed with the matter once the parallel proceedings are .....

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of Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority - wherein it is held that this court, and even more so the High Courts as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field. The rule of precedence, which is an integral part of our jurisprudence, mandates that this exposition of law must be followed and applied even by co-ordinate or co-equal benches and certainly by all smaller benches and subordinate courts. ... it is legitimate exercise, perfectly permissible for the benches to advance the law provided this exercise does not lead to a conclusion which is irreconcilable with a binding appreciates the factual matrix before it can obviously be of value only if a subsequent case presents identical facts, which remains a rarity. In view of the above submissions, the learned Counsel for the petitioners prayed for allowing the petition. 4. The R1 company filed a detailed counter and the learned counsel for the R1 company submitted as follows: (a) There is no illegality in .....

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993 amount to oppression is absurd. Further the allegation that the R2 has not provided any guarantee would amount to oppression is equally absurd. At best it would have been violation of promoters agreement for which the petitioners chose to take no action. The details of litigation, at this belated stage has no relevance for the purposes of this present petition. (f) The events said out in paras 4.13 to 4.26 of the petition have taken place during the period when the petitioners were in the management, therefore, there is no basis for the petitioners to allege oppression during the said period. It is the inaction of the petitioners that put the company into financial difficulties and the scheme of arrangement was undertaken by the Company and subsequently the company came out of the financial difficulties. It is the contention of the petitioners that R2 failed to obtain substantial reliefs in the suit, therefore, the statements that the R2 oppressed the petitioners is contrary to their own statement. The appeal against the order made by the suits filed by the shareholders and it is not relevant to the present proceedings. (g) It is true that the guarantee commission was reflected .....

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commission so long as money due and owing by the borrower to the lender, without prior approval in writing. (j) A right to guarantee commission is by virtue of a contract independent of holding shares by the person who has given guarantee. This is clear from the fact that a person who does not hold any shares in a company also be a guarantor for borrowings made by the company. It is evident from the language of sections 397 and 398 of the 1956 Act (241 and 242 of the 2013 Act) that the judicial forum created thereunder is devised to adjudicate the rights flowing from shareholding and not independent contractual rights, if any. (k) The statutory auditor failed to bring out this deviation in the earlier years while certifying the financial statements of the Respondent company when the company was under the control of the petitioners. (l) Section 217(3) provides that the board shall be bound to give the fullest information and explanation in its report, on every reservation, qualification or adverse remark contained in the auditor's report. In view of the above, it is advisable that the directors' report succeeds the date of the auditors' report. However, where the direct .....

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rolling the affairs of the Company is baseless and on the said allegation alone the petitioners cannot seek an investigation of the affairs of the company. The investigation of affairs of the company is done only in an extraordinary circumstances, whereas no such extraordinary circumstances prevails in the Company. Even if the allegation that a charge has been created illegally by POAL is true, the petitioners are not aggrieved on the said illegality and the shareholders of POAL have to raise the issue. (q) During the management of the petitioners the Company became NPA and the banks and FIs felt that it would be imperative to streamline the management, infuse the managerial and technical expertise at the higher level and restructure the Company's capital. Since ARCIL felt the options are very limited, it has decided to call for the bid for taking over the company. The calling for bids was challenged by the Petitioners upto the Hon'ble Supreme Court and their cases were dismissed at every stage. It would show that the bidding process was subjected to legal scrutiny and it was found to be in order. (r) The P1 and the R2 were removed from the board of directors when the compa .....

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2006 put in lot of efforts by infusing additional equity and streamlined the operations and management and turn around the company from the debt trap and have been servicing the debt to the lenders without any default till date. (x) The petitioners have sought omnibus reliefs in a proceeding that is hopelessly barred by limitation by re-agitating issues that have been dealt with and adjudicated upon by various fora and without fulfilling the basic ingredients to initiate an action alleging oppression and mismanagement. Therefore the petitioners are not entitled for any reliefs. 5. The learned Counsel for the Respondent No.1 Company while reiterating the above averments submitted that the company petition is barred by limitation and they are not entitled for any guarantee commission as per the terms and conditions of the lender banks. The learned Counsel for the Respondent No.1 relied upon the following judgments: (a) [1965] 2 SCR 720 - in the matter of Shanti Prasad Jain v. Kalinga Tubes Ltd. - wherein it is held that the conduct must be burdensome, harsh and wrongful and mere lack of confidence between the majority shareholders and the minority shareholders would not be enough un .....

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rka Prasad Agarwal v. B.D. Agarwal [2004] 49 SCL 25 (SC) - wherein it is held that for the purpose of granting permission even for withdrawal of suit in terms of Order 23 Rule 1 of the Code of Civil Procedure, the civil courts themselves were required to apply their mind as to whether having regard to the dispute between the parties, a case therefore has been made out or not. The civil court is required to act on its own and not on the basis of any direction of any other court determining a totally foreign issue. (h) in the matter of Ajit Kumar Agarwal v. Nischintapur Tea Co. Ltd. 115 SCL 233 (Cal.) wherein it is held that the principle of representative action is provided for in section 399(3) of the act in a limited way in the sense that it is the members who can alone either given consent or join with the petitioner who wishes to take out an application under section 397 and/or 398 of the Act. (i) [1987] 1 SCC 5 - in the matter of Sarguja Transport Service v. State Transport Appellate Tribunal - wherein it is held that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of the administration of justice to cases of withdrawal of writ pet .....

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the R5 was not connected or involved in any of the above allegations made by the petitioners and have acted only as representative of a Financial Institution and followed wherever the Financial Institution collectively have taken any decision. All the directors have participated in the board meetings, therefore nothing can be alleged against the R6. (b) This Respondent was appointed as nominee director of the company on 12.05.2003 and was withdrawn on 27.07.2006. After a decade of withdrawal as director, it is improper to make me as party for the dispute. Therefore the petition against this respondent is clearly barred by limitation. (c) The petitioners ought to have approached the ROC or the CLB who have the jurisdiction to entertain such petitions, but they chose to file the same before the Civil Court. Opting of the court not having the jurisdiction to entertain the subject matter of oppression and mismanagement alleged to have happened in the year 2004-05 and continuation thereof will not save the limitation. 9. The learned Counsel for the R6 relied on the following judgments in support of his submissions: (a) (2010) 157 Comp Cas 61 (Ker)-In the matter of K. Subramony v. Offici .....

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laid down under section 160 of the Act. (c) The petitioner miserably failed to satisfy the requirements as contemplated under the provisions of sections 213, 241, 242 and 244 of the 2013 Act and they have equally failed to prove and attribute any mala fides to the R12 and 13 except making bald allegations. In view of the above submissions the learned Counsel for the R12 and R13 submitted that the petition is liable to be dismissed, therefore, prayed for the dismissal of the petition. 12. The R32 filed a detailed counter and the learned Counsel for R32 inter-alia submitted that: (a) This Respondent is a shareholder holding 32.61% of the shares in the Company and became the shareholder of the company only in the year 2006. It was a bona fide purchaser in the ARCIL bid, therefore, this respondent cannot be held liable for the events taken place prior to its entry into the Company. (b) The allegation that the R32 was incorporated for taking over the management of the Company is baseless and the petitioners have not produced any material to support their allegations. This respondent legitimately obtained loan from HSBC and the petitioners are not the shareholders of R32. The petitioner .....

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firmed that the petition is not barred by limitation in view of the fact that all the acts of oppression are continuing in nature and hence cause of action is continuing and subsisting oppressive acts committed under the provisions of 1956 Act, having no provision of limitation, persistent diligent acts of petitioners challenging such acts before Hon'ble courts resulting in plethora of litigation as explained in the petition. The allegations of R1 are bared by principle of waiver and estoppels in view of consent order dated 06.04.2017 passed by this Tribunal. (b) The financial constraints are not attributable to the petitioners whereas they are attributable to the R2 who having acquired management by causing illegal, oppressive acts, transferred management and control of the Company and now enjoying in USA and incomplete disregard of judicial process, is not responding to any of the proceedings which demonstrate his complicity. The financial crunch arisen due to failure of R2 to discharge his agreed obligations under promoter agreement followed by prolonged litigation. (c) The management of company was taken over by the banks and FIs in the AGM held on 30.09.2003 and the entire .....

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ooked into an isolation. (l) Even it is admitted that as per the terms and conditions of the loan agreement no guarantee commission need to be paid, the Respondents in the 52nd board meeting held on 10.05.2002 by their conduct allowed payment of guarantee commission. It is false to say that the petitioners have not raised the issue of guarantee commission before the board of directors. (m) The R2 is taking shelter under the accounting principles having no relevance. If there is any violation of accounting principles, the statutory auditor must have qualified the same in their report. On the contrary the statutory auditors highlighted the issue of non-provision of guarantee commission in the financials. Not making provision of guarantee commission amounts to understatement of profit which is violative of accounting standards as prescribed by section 211(3A) of the 1956 Act. The averments of the Respondents that it has been shown under the sundry creditors in schedule 10 while finalizing the accounts for the year ended 31.03.2003 and therefore it was objected is contrary to the minutes of the 52nd board meeting held on 10.05.2002. The guarantee commission was reversed only to prejudi .....

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ctorship of the Company on 27.01.2007. (t) It is because of the judicial order dated 13.09.2002 petitioners were barred from claiming refund of loan and interest thereon. The reversal of interest, denial of repayment of loan are classic example of oppression caused to petitioners. (u) The sanction of the scheme is a matter of record and the petitioners are not precluded from raising the issue of oppression and mismanagement as the High Court has only a limited jurisdiction under section 391 and did not adjudicate the issue of oppression and mismanagement. The scheme is also possible without converting the equity to preference shares whereas the same was done only to oust the petitioner out of the company and at the same time the POAL interest was secured by way of equity of ₹ 150 crores. 14. The petitioners have filed a rejoinder for the counter statement of R5 and while referring the rejoinder statement, the learned counsel for the petitioners denied most of the averments of the said counter and inter-alia submitted that: (a) The maintainability of the petition itself is upheld by this Tribunal by admitting the petition by order dated 06.04.2017 which has attained finality. .....

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he petitioner from board by not re-nominating the petitioners. (d) The R6 being the nominee director failed to discharge his functions as trustee and committed breach of trust by acting in unfair manner and biased manner so much so that actions of R6 are harsh, burdensome and lack probity. (e) The petitioners have filed rejoinder statement for averments made by the R12 and R 13 in their common counter and the learned Counsel for the petitioners while denying most of the averments of the counter statement inter alia submitted that: (e) Simply because no specific relief is sought against the answering respondents they are not the necessary or proper parties for adjudication of the issue raised in the petition. They have been arrayed as respondents as they have collectively supported the cause of the R2. (f) The provisions of the section relied by the R12 and R13 have no application to the facts of the case and further R12 and R13 are attempting to misread the provisions to suit their convenience. The reliance of JJ Irani Committee referred by R12 and R13 is also misconceived as they have not brought on record the outcome of recommendations of such committee. (g) The immunity under SE .....

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oppression and mismanagement. (f) The company entered into MOU with ARCIL, ACB India Limited and Cellcap Securities Limited on 06.02.2010 and concealed the same in the statutory records. However, the petitioners noticed the same from the encrypted note mentioned in the notes of accounts for the financial year ended 31.03.2010. In view of this CA No. 1345/2010 was came to be filed in the pending CP 202/2010 and the Hon'ble High Court has allowed the application vide its order dated 20.06.2011 and the MOU was produced before the Hon'ble High Court. (g) The board resolution dated 29.06.2010 is silent about ₹ 1.71 whereas as per audited balance sheet as at 31.03.2015, it is paid and called up to ₹ 1.71 per shares. These facts of allotting shares to ACB (India) Limited show the manipulation and fabrication of statutory records at their whims and fancies and same is now being justified without placing any document of offer of subscription, whether it was right issue or preferential etc. (h) As per the audited balance sheet as at 31.03.2007 the Company has stated that ₹ 50 crores was stated to have been received from POAL which was credited under shares suspense .....

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d and dealt by various courts after the petitioners contested the matters. 20. While the petitioners would now argue that the acts are oppressive in nature and what was before the civil courts was not the oppressive nature of the acts but only the legality thereof, I am not inclined to accept this fine distinction that is now sought to be created. The erstwhile Company Law Board did enjoy the same powers in substance as the National Company Law Tribunal constituted in its place now does. However, not once did the petitioners approached the Company Law Board complaining of oppression and mismanagement in the said affairs. They have raised this issue for the first time in this petition in 2017 only. 21. The petitioners had filed a civil Suit No.4051/2004 before the VII Addl Senior City Civil Judge, Hyderabad. I find that the petitioners had prayed for the following reliefs in that plaint: - (a) A declaration that the defendant is obligated to show the provisions of guarantee commission payable to the plaintiffs in the Balance Sheet and other records for the year 2002-03 and thereafter; and (b) A mandatory injunction directing the defendants to reflect and continue to provide for the .....

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The R1 has stated that this is contrary to the procedure prescribed in Order 23 Rule 1 CPC. Further, no liberty was granted to the petitioners. 25. In response to this objection, at page 28 of the written synopsis, the Counsel for the petitioners takes pains to point out that after the provisions of section 430, read with 434(1)(c) of the 2013 Act were brought into force, the jurisdiction of the civil court was barred on issues on which this Tribunal has been conferred jurisdiction. 26. As per section 424(1) of the 2013 Act, the Tribunal shall not, while disposing of any proceeding before it, be bound by the procedure laid down in the Code of Civil Procedure but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, shall have power to regulate their own procedure. Experience of other Tribunals and quasi-judicial bodies whose parent Acts carry similar provisions as section 424(1) of the 2013 Act, shows that while the provisions of CPC may not fully apply but parts of it apply in substance so long as it satisfies the contours of natural justice. 27. It is settled law that no party should be allowed to pursue two parallel remedies in r .....

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other shareholders or directors have extended any personal guarantee. The entire loan facilities were sanctioned over the properties of the company and the personal guarantee of the P1 and P3 and there is no doubt about that. Even after the change in management after the scheme of arrangement the personal guarantee of the P1 and P3 continued with the Banks and the R1 Company has not done anything to substitute/release the guarantees given by the P1 to P3. 31. The provision of guarantee commission was in the financials of the company till the year 2002 and there was no whisper of objection either by the banks, FIs and the R2 who is the other director of the Board. If the P1 to P3 are not entitled for the guarantee commission, it is not understood why the banks and FIs insisted on an undertaking from the P1 which he submitted on 11.08.1994. It is pertinent to note that the making payment of guarantee commission was passed in the 1st AGM held on 25.04.1994 whereas the undertaking was given by the P1 on 11.08.1994. The recital at para (ii) (page 419 of the counter of R1 Volume No.I) becomes important which reads as follows: (ii) claim or receive any remuneration or commission except th .....

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a case where the P1 to P3 were filing a fresh suit after withdrawal but elected to continue the present Company Petition which was filed prior to withdrawal of the earlier suit. 38. Therefore the issues (1) and (2) are answered in favour of the petitioners and the R1 is directed to calculate the payment of guarantee commission from the date of extending the personal guarantee till the date of release of personal guarantee and make payment to the Petitioners within one month from the date of communication of copy of this order. 39. Issue No.(3): It is on record that the petitioners provided unsecured loans to the company and it was reflected in the balance sheet of the company till 31.03.2005. Thereafter in the board meeting held on 27.01.2007, it was resolved to reverse the interest payable on the unsecured loan of ₹ 1,22,65,850/- and TDS of ₹ 28,64,023/- deducted and deposited with revenue authorities. 40. The R1 company stated that the pending contempt proceedings was the reason for not making payment whereas the petitioners contended that there no such order made by the Hon'ble High Court of Delhi. It is the contention of the P1 to P3 that the company owes ͅ .....

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Court. In the present proceedings, the P1 to P3 have sought to mount a challenge to the same bidding process and the exercise of voting rights as pledgee of the shares by the IDBI, albeit from the perspective of oppression. The defence taken by the P1 to P3 is that approval of the scheme of arrangement by the Hon'ble High Court is not from the perspective of oppression of the P1 to P3 but only from the procedural perspective. 46. As far as this issue is concerned, I find that the petitioners are blowing hot and cold at the same time. While on page 19 of the written synopsis, the P1 to P3 have stated that the Petitioners are not seeking any relief in relation to the bidding but are brining on record to demonstrate how the petitioners have been oppressed, on page 21 of the written synopsis, the Petitioners have stated that dismissal of writ petition challenging bid of POAL and its approval by ARCIL or challenge to scheme of rearrangement under section 391 of 1956 Act cannot be construed that the issue of oppression and mismanagement was decided. Therefore, this argument cannot be accepted. 47. As may be seen from the common orders of the Division Bench of the Hon'ble Andhra P .....

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merits no consideration (para 77 of the order). 50. In view of the above comprehensive order from the Division Bench of the Hon'ble Andhra Pradesh High Court, it is impermissible for this Tribunal to traverse into the same issues, especially when the said Division Bench order was unsuccessfully challenged in the Hon'ble Supreme Court. Therefore the issue (4) is answered in negative against the Petitioners. 51. Issue No.(5): In the facts and circumstances of the case, I am not satisfied that there exist any circumstances that would justify making an order for investigation of the affairs of the R1 Company. Hence, there is no order for the investigation of the affairs of the R1 company. 52. All the parties referred number of citations in support of their averments. Since this Tribunal do not intend to deal with the matters already decided by the courts, those citations are not considered. The civil suit which was pending during proceeding before this Tribunal was also withdrawn as this Tribunal has permitted the same while admitting the petition. Since, the matter of payment of guarantee commission was before the civil court, adjudication of the same by this Tribunal is not b .....

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