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TMI Blog2020 (8) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 Brijesh Uppal have incorporated a Company named as Tryambakam Logistics Pvt. Ltd. (In Short TL Company) under the Companies Act, 2013 having its Registered Office at L-126 A, Street No. 5, Mahipalpur Extension, New Delhi. The Company was incorporated to carry on the business of Transportation. The Appellant Parvesh and Respondent Brijesh being shareholder/director of the Company each one contributed Rs. 5 Lakhs towards the paid up share capital. The Appellant MTS Logistics Pvt. Ltd. Company (in short "MTS Company") was incorporated under the Companies Act, 1956 on 16.03.2011 having its Registered Office at L-126 A, G.F Street No. 5, Mahipalpur Extension, New Delhi. The MTS Company is also engaged in the Logistics Business and the same was incorporated with its promotor/directors Viresh Kumar Jain and Dinesh Kumar Jain and subsequently, Appellant Parvesh Kumar Jain was inducted as director in the MTS Company on or about 15.10.2012. The Respondent No. 1 TL Company started its business with purchase of five trucks worth Rs. 63 Lakhs and had also spend huge amount on building the body of those trucks. The Company has taken a huge amount of loan from the Bank to buy those trucks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... causing huge loss to the TL Company and Brijesh. f. Pass order to Parvesh for removing Logo of MTS Company from the trucks of the TL Company. g. Pass order to give Brijesh his due amount of dividend received from Parvesh. h. Remove Parvesh as the Director of the TL Company. i Pass order to impose huge cost on Parvesh. j. Any other order the Tribunal thinks fit and proper under the circumstances of the case. 5. In reply, Parvesh denied all the allegations and stated that the Petition is filed as a counter blast to the Civil Suit for perpetual, mandatory injunction and for rendition of accounts filed by Parvesh against Brijesh and the same is pending in the Court of Civil Judge, Saket Court, New Delhi. The Petition under Section 241 and 242 of the Companies Act, 2013 is not maintainable as there is no act of oppression or mismanagement of Parvesh had been shown in the Petition and the Petition is malafidee. It is also stated that the Petition is liable to be dismissed as infructuous as already the relief so claimed in the Petition does not survive. The trucks through which revenue to be generated has already been taken over by the financier i.e. ICICI Bank and has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 188 of the Companies Act, 2013. Being aggrieved with this order MTS Company and Parvesh have filed these Appeals. 7. Learned Counsel for the Appellant MTS Company submitted that the Respondent Brijesh had never claimed any relief against the Appellant MTS Company however, without any basis the MTS Company has been held liable to pay damages to the tune of Rs. 20 Lakhs to Brijesh. Such order is affecting the rights of shareholders of the MTS Company and before passing such an order against the Company no show cause notice has been served by the Learned Tribunal. Even otherwise the Tribunal had no jurisdiction to inflict any damages against the alien Company while deciding the inter-se dispute between two directors of a TL Company. There is no evidence against the MTS Company. It is also submitted that the impugned order is harsh and against the natural Justice. 8. Learned Counsel for the Appellant Parvesh submitted that Learned Tribunal had ignored the fact that TL Company had accepted Rs. 2 lakhs as an advance from MTS Company for entering into Vehicle Hiring Agreement. The Tribunal erroneously came to a conclusion that Parvesh hold 80% equity and his brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Appellant Parvesh submitted that negligence or inefficiency do not amount to mismanagement or oppression under Sections 397 and 398 of the Companies Act 1956. For this purpose he cited the Judgement of the Hon'ble Delhi High Court in the case of Suresh Kumar Sanghi Vs. Supreme Motors Limited and Ors. (1981 SCC Online Del 199). Learned Counsel for the Appellant Parvesh also submits that the burden to prove oppression or mismanagement is upon the Petitioner (Brijesh). For this purpose, he cited the judgment of the Hon'ble Supreme Court in the case of Sangram Singh Vs. Santa Devi. P Gaekwad (2005) 11 SCC 314. He submits that in such a situation, Brijesh has failed to make out a case of oppression or mismanagement against Parvesh. Therefore, the impugned order be set aside. 14. Learned Counsel for the Respondent Brijesh supports the impugned order and submitted that Learned Tribunal has rightly, held that Parvesh was incharge of the operation of hiring trucks. However, he has not explained as to why earnings not deposited in the bank account of TL Company and the trucks were not hired to the other parties when sufficient business could not be generated through MTS Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g them financed from ICICI Bank on the personal guarantee of MTS Company and its director Viresh Kumar Jain (See Para 4(b) of Reply of Petition filed by Parvesh before the NCLT). 21. With the above facts, it is clear that both the Companies have close business relations and Appellant Parvesh is a Director in both the Companies. Hence, it cannot be said that the Tribunal had no Jurisdiction to inflict any damages against the MTS Company. Therefore the Tribunal held that Parvesh and MTS Company are jointly and severally liable to pay compensation to Brijesh. 22. Thus, we find no substance in the objection raised in Company Appeal (AT) No. 402 of 2018. 23. Now we have examined the finding of the Tribunal that Parvesh, without consent of Brijesh and without any resolution of the TL Company, entered into hiring agreement with MTS Company. 24. We have considered arguments of the parties, It is true that on 25th June 2016 Parvesh being a director of the TL Company entered into Vehicle Hiring and Transportation Agreement with MTS Company. Parvesh in his Affidavit dated 23.11.2017 affrirmed that TL Company authorized him for entering into agreement with MTS Company and such minute book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Company ran smoothly for one month i.e. up to 15th August, 2016. Thereafter, differences started between Brijesh and Parvesh. On 12.09.2016 Brijesh served a notice to Parvesh and in the notice it is alleged that Brijesh misappropriate the funds by not showing the true accounts since 20th August, 2016 and perhaps he has been keeping the entire earnings of trucks himself. Parvesh stated that the earnings of the trucks have been deposited in the bank account however he has not filed any bank statement since 20.8.2016 to 7.1.2017. Therefore the learned Tribunal has rightly held that Parvesh has not account for the earnings for the above referred period. Parvesh has not produced any evidence that the trucks were surrendered to ICICI Bank with the consent of Brijesh. Hence the findings of Tribunal is correct. 29. Learned Tribunal directed Parvesh and MTS Company to compensate Rs. 20 Lakhs jointly and severally to Brijesh. This finding is seriously challenged in these appeals. 30. We have considered the submission of the parties. Learned Tribunal in Para 8 of the impugned order held that in the Petition, Brijesh claimed on average basis Rs. 50 lakhs for 5 months. Such a prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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