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TMI Blog2020 (8) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 and 403 of the Companies Act, 1956, before the erstwhile Company Law Board, Mumbai Bench on 30th September, 2013. The case remained pending and later on transferred and heard by National Company Law Tribunal, Mumbai Bench (hereinafter referred to as the 'Tribunal'). 2. By impugned order dated 9th February, 2018, the Tribunal held that the dispute between the parties had reached to a stage of deadlock of the business activity of the Company. Attempts of settlement had exhausted and the Directors had not reached settlement. They had also not expressed any intention or desire to work together to run the Company. The Company had already closed its business activity. The Office premises of the Company had already been rented out. As a conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties to be separated from each other by ordering for 'winding up' of the Company. b) In this critical situation when 'winding up' is the only answer to put an end to the controversy the disposal of the Immovable Property of the Company is a must. To implement the process of 'winding up' it is hereby directed to dispose of the immovable Property and the consideration be divided among the shareholders/directors as per their percentage of shareholding. c) The steps to be taken for sale of the Immovable Property should transparent by first obtaining a Valuation Report of the Independent Valuer to be informed to both the sides and on their approval the Property in question is to be sold at the best fair market value. Both the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made by the Respondent No.1 was a contribution of approximately 41 lakhs (USD 95000) for setting up of an office in Mumbai. The Appellants too made a matching contribution of approximately 38 lakhs for setting up the office. 6. It was submitted that the business of the company was export of chemicals and pharmaceuticals. The business arrangement between the parties were that the Appellant No.1 would use his experience in India to identify manufacturers in India and obtain export orders for buyers in Iran as per L/C terms. The Respondent No.1 would in turn liase with the Iranian buyers in Iran. The Appellants were entitled to charge upto 2% commission, whereas the Respondent's share was restricted to 5% commission. 7. It was further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3135 Chemie Darou USD 8.00/kg USD 9.20/kg USD 1.20/ KG 9. It was submitted that over and above this malpractice, the Respondent was also charging excessive commission to the tune of 8 - 40%, as opposed to the agreed 5%, which fact was discovered subsequently as is clear from the email dated 5th August, 2009 sent by Unichem Laboratories which shows the commission paid to one Samuel Gregorian, associate of Respondent No.1. The above facts regarding the siphoning off of funds and cheating of the company and the Appellants by Respondent No.1, were not immediately apparent, and came to light only gradually. The Respondent No. l and his associates deliberately suppressed information and told the Indian exporters not to disclose the true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r grievance regarding management of the company by the Appellants. Instead, the Respondent all of a sudden stopped placing orders through the Company by the Iranian buyers from the year 2010-11, thereby depriving the company of its business. Without any other means of livelihood, the Appellants were forced to lease out the office premises on rent from 15th February, 2012 to keep the Company running and maintain the property. 12. It was submitted that on 5th May, 2011, the Respondent wrote to the Appellants seeking a share of profits of the company. The Appellants responded vide emails and reminders dated 13th May, 2011, 24th May, 2011 and 6th June, 2011 and 14th June, 2011 wherein the Appellants demanded to be compensated for their efforts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Appellants had 49% of shareholding in the Respondent No.2 Company. The Respondent No.1- Mr. Asher E. Melamed was appointed as Director with effect from 14th March, 2000. He was removed from the Directorship in the year 2009 by deleting from the Ministry of Corporate Affairs records. Thereafter, the entire control of business of the Company was vested with the Appellants. Therefore, it is clear that there is no delay in preferring the Petition filed by the Respondent. 14. The Respondent No.1- Mr. Asher E. Melamed (Petitioner) transferred 1 lakh US Doller through Deutsche Bank for the purchase of property of the Company to procure one premises to be utilized for business purposes. Further, when it was not so utilized, the same was gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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