TMI Blog2021 (1) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case are not applicable. Section 52 of TP Act, which says that during the pendency of the suit or proceedings no new thing could be introduced, we shall consider this at the time of final hearing but at this juncture, we came to a conclusion that no prima facie case is made out by the petitioners, the balance of conveyance is also not in favor of petitioners and no irreparable loss will be caused to the petitioners, therefore, we are not inclined to grant any interim relief to the petitioners. Hence prayer of the petitioners to grant interim relief is hereby rejected. In which the respondent No. 2 to 7 acted and got the lease deed executed and registered for 29 years whereas the unregistered lease deed was for five years that compelled us to form an opinion that act of respondents No. 2 to 7 are prejudicial to the interest of R-l company and in order to protect the interest of R-l Company, it is necessary to pass the following order that on the basis of the unregistered lease deed dt 03/12/2019 and Registered lease deed dt. 29/06/2020 no construction work shall be done and no new thing shall be installed over the land in question by the R-5 or by any other persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 26.76 hectare (Approx.) situated at Village Mahua Kheraganj Tehsil Kashipur, District Udham Singh Nagar, Uttarakhand. c. Pass an ad interim ex parte order restraining the respondent No. 2 3 as well as Respondent No. 4 from transferring the aforesaid land to any third party or creating third party interest in Respondent No. 1 company in any manner. d. Pass an ad interim ex parte order restraining Respondent No. 1 to 5 from creating any encumbrances of any sort on the assets of Respondent No. 1, and also restraining the Respondent No. 2, 3 and 4 from alienating, charging, mortgaging or selling any of their shares, securities and /or fixed assets as the case may be, held and owned by them without the leave of this Hon 'ble Tribunal. e. Pass an ad interim ex parte order directing the Respondents not to give effect to the lease deed dated 03.12.2019 during the pendency of the present petition. f. Pass an ad interim ex parte order directing the Respondent No. 1 to 5 to maintain status quo on the title, possession, use of the property and not to interfere to the peaceful possession to the property held by petitioner on behalf of Respondent No. 1 Company admea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement dated 03.12.2019 on behalf of the respondent No. 1 Company for five years, which is extendable upto thirty years in respect of the aforesaid land with M/s. MBEV Spirits Pvt. Ltd. Respondent No. 5 herein, which is fully owned and controlled by Respondent No. 2 and 3. 4. Further, the said acts were committed without the knowledge of the board. In fact the shareholders were rather intentionally kept out of the dark in an attempt to misutilized the company assets for their own personal gains by the respondent No. 2 3, The petitioners upon learning about illegal acts on part of Respondent No. 2 3, confronted them and asked to them to refrain from creating any illegal third party rights over the property to the Respondent No. 1 and also to furnish the relevant details and particulars of the transaction. Despite the same, Respondent No. 2 and 3 have failed to make any amends. Therefore, in order to stop misutilization of the company assets, the petitioner No. 1 filed a complaint before the District Magistrate, Udham Singh Nagar, Uttarakhand on 08.06.2020 highlighting the illegal transaction being pursued by the respondents. 5. Further, Respondent No. 2 and 3 have been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essor on behalf of R-1 Company and it was extendable up to 30 years in favour of MBEV Spirits Pvt. Ltd. i.e. Respondent No. 5 acting through its director Mr. Anil Kejriwal (R-2), and Mr. Ritwik Kejriwal (R-3). 11. Further, the said lease deed has got no legal sanctity because the same was passed by the meeting of board of directors having incomplete quorum. 12. Further, it has come to the knowledge of the petitioner that the R-2 on behalf of R-5 Company have proposed to set up Distillery Plant on leased out part of the said land and has filed an application on 06.12.2019 to District Excise Officer, Rudrapur, Distt Udham Singh Nagar to obtain a license to set up a Distillery Plant. 13. Further, the lease deed is also not fulfilled the requirement of Section 7(1)(d) of the Registration Act, 1908, which says that any leases of immovable property from year to year, or for any term exceeding one year, requires compulsory registration and if the same is not registered then in view of Section 49 of the Registration Act, it has got no legal effect. 14. Further, the petitioner No. 1 filed a complaint before the District Magistrate, Udham Singh Nagar about the illegal transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach of Section 101 of Companies Act, 2013 and he further submitted that minutes of purported board meeting was never circulated or prepared, therefore, there is breach of Section 118 of the Companies Act, 2013 read with Rule 25 of the Companies (Management and Administrative) Rules, 2014 and in support of its contention, he placed reliance upon the decision of Hon'ble Apex Court reported as AIR 1973 Supreme Court page 2389 in which Hon'ble Apex Court held that notice to all the directors of a meeting of the Board of directors is essential for the validity of any resolution passed at the meeting, where no notice is given to one of the Directors of the company, the resolution passed at the meeting of the board of director is invalid He further submitted that the purported lease is in violation of Companies Act, 2013 because it is related party transaction, the Respondent No. 2 is a common director of R-1 5 and R-3 is the son of R-2 each hold 50 % shares of R-5 Company. 23. He further submitted that the consent of board of R-l company never obtained, therefore, it is in violation of Section 188(l)(iv) of the Companies Act, 2013. 24. He further submitted that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 - Page No. 31 of this written Submission Tea Brokers P. Ltd vs. Hemdra Prosad Barooh (1998)5 Comp LJ 463 (Cal) Ramashankar Prosad vs. Sindri Iron Foundry (P) Ltd. AIR 1966 Cal 512 Maharashtra Power Development Corporation Limited vs. Dabhol Power Company Limited (2003) 117 Com Case 506 Bhagirath Agarwala vs. Tra Properties P. Ltd. (2002) 51 CLA 57 (Cal) In re: Sindhri Iron Foundry (P) Ltd. 28. He further submitted that it is settled principle of law that a non-registered lease deed is not valid and does not confer any rights upon a lessee, therefore, the possession is not with the R-5 Company rather it is still with the petitioners. 29. On the other hand, Ld. Counsel for respondents except R-5, in course of his arguments submitted that petition is not maintainable and he further submitted that the petitioners have alleged only one event with respect to one board meeting and the lease deed thereon, whereas for the case of oppression and mismanagement, there needs to be a conduct amounting to misconduct by the liability towards the minority and this conduct cannot be in one isolated instance but rather it needs to be a continuous act and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution dated 03.12.2019. He further submitted that the petitioners are well aware of the day to day affairs of the company and the lease arrangement was finalized on 01.12.2019 and the petitioner No. 1 being the director of the company has never raised any complaints regarding its affairs in the past or for a period of 6 months and he further submitted that the law of equity and good conscience also act against the petitioners as in fact, trying to dispossess a tenant after 6 months of handing over the possession and so the interim relief prayed by the petitioner may be rejected. 32. He also placed reliance upon the Hon'ble Kerla High Court's decision in the matter of VJ Thomas Vettom and Ors. Vs. Kuttanad Rubber Co. Ltd and Ors. reported as MANU/KE/0090/1982 and he further submitted that Company Law Board Chennai Bench in the matter of HRamesh and Ors. Vs. Aparna Theatres Pvt. Ltd reported as MANU/CL/0047/2009 : held that the company entered into a lease agreement with respondent nos. 3 4, who are the owners of the property for a period of 36 years from 01.10.1973 till 30.09.2009 therefore, the bench does not have power under the Companies Act to grant interim inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores to R-1 company and lease deed has also been registered and they got the possession of lease property and if any injunction is granted then irreparable loss will be caused to them. During the course of arguments, they failed to produce any document to show that they have paid ₹ 2 crores in the account of R-1 Company. 38. Now, in the light of submissions raised on behalf of parties, we shall consider the case in hand. We have already referred the interim reliefs sought by the petitioners and in the light of that reliefs, now we shall consider the submissions of the parties. 39. Ld. Senior Counsel appearing on behalf of petitioners in course of his arguments submitted that so far the applicability of Section 242(g) under which the permanent reliefs have been sought by the petitioners is concerned, the petitioners shall raise this issue at the time of final hearing of main application but at present Ld. Senior Counsel for petitioners submitted that he has placed the three ingredients, which are required to be considered for granting an interim relief, i.e petitioners have a prima facie case and the balance of convenience is also in favor of petitioners and irreparabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting in sentence or order, until expiry of seven days from the date on which such appeal or petition is disposed of; or (iii) where any further appeal or petition is preferred against order or sentence within seven days, until such further appeal or petition is disposed of. Provided that the office shall be vacated by the director even if he has filed an appeal against the order of such court; (g) he is removed in pursuance of the provisions of this Act; (h) he, having been appointed a director by virtue of his holding any office or other employment in the holding, subsidiary company, associate company, ceases to hold such office or other employment in that company. (2) If a person, functions as a director even when he knows that the office of director held by him has become vacant on account of any of the disqualifications specified in subsection (1), he shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with both. (3) Where all the directors of a company vacate their offices under any of the disqualifications specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of 5 years and that is the reason Ld. Senior Counsel for petitioners contended that the lease deed is not valid as per the provisions contained under Section 17 read with Section 49 of the Registration Act but during the course of hearing, it has been informed by the respondents that the lease deed was executed and registered and it is not for 5 years rather it is for 29 years and the said registered lease deed was executed by the same person, who was authorized to execute the lease deed for the period of 5 years and accordingly, on the same day the said person was executed the lease deed for a period of 29 years on anon-judicial stamp of ₹ 100. 43. At this juncture, we would also like to refer the arguments advanced on behalf of respondents/except R-5, who in course of hearing submitted that in fact that was not a lease deed rather that was the lease agreement and in pursuance of that agreement a lease deed was executed on 25.06.2020 and in reply to this arguments, Ld. Senior Counsel for petitioners contended that title of registered lease deed is also lease agreement like lease deed, which was executed on non-judicial stamp, therefore, the contention of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led at that time there was no registered documents rather lease deed was executed on non-judicial stamp of ₹ 100 for 5 years on the basis of resolution passed on 03.12.2019 and in course of hearing, it is not disputed by the respondents counsel that it is settled principle of law that the a lease for year to year or for any term exceeding one year is required to be compulsory registered under Section 107 of T.P. Act read with Section 17 and Section 49 of the Registration Act and that is why he submitted that it was not the lease deed it was agreement to lease. At this juncture, we would like to refer the Board resolution dt. 03/12/2019 which is at page 22 of the documents filed by the Respondents, the said resolution show that lease agreement entered in between parties is approved. The said resolution does not disclose the period rather it says lease agreement is approved and as per the submission of Id. Counsel appearing for the respondents in agreement dt. 03/12/2019 period was mentioned five years then how in the registered lease deed it is extended upto 29 years that has not been explained by the respondents. Moreover these submissions of the respondents' counsel is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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