2017 (2) TMI 1291 - AT - Companies Law

Oppression and mismanagement - plea as taken by the respondent that pursuant to meeting of Board of Directors held and the Extraordinary General Meeting his shareholding has been brought down from 50% to 0.24% and meeting was held without notice and his knowledge - Held that - The appellants denied the statement made by the respondent that he along with the 2nd appellant decided to restructure the aforesaid sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) as loan and returned the same to the 4th appellant. There is nothing on record to suggest that the respondent produced any evidence before the Tribunal in support of his claim and he and the 2nd appellant decided to restructure the sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) as the loan or returned the sum to the 4th appellant. In fact, the respondent himself has taken and accepted that the 4th appellant provided a sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) to start the working of the company. Tribunal has noticed that no notice was served on the Respondents, and no EGM held to allot shares in favour of the 4th Appellant. The respondent had no knowledge, and in the result the share of Respondent/ Petitioner had reduced. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 10th November 2016. However, in the facts and circumstances of the case, we direct the respondent and the other directors and the company to refund the amount of ₹ 2,01,00,000/- (Rs. Two Crore One Lakh only) with 18% per annum simple interest to the 4th appellant within one month. The Registrar of the Companies will ensure such payment.

Summary

Issues:
1. Allegations of oppression and mismanagement by the appellants.
2. Maintainability of the Company Petition under Sections 397 and 398 of the Companies Act, 1956.
3. Refund of the amount provided by the 4th appellant to the 1st appellant company.
4. Allotment of shares in favor of the 4th appellant without notice to the respondent.

Analysis:

Issue 1: Allegations of oppression and mismanagement
The respondent filed a Company Petition alleging oppression and mismanagement by the appellants. The respondent and the 2nd appellant purchased shares of a company from the promoters and planned to start a factory. The respondent's shareholding was reduced from 50% to 0.24% without his knowledge through allotment of shares to the 4th appellant. The Tribunal found that no notice was given to the respondent before the allotment, leading to the decision to set aside the shareholding in favor of the 4th appellant.

Issue 2: Maintainability of the Company Petition
The appellants argued that the Company Petition was not maintainable as the respondent's shareholding was only 0.24% at the time of filing. The Appellate Tribunal referred to a previous case to determine the crucial date for assessing the shareholding requirement under Section 399 of the Companies Act, 2013. The Tribunal held that the petition was maintainable based on the date of alleged oppression and mismanagement.

Issue 3: Refund of the amount provided by the 4th appellant
The appellants denied restructuring the amount provided by the 4th appellant as a loan. The Tribunal noted that no evidence was produced to support the claim of restructuring or return of the amount. Consequently, the Tribunal directed the respondent and other directors to refund the amount with interest to the 4th appellant within one month.

Issue 4: Allotment of shares without notice
The Tribunal found that no notice was served on the respondents before allotting shares in favor of the 4th appellant. This lack of notice led to a reduction in the respondent's shareholding. As a result, the Tribunal upheld the decision to set aside the allotment of shares and directed the refund of the amount to the 4th appellant.

In conclusion, the Appellate Tribunal upheld the decision of the lower court, directing the refund of the amount provided by the 4th appellant and modifying the order to include interest. The appeal was disposed of with these observations.