2011 (9) TMI 1167 - Board - Companies Law

Summary

Issues Involved:
1. Allegations of oppression and mismanagement under sections 397/398 of the Companies Act, 1956.
2. Annulment of unauthorized actions by respondent No. 1.
3. Increase in share capital and allotment of shares.
4. Appointment of additional directors.
5. Deadlock in the company.
6. Unauthorized changes in company records and registered office.
7. Misuse of fiduciary powers by respondent No. 1.
8. Maintainability of the petition under section 399 of the Act.
9. Defiance of Company Law Board (CLB) orders and sale of company assets.
10. Breach of fiduciary duties by respondent No. 1.

Detailed Analysis:

1. Allegations of Oppression and Mismanagement:
The petitioner, a promoter director holding 50% shares, alleged oppression and mismanagement by respondent No. 1, who took unauthorized actions, including fabricating and forging documents, and manipulating company records. The petitioner sought annulment of these actions under sections 397/398 of the Companies Act, 1956.

2. Annulment of Unauthorized Actions:
The petitioner sought to annul all actions taken by respondent No. 1 on behalf of the company, including the increase in share capital and the allotment of shares, as these actions were taken without proper authority and in violation of legal procedures.

3. Increase in Share Capital and Allotment of Shares:
The petitioner challenged the increase in share capital from Rs. 1 lakh to Rs. 10 lakh and the allotment of 90,000 shares to respondent Nos. 3 and 4, alleging these were done without proper notice and for fraudulent purposes. The CLB found that these actions were indeed taken without proper Board meetings and were intended to marginalize the petitioner.

4. Appointment of Additional Directors:
The petitioner contested the appointment of respondent Nos. 2 and 3 as additional directors, claiming these appointments were backdated and done without proper authority. The CLB noted that no valid Board meetings were held for these appointments, and they were part of a scheme to take control of the company.

5. Deadlock in the Company:
The company faced a deadlock due to the non-cooperation of respondent No. 1, who failed to attend meetings and sign necessary documents, preventing the company from functioning effectively. The petitioner had to apply to the CLB for permission to convene an extraordinary general meeting (EGM) to resolve this deadlock.

6. Unauthorized Changes in Company Records and Registered Office:
Respondent No. 1 made unauthorized changes to the company's records, including changing the registered office and the company's email ID, without proper Board resolutions. These actions were found to be fraudulent and intended to take control of the company.

7. Misuse of Fiduciary Powers:
Respondent No. 1 misused his fiduciary powers by taking actions that were detrimental to the company and the petitioner. This included unauthorized withdrawals of funds and delaying the completion of a construction project, leading to financial losses for the company.

8. Maintainability of the Petition:
The respondents argued that the petition was not maintainable as the petitioner held only 5% shares. However, the CLB held that the reduction in shareholding was itself an oppressive act, and the petition was maintainable. The petitioner was entitled to relief under sections 397 and 398 of the Act.

9. Defiance of CLB Orders and Sale of Company Assets:
Respondent No. 1 sold the company's only immovable asset, the constructed flats, in defiance of the CLB's status quo order. This sale was done clandestinely and for personal profit, breaching fiduciary duties. The CLB found this action to be in contempt of its orders.

10. Breach of Fiduciary Duties:
The CLB concluded that respondent No. 1 had breached his fiduciary duties by acting against the interests of the company and the petitioner. The increase in share capital, allotment of shares, and appointment of additional directors were all done with the intent to oppress the petitioner and were therefore set aside.

Conclusion:
The CLB directed respondent No. 1 to restore the sale consideration received from the sale of flats and other amounts siphoned off from the company's accounts. An auditor and valuer were to be appointed to ascertain the siphoned amounts and the market price of the immovable asset. All unauthorized actions, including the increase in share capital, allotment of shares, and appointment of additional directors, were set aside. Respondent No. 1 was also ordered to pay costs to the petitioner for violating CLB orders. The petition was disposed of with these directions, and all interim orders were vacated.