2010 (4) TMI 1194 - Board - Companies Law

Summary

Issues Involved:
1. Maintainability of the company petition.
2. Entitlement to shareholding and rectification of the register.
3. Doctrine of election and estoppel.
4. Allegations of oppression and mismanagement.
5. Limitation and delay in filing the petition.
6. Parallel proceedings and forum shopping.

Detailed Analysis:

1. Maintainability of the Company Petition:
The petition was filed under sections 111A, 235(2), 250(3), 397, and 398 of the Companies Act, 1956, alleging oppression and mismanagement. The applicant/respondent argued that the petitioner did not have the requisite qualification under section 399 to maintain the petition. The respondent claimed that the petitioner-company did not hold any shares and was not an existing shareholder. The Board held that the petitioner made a prima facie case under section 111A(4)(b) and allowed the parties to amend pleadings or file additional affidavits. The High Court of Bombay restored the Company Application No. 255/2008 to be heard along with the Company Petition No. 48/2008, emphasizing the need for a fresh consideration on its merits.

2. Entitlement to Shareholding and Rectification of the Register:
The petitioner-company claimed to have contributed Rs. 3.59 crore towards the promoters' contribution, which the respondent-company treated as a loan. The petitioner sought a declaration of being a 99.99% equity shareholder. The Board noted that the petitioner was treated as a promoter and had legitimate expectations of being a shareholder. The Board held that section 111A, read with section 111, allows for rectification of the register, and the petitioner made a prima facie case for entitlement to shares. The doctrine of legitimate expectation was applied, recognizing the petitioner as having been treated as a member.

3. Doctrine of Election and Estoppel:
The respondent argued that the petitioner had elected to be a creditor by issuing legal notices and filing a winding-up petition, thereby waiving the right to claim shareholding. The Board found that the petitioner had sought either the allotment of shares or a refund of the money, indicating no waiver of rights. The Board held that the doctrine of election did not bar the petitioner from pursuing the section 397/398 petition, as the winding-up petition was a remedy sought in commercial expediency.

4. Allegations of Oppression and Mismanagement:
The petitioner alleged that the respondent-company's conduct amounted to oppression and mismanagement. The Board noted that the petitioner-company had been treated as a shareholder till the project appraisal stage and that the respondent's conduct lacked credibility and bona fides. The Board emphasized that the provisions of sections 397 and 398 provide a remedy to address such grievances without resorting to winding up, which would be prejudicial to the members.

5. Limitation and Delay in Filing the Petition:
The respondent argued that the petition was barred by limitation due to the delay in filing. The Board held that the Limitation Act does not apply to proceedings before the CLB but acknowledged that delay and laches could be considered. The Board found that the delay was not due to gross negligence or inaction and that the petitioner lacked "requisite knowledge" of the right of recourse. The petition was not dismissed on the grounds of limitation.

6. Parallel Proceedings and Forum Shopping:
The respondent accused the petitioner of forum shopping by pursuing parallel proceedings before different forums. The Board held that parallel proceedings are permissible unless they constitute an abuse of process. The Board stayed the proceedings before the CLB for six months to allow the parties to reconcile the sums claimed and settle the matter. The interim orders were to continue until further orders.

Conclusion:
The Board concluded that the petitioner-company made a prima facie case for entitlement to shares and that the composite petition under sections 397/398 was maintainable. The proceedings before the CLB were stayed for six months to facilitate a settlement, with interim orders continuing to operate. The application challenging the maintainability was disposed of in these terms.