2017 (1) TMI 1667 - Tri - Companies Law

Oppression and mismanagement - siphoning off of funds - petitioner has alleged mass scale oppression and mismanagement in the Company and that the books of account were found to be fudged and cash entries had not been updated - HELD THAT - The functioning of the respondent No. 1 Company is in a total mess because of the distrust between the petitioner on the one hand and the respondents on the other. It is just and proper to provide exit to the petitioner because respondents No.2 to 4 jointly hold majority shares in the Company, whereas the petitioner is a minority shareholder - We take cut off date as end of financial year 2014-15 i.e. 31.03.2015 for evaluating the fair value Of the shares of the Company as soon thereafter i.e. on 07.05.2015. the petitioner was prima-facie illegally removed from the Board of Directors. Petition is disposed off with certain directions to be followed.

Summary

Issues Involved:
1. Allegations of oppression and mismanagement.
2. Missing statutory records.
3. Validity of Board meetings and resolutions.
4. Legality of the petitioner’s removal as Director.
5. Valuation and exit of the petitioner’s shares.

Detailed Analysis:

1. Allegations of Oppression and Mismanagement:
The petitioner alleged mass-scale oppression and mismanagement in the company, including fudged books of accounts and non-payment of dividends. The petitioner also claimed that statutory books were missing and were never made available to him despite repeated requests. The respondents countered that the petitioner acted prejudicially to the company's interests since his appointment and had taken away statutory records.

2. Missing Statutory Records:
The original statutory records were allegedly taken by the petitioner, leading to a police complaint by the respondents. The Tribunal noted that both parties made allegations against each other regarding the missing records. The respondents were directed to deposit the original statutory records, which were inspected by the petitioner. However, the Tribunal found discrepancies and manipulation in the records produced, suggesting the records were not entirely reliable.

3. Validity of Board Meetings and Resolutions:
The petitioner convened several Board meetings, which the respondents claimed were unauthorized and fabricated. The Tribunal scrutinized the minutes of the meetings held on 21.03.2015, 14.04.2015, and 02.05.2015, finding them suspicious and likely fabricated. The presence of non-directors in these meetings further questioned their validity. The Tribunal concluded that the petitioner’s actions were aimed at usurping control of the company.

4. Legality of the Petitioner’s Removal as Director:
The petitioner was removed as a Director through a resolution passed in an Extraordinary General Meeting (EOGM) on 07.05.2015. The Tribunal found procedural lapses in the notice and conduct of the EOGM, including ante-dated notices and lack of clear 21 days' notice as required under Section 101 of the Companies Act, 2013. The Tribunal held that the removal was prima facie illegal but subject to the final decision in the pending civil suit.

5. Valuation and Exit of the Petitioner’s Shares:
Given the distrust between the parties, the Tribunal deemed it just to provide an exit for the petitioner. An independent valuer was appointed to determine the fair value of the petitioner’s shares as of 31.03.2015. The valuation would consider the company’s non-operational status and leased property. The respondents were directed to purchase the petitioner’s shares at the determined value with interest or, failing that, the petitioner could buy the respondents' shares. The Tribunal also restricted the respondents from drawing remuneration and alienating company assets until the exit process was completed.

Conclusion:
The Tribunal directed an independent valuation of the petitioner’s shares and provided a structured exit mechanism. Other reliefs sought by the petitioner were declined, and the interim stay was vacated. The Tribunal emphasized the need for cooperation from both parties and detailed the procedural steps for implementing its order.