2018 (9) TMI 1979 - Tri - Companies Law

Oppression and Mismanagement - Illegal allotment of shares - siphoning of funds - only Other director of SBF, Mr. Lalit Aggarwal. who has been impleaded as Respondent NO. 2 and the Statutory auditor Of the SBF, Mr. Mahesh Gupta, impleaded as Respondent No. 3 - PG alleges that the allotments are illegal and fraudulent as they have been made without PG's consent i.e. without approval Of the Board of Directors of SBF and by misuse of PG's digital signature by LA and R3 in filing the Form 2 on MCA pottal for allotment of the new shares. HELD THAT - There exists a ground for winding up SBF on the grounds that it is just and equitable to do so. The only question confronting the Tribunal is whether by such an action the shareholder of SBF wili be unfairly prejudiced Or the public interest will be prejudiced. This Tribunal is of the considered view that neither will be prejudiced, as it is seen that the SBF has no operations Or business over the past several years because Of the inter-se disputes between the main protagonists, namely the two directors of SBF, being its only two directors and the assets Of SBF, it is evident, have also been stripped off. Thus, SBF has become a complete farce. It is also seen that public interest will Only be best served by SBF being wound up as even otherwise due to non-filing of annual retums and balance sheets, SBF in any case is liable to be struck Off, as the pending proceedings before this Tribunal cannot be factor for not filing the annual retums and balance sheets and thereby the Statutory compliances, all of which goes to the root Of corporate governance, Thus, in any which way looked at, SBF is a fit candidate to be wound up taking into consideration the noted factors. This Tribunal is Of the considered view that in relation to the affairs Of SBF there has been a absolute lack of probity in its dealings by both the petitioners and hence SBF is required to be wound up taking into consideration the facts and circumstances of the two company petitions filed by the rival panies to the lis and also having come to the conclusion that both the parties are not entitled to any reliefs as sought for in the respective petitions - this Tribunal has been empowered to wind up companies by virtue of Section 271 and 272 Of the Act having been notified as amended by Insolvency and Bankruptcy Code, 2016. Petition disposed off.

Summary

Issues Involved:
1. Clean hands and equitable jurisdiction.
2. Illegal issuance of equity shares.
3. Misuse of digital signature.
4. Violation of Canara Bank's terms.
5. Siphoning off money.
6. Replacement of mortgaged property.
7. Manipulation of books of accounts.
8. Enhancement of cash credit limit.

Issue-wise Detailed Analysis:

1. Clean Hands and Equitable Jurisdiction:
The Tribunal emphasized the principle that parties seeking equitable relief must come with clean hands. Both petitioners (PG and LA) were found to have engaged in acts causing grave prejudice to the company, SBF. The Tribunal cited various judgments, including Sangramsinh P. Gaekwad & Ors. vs. Shantidevi P. Gaekwad and Abdul Wahid Abdul Gaffor Khatri & Ors. vs. Safe Heights Developers Pvt. Ltd., to underline that equitable relief requires equitable conduct. Both PG and LA were found to have acted irresponsibly and illegally, treating SBF as their personal fiefdom, leading to a breakdown in the company's affairs. PG consistently avoided producing SBF's documents, claiming accidental destruction, and failed to reconstruct them. LA admitted to allotting shares without procedural formalities. Thus, both petitions were dismissed as neither party approached the Tribunal with clean hands.

2. Illegal Issuance of Equity Shares:
PG alleged that LA illegally allotted shares to his group without board approval, violating SBF's Articles of Association. LA admitted no board meetings were held for these allotments but argued it was consistent with past practices. The Tribunal found LA's actions violated statutory requirements and dismissed his claims, noting that both parties failed to adhere to corporate governance norms.

3. Misuse of Digital Signature:
PG claimed LA and the statutory auditor (R3) misused his digital signature to file Form 2 for the illegal share allotments. LA denied this, stating PG himself placed the digital signature. The Tribunal found discrepancies in the claims but did not conclusively determine misuse, focusing instead on the overall lack of proper governance.

4. Violation of Canara Bank's Terms:
PG argued that the share allotments violated Canara Bank's conditions, which required converting share application money into capital and subordinating unsecured loans. LA countered that the allotments were made to maintain a 50:50 shareholding ratio. The Tribunal noted the violations but emphasized the broader issue of both parties failing to follow proper procedures.

5. Siphoning Off Money:
PG accused LA of withdrawing substantial sums from SBF's bank account for personal use. LA admitted to some withdrawals but claimed they were for business purposes. The Tribunal found both parties engaged in financial mismanagement, contributing to the company's downfall.

6. Replacement of Mortgaged Property:
PG alleged LA replaced his mortgaged property with one partly funded by PG without his knowledge, violating commitments to SBF. LA did not adequately refute this claim. The Tribunal noted this as part of the broader pattern of misconduct by both parties.

7. Manipulation of Books of Accounts:
LA accused PG of manipulating financial records and suppressing production figures. PG denied this, attributing discrepancies to practical issues like power supply interruptions. The Tribunal found both parties guilty of manipulating accounts and failing to maintain proper records.

8. Enhancement of Cash Credit Limit:
LA claimed PG unilaterally sought to enhance SBF's cash credit limit without his consent. PG argued the enhancement was necessary for business operations and was not fraudulent. The Tribunal found both parties failed to follow proper procedures, contributing to the company's financial instability.

Conclusion:
The Tribunal concluded that both PG and LA were responsible for the mismanagement and destruction of SBF. Given the lack of proper governance, statutory violations, and ongoing disputes, the Tribunal ordered the winding up of SBF. Mr. Tanuj Kumar Bhatnagar was appointed as the company liquidator, and the directors were instructed to file the Statement of Affairs. The Tribunal emphasized that winding up was necessary to protect public interest and ensure compliance with corporate governance norms.