2020 (6) TMI 763 - Tri - Companies Law

Oppression and mismanagement - siphoning of funds - company's money siphoned by giving interest free loans to various persons and thereafter paying out extra money to related parties - HELD THAT - It appears that the respondents' side, by way of loan as well as by way of preference, already invested more than ₹ 10 Crore into the company, but the petitioners by just putting in ₹ 25,000 in the year 2013, which is only 0.02% of the total paid up capital, trying to stall the company from carrying its functions by filing this petition via number qualification u/s 244 of the Companies Act 2013. When it comes to merit, prima facie as it appears on record, it is a real estate company governed by RERA and has been mandated to release possession of the flats on phase wise, unless money comes into the company, it will become difficult to complete the project and to get the remaining balance that is to come from the home buyers. As to this aspect, the respondents' counsel has categorically mentioned that unless this project is finished on time and possession is given on time to the respective home buyers, the company will not get the remaining payment that is around ₹ 69 Crore from the home buyers - to show debt equity ratio to the creditor banker, it is necessary to raise equity to sustain and survive the company. For this reason alone, the company has issued notice to proceed with rights issue by not only notifying it to the petitioners but also by offering them to invest on pro rata basis. Thus, there are no unfairness prima facie to grant stay as sought by the petitioners, therefore it is made clear that the Respondents are free to proceed with rights issue and with a direction to the Respondents side to file reply within four weeks hereof, rejoinder if any by the petitioners within four weeks thereafter - List this main company petition for main hearing on 20.08.2020 by cancelling the date 23.06.2020 earlier given.

Summary

Issues:
1. Unfair increase in authorized share capital and dilution of equity shareholding.
2. Allegations of siphoning company's money through interest-free loans and payments to related parties.
3. Disagreement on transactions related to suppliers and trade creditors.
4. Petitioners' challenge under section 244 of the Companies Act 2013.
5. Necessity to raise equity for project completion and debt equity ratio.
6. Petitioners' interference in business operations based on equity shareholding.
7. Decision on granting stay for rights issue and directions for further filings.
8. Scheduling of the main hearing for the company petition.

Analysis:
1. The petitioners, shareholders in a real estate company, challenged the unfair increase in authorized share capital and subsequent rights issue leading to the dilution of their equity shareholding from 25%. They sought a stay on the rights issue, alleging oppression and prejudice by the respondents without valid reasons for the capital increase.

2. The petitioners invested a nominal amount compared to the respondents but raised concerns about the respondents' investments through loans and preferences, totaling over ?10 Crore. Allegations of siphoning company funds through interest-free loans and payments to related parties were disputed by the respondents, highlighting the necessity of investments for business functions and project completion.

3. Disagreements arose regarding transactions with suppliers and trade creditors, with the petitioners claiming misuse of funds while the respondents argued that all transactions were business-related. The bench emphasized the need for further evidence to determine the nature of these transactions and their impact on the company's operations.

4. The petitioners invoked section 244 of the Companies Act 2013 to challenge the respondents' actions, citing their minimal initial investment and the respondents' substantial contributions. The bench noted the disparity in investments but highlighted the petitioners' attempt to disrupt business operations despite their limited shareholding.

5. The respondents justified the rights issue as necessary for maintaining the debt equity ratio, completing the project, and securing payments from home buyers. The bench acknowledged the financial requirements for project completion and allowed the respondents to proceed with the rights issue to raise necessary funds.

6. The bench rejected the petitioners' claim of unfairness, emphasizing the respondents' authority in managing the company with their investments. It was suggested that the petitioners could maintain their equity ratio by investing further instead of impeding the company's operations based on their initial shareholding.

7. Ultimately, the bench denied the stay on the rights issue, permitting the respondents to proceed and directed them to file a reply within four weeks. The petitioners were given the opportunity for a rejoinder within the subsequent four weeks, with the main hearing scheduled for August 20, 2020.

8. The main company petition was listed for a hearing on August 20, 2020, canceling the previous date of June 23, 2020, to address the issues raised by the shareholders and ensure a comprehensive examination of the case.