2021 (3) TMI 474 - Tri - Companies Law

Seeking directions to BOD to obtain approval of its shareholders pursuant to Section 188 of the Companies Act, 2013, before leasing or otherwise disposing of its assets or properties of any kind in favour of Respondent No 6 or Respondent No.2 or any other persons - seeking directions to BOD to pass necessary resolution pursuant to provisions of Section 180 of the Companies Act, 2013 before leasing or otherwise disposing of the whole or substantially the whole of the undertaking of the Respondent - seeking to freeze the removal, transfer or disposal of funds, assets, properties of the Respondent - seeking direction to submit the details of the bank account(s) in which the sale proceeds of the entry tickets issued - seeking to appoint an inspector to identify and list out the assets of Respondent No 1 installed at the Jatayu Project and report the variation of the same with the list of assets reflecting in the latest audited financial statements to this Hon'ble Bench. HELD THAT - This Tribunal directs Respondent 2,3,4,5 and 6 to submit before this Tribunal the details of the bank accounts in which the sale proceeds of the entry tickets issued on 13th 14th and 15th October 2020 were credited, within two weeks from the date of receipt of this order. In order to appoint an Inspector to identify and list out the assets of Respondent No.1 installed at Jatayupara Project and report the variation of the same with the list of assets reflecting in the latest Audited Financial Statements, the Petitioner is directed to file a memo suggesting the names of three reliable persons, with mutual consent from the opposite side, from whom one of them can be appointed as Inspector to carry out the aforesaid activities, before this Tribunal within two weeks. Application disposed off.

Summary

Issues Involved:
1. Approval of shareholders under Section 188 of the Companies Act, 2013.
2. Resolution under Section 180 of the Companies Act, 2013.
3. Freezing of funds, assets, and properties under Section 221 of the Companies Act, 2013.
4. Submission of bank account details for sale proceeds.
5. Appointment of an inspector to identify and list assets.

Issue-wise Detailed Analysis:

1. Approval of Shareholders under Section 188 of the Companies Act, 2013:
The applicant sought directions for the Board of Directors of Respondent No. 1 to obtain shareholder approval before leasing or disposing of assets in favor of Respondent No. 6 or others. The petitioner argued that the Respondent No. 1 had violated Section 188 by transferring operational rights without necessary approvals. Respondents countered that the agreements did not authorize Respondent No. 1 to create assets and that the sub-license had been terminated due to violations by Respondent No. 1.

2. Resolution under Section 180 of the Companies Act, 2013:
The applicant requested directions for the Board of Directors of Respondent No. 1 to pass a resolution before disposing of the whole or substantially the whole of the undertaking. The petitioner claimed that Respondent No. 1 had violated Section 180 by transferring operational rights and assets without proper resolutions. Respondents argued that the project was not an undertaking under Section 180 and that Respondent No. 1 had no legal right to the assets.

3. Freezing of Funds, Assets, and Properties under Section 221 of the Companies Act, 2013:
The applicant sought an order to freeze the removal, transfer, or disposal of funds, assets, and properties until the necessary approvals were obtained. The petitioner alleged that Respondent No. 6, under the influence of Respondent No. 2, had illegally amassed wealth and diverted business income. Respondents denied unauthorized diversion of funds and claimed that all funds were utilized for project assets.

4. Submission of Bank Account Details for Sale Proceeds:
The applicant requested details of bank accounts where sale proceeds from entry tickets issued on specific dates were credited. The Tribunal directed Respondents 2, 3, 4, 5, and 6 to submit these details within two weeks, considering the interest of justice.

5. Appointment of an Inspector to Identify and List Assets:
The applicant sought the appointment of an inspector to identify and list assets of Respondent No. 1 installed at the project site and report any variations from the latest audited financial statements. The Tribunal directed the petitioner to file a memo suggesting three reliable persons, with mutual consent from the opposite side, for the appointment of an inspector.

Conclusion:
The Tribunal granted partial relief by directing the submission of bank account details and the appointment of an inspector. The application was disposed of with these directions, and the Company Petition remains pending for further consideration.