2015 (12) TMI 421 - HC - Companies Law

Possession of plant - whether the Company Law Board ( CLB ) inter alia granted ingress to Respondent No. 2 Mr. Rajinder Kumar Malhotra ( RKM ) into Plant No. 2 of the Respondent No. 1 Vidyut Metallics Pvt. Ltd. ( VMPL ), which is in possession and control of SPCPL since the year 2010/11, without SPCPL being a party to the proceedings pending before the CLB? - Held that - SPCPL has failed to even prima facie establish that it is in possession of Plant No. 2 pursuant to the BTA/Supplemental BTA since 30th December, 2010/18th March, 2011, no question arises of the impugned Order dated 2nd February, 2015 being in violation of natural justice qua SPCPL or of the Order having dispossessed SPCPL. As correctly submitted by Mr. Chinoy, a mere bald allegation made by the ex-Directors for the first time before the CLB on 2nd February, 2015, or the allegation of possession subsequently made by SPCPL in the present Appeal cannot affect the jurisdiction of the CLB to pass the Order dated 2nd February, 2015 or require the CLB to join SPCPL as a party or hear SPCPL or adjudicate upon such an oral allegation. On 2nd February, 2015 the allegation that pursuant to the BTA dated 30th December, 2010, SPCPL was in possession of Plant No. 2 was orally made on behalf of Vyas and Chaudhari. Significantly no such allegation was made by Rakesh who admittedly controls SPCPL, who was a party Respondent before the CLB and who was represented by the same Advocates. Again from the record of the proceedings it was clear that though by an Order dated 9th February, 2012, CLB had restrained the Respondents, which included Rakesh and the ex-Directors, Vyas and Chaudhari from disposing off, encumbering the assets of VMPL and the very same Order was continued by this Court whilst dismissing the Appeals filed by Rakesh in August, 2014, at no stage had Rakesh (who admittedly controlled SPCPL) and the ex-Directors Vyas and Chaudhari submitted before the CLB or before this Court or before the Hon ble Supreme Court that the said Order dated 9th February, 2012 ought not to have been passed since allegedly all the assets including Plant No. 2 of VMPL are in possession and/or control of SPCPL from 30th December, 2010/18th March, 2011. Even after Rakesh failed to obtain a stay from the Hon ble Supreme Court on removal of Vyas and Chaudhari as Directors of SPCPL, Rakesh and the ex-Directors, as stated hereinabove, refused to accept that Vyas and Chaudhari had ceased to be the Directors of VMPL and that consequently they were required to hand over the assets of VMPL to the new Directors. Extensive correspondence was thereupon exchanged by and between the Advocates for RKM/ VMPL and the Advocates for Rakesh/ex-Directors Vyas and Chaudhari. However, in none of the letters it was contended on behalf of Rakesh, Vyas and Chaudhari that all the assets of VMPL are transferred to SPCPL or are in possession and control of SPCPL. Moreover, the oral allegation made before the CLB was directly contrary to the statements made on oath, more particularly the statement made by Rakesh himself before the UK Court that amongst others, Plant No. 2 of VMPL is in possession and control of VMPL. I therefore see no infirmity in the Order passed by the CLB dated 2nd February, 2015 and in my view the same falls squarely within the powers/jurisdiction under Section 403 of the Act as it in effect directs the removed/ex-Directors of VMPL to hand over charge of the Company s properties and assets to its newly appointed Directors/present management. None of the submissions made on behalf of SPCPL in support of its case that the Company Law Board ought not to have passed the impugned order dated 2nd February, 2015 can be accepted and the same are hereby rejected. Also in view of the past conduct on the part of Rakesh (who admittedly controls SPCPL) and the ex-Directors Vyas and Chaudhari of refusing to abide by the Orders passed by the CLB/this Court even after the Hon ble Supreme Court in the SLP filed by Rakesh had specifically declined to stay the same, the CLB was completely justified in directing police assistance which was required to maintain peace and order at the time of implementation of its Order by VMPL/RKM.

Summary

Issues Involved:
1. Possession and control of Plant No. 2
2. Allegations of contradictory statements by SPCPL representatives
3. Disputes within the Malhotra family affecting corporate control
4. Validity and execution of Business Transfer Agreement (BTA) and Supplemental BTA
5. Jurisdiction and powers of the Company Law Board (CLB)
6. Bona fides and mala fides of the appeal by SPCPL

Detailed Analysis:

1. Possession and Control of Plant No. 2:
The primary issue is whether Super Max Personal Care Pvt. Ltd. (SPCPL) has possession and control of Plant No. 2 of Vidyut Metallics Pvt. Ltd. (VMPL) since the execution of the Business Transfer Agreement (BTA) dated 30th December, 2010, and the Supplemental BTA dated 18th March, 2011. SPCPL claims that pursuant to these agreements, it has been in possession and control of Plant No. 2. However, the court found that the BTA and Supplemental BTA clearly outline that only Plant No. 1 was to be leased to SPCPL, while Plant No. 2 was to be used for toll manufacturing (job work) by VMPL. The court noted that specific provisions for Plant No. 2 in the BTA exclude any contrary inference from general clauses.

2. Allegations of Contradictory Statements by SPCPL Representatives:
The court highlighted the contradictory statements made by SPCPL representatives, Mr. Sanjay Jagtap and Mr. Subhash Chaudhari, in previous affidavits denying SPCPL's possession of Plant No. 2. These contradictions were pointed out, and SPCPL's explanation that the statements were made on behalf of VMPL and not SPCPL was found to be unconvincing. The court emphasized that false statements on oath by Jagtap and Chaudhari, depending on the party they represented, demonstrated a lack of respect for the court and the rule of law.

3. Disputes Within the Malhotra Family Affecting Corporate Control:
The court noted that the dispute is essentially part of a long-standing feud within the Malhotra family, particularly between Rakesh Malhotra and his father RKM. The court observed that Rakesh Malhotra controlled SPCPL and used his influence over VMPL's directors, who were also employees/consultants of SPCPL, to exclude RKM from the affairs of VMPL. The court found that SPCPL's appeal was an attempt by Rakesh to retain control over VMPL's assets through SPCPL after failing to prevent the removal of VMPL's directors.

4. Validity and Execution of BTA and Supplemental BTA:
The court examined the terms of the BTA and Supplemental BTA and found that Plant No. 2 was not included in the "Business Assets" to be transferred to SPCPL. Instead, VMPL was to carry out toll manufacturing at Plant No. 2. The court also reviewed the Job Work Agreement, Secondment Agreement, and Equipment Lease Agreement, which further supported VMPL's control and possession of Plant No. 2. The court rejected SPCPL's last-minute contention that these agreements were not acted upon, noting that SPCPL's own financial records showed transactions consistent with these agreements.

5. Jurisdiction and Powers of the CLB:
The court upheld the jurisdiction and powers of the CLB to pass the impugned order dated 2nd February, 2015, directing the ex-directors of VMPL to hand over charge of the company's properties and assets to its new management. The court found no violation of natural justice or overreach of the CLB's powers, as the order was within the scope of Section 403 of the Companies Act.

6. Bona Fides and Mala Fides of the Appeal by SPCPL:
The court concluded that SPCPL's appeal lacked bona fides and was filed at the instance of Rakesh Malhotra, who controlled SPCPL and financed the litigation against RKM. The court found that SPCPL misrepresented facts to seek favorable reliefs and that the appeal constituted an abuse of the court's process. The court dismissed the appeal with costs, noting that SPCPL's actions were driven by Rakesh's attempt to retain control over VMPL's assets.

Conclusion:
The court dismissed SPCPL's appeal, finding that SPCPL failed to establish possession and control of Plant No. 2 and that the appeal was an abuse of the court's process driven by family disputes. The court upheld the CLB's order directing the ex-directors of VMPL to hand over charge of the company's properties and assets to its new management.