2020 (10) TMI 639 - Tri - Companies Law

Direction/clarification from this Court for implementation of final order - Serious differences as well as clash of interest among the directors of the company which resulted in deadlock in function of company and the production in the manufacturing unit - HELD THAT - The document(s) in question and Forms, which includes E-Form, Annual and Financial Statement of the Respondent Company, these are subject matter of the present Company Petition shall not be taken on record or acted upon for any purpose of the Respondent Company until its AGM/EGM is duly convened and approved such document(s)/Form(s)/Statement(s)/E-Form (s)/E-Statement(s) and duly ratify its filing with requisite majority in such AGM/EGM till such period the Office of the ROC can declared its E-Form/document(s) as NTBR , so as to avoid further complication in the matter. As, we have already clarified in our previous order dated 10.10.2019 that ROC is not required to convene such AGM/EGM, but only to facilitate the same and such meetings is required to be convened by the Respondent Company through the Petitioner and the Advocate Observer appointed by this Court. In such proposed AGM/EGM the ROC shall depute its OBSERVER who may be an Officer of the Office of the ROC or may be an Independent Professional. The Observer shall produce their independent report and to be submitted to the Office of the ROC and/or if necessary to this Court for further course of action to be taken in the matter. In such proposed AGM/EGM the Independent Observer appointed by this Court (vide our order dated 27.06.2019 ) i.e. Mr. Harmish Shah, Advocate alongwith Independent Director through Bank of Baroda and Facilitator(s)/Chartered Accountant(s) appointed by this Court shall also remain present and participate in the discussion of meeting but without having right of voting. A report in this respect to be prepared and to be submitted by the Advocate Observer to this Court as well as to the Office of the ROC. Application disposed off.

Issues Involved:
1. Validity and enforceability of the MoU dated 21.06.2010.
2. Management and control disputes within the company.
3. Directions for convening AGM/EGM.
4. Filing of statutory documents and forms.
5. Appointment of independent directors, observers, and facilitators.
6. Procedures for restoring the company's management and shareholding positions.

Issue-wise Detailed Analysis:

1. Validity and Enforceability of the MoU dated 21.06.2010:
The Tribunal found that the MoU dated 21.06.2010 was not acceptable by the Respondent No. 2 on behalf of the Respondent No. 1 Company, rendering it frustrated and unenforceable. The MoU was not signed with the seal and signature of the authorized signatory of the R-1 Company, making it legally void. The Tribunal declared that no changes in management or shareholding could be justified based on this MoU, and any decisions or resolutions passed in its implementation were invalid and inoperative.

2. Management and Control Disputes within the Company:
The Tribunal noted serious differences and clashes of interest among the directors, leading to a deadlock in the company's functioning. The disputes included serious allegations and counter-allegations, resulting in police complaints. The Tribunal found that the company's affairs were conducted prejudicially to its paramount interest and that the company was not functioning smoothly. However, winding up the company would unfairly prejudice its interests and those of its stakeholders. Thus, appropriate directions were issued to resolve the disputes.

3. Directions for Convening AGM/EGM:
The Tribunal directed the Respondent No. 1 Company to convene an AGM/EGM urgently within 90 days to take appropriate decisions regarding management changes. The ROC was instructed to facilitate this process, ensuring the company complied with statutory formalities by filing financial statements and returns. The Tribunal emphasized that the AGM/EGM must be convened properly by all shareholders according to the shareholding pattern existing before the MoU dated 21.06.2010.

4. Filing of Statutory Documents and Forms:
The Tribunal clarified that any documents or forms filed based on the MoU dated 21.06.2010 would not be accepted or acted upon until a proper AGM/EGM ratified such filings. The ROC was directed to declare these forms as "NTBR" (Not to be Recorded) to avoid further complications. The Tribunal specified that the AGM/EGM must approve and ratify the filings with the requisite majority for them to be considered valid.

5. Appointment of Independent Directors, Observers, and Facilitators:
The Tribunal appointed an independent director nominated by the Bank of Baroda and an Advocate Observer to participate in board meetings and the AGM/EGM. Additionally, facilitators (Chartered Accountants) were appointed to audit the company's accounts and assist in statutory filings. The independent director and observer were tasked with ensuring the smooth functioning of the company and exploring amicable settlement possibilities.

6. Procedures for Restoring the Company's Management and Shareholding Positions:
The Tribunal directed the company to restore the management and shareholding positions to the state existing before the MoU dated 21.06.2010. The Petitioners were entitled to buy back their shares from the Respondents at fair value. The Tribunal emphasized that the Petitioner No. 1 should continue managing the manufacturing unit until a proper resolution was passed in the AGM/EGM. The Tribunal also mandated the appointment of a statutory auditor and the completion of statutory formalities, including the filing of financial statements and returns.

Conclusion:
The Tribunal's comprehensive order addressed the disputes among the directors, invalidated the contentious MoU, and outlined detailed steps for restoring the company's management and shareholding positions. The Tribunal emphasized the need for proper statutory compliance and facilitated the convening of AGM/EGM to resolve the issues amicably and ensure the company's smooth functioning.

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