9911796707
TMI Blog2005 (3) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... from page 91 of Paper Book, is that the dispute pertains to shareholding, the control and management of the Company who is appellant No.1 as was pleaded in the earlier litigation, respondent No.1 claimed to have been holding 49 per cent shares, while other group referred as Dr. Bais Group claimed 51 per cent shares. In the earlier round before it, the CLB found that respondent No.1 herein was shown to have applied for shares and paid a sum of Rs. 14,95,998 as share application money and was also appointed as Director of the Company and then as Managing Director, and the CLB in its order dated 2-12-2004 in said Company Petition inter alia passed an order directing allotment of shares to the respondent No.1 herein. 3. The appellant cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he holding and voting power of the present respondent No.1. According to the respondent No.1, the agreement sought to be entered into by the appellant Company with the respondent No. 2 amounted to an act gravely prejudicial to the interest of the Company and prejudicial to the interest of the respondent No.1, herein and amounts to an act of mis-management and of oppression of the respondent No.1 and therefore, respondent No.1 was entitled to maintain the petition under sections 397 and 398 of Companies Act read with section 402 thereof. 5. It is seen that at the first hearing, the matter was moved with a short notice, and was taken up for passing urgent orders till the parties file their pleadings etc., and CLB passed an order to oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Power Development Ltd. v. Dabhol Power Co. AIR 2004 (Bom.) 38 That similar appeal was heard by Single Judge at the principal seat of this Court and its appeal was heard by Division Bench. Mr. Bhangde relies upon this Judgment though he fairly admits the position that the point of proper form was neither raised, addressed or adjudicated in said reported Judgment. 8. In reply Mr. V.R. Thakur relied upon a Judgment in Stredewell Leathers (P) Ltd. v. Bhankapur Simbhaoli Beverages (P.) Ltd. [1994] 1 SCC 34. In this case, main question that had arisen was not about strength of bench but was about territorial jurisdiction, and Hon ble Apex Court held that the High Court within whose Territorial Jurisdiction the Regd. Office of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , with best judgment they had. Their actions according to Mr. Thakur did neither amount to mis-management or prejudicing Company s interest nor did it have any semblance of oppression. According to Mr. Thakur it has already come on record that half of the net worth of the Company was eroded way back prior to 2002 and sales had come to stand still and Company was adding to losses by incurring trading losses. These facts also can be seen from CLB s Judgment dated 2-12-2004. According to Mr. Thakur, the Company was saved from difficulties due to additional investment done by Dr. Bais Group to repay Bank loans of one of the Bank and by bringing additional funds from the respondent No. 2 under the management agreement in the offing and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has recorded that status quo in regard to property and shares is to be maintained as can be seen from the underlined portion of the order quoted hereinabove. The parties are common on the ground that the execution of the sale deed in favour of the Company is still not completed. There is no other property owned by the Company which is either to be alienated or any apprehension in regard thereto is capable of being expressed and noticed. The order impugned reveals that the act of the Company of increasing the share capital and its allotment is also complete and what is to be done if order impugned is to be obeyed to maintain status quo in that regard. According to the parties, there is no act of further increasing share capital or allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly sustained. A challenge answering such an acid test does not crystallise from pleadings and submissions made on the part of the appellant. The appellants have, therefore, failed in making out a case for entertaining such appeal. 17. In this fact background, it would amount to pre-judging of the issue if the present appeal is entertained and this Court enters into the arena by examining the illegality and propriety of the order. 18. Looking to the nature that no prejudice whatsoever is seen to have been caused to the appellants due to the impugned order to the parties, it would be proper to leave the parties to avail option of approaching the CLB and on completing their pleadings to move the CLB for disposal of the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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