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TMI Blog2013 (1) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... pany pending the instant proceedings; (b) The respondent Nos. 2 to 36 be directed to sell their entire shareholding of and in the company to the petitioner on such terms and conditions as to this Bench may deem fit and proper; (c) The share register of the company be altered by cancelling the purported issue allotment of shares on 16-05-2012; (d) The respondent Nos. 4, 9 to 36 be deleted as shareholders of and in the company and the share register of the company be suitably amended; (e) The shares transferred to the respondent No.4 and shares allotted to respondent Nos.9 to 36 be deleted as shareholders of and in the company and the share register of the company be suitably amended; (f) The appointment of the respondent Nos. 4 to 8 in the Board of Directors of the company be directed as null and void and of no effect; (g) The purported issue of allotment of shares on 16-05-2012 of the company be declared as null and void and of no effect; (h) All the Board Resolutions of the company claimed to have been adopted subsequent to 01-07-2011 be declared as null and void and of no effect; (i) All the resolutions claimed to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the risk of being declared as NPA by the secured creditor, viz,, Allahabad Bank, in order to avoid this situation, the respondent Nos. 2 & 3 were looking for persons who could take over the management and the control of the company discharging the company's liabilities particularly the secured creditors. For this purpose, the respondent Nos. 2 & 3 have approached the petitioner and the respondent Nos.37 & 38 and proposed that the respondent Nos. 37 & 38 to purchase the entire shares of the company from the respondent Nos.2 & 3 subject to condition that respondent nos. 37 & 38 will discharge the entire liability of the company subsequent to June 30, 2011. 4. It is further stated that an agreement was entered into between the petitioner and the respondent Nos.2 & 3 on behalf of the respondent No. l. Pursuant to and in terms of the agreement, as aforesaid, the petitioner from time to time paid a sum of Rs. 4,60,23,000/- to the company which is inclusive of the consideration money for the purchase of 50% i.e. 27085 number of shares. 5. It is further averred that the petitioner applied for transfer of such shares to the company and the same was allowed and they acknowledged the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presenting the petitioner proposed that the petitioner will not press for the interim reliefs prayed for, except for three following reliefs in case the respondents concede to the same. (i) That the answering respondents should undertake that they will not transfer or deaf with the fixed assets of the company; (ii) That the parties shall maintain status quo in respect of the shareholding as on date; (iii) That no board meeting will be held without the approval of this Bench and/or if any board meeting is held, the minutes thereof will be communicated to the petitioner. 14. The Ld. Counsel appearing for the answering respondents prayed for one day time to seek necessary instructions, accordingly,, the next day was fixed for hearing and the respondents were asked to revert back after taking necessary instructions from the respondents. 15. On the following day, the Ld. Counsel for the answering respondents appeared and stated that the respondents did not agree to the proposal to maintain the status quo in respect of the immovable properties of the company. 16. The Ld. Counsel for the parties, in view of the above, requested this Bench to dispose of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt only, thus, they are not entitled to claim any relief in this petition. 23. The Ld. Counsel for the respondents lastly submits that the petition is liable to be dismissed at the threshold stage itself and they are going to file an application under Order 7 & Rule 11 of CPC very soon for dismissal of the petition for this purpose. 24. The ld. Counsel representing the other respondents have also reiterated the same arguments. 25. I have considered the. submission advanced by the Ld. Counsel representing the respective parties and perused the records. Admittedly, the terms of the agreement dated 30-06-2011, as modified subsequently on 30-08-2011, were not adhered to by the petitioner and the respondent Nos. 37 & 38. 26. I may like to reproduce the relevant clauses of the first agreement which stood modified by subsequently enlarging the time to pay amount, which are as follows: (1) Due to certain difficulties, the First Party of the company to transfer the entire shares of the said company in favour of the Second Party and/or its nominee(s) along with all assets and liabilities of the company more fully and clearly described In Schedule 'A' & 'B' respectively hereinbelow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nominee exclusively. (6) Simultaneously with the execution of this Agreement, the Second Party has credited Rs. 8.00 crores as per the advice of the first Party to the Bank Account of the said company namely M/s. Venkateswar Medicare Pvt. Ltd., maintained with Allahabad Bank, Chownnghee Road Branch, Koikata and said Rs. 8.00 crore shall be treated as part consideration against the full consideration of Rs. 20.00 crores. (7) The Second Party further paid a cheque of Rs. 50.00 Lakh; being Cheque No. 461943 drawn on Allahabad Bank, J.L. Nehru Road Branch, Kolkata on 30th June,, 2011 to the First Party to meet the sundry creditors. Such payment of Rs. 50.00 lakh has been made in the name of Venkateswar Medicate Pvt. Ltd. at the request of the First Party. Said Rs. 50.00 lakh shall also be treated as part consideration. Thus in aggregate, at the time of execution of this Agreement, the Second Party has paid to the First Party Rs. 8.50 crore against the total consideration of Rs. 20.00 crore. (8) The Second Party shall also pay a sum of Rs. 50 lakh for payment of other creditors a list along with the respective amount due is mentioned hereinbelow and marked as Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, in dispute cannot be relied upon. The documentary evidence showing the payment of charges for posting security guard over the property-in-suit is yet to be proved. The respondents are also claiming their possession. Prima facie, it is not convincing that a party, who fails to make initial payments under the agreement,, will be handed over the possession of the property. In addition to above, there is no endorsement in the agreement that the possession was delivered to the petitioner at the time of execution of the agreement Therefore, balance of convenience does not He in favour of the petitioner. 30. Now the last question which arises for consideration is as to whether the petitioner may suffer irreparable loss if the ad interim injunction prayed for is not granted in its favour. I have examined this question. During the course of arguments, the ld. Counsel for respondent Nos.2 & 3, on the basis of instructions received, made a statement saying that the respondents are willing to pay the amount of Rs. 4,45,23,000, subject to refund of the share certificates in their possession, as and when the Bench directs. I have, therefore, come to the conclusion that no irreparable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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