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TMI Blog2015 (11) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to Magnum without notice to the petitioners, and there being an order from CLB that the petitioners are entitled to implead Magnum as party to the proceeding, this Application is maintainable. On seeing the company accounts, it is evident that there is no entry showing that the money of ₹ 9,51,00,000/- shown as consideration to the company property has not come into the accounts of the company, therefore, for time being it is to be understood that no money has come into the company showing it as consideration to Swami Samarth Property, For having this Bench already stated in the order dated 18th May, 2015 that R2 dealt with the affairs of R1 prejudicial to the interest of the petitioners, this Bench directs Magnum Landcon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Purported Development Agreement and/or the purported Power of Attorney over Samarth property situated mentioned supra. 2. Senior Counsel Mr S.N. Mookherjee appearing on petitioners behalf submits that Company Law Board on 18th May, 2015 passed an order observing that R2 himself stated that development rights over the property supra have been granted to Magnum Landcon LLP on 13.10.2014 through a registered document. When they did not produce the copy of the agreement, Company Law Board has observed that creation of third party rights by R2 to Magnum Landcon LLP, is prima facie not correct. CLB has further observed that R1 shall produce the alleged agreement purportedly entered in between R1 company and M/s. Magnum Landcon LLP with a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rney to Magnum to approach State Government and Municipal Corporation or any other localities to act on behalf of R1 Company, since R2 has made a categorical statement that he sold development rights to Magnum for sale consideration of ₹ 9,51,00,000/-, the petitioners obtained statement of Account of the company held by Canara Bank from 01.04.2014 to 31.12.2014. To the surprise of them, they have not noticed any entry showing sale consideration remitted to the Company Account anywhere lose to the date of sale. The only entry showing in the Account from 1.4.2014 to 31.12.2014 is ₹ 22,979/-. The counsel, therefore, submits that no money has come to the Company Account which is alleged to have been received from Magnum Landcon LLP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a suit for specific performance or for declaration to invalid transaction before Civil Court, because jurisdiction does not lie with this Bench u/s 397 398. Therefore, the respondent side has vehemently objected to passing any interim relief against Magnum Landcon LLP over the property upon which it has acquired development rights. 7. On hearing the submissions of either side, it appears to me that petitioners were not aware of R2 causing sale of Swami Samarth Property lying In the name of R1 Company, because the petitioners mentioned that no notice was served upon the petitioners saying Board or General Meeting would be held to create third party rights in favour of Magnum. It is the case of the petitioners that they hold more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the member or the company. In curing this wrong, if the Tribunal noticed third parties have nexus to any fraudulent act or oppressive act committed by the persons conducting the affairs of the company, then passing orders against third parties is only incidental to the conduct of the persons dealt with the affairs of the company, the only general principle to be followed in passing orders against persons other than members is whether right of hearing is given or not. This Bench has discussed in CPI India Real Estate Venture Ltd. v. Perpetual Infracon (P.) Ltd. (CP No. 127(ND)2013) before CLB, Delhi decided on 05.03.2014 (paras 40 41) as to what order could be passed in cases where money was fraudulently taken out through other comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enated, the Tribunals can pass restraint orders or status quo over the property pending disposal of the case. Though the petitioners are under obligation to challenge the transaction to third party within three months as stated in section 402 of the Companies Act 1956, the aggrieved party is at liberty to challenge the said alienation of rights even after lapse of three months provided it is shown as fraudulently made in favour of third party and he has assailed within reasonable time after it has come to the notice of the aggrieved. Here, in this case the petitioners initiated this CP against the act of Respondents saying the conduct of R2 and others is oppressive, and this fact of creating third party rights to Magnum has come to their no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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