9911796707
TMI Blog2015 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... such order passed by the Company Law Board without dispensing with the notice, will not hold good. It is also not the reasoning of the Company Law Board that the appellant raised any dispute over its discretion to dispense with the notice. It is manifestly clear that the Company Law Board had adopted a callous attitude and chose not to go into the issue in detail. In any view of the matter, since the learned Company Law Board did not assess the merits of the case and did not answer the relief sought with regard to dispensation of the mandatory notice, making an endeavor to do the same in this appeal, in my considered view, is not appropriate since original Court viz., the Company Law Board here, has virtually made no effort in that regard. Therefore, there is no other go except to remit the matter for fresh consideration by the Company Law Board, Southern Region Bench, Chennai. For the foregoing reasons, the common order impugned in these appeals is set aside and the matter is remitted to the Company Law Board to pass orders on the petitions in accordance with the statutory provisions. - Company Appeal Nos. 10 and 11 of 2015, M.P. Nos. 1 and 2 of 2015 in Company Appeal No. 11 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Belgium in equal numbers in which the sixth respondent will be a Director. 6. The case of the petitioners, a subsidiary of Wynn s Belgium, is that Mekuba, after the incorporation, at the time of commencing its direct sales in 1998, sought for a term loan of ₹ 41 Lakhs from Wynn s Belgium and accordingly, after obtaining necessary sanction from the Reserve Bank of India, ₹ 41 Lakhs was disbursed on 29.8.1998, which has to be repaid on 31.01.2005. While so, during December 2004, the third respondent Wynn Oil Company, the Holding Company of Wynn s Belgium, was taken over by the fourth respondent Illinois Tool Works Inc., USA, and as such there was a change in the management of Wynn Oil Company. After change of management of Wynn Oil Company, Holding Company of Wynn s Belgium which is entitled to have equal representation on the Board of the Company, as the major shareholder, it directed to change M/s Sundaresan Subramanian, Chennai, statutory auditor of the Company. Accordingly, the petitioners and the Company agreed for the change of auditors and appointed M/s Deloitte, Hashkins and Sells [hereinafter, called Deloitte ] as statutory auditors of the Company for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers filed Company Petition No. 15 of 2008 before the Company Law Board for the following reliefs:- (a) To declare the termination of Collaboration Agreement dated 02.6.1997 by the second respondent in its letter dated 07.02.2008 is mala fide and the same is null and void; (b) To direct the parties to faithfully implement the Collaboration Agreement dated 02.06.1997; (c) To pass an order of injunction, restraining the 5th respondent from carrying on the business which the Company has been carrying on, using the Trade and brand name of Wynn's in India. (d) To direct the second respondent to sell its shares of the first respondent to the Company since it has committed breach of terminating the Collaboration Agreement unilaterally; and (e) To direct the Company to market its products under Wynn's name. 10. Respondents 2, 4 and 5 filed counter statements separately denying the averments made in the Company Petition mainly stating that the Company Petition is not maintainable. According to the second respondent, Clause 7.6 of the FCA has not been incorporated in the Articles of Association of Wynn's Mekuba and hence, it is not enforceable. 11. Pending Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gium also filed application C.A. No. 4 of 2014 on 12.12.2014 seeking for a direction to the Registrar of Companies to accept and take on record the eForm DIR-12 with respect to the changes effectuated in the Board of Directors of the Company at the 17th AGM. The said application was resisted by the Company through the second appellant herein. 16. The Chennai Bench of the Company Law Board, after hearing the learned counsels for the parties, vide common order dated 14.05.2015, dismissed the application C.A. No. 3 of 2014 filed by the petitioner Mekuba holding that the provisions of Section 160 of the Companies Act have not been complied with while allowing the application filed by the second respondent Wynns Belgium. Aggrieved by the same, the petitioner Mekuba has preferred the instant Company Appeals. 17. Learned counsel appearing for the appellants contended that the second respondent Wynn's Belgium, which is the holding Company of the first respondent Wynn's Mekuba, is acting detrimental to the interest of the Company. It is also the contention of the learned counsel for the appellants that the nomination for appointment of Directors by the second respondent is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to the change in the management of the affairs of the third respondent Wynn Oil Company, holding company of the second respondent, with a view to carry on identical business, the second respondent had withdrawn its nominee of its own accord in February 2007 and thereafter, terminated the Foreign Collaboration Agreement unilaterally on 07.02.2008 as the first respondent Company refused to agree for termination of the Foreign Collaboration Agreement and refused to delete the Wynns name from its name besides initiating winding up proceeding against the Company. It is not disputed that there is a prohibition clause in the Foreign Collaboration Agreement as per which the second respondent or its nominees or its associates should not carry on the same business that the first respondent company is carrying on in India. Although the second respondent had a right to appoint its nominee on the Board of the company, in view of strained relationship between the parties and the prohibition clause contained in the Foreign Collaboration Agreement, it is not proper to withdraw the first respondent's Directors and to nominate its own persons on the Board without any notice as it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not exercised its discretion and such order passed by the Company Law Board without dispensing with the notice, will not hold good. It is also not the reasoning of the Company Law Board that the appellant raised any dispute over its discretion to dispense with the notice. It is manifestly clear that the Company Law Board had adopted a callous attitude and chose not to go into the issue in detail. In any view of the matter, since the learned Company Law Board did not assess the merits of the case and did not answer the relief sought with regard to dispensation of the mandatory notice, making an endeavor to do the same in this appeal, in my considered view, is not appropriate since original Court viz., the Company Law Board here, has virtually made no effort in that regard. Therefore, there is no other go except to remit the matter for fresh consideration by the Company Law Board, Southern Region Bench, Chennai. For the foregoing reasons, the common order impugned in these appeals is set aside and the matter is remitted to the Company Law Board to pass orders on the petitions in accordance with the statutory provisions. No costs. Consequently, connected Miscellaneous Petitions a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
