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TMI Blog2017 (6) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... can sell his shares to other shareholders in the first respondent company for a fair value as on the date of filing of the petition CP 6/16 determined by mutual agreement or by an independent valuer appointed by the Tribunal. Respondents 2,3,5 & 8 shall purchase the shares of petitioner in CP 15/16 for a fair value fixed by mutual understanding or by an independent valuer appointed by the Tribunal. Therefore, petitioner and second respondent are directed to come to an understanding about the fair value of the shares of the first respondent company as on the date of filing of CP 6 of 2016 within two months from the date of this order. - C.P. NOS. 6 & 15/241-242/NCLT/AHM/2016 - - - Dated:- 24-4-2017 - MR. BIKKI RAVEENDRA BABU, J. For The Petitioner : Mr. Dhiren Dave, And Hitesh D. Buch For The Respondent : Mansukh A Nakrani And Mr. Hitesh D. Buch ORDER 1. These two petitions are filed under Section 241 and 242 of the Companies Act, 2013 alleging oppression and mismanagement in conducting the affairs of Nano Therapeutics Private Limited, which is a company registered under the Companies Act, 1956. Sole petitioner in CP 16 of 2016 is second respondent in CP 15 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. Due to intervention of mother of the petitioner second respondent agreed to compensate the loss into the company which he is going to start soon. 5. In the year 2008, second respondent started new company viz. Nano Therapeutic Private Limited. (1st respondent company). It was decided that petitioner and second respondent should have equal shareholding in the first respondent company, but, second respondent with mala fide intention got entire shareholding of the first respondent company in the name of his wife (respondent 8) and his son (Respondent 5). Again, mother of the petitioner intervened in the matter and second respondent agreed to give 50% shareholding to the petitioner by allotting one lac equity shares to the petitioner and 90,000 shares to second respondent and his family members during August-September, 2011. Petitioner issued cheques bearing No. 5003 and 5004 for ₹ 5.00 lacs each drawn on Axis Bank and handed over to respondent No. 2 on 25.08.2011. 6. Later, petitioner came to know that second respondent, in collusion with respondent 3 and others managed to increase the authorised share capital of first respondent company from ₹ 1.00 lac to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General Meetings furnished to him along with letter dated 08.08.2016 are totally manipulated and are against the provisions of Companies Act. Petitioner has also pointed out that in the minutes of the Annual General Meetings held on 29.09.2009 and 03.06.2010 name of Mr. Satyavijay Ganesh Parab, the then director and shareholder, has been mentioned as Chairman, but the minutes came to be signed by Parth R. Vaishnav as Chairman who actually was neither a Director nor a member of the first respondent company on the day of such meeting. Petitioner has also pointed out that, in the Annual General Meeting dated 03.06.2010, resolution has been passed appointing Samir Koladia, Vinita Vaishnav and Parth Vaishnav as Directors of the company liable to retire by rotation whereas in the copy of said resolution filed with MCA it is shown as appointed as Directors of the company not to retire by rotation. Petitioner also pointed out regarding difference of time and date of Annual General Meeting for the year ended on 31.03.2022 dated 16.08.2011, 25.08.2011 and EOGM held on 02.12.2013. Copy of EOGM dated 02.12.2013 furnished to the petitioner by respondent No. 2 shows name of Rajesh Vaishnav as sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner tried to enter into the cabin. In the cabin, respondents 2 and 3 and two unknown persons were present. As soon as petitioner entered the cabin of respondent 2, he produced attendance sheet and took signature of the petitioner on the attendance sheet. Respondent 3 and other two persons stood up and went to other place with all records in respect of Annual General Meeting. Thereafter, respondent 2 informed petitioner that, the meeting is over. Thereafter, respondent 2 told respondent 3 on phone that the mission is complete . According to the petitioner, Annual General Meeting held on 28.09.2016 is not valid. Petitioner further stated that, respondent 2 is having direct or indirect control of Board of Directors of first respondent company since 2009. Present management of the first respondent company is indulging into various acts of omissions which has created a deadlock in the management of the first respondent company. The present management is disposing of both movable and immovable assets of the first respondent company. Further, second respondent is also planning to sell the entire running business of first respondent company to others. 13. Petitioner has prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nav Brother of respondent 2 (Petitioner) 100000 5.00 Total 2000000 16. Second respondent alleged that, petitioner who is his own brother, who is holding 5% shares only in the first respondent company has acted in a manner prejudicial and oppressive to the members of the company. It is alleged by second respondent that petitioner is trying to paralyse the company's business by spreading false rumours in the market where the company is doing business. 17. Second respondent is a technocrat. Second respondent established first respondent company with own business acumen and hard work. Petitioner is real brother of second respondent. Petitioner was not doing any kind of work. Petitioner is not having proper education. Second respondent being elder brother of petitioner, out of love and affection and with a view to give some employment for maintenance of the petitioner, allotted 5% of shares to the petitioner in the first respondent company. Second respondent also gave an agency to petitioner for sale of the products of the first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n CP 6 of 2016? Second respondent in CP 6 of 2016 is claiming reliefs under section 397 and 398 of the Companies Act, 1956. Admittedly, shareholding of the second respondent in the first respondent company is 9.90 lacs shares which comes to 49.50% of the shareholding of the first respondent company. Moreover, second respondent is one among the five members of the first respondent company. Therefore, second respondent is also eligible to file CP 6 of 2016. 21. Whether petitioner committed acts of oppression and mismanagement as alleged by second respondent? Whether second respondent committed acts of oppression and mismanagement as alleged by petitioner? It is admitted fact that, petitioner and 2nd respondent are brothers. It is admitted fact that, petitioner was admitted as member of first respondent company on 01.09.2011, although petitioner gave cheques dated 25.08.2011 to the second respondent towards consideration of the shares. Simply because the petitioner gave cheques dated 25.08.2011, he cannot claim to be a member of the first respondent company on and from 25.08.2011. Petitioner can be treated as member of the first respondent company only from 01.09.2011. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... last one month without any information or notice to the management. Termination letter also indicate that petitioner will be paid one month's salary irrespective of his absenteeism. Perusal of annexure D of CP 6 of 2016 show that, petitioner as distributor of the products of the first respondent company is due for payment of ₹ 4.60 lacs to the first respondent company and he has not paid those dues to the company. Thereafter, services of the petitioner was terminated from the first respondent company. Whether the reasons given for termination of the petitioner was substantiated and whether those reasons are sufficient to terminate the petitioner from the employment of the first respondent company or not is not within the jurisdiction of this Tribunal to decide. Once the company has taken a decision to terminate services of the petitioner, it is not justiciable before this Tribunal unless it is an act of oppression or mismanagement. Petitioner is seeking order of his reinstatement. Unless and until it is established that services of the petitioner were terminated with a view to oppress the rights of the petitioner as a member such relief cannot be granted. In the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this connection it is pertinent to mention here that, petitioner has not placed any material on record to substantiate the allegation that the respondents have siphoned ₹ 45.00 lacs from the first respondent company. Petitioner has referred to certain text messages in para 65 of his petition, but, no such text messages are made available. Moreover, it pertinent to mention here that, on 01.04.2016, petitioner was terminated from his employment. On 06.09.2016 petitioner sent a letter to the Directors of the first respondent company for inspection and copy of the statutory records. In that letter petitioner has also referred to another letter dated 19.05.2016.of which copy is not made available. In the letter dated 06.09.2016 addressed to the first respondent company by the petitioner, it is mentioned that respondents are going to sell away assets of the first respondent company and they are siphoning huge funds of the company. It is not stated in the said letter that how much amount was siphoned and the manner in which it was siphoned. In fact, in the petition also, manner and mode of siphoning funds of the first respondent company has not been added. Therefore, there is no mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner and second respondent. There appears to be some difficulty in the functioning of the first respondent company because of the conduct and attitude of the petitioner in CP 15 of 2016. Fact remain that the petitioner also invested amount in the first respondent company. It is to be noted that petitioner was also removed from the employment of the first respondent company. Taking into consideration the overall facts and circumstances, it may not be possible for the petitioner in CP 15 of 2016 to continue as a member of the first respondent company. Therefore, petitioner in CP 15/16 if he is willing, he can sell his shares to other shareholders in the first respondent company for a fair value as on the date of filing of the petition CP 6/16 determined by mutual agreement or by an independent valuer appointed by the Tribunal. Respondents 2,3,5 8 shall purchase the shares of petitioner in CP 15/16 for a fair value fixed by mutual understanding or by an independent valuer appointed by the Tribunal. Therefore, petitioner and second respondent are directed to come to an understanding about the fair value of the shares of the first respondent company as on the date of filing o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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