9911796707
TMI Blog2017 (8) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... " The entire case of the Petitioners is rest on an argument that the investment structure conceived by FMO (foreign investor invested Rs. 418 crores in the year 2009) for bringing foreign investment into 'Amazia' and Rubix (both are 100% subsidiaries of Vinca) routing through Vinca is in breach of FEMA, therefore the rights accrued to FMO on Rs. 418 crores invested by Vinca by it shall not be exercised and all the rights vested with FMO shall be set aside by this Bench holding FMO exercising its rights for realisation of its money as oppressive conduct against the petitioners so that these petitioners need not comply with the Hon'ble Supreme Court Order dated 15th November, 2016." 4. Keeping into consideration all facts as alleged, including the subscription dated 20th November 2009 with FMO (a foreign company), which invested Rs. 418 crores by allotment of fully paid up transferable, non-marketable, unsecured, fully and mandatorily convertible INR denominated debentures of 'Vinca' to 2nd Respondent into two tranches and by allotment of 1244 class 'A' equity shares of 'Vinca' to 2nd Respondent with 10% of the voting rights of the entire share capital of the company as submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the debentures into further shares in "Amazia" and 'Rubix' or to call back the entire investment and in default of the entire investment being returned 'Vinca' could invoke the corporate guarantee for the entire amount against 5th Respondent. The OPCDs have also been secured by mortgage of all assets of "Amazia" and 'Rubix' which are real estate companies. 10. Ld. Counsel for the Appellants submitted that the 3rd and 4th Respondents have acted in a manner oppressive to Appellants and in a manner prejudicial to the interest of 'Vinca'. They are directors of 'Vinca' and 3rd Respondent as a director of 'Amazia' and 'Rubix' have a fiduciary duty to 'Vinca' whose only business carried on through its two 100% subsidiaries is not prejudiced. They were aware that 'Amazia' and 'Rubix' at present are not in a position to serve the debenture on 'Amazia' and 'Rubix' failing to serve the debentures, 3rd and 4th Respondents could call up the monies that are due under the same and thereafter proceed against its securities for recovery or invoke the corporate guarantee against 5th Respondent or in the alternative convert the OPCDs of 'Amazia' and 'Rubix' into equity. 11. It was contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company Petition on the ground that the same was vexatious and frivolous or in abuse of process could not have been done at the threshold and could have only been done after a trial, the basis of such findings are non-existent. 17. Further according to Appellants, the findings of Tribunal that if a party acts in accordance with Articles the same cannot be oppressive is also incorrect in law, as if such action is not for the best interest of the company or is oppressive the same can be challenged. Ld. Tribunal failed to appreciate the specific case of the Appellants is that Articles were being abused to kill the business of 'Vinca' carried on through its two 100% subsidiaries 'Amazia' and 'Rubix' and that too by taking decisions which were not in compliance with Articles 60 and 62 of the AoA of 'Vinca' and thereby null and void. 18. It was also submitted that the finding of Ld. Tribunal that the investment structure was not violative of FEMA is perverse and contrary to records as the Hon'ble Apex Court in its order has directed the suit filed by 10th Respondent against 5th Respondent to be decided expeditiously without being influenced by observations of the Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar intervals as more particularly recorded therein. In order to ensure due and punctual payment by 'Amazia' and 'Rubix' to 'Vinca' of all dues under the aforementioned Debenture Trust Deeds, certain security documents were executed including the following :- (a) Deed of Corporate Guarantee dated 9th December 2009 executed by Hubtown Ltd., as guarantor in favour of ITSL (as debenture trustee for the benefit of 'Vinca') and (b) Indenture of Mortgage executed by 'Amazia' in respect of 11 (eleven) ATC Units in the building Akcruti Trade Center and also in respect of the Trust and Retention Account which would hold all the proceeds of lease rents received by 'Amazia' from the ATC Units. 23. According to Respondents, the Appellants, by this proceeding, are seeking to overturn the promises made by way of a solemn contract at the time that this Respondent was induced into investing a sum of Rs. 418 crores in companies owned and controlled by the Appellants (including 'Vinca', 'Amazia' and 'Rubix') and guaranteed by Hubtown Ltd., whose control also lies in the hands of the Appellants. It is patently dishonest and too late for the Appellants to contend now that the contractual terms sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any action, etc. in respect of the said matters. 29. The Tribunal has correctly dealt with the said contentions in paragraph 23 of the Impugned Order in which paragraph it has been held that it is clear and unambiguous that the Nominee Directors have been given full liberty to give instructions to ITSL directly and therefore the Appellants' contention that the instructions should be routed through the Board of Directors is untenable on the fulcrum of oppression and mismanagement. 30. The Appellants have attempted to cause confusion between 'Reserved Matters' as per Article 63 of the AoA and 'matters wherein the Appellants have a conflict of interest' as per Article 60(d). The contentions raised by the Appellants which pertain to alleged unauthorized instructions given by the Nominee Directors to ITSL relate to matters concerning OPCD documents and thus fall within the ambit of Article 60(d) and not under Article 63. 31. In fact, money is recoverable by 'Vinca' pursuant to legal proceeding initiated by ITSL on behalf of 'Vinca'. It was pointed out by the Ld. Counsel for the Respondents that the present proceedings are fundamentally premised on the contention that the subject tran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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