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TMI Blog2017 (2) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents, and no EGM held to allot shares in favour of the 4th Appellant. The respondent had no knowledge, and in the result the share of Respondent/ Petitioner had reduced. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 10th November 2016. However, in the facts and circumstances of the case, we direct the respondent and the other directors and the company to refund the amount of ₹ 2,01,00,000/- (Rs. Two Crore One Lakh only) with 18% per annum simple interest to the 4th appellant within one month. The Registrar of the Companies will ensure such payment. - Company Appeal (AT) No. 31 of 2016 - - - Dated:- 20-2-2017 - Mr. Balvinder Singh And S.J. Mukhopadhaya, JJ. For Appellant: Ms. Manjulika Pal, S/ Shri Akhilesh Shrivastava and Shakeel Md. Akhtar, Advocates ForRespondent : Ms. Mani Gupta, S/ Shri Abhishek Tripathi and Rohit Mehra, Advocates JUDGMENT Sudhansu Jyoti Mukhopadhaya, This appeal has been preferred by the Appellants/Respondent against Order dated 10th November 2016 passed by National Company Law Tribunal, Kolkata Bench (hereinafter referred to as the Tribunal ) in C.P. No. 104 of 2014, whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2013. The equity holding which was 50% was brought down and on the date of presentation of the Company Petition, it was 0.24 % of the total shareholding of the company. According to respondent, his share certificates are in the custody of the 2nd and 3rd appellant. So, he was unable to produce them before the C.L.B. Further case of the respondent was that he as also the 2nd and 3rd appellants were appointed as director (s) of the company on 1st February 2013. 8.The respondent alleged that the relationship between him and the 2nd appellant subsequently became strained. As a result of the same, he received a great shock on perusal of public document available in the website of the Ministry of Corporate Affairs when he learnt that in the meetings of the Board of Directors of the company held on 13th January 2014 and on 18th February 2014 and in the Extraordinary General Meeting of shareholders of company held on 14th February 2014, decisions were taken affecting his right. 9. The respondent subsequently also came to know that 2nd and 3rd respondents were appointed as additional director (s) of the 4th appellant - M/ s. Prowess International Private Ltd. 10. The main plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original promoters Mr. Prince Goyal and Mr N.K. Jain and shares were transferred in their favour on 2nd February, 2013 i.e., one day after their appointment as directors of the company. The payment of ₹ 2,01,00,000/ - (Rupees two crores one lakh only) as share money was made by the 4th appellant in favour of the company much prior to induction of the respondent in the year 2012. 15. Further case of the appellant(s) was that even no formal meeting was held for converting the share money and application of 4th appellant into loan. No such decision could have been taken alone either by the 2nd appellant or the respondent without the consent of the 3rd appellant who was also the director of the 4th appellant company as also of 1st appellant company. J.6. The appellants also denied that the 2nd appellant had any kind of that could have been possible in the presence of the 3rd appellant as both of them were in the Board of 1st appellant and 4th appellant companies. 17. Before the Appellate Tribunal the parties have taken similar plea as were taken before the Tribunal. 18. The Tribunal by impugned judgment dated 10th November, 2016 noticed the allegations made by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cuart (emphasis added). This Court while distinguished the decision of Hon'ble Supreme Court in Bhagwati Developers Private Limited and Rajahmundry Electric Supply Corporation Ltd., held that the said principle, which was made applicable in the case of winding up, will not be applicable where applicant alleges oppression and mismanagement in bringing down the shareholding below 1/10th of the total share of the company. This Court further observed that if the principles laid down by Supreme Court in Bhagwati Developers Private Limited and Rajahmundry Electric Supply Corporation Ltd., which related to cases of winding up, is made applicable in the case of alleged `oppression and mismanagement' in bringing down the minimum requirement of shareholding, then the applicant (s) will be remediless. This Court thereby held that the crucial date for determination of requirements under Section 399 will be the date the alleged date of oppression and mismanagement in bringing down the shareholding below 1/ 10th of the total shareholding of the company took place. 22.In view of decision in Anup Kumar Aggarwal we hold that the petition preferred by respondent was maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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