9911796707
TMI Blog2019 (6) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 which in absolute term have held that events were to be taken into account till now i.e. up to the date of Order 17.09.2008 (relevant portion already reproduced supra). No ambiguity was left, hence the Hon ble High Court has also given the direction on the same lines. It is not possible to keep on changing a cut-off date relevant for the purpose of fixation of valuation on a particular date. The Applicant has coined a terminology changed circumstances , without giving any specific date. Circumstances keep on changing in business-world every day. Therefore, a cut-off date has to be determined. The valuer has rightly adopted 17.09.2008 as the cut-off date for the purpose of valuation by following the instructions of the Hon ble Bombay High Court decisions dated 27.07.2015 / 15.10.2015. No interference is possible by this Bench because the superior Hon ble Courts have given their respective verdict on number of occasions in unambiguous terms. If a dispute is to be resolved and litigation is to be settled, then both the sides are required to take a pragmatic approach. This case has a chequered history of about two decades, therefore, there should be an end to a litigation. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent(s): Mr. Bomi Patel, a/w. Ms. Poorva Garg, a/w. Mr. Jehan Lalkaka, i/b. Mulla Mulla and Craigie Blunt Caroe. ORDER M.K. Shrawat, Member (Judicial). A) Miscellaneous Application 39/2009 :- 1) An Application bearing Company Application No. 39/2009 submitted by the Applicant on 13.01.2009 before the then CLB, Principal Bench, New Delhi in CP No. 12 of 1998. The said Application (CA39/2009 in CP 12 of 1998) was decided by CLB, Mumbai Bench vide Order dated 04.02.2013. The said Order of the CLB was challenged by the Petitioner before the Hon ble High Court (Appeal No.21 of 2013) Order dated 29.04.2013. Before the Hon ble High Court in Company Appeal No.21 in 2013 (in CLB Company Appeal No.39/2009 in Company Petition No.12 of 1998) vide an Order dated 11.12.2013 it was informed that the matter was going on before the CLB hence the Hon ble High Court has directed that it will be open to the Company Law Board to proceed to decide the issue of remuneration and perks stated to be payable to the Petitioner. Thereafter one more Order was passed dated 27.07.2015 by Bombay High Court (In Company Appeal No.21/2013 in Company Application No.39/2009, with Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties to a person/receiver appointed by this Hon ble Board and direct him to keep all cash inflows in separate bank account pending finalization of the matter (in view of change in circumstances accepted by the respondents counsel before Hon'ble Supreme Court). f. Respondents be directed to give inspection of statutory records of the companies SEPL and Sigmalloy to the petitioner being 40% shareholder and director as stated at Para-13 of the present application. g. Respondent No.1 Company be directed to pay 'on account' ₹ 80.00 (Eighty lakhs) against arrears of remuneration and perquisites to the Petitioner and also to go on making payment to him @ 2/3 of drawn by the 2nd Respondent and his family members as at 30.9.1999 till his shares are evaluated and payment is made thereof. h. Order Respondent No.1 Company to pay to the Petitioner, arrears of remuneration and perquisites from 1st October 1999 to 31.12.2008 amounting to ₹ 1,39,05,482.00 (at the rate 2/3rd of the respondents group was withdrawing as at 30.9.1999) with interest at the rate 15% (cumulative basis) thereupon from the date amount becomes due till the final payment is made. i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 03.03.1998 as under:- 1. The Company would pay the monthly remuneration to the petitioner from January, 1998. 2. It will furnish a monthly statements of receipt and payments by 10th of each month from the previous month. 3. Notice for Board Meetings will be sent along with agenda before ten days of Meeting by registered post to petitioner. 4. The petitioner will continue as director, and the company will not take any steps to remove him. 5. The respondents will file their replies to the petitioner by 10/4/98 and rejoinder if any will be filed by 10.5.98. The petitioner will be heard on 14 15 of July 1998 at 10.30. AM each day. In the meantime no further shares will be issued nor any assets disposed off without our approval. 3.2. Date : 18.05.1998:- There were 3 Company Applications CA 122, 132 and 133 of 1998 which were decided by Principal Bench, CLB, New Delhi and the directions were as under:- ORDER Heard on Application. It has been undertaken by the counsel of the respondents that the resolutions passed by the board meeting on 20.5.1998. If passed will not be given effect to till the disposal of the Petition. In view of the undertaking, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given time to choose one of the options and inform by 03.09.1999 to the Respondents. A clear direction was that whatever options the Petitioner would choose should be binding on the Company and the Respondents. As far as the Transfer of Shares and appointment of Additional Director, not disturbed and remained as it was. The Petitioner was given liberty to transfer his shares in accordance with the Articles of the Company. An observation was made that on hearing the decision of the Petitioner, if applicable, Chartered Accountant would be appointed to determine the fair price of the shares. 3.5. Date : 29.09.1999:- Since the date was given by the CLB to communicate the decision, the Petitioner had communicated his decision and opted to sell his shares to Second Respondent of the Group. 3.6. Date : 10.10.1999:- The allegation is that on the basis of fabricated minutes a Board Meeting had been held on 10.10.1999 and the Petitioner was removed from the directorship. 3.7. Date : 03.11.1999 :- Vide this Order CLB had appointed Price Water House to value the shares. Also directed the Company to pay all dues to the Petitioner subject return of FDRs. The remuneration and perquisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord that M/s. PWC had submitted their valuation report on 13.12.2001 and thereafter, it was the petitioner who had raised objections on the valuation report which resulted in further delay in purchase of his shares by the 2nd respondent. If the petitioner had not questioned the valuation, as directed hereinafter his shares would have been purchased by the Respondents within 3 months, that is by 31st March 2002. Therefore, the petitioner would be entitled to remuneration/perquisites only for the period from 1.10.1999 to 31st March 2002 at 2/3 of what was the respondents group is getting by way of remuneration/perquisites. This amount should be paid along with a simple interest at the rate of 12% p.a on or before 30.6.2003. As far as his claim for reimbursement of expenses after the period 1.10.99 is concerned, since he had been directed not to interfere with the affairs of the company the question of his incurring any expenses on behalf of the company and seeking for reimbursement of the same does not arise. 3.11. Date : 16.06.2005 :- The said Order of CLB dated 05.05.2003 (supra) was challenged by both the parties before the Hon ble Bombay High Court (Company Appeal No.3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall fix a time schedule , within which the Chartered Accountant should complete the exercise of valuation of the said shares. The said Chartered Accountant shall file the valuation report in sealed cover with the Company Law Board in company Petition No.12 of 1998. (ii) (i) (ii) (iv) . (v) In so far as the second question of law is concerned I hold that the original petitioner is entitled to payment or remuneration and perquisites till the date of his shares are evaluated as per the second option and the necessary amount paid by the company as per the valuation report. Arrears of the remuneration as of 31.3.2005 shall be paid within 2 months alongwith interest @ 12% p.a. from the date of impugned order till the date of payment. (v) Furthermore on such payment offered by the respondent company to the petitioner the original petitioner will cease to claim any remuneration and will be entitled to the said price of his shares. The original petitioner on payment being made will effect transfer of all his shares and also will resign from the directorship of the company and will cease to have any claim in respect of the remuneration and perquisites as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order of the Company Law Board dated 5.5.2003 and the order of the High Court dated 16.6.2005 and remand the matter to the Board for reconsideration and fresh appropriate decision by taking note of all events which have taken place till now and the facts and circumstances as they exist today, in accordance with law. The appeals of both sides are allowed in part accordingly, leaving open all contentions. All pending applications stand disposed of. 7. The appellant is at liberty to raise the issue of salary and perquisites payable to the appellant from 1.10.1999, also before the Board. As the matter has been pending for a considerable time and the very pendency has led to the change of the circumstances, we request the Company Law Board to dispose of the mater expeditiously. Both the parties agree to appear before the Company Law Board without further notice on 13.10.2008 and take further order from the Board. (emphasis supplied). 3.13.(a). The Hon ble Court has narrated that the dispute was among brothers, Petitioner was holding 40% share of the Company and also claimed to be a Director and the other side i.e. Respondent No.2 to 5 of the Petition were holding 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as at that time yet to be heard, the Hon ble CLB Mumbai disposed of the Company Application No.20 of 2010 of the Respondents holding that the merits of the matter already stood decided by the CLB and accepted by the parties, hence the Petitioner can t interfere in the working of the Company. 3.15. Date : 04.02.2013 : Company Application No.39 of 2009 was decided by the CLB, Mumbai vide detailed Order of 04.02.2013 wherein discussed the past history of the case and the issues dealt with so far and thereupon disposed of the CA in the following manner:- ORDER 1. The Parties are directed to file their respective affidavits within 7 days indicating the facts, circumstances and events that have taken place in between 31/12/1999 until the date of the order of the Hon ble Supreme Court to enable the bench to pass appropriate directions to the Valuers/ auditors to take into accounts such facts, circumstances and events to arrive at a fair value of the shares as on 17/09/2008. 2. In the event such affidavits are not filed it shall be presumed that the Parties have nothing to say and the Bench shall proceed further on the basis of the material available on record. However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e listed on 14th February, 2013 at 3.00 p.m. for further hearing and directions. 3. 15.(a). The parties have drawn attention on Para 13 of the Order dated 04.02.2013 for reference reproduced below:- At the outset, I would like to mention that the disputes which were adjudicated by the CLB, by its impugned order dated 5th May, 2003 were confined to only with regard two issues :- i. The valuation of shares ii. Payment of remuneration and perquisites and its cut off date. According to the CLB, the said Two issues were confirmed by the High Court and Supreme Court when the matter was carried against the Order of the CLB dated 05.05.2003. 3.16. Date : 01.05.2013 : The CLB appointed M/s. Dargdulal K. Jain, Chartered Accountant as an independent valuer. 3.17. Date : 11.12.2013 : On this date as per Farad Continuation Sheet matter was adjourned to 15.01.2014 with the direction that it would be open to the Company Law Board to proceed to decide the issue of remuneration and perks stated to be payable to the Petitioner. 3.18. Date : 26.03.2014 : Finally an Order on Misc. Applications was passed on 26/03/2014 by CLB, therein deciding C.A. No. 39 of 2009 C.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant should continue to be a director of the company, and be entitled to the pay including allowances and perquisites, till his shares are purchased by the Respondents. On 13 December 2001, PWC submitted a report valuing the shares at ₹ 2044/- per share. On objections by both sides, the CLB directed a fresh valuation. This order was passed on 26 August 2002. Thereafter by their communication dated 18 November 2002, PWC informed the CLB that its original valuation report dated 13 December 2001 did not need any revision. Thereafter, the CLB, by its order dated 5 May 2003, accepted the valuation and held that the Respondent shall purchase the shares held by the Appellant in the second Respondent company at ₹ 2044/- per share. As the Appellant held 7,420 equity shares of ₹ 100/- each, the CLB arrived at the total amount payable for the shares as ₹ 1,51,66,480/-. It directed that the payment should be made to the Appellant positively by 31 July 2003. The CLB also directed the Respondent company to pay arrears of salary / perquisites to the Appellant for the period upto 31 March 2002. This order of the CLB was challenged by both the parties before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed in part accordingly, leaving open all contentions. All pending applications stand disposed of. 7. The appellant is at liberty to raise the issue of salary and perquisites payable to the appellant from 1.10.1999, also before the Board. As the matter has been pending for a considerable time and the very pendency has led to the change of the circumstances, we request the Company Law Board to dispose of the matter expeditiously. Both the parties agree to appear before the Company Law Board without further notice on 13.10.2008 and take further order from the Board. 4. The Appellant thereupon preferred the present company application in the original company petition under Sections 397 and 398 of the Act. The Appellant made extensive prayers in the company application, which inter alia included declaration of various Board resolutions passed by the Respondent in 2006 and 200 as null and void and handing over to the appellant the management of the Respondent company as a sole director thereof with directions to the Respondents not to interfere with the day to day affairs of the company till the shares of the Appellant were evaluated and purchased by the legal representatives of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the company application : d. To direct the Respondents to give inspection of statutory records of the companies SEPI and Sigmalloy to the Petitioner. e. To direct the Company to pay 'on account' ₹ 80.00 (Eighty lakhs) against arrears of remuneration and perquisites to the Petitioner and also to keep on making payment to him @ 2/3 of drawn by the 2nd respondent and his family members as on 30.9.1999 till his shares are evaluated and payment is made thereof. f. To direct the Respondent No.1 company to pay the Petitioner, arrears of remuneration and perquisites form 1st October 1999 to 31st December, 2008 amounting to ₹ 1,39,05,482/- (at the rate of 2/3rd of the respondents group was withdrawing as on 30.9.1999) along with interest at the rate of 15% (cumulative basis) thereupon from the date amount became due till the final payment is made. g. To direct till payment of arrears of remuneration and perquisites of ₹ 33,57,782/- for the period upto 30.09.1999 as on 31.12.2008 plus interest of 15% (cumulative basis) thereupon till date of final payment is made by the Respondent No.1 Company. The CLB proposed to consider these prayers in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CLB. The CLB was directed to take into account all events which have taken place till now (i.e. upto the date of the Supreme Court order) and the facts and circumstances as they exist today (i.e. of 17 September 2008), in accordance with law. But these events were to be taken note of and the facts and circumstances were to be considered in the light of and for the sake of the controversy pending before the CLB at that stage, namely, the two aspects described above. the CLB no doubt will take into account everything that has transpired, since the filing of the petition and upto 17 September 2008, including the various resolutions passed by the Board of directors of the Respondent company and its several acts committed in the management of the affairs of the company but only insofar as they have a bearing on the two aspects noted above. The Board resolutions or the acts of the management on the part of the Respondents are not amenable to a per se challenge so as to quash the same. The Appellant also cannot seek an order of taking over the management of the Respondent company under the guise of this fresh consideration. 7. This is precisely what the CLB held. The CLB has correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the Petitioner and the Ld. Counsel of the Respondent revolving around the issue of appointment of a Valuer. The Ld. Counsel of the Respondent M/s. Mulla Mulla have sent a Letter seeking Petitioner's consent on one of the names out of the four names of the Chartered Accountants/ Valuer. Ld. Counsel from the side of the Respondent through Letters of 21.10.2015 and 28.10.2015 have asked to mention the name of a Valuer by the Petitioner and due to no specific expression of intention, vide 28.10.2015 the Respondents have communicated the decision to the Hon ble High Court dated 15.10.2015 appointing M/s. Natu Phatak as Valuer. The Petitioner has even challenged that appointment on 17.11.2015 before the Hon ble Supreme Court and the Petitioner's SLP (11513-11514 (C)) was submitted on 17.02.2016. Side by side the Petitioner had intimated on 10.04.2016 that the basis for valuation of the Shares was not correct. According to him since the Balance Sheet of 2008 prepared in Petitioner's absence, therefore, not a fair valuation thus deserves to be rejected. 3.22. Date: 08.09.2016 : The allegation of the Petitioner is that without disclosing the fact that one SLP was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f remuneration and perquisite as on 28.02.2017 was at ₹8,59,31,515/-. On that date the matter was adjourned by NCLT. 3.27. Date: 27.11.2018 : The Petitioner had approached the Hon ble Supreme Court and on mentioning the matter of Interim Application No. 121603 of 2018 in the matter of SLP No. 18914-18915/2016 (M), the Hon'ble Supreme Court was pleased to direct the Registry to get telephonically Instruction/ Report from, the Chairman Company Law Tribunal as to whether any order has been pronounced in the matter (C.A. 39/2009 C.A. 136/2014 in TCP No. 12 of 1998) reserved on 5.10.2017. C) CERTAIN OBSERVATIONS OF THE COURT :- 4. The Petitioner Mr. Vinod Kumar used to appear in person before this Bench throughout during the course of hearing took place in past few months and placed synopsis of dates and events happened in this case since its inception in the year 1998. The Ld. Petitioner has also submitted written submissions and a compilation of several Orders of the respected CLB, Principal Bench New Delhi, order of CLB, Mumbai as well as Hon ble High Court and Hon'ble Supreme Court. Since the Petitioner is narrating the past history of the case whenever hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the versions of both the sides, at the cost of repetition at some places, dates and events as per the Respondents are reproduced below:- LIST OF DATES AND EVENTS (by Respondent) SR. NO. DATE EVENT PAGE NOS. 1. 2/2/79 The Respondent No.1 was incorporated and took over the business being conducted by M/s Sigma Engineers between two brothers, Late Ashok Kumar and the Applicant. Late Ashok Kumar held 60% of the shares and the Applicant held 40% of the shares of the Respondent No.1. 2. 1998 Disputes and differences arose between the Applicant and Late Ashok Kumar. The Applicant filed a Company Petition No. 12 of 1998 before the CLB under Sections 397 398 of the Companies Act, 1956 alleging oppression and mismanagement. 3. 20/8/1999 Order passed by the CLB giving two option to the Applicant that is to continue with the company with 40% shares and also as a director with remuneration but without any power to interfere in the affa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. 13/1/2009 The Applicant files Company Application No. 39 of 2009 before the CLB. 12. 3/2/2010 The Respondents file Civil Application No.20 of 2010 before the CLB. 13. 7/9/2010 The Applicant seeks adjournment before the CLB 79 14. 30/11/2010 The Applicant seeks adjournment before the CLB 80 15. 10/2/2011 The Applicant seeks adjournment before the CLB. The CLB states that no further adjournment will be granted 81 16. 16/3/2011 The CLB directs the Applicant to suggest the name of valuers. The order is not complied with by the Applicant. 82 17. 29/11/2011 The CLB disposes of CA No.20 of 2010 by holding that CA No. 39 has to be heard only on the point of determination of valuation and fixing the cut of date and also appointing va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble CLB passes an order directing the Respondent to pay the salary with effect from 1/10/1999 @ ₹ 2,40,000 p.a. until he receives the value of his shares. The CLB also states that the Applicant is entitled electricity, house rent and medical expenditure actually incurred by him. 110-124 29. 26/05/2014 Company Appeal No. 54 of 2014 was filed by the Applicant challenging the CLB Order dated 26th March 2014. Applicant also filed Company Appeal No. 88 of 2014 against CLB order dated 26th March 2014. 30. 27/07/2015 Order passed by the Hon ble Bombay High Court holding that CLB correctly applied order of the Supreme Court passed on 17th September 2008 viz. that only issues relating to valuation of shares and remuneration perquisites are to be decided taking into account happenings subsequent to 3rd December 1999 until date of Supreme Court order viz. 17th September 2008. Other reliefs cannot be sought by the Applicant. 125-133 31. 15/10/2015 Order passed by the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 40%shares and also as a director with remuneration but without any power to interfere in the affairs of the company and the second was that he could sell his shares to the respondent's group at a price to be determined by an independent valuer. The petitioner was to chose one of the options and communicate the same to the 2nd Respondent by 30.9.1999. We also stipulated in that order that in case the petitioner chose the second option, he would be at liberty to approach this Bench for appointment of a valuer to determine the fair price for the shares. The petitioner had chosen second option of selling his shares to the respondents and has accordingly approached this Bench for appointment of an independent valuer. In the hearing held on 3.11.1999, the counsel appearing for both the parties have agreed that M/s. Price Waterhouse be appointed to determine the fair price for the shares. Accordingly, we appoint M/S. Price Waterhouse, Pune/Mumbai to determine the fair price for the shares in accordance with accepted principles of valuation. 5.3. While disposing of the Company Petition No. 12 of 1998, on number of occasions the Hon ble CLB held (as per orders discussed in above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, vide its Order dated 17.09.2008 and remanded the matter to the CLB, quote for re-consideration and fresh appropriate decision, by taking note of all events which had taken place till now and the facts and circumstances as they exist today in accordance with law. unquote. The Hon ble Supreme Court also granted liberty to the Petitioner to raise the issue of salary and perquisites from 01.10.1999 before the CLB. 5.7. Thereupon, the Petitioner filed Company Application No.39 of 2009 before the CLB on 13.01.2009 seeking inter alia directions to change the date of valuation from 31.03.1998 to current date, and various other reliefs including those which were allegedly not even prayed in the Company Petition No. 12/1998. 5.8. The Respondents filed Company Application No.20/2010 for dismissal of the said CA 39/2009 stating that various reliefs prayed for could not be granted in view of the earlier orders. The Hon ble CLB disposed of the Company Application No.20/2010 by passing Order dated 29.11.2011 averring that the merits of the matter has already been decided by the CLB and accepted by the parties and the Petitioner cannot interfere in the working of the Company. It was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ites by the Petitioner. The Respondent Group stated that the Petitioner was not entitled to salary and perquisites and produced evidence before the CLB to show the detrimental conduct of the Petitioner towards the Company, however, the CLB held that the Respondent Group had failed to produce and place cogent evidence on record to prove that the Petitioner was not entitled to salary and perquisites as the Petitioner s actions were detrimental to the functioning of the Company. 5.14. Both the Petitioner and Respondent Group challenged the Order dated 26.03.2014 passed by the CLB. By Order dated 15.10.2015 the Hon ble Bombay High Court set aside the said Order of CLB dated 26.03.2014 (inadvertently mentioned in the said Order as 26th March 2004) by consent and remanded the matter to CLB for fresh hearing in accordance with law on question of payment of salary and perquisites to the Petitioner with further direction to CLB to take into account the material placed before it by both parties. In the said Order dated 15.10.2015, the Hon ble Bombay High Court also appointed M/s. Natu Phatak as valuers to determine the valuation of the Petitioner s share in the company, reproduced below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents that by Letter dated 28.11.2016, the Order dated 15th July 2016 and the valuation report dated 27th June 2016 were filed before this Tribunal. 5.17. The Respondents in their submission on the issue of Valuation has stated that M/s. Natu Phatak Valuers have competed the valuation of the shares of the Company as on 17th September 2008 and have valued the shares at ₹8,794/- per share. Accordingly, the 40% shareholding of the Petitioner (7420 shares) is valued at ₹6,52,51,480/- (Rupees Six Crore Fifty Two Lakhs Fifty One Thousand four Hundred and Eighty Only). The Respondent group further submitted that although the Respondent Group is of the opinion that the valuation is substantially high, in order to put an end to the litigation which has been pending for last 18 years, (since 1998), are willing to pay the value of the shares, upon the Petitioner handing over to the Respondents the duly signed share transfer forms along with the share certificate for the 7420 shares. The Respondents have filed their Affidavit dated 10.01.2017 to this effect in this Tribunal is on record. 5.18. On the issue of Salary and Perquisites, the Respondents have stated that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner is allowed to do so, the final order dated 20th August 1999 of the CLB in Company Petition No.12 of 1998 will have no meaning and will be rendered infructuous. Respondents also argued that the Hon'ble CLB had also by its orders dated 7th September 2010, 30th November 2010, 10th February 2011, 30th October 2012 and 14th December 2012 recorded the conduct of the Petitioner, which demonstrated delaying of the proceedings before this Hon ble Tribunal for the valuation of the shares of the Company. 5.22. According to the Respondents, had the Petitioner exercised the first option granted by the CLB in its final order dated 20th August 1999 in Company Petition No.12 of 1998, the Petitioner would have continued as a Director of the 1st Respondent Company and would have been entitled to his remuneration but without any power to interfere in the affairs of the 1st Respondent Company. However he had made the other option of sale of shares, hence, the question of valuation is still sub- judice, although Valuer's report is final. Only it's implementation is now required. The Respondents further stated that the Petitioner having opted for the second option i.e. to exit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any salary or perquisites whatsoever. 5.26. The Respondents finally submitted that in the circumstances aforesaid, in effect, the Petitioner Applicant is not entitled to any salary or perquisites etc. and vehemently pleaded that this Hon ble Tribunal give directions to execute the valuation report dated 27th June 2016 which has been taken on record by the Hon ble Bombay High Court on 15th July 2016 so that this long litigation, pending for the last 19 years could be put to an end. E) FINDINGS :- 6. In the above paragraphs a detailed reproductions of all the Judgments has been made so that the core issue; yet to be decided after a prolonged litigation; can be shortlisted and identified. Only for the sake of completeness a little background of this case is also mentioned, although the question of Oppression and Mismanagement is not the issue for the adjudication of this Bench. As borne out from the records the Original Respondent No.2 (now deceased) started business in the name of M/s Sigma Engineers in the year 1974. M/s Sigma Engineers was initially a proprietary concern of the Original Respondent No. 2 viz. the late Mr. Ashok Kumar and on 20th January 1977, M/s Sigma E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. As a consequence, in simple terms, the shares of the Petitioner were to be sold to the Respondent Group, at a valuation to be fixed by an independent valuer. The question of selection of a Valuer became the bone of contention resulted into a long drawn litigation. On number of occasions claim, counter-claim, allegation, counter-allegation were made. In this regard, the correspondence took place and interim orders passed are already mentioned in the foregoing paragraphs. Worth to mention that the CLB by Order dated 5th May 2003 upheld PWC s Valuation Report and confirmed the valuation at ₹ 2,044 per share. There was no end of the litigation. Both, Petitioner and the Respondents filed Appeals under Section 10F of the Companies Act 1956 to the Bombay High Court to challenge the said order dated 5th May 2003. The Bombay High Court disposed of both the Appeals vide an Order dated 16th June 2005 read with Order dated 25th August 2005 and the Valuation Report of PWC was set aside. The Petitioner and the Respondents both filed Special Leave Petitions against the Orders of the Bombay High Court dated 16th June 2005 and 25th August 2005. The Supreme Court set aside the Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay was sought for and granted by the Hon'ble High Court. At the appropriate time when the valuer had demanded the evidences for fair and reasonable finalization of valuation, the Petitioner had not availed the opportunity but later on raised objections, that too, without any cogent evidence. Therefore, this Bench is of the firm view that such lackadaisical approach of any litigant be discouraged. Particularly in this case, when all the options available to the Petitioner stood exhausted, it is not appropriate, rather damaging the legal system, to revisit or restart the entire proceedings of valuation afresh. Such an attempt is hereby overruled. The valuer had finalized the valuation of shares at ₹ 8,794/- per share, which otherwise also appears to be reasonable. It is a humble suggestion that at some stage of litigation, especially when two decades have passed by, one has to pacify himself with the outcome of the litigation. 6.1. In view of the foregoing paragraphs in which date-wise events and past history of the case is narrated, now the grounds of relief sought for by the Applicant are to be addressed as under:- Prayer a. In view of the changed circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verbatim the observation of the CLB Order dated 29.11.2011 because the objection of the Respondent raised in CA 20/2010 was rejected and it was held that CA 39/2009 shall be heard, now sub judice before us, relevant portion of the Order reproduced below:- ORDER The present application is filed by the Respondent No.1 Company for seeking dismissal of CA 39 of 2009 filed by the petitioner on the ground that the said CA is not maintainable. The CA 39 of 2009 filed by the petitioner seeking directions to the Respondent Company to change the date of valuation of petitioner's share from 31.3.98 to current date and valuation to be done by panel of two Chartered Accountants and sought various other reliefs in the application. The applicant contended that the reliefs sought by the petitioner in CA 39 of 2009 are beyond the scope of the directions given by the Hon ble Supreme Court. Moreover the petitioner exercised the option to exit the Company by selling his shares to the respondents and the same was recorded by the CLB and there is no challenge to the said order. It is further submitted that the matter was remanded back by the Hon ble Supreme Court vide its order dated 17th Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Company Application No.39 of 2009 in Company Petition No.12 of 1998) wherein the Hon ble Court has discussed the basic structure that the Appellant held 40% share and also a director, however, others held 60% share. An important view was expressed by the Hon ble Court vide the said Order dated 27.07.2015 that the CLB has correctly construed and applied the Order of the Supreme Court passed on 17.09.2008. The observation of the Hon ble Court was, Quote from Para 7 : 7. This is precisely what the CLB held. The CLB has correctly construed and applied the order of the Supreme Court passed on 17th September 2008. Leaving open all contentions clearly meant that the parties were entitled to advance all contentions relevant to the valuation of the shares and the determination of the remuneration and perquisites payable to the Appellant by bringing to the notice of the Board the happenings subsequent to 3 December 1999 until the date of the order of the Supreme Court and thereafter to arrive at a fair valuation. In that view of the matter, the reliefs sought in terms of prayer clause (a), (b) and (c) were clearly irrelevant and could never be allowed. As far as other prayers are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. The said Valuer has computed the share valuation as on 17.09.2008. The Valuer has given a reason that the Hon ble Bombay High Court vide Order dated 15.10.2015 has so opined, hence in accordance to the said Order completed the valuation. The Valuer has pointed out that opportunities were granted to both the sides for their respective representations but only attended by one director Mr. Anshul Kumar, and not attended by Mr. Vinod Kumar. Mr. Vinod Kumar has only informed that one SLP is filed before the Supreme Court challenging the said appointment of the Valuer. At this juncture, it is necessary to point out that before the Hon ble High Court the said appointment of the Valuer was finalised when both the sides had consented for this appointment. This Bench has perused the contents of this valuation so that a clear finding can be incorporated in this Order. The Valuer has taken into account all the classes of assets such as Immovable and Movable viz. Land, Furniture, Fixture, Capital Work in Progress, etc. as per Books of Accounts at 17.09.2008 at ₹6,52,80,653/-. To ascertain the Fair Market Value , for the purpose of valuation of land a Registered Valuer was appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be determined. The valuer has rightly adopted 17.09.2008 as the cut-off date for the purpose of valuation by following the instructions of the Hon ble Bombay High Court decisions dated 27.07.2015 / 15.10.2015. No interference is possible by this Bench because the superior Hon ble Courts have given their respective verdict on number of occasions in unambiguous terms. An Order passed by the Hon ble Supreme Court is a law of the land, therefore, not a single word can be added or deleted or supplemented. The Applicant is making such attempt, which ought to be rejected. Therefore, the valuation of the shares as on 17th September 2008 is proper; resultantly this prayer does not survive. Prayer b. Direct evaluation of fair market value of shares by a panel of two Chartered Accountants (both selected by each party to make the valuation of shares binding on both the parties). 6.10. A detailed discussion has already been made in above paragraphs while considering Prayer (a). The Applicant is again raising this issue of appointment of a Valuer which is not justifiable because a lot of water had already been flown under the bridge in the past which is duly witnessed and confirmed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner had been given the exit option from the Company on sale his shares. This Order has not been challenged by either side. Rather, the Applicant Mr. Vinod Kumar had filed a Company Application No.261/1999 for the claim of his arrears of remuneration and perquisites amounting to ₹10,51,127/- for the period of 20.08.1999. By moving this Application the Applicant had made it clear that he had no grievance against the verdict of the CLB in Order dated 20.08.1999. Further it is strange that in this Prayer the Applicant is questioning certain Board Resolutions and EOGM pertaining to the years 2006 and 2007, a subsequent event after filing of the main Petition (CP 12/1998) and even after passing of the Order by the CLB Principal Bench of 20.08.1999. In my considered opinion, the grievance of Oppression and Mismanagement ought to have happened for the period prior to the filing of the Oppression and Mismanagement Petition. If some wrong has been done in the management of the affairs of the Company in the past, the same is required to be agitated in a Petition of Oppression and Mismanagement. For events took place subsequent of filing of the main Petition of alleged Oppression a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this prayer cannot be decided when in the past in the final order of the CLB dated 20th August 1999 (supra) granted the Petitioner two options viz. to exit the Company or to continue to remain a director of the Company i.e. 40% shareholding but without any power to interfere in the affairs of the Company. The said order dated 20th August 1999 had not been challenged by either of the parties. The said order had made it clear that whatever option he chooses the same will be binding on the Company and the Respondents . Thus the Petitioner having chosen the option to exit the company, the said option is thus binding upon the Petitioner and as a consequence now cannot ask for handing over the management of the Company to him. In fact in the order dated 20th August 1999 the Petitioner s submission that he was not interested in going out of the Company and that he desires participation in the management or in the alternative he desires that he should be allowed to purchase the shares held by the Respondents, was specifically over-ruled by the CLB s in the said Order dated 20th August 1999. A reasoned order passed on merits after due deliberations must not be reviewed / rectified / amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n writing and the valuer will take into consideration the reaction of the parties on the draft report and prepare a final report. The company will negotiate the fees payable to the valuer and pay the same. The draft valuation report should be made available latest by 15.2.2000 and the parties should react on the same by 29.2.2000. The final report should be made available latest by 20.3.2000 and copies be given to the parties and a copy of the same be sent to this Bench by 25.3.2000. This report will be considered by us on 27.3.2000 at 2.30 PM. 6.13. Further, this very fact was also recorded by the Hon ble Bombay High Court that the handing over of the management was already rejected. Therefore, refer that by order dated 27th July 2015, the Bombay High Court recorded that the CLB by its Order dated 4th February 2013 {see para 3.19 of this Order (supra), (internal para 4 of High Court Order)} had also rejected the aforesaid prayer for handing over management of the Respondent Company to the Petitioner. It is worth to mention at this place as well that vide Para 3.19 (supra), the relevant portion of the Order of the High Court has already been reproduced. Therefore, this Prayer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd prayed for in this Miscellaneous Application. If such an order is passed it will be contrary to the order dated 20th August 1999 (supra) inasmuch as it will give blanket permission to the Petitioner to interfere in the working of the Company and that may create deadlock in the management of the Company. By order dated 27th July 2015 the Bombay High Court (supra) has also held that, The Board resolutions or the acts of management on the part of the Respondents are not amenable to per-se challenge so as to quash the same. The Appellant also cannot seek an order of taking over the management of the respondent Company under the guise of this fresh consideration . No scope is left to the Petitioner to raise this point time and again, being already stood merged with the finding of the Hon ble High Court. Therefore this prayer is rejected. Prayer g. Respondent No.1 Company be directed to pay on account ₹ 80.00 (Eighty lakhs) against arrears of remuneration and perquisites to the Petitioner and also to go on making payment to him @ 2/3 of drawn by the 2nd respondent and his family members as at 30.9.1999 till his shares are evaluated and payment is made thereof; Prayer h. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to the perquisites as shown in the calculation sheet cannot be accepted. Admittedly, the Company is not carrying any activity for the last many years. Therefore, the Petitioner is entitled to the perquisites only in respect of Electricity charges, House rent and Medical allowance on actual basis. In support of his claim relating to the perquisites, he is, therefore, directed to file the original bills paid in proof thereof. The Company is directed to pay such amount to the Petitioner after verification if required, as directed hereinafter. 6.17. It may not be out of place to mention that the CLB in the said Order of 26.03.2014 has also touched the issues of claim of interest, as per the Petitioner at the rate of 15% per annum. The Bench in para 36 of the said Order has opined that the interest claim by the Petitioner was highly exaggerated. In the opinion of CLB, it would be expedient to award interest @ 12% p.a. Based upon various facts and circumstances the CLB has finally held as under:- 37. Based on the above discussions, the findings are as follows:- a. It is declared that the Petitioner was getting ₹ 2,40,000/- p.a. as his salary prior to 1/10/1999. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to sacrifice some of their rights. Simultaneously both the sides have to forget about the past especially the events triggering the dispute or may be hurting each other's repute. Particularly, in such cases where the rival parties are brothers or closely related to each other. Keeping this benevolent approach in mind this Bench is of the view that on one hand the Petitioner be directed to surrender the shareholdings in favour of the Respondents and on the other hand the price duly determined by the Valuer be paid to the Petitioner. Additionally, the Petitioner should also be paid salary and perquisites for a reasonable period, already been discussed on several occasions in the past. On the basis of several years past experience, it is worthwhile to draw an analysis that a Court-decree or a Court-Judgment do not satisfy 100% both the litigants, either Petitioner or Respondent. The Courts/ Tribunals do not pass a Judgment for the satisfaction of the litigants but a Judgment is based upon principle of natural justice and equity. What is most appropriate, fair, justifiable and reasonable are the landmarks for a judicial decision. Keeping all these ingredients discussed in above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on the amount as directed above, as per the tranches of payment settled vide Para 7.1 above. 7.5. Direction to facilitate the smooth transition as directed above, on receiving the First instalment on 01.08.2019, the Petitioner shall keep the share certificates in a Bank Locker to be operated jointly by the Petitioner with any of the Respondent or representative. 7.6. Direction to inform the progress : The compliance of this Order be reported by both the sides on monthly basis to this Bench in writing. On receiving the last payment instalment due on 01.01.2020, the Petitioner shall open the bank locker immediately thereafter in the presence of the Respondent and hand over the original share certificates duly signed and discharged in favour of the Respondent or their nominee. 8. As a result, this CA No.39/2009 is 'Partly Allowed' pro-tanto. G) C.A. No. 136/2014:- 9) One more Company Application bearing No. 136/2014 in CP No. 12 of 1998 was also filed by the Petitioner on 16.05.2014 before the erstwhile Company Law Board, Mumbai Bench with the following prayers:- (i) Clarify whether, in accordance with law, observation recorded in para 24 of the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Bench. (vii) In the premises of the order dated 3/03/1998 (not modified by any subsequent order) in force, direct the 1st Respondent Company to give notices of all the Board Meetings, Extra Ordinary General Meetings and AGMs along with agenda to the applicant by registered post before the meeting. (viii) In the premises of the order dated 3/03/1998 (not modified by any subsequent order), direct the 1st Respondent Company to furnish monthly statement of receipt and payments by 10th of each month from the previous month. (ix) In the premises, direct the 1st Respondent Company to maintain Registered Office at the address Plot No. 31, D-II Block, MIDC, Chinchwad, Pune 411019 instead operating from the address C/o Mrs. Usha Kumar, Flat No. 301, Gemni River front, Survey No. 11/4A, Near Spicer College Road, Aundh Pune 411007. (x) In the premises of clauses a. to c. of the order dated 26/03/2014, direct the 1st Respondent Company to pay immediately the arrears of remuneration and perquisites due and payable to the applicant. (xi) In the premises of clauses 3. of the order dated 26/03/2014, direct the Respondent Company to pay immediately remuneration and perquisites to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of the remuneration and perquisites payable to the Appellant by bring to the notice of the Board the happenings subsequent to 3rd December 1999 until the date of the order of the Supreme Court and thereafter to arrive at a fair valuation . Therefore the said orders cannot be reviewed/ rectified by this Tribunal as prayed in this Miscellaneous Application. In any event the said orders were passed several years ago by different bench. Moreover, on number of occasions decisions have been taken on all the issues as raised in the prayers of this Miscellaneous Application. Therefore, on the guise of clarification of all those issues another independent Order must not be demanded by the Applicant. 9.2. In this Application the Applicant in a way seeking review of some of the Orders. In this regard, the Statute is absolutely clear that the Power of Review of its own Order is not enshrined upon NCLT. At the most, power of rectification is enshrined under Rule 154 of National Company Law Tribunal Rules, 2016, i.e. Rectification of Order. Rectification is defined i.e. any clerical or arithmetical mistake, any accidental slip, omission can be rectified even on its own motion by t ..... 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