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TMI Blog2019 (6) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appeal No.88/2013 in Company Application No.39/2009). The said Order of the Bombay High Court of 27.07.2015 was challenged before the Hon'ble Supreme Court in Special Leave to Appeal CC No.1891418915/2016 titled as (arising out of impugned final judgment and order dated 27/07/2015 in CA No. 12/2009 27/07/2015 in CA No. 21/2013 27/07/2015 in CA No.39/2009 27/07/2015 in CA No.88/2013 passed by the High Court of Bombay), wherein parties were Vinod Kumar (Petitioner) Vs. M/s. Sigmalon Equipment Pvt. Ltd. (Respondent) Order dated 03.01.2017 and held as that the Company Law Board was in seisin of the matter which was posted in January 2017 hence directed the Company Law Board to pass final Order within Two months as per the Order of Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 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. Direct the payment of arrears of remuneration and perquisites of Rs. 33,57,782.00- for the period up to 30.09.1999 as at 31.12.2008 and pay interest of 15% (cumulative basis) thereupon till date of final payment is made by the Respondent No.1 Company." 2. The main Company Petition was originally filed on 20.02.1998 by the Petitioner (Mr. Vinod Kumar) against the Respondent Company [M/s. Sigmalon Equipments Pvt. Ltd. (in short "SEPL")] before the Hon'ble Company Law Board, Principal Bench, New Delhi under Sections 397, 398 r/w Section 402 of the Companies Act, 1956 alleging Oppression and Mismanagement against the Respondent Company. The Main Petition was decided by CLB, Principal Bench, New Delhi (CP No.12/1998) vide Order dated 20.08.1999. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are disposing off the application without any order. Reply to the petition handed over to the counsel for the petitioner. He may file his rejoinder by 1.7.98. The application will be heard as scheduled on 14th & 15th July, 98. Liberty to apply in the meantime." 3.3. The allegation of the Petitioner is that to circumvent the Order of the CLB dated 18.05.1998, the Respondent appointed one Mr. Anshul Kumar as Executive VicePresident of the Company with effect from 22.05.1998. 3.4. Date 20.08.1999:- The Main Petition (CP 12/1998) was decided by CLB, Principal Bench, New Delhi on 20/08/1999, wherein it was observed that the exact date of dispute could not be ascertained, however, dispute started simmering from June/ July 1996 on the issue of settlement of accounts. Some of the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 perquisites were claimed at Rs.10,51,127/-. The FDR amount was Rs.4,23,625/-. 3.8. Date : 01.05.2000 :- The CLB has announced valuation date as on 31.03.1998. Since there was a dispute remained unresolved about the quantum of arrears of Salary, it was directed to pay Rs.63,590/-. 3.9. Date : 05.11.2001 :- Respondents submitted Form 32 to RoC showing therein "Removal of the Petitioner from the directorship of the Company". 3.10. Date : 05.05.2003 :- The Petitioner had moved Two Miscellaneous Applications (CA 74/2002 and CA 107/2002) on receiving the Order pronounced in the Main Petition decided by CLB, vide Order dated 20.08.1999. On receiving these Two Miscellaneous Applications, wherein the Petitioner raised various objections on the valuation report, a detailed Order was passed dated 05.05.2003 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected 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 2004 in Company Petition No.12 of 1998) by Mr. Vinod Kumar and (Company Appeal No.6 of 2003 in Company Petition No.12 of 1998) by M/s. Sigmalon Equipment Pvt. Ltd. Vide an Order dated 16.06.2005, the Hon'ble High Court has reproduced the questions framed by the Ld. Single Judge in Company Appeal No.6 of 2003 Order dated 15.01.2004, as under:- " (1) Whether the market value determined in respect of the shares held by the Respondent can be said to be just and proper ? (2) Whether the Respondent would continue to exercise rights as Director of the Appellant Company until the amount towards the valuation of his shares held by the Respondent is paid over to him?" In the body of Order an opinion was expressed by the Hon'ble Court that, "I am therefore of the opinion that the ratio of two-third to the remuneration drawn by the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 director of the company. 3.12. Date : 07.08.2008 : The Petitioner had gone in appeal before the Hon'ble Supreme Court and vide an Order of 07.08.2008, Hon'ble Supreme Court has given the verdict as follows:- "UPON hearing counsel the Court made the following ORDER Learned counsel for the respondents seeks a week's time to secure instructions as to the price which the respondents are willing to offer to the petitioner Vinod Kumar in regard to the 40% shared held by him without prejudice. The price offered should be such which gives an option to the petitioner Vinod Kumar to buy the 60% share of the respondents at that price. List the matter on 12.8.2008." 3. 12.(a). At this juncture the argument of the Petitioner was that an option is granted to him to buy 60% share of the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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% share and also directors of the Company. In the year 1998, the Appellant (Vinod Kumar) had filed a Petition u/s. 397-398 of the Companies Act, 1956 alleging Oppression and Mismanagement. The CLB had passed several Interim Orders dated 03.11.1999 and 01.05.2000 and gave an option to the Appellant to sell his shares to Respondents 2 to 5 at a price fixed by an independent valuer. Valuer M/s. Price Waterhouse gave valuation at Rs.2,044/- per share based upon the Balance Sheet drawn as on 31st March, 1998. A re-valuation was also ordered by the CLB. Vide an Order of 05.05.2003 the CLB had directed to Respondents to purchase the shares of the Appellant Mr. Vinod Kumar @ Rs.2,044/- and pay an amount of Rs.1,51,66,480/-, the consideration of 7,420 equity shares held by the Petitioner. A direction was given by the CLB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made clear that facts and events pleaded in this C.A No. 39 of 2009 by the Petitioner and by the Respondents in reply thereto may be considered and noted by the Bench in terms of the direction of the Hon'ble Supreme Court despite the said application is being disposed off. 3. The Petitioner shall submit details of the amount of the remuneration plus perquisites etc. which has already been received by him month wise after the date of decision and the details of amount due and payable month wise according to him in the manner stated above. 4. The Respondent have already submitted their three names as mentioned above. The Petitioner shall submit three names of Auditors/ Valuers within 7 days. The Bench Officer shall also obtain three names from the office of the Hon'ble Company Judge, High Court of Bombay. In case, the Parties by consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned 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. 20 of 2010 after considering the facts and the past history of the case, thus based upon the submissions of the both the sides held as under:- "a. It is declared that the Petitioner was getting Rs.2,40,000/- p.a. as his salary prior to 1/10/1999. Accordingly, the Petitioner shall be paid the arrears of salary by the Respondents in terms of the order passed by the Board w.e.f. 1/10/1999. b. In so far as the perquisites are concerned, it is directed that subject to production of proof of actual payment, the Petitioner shall get the amount relating to Electricity, House Rent and the Medical expenditure actually incurred by him w.e.f. 1/10/1999, in terms of the orders passed by the Board." (full extract is reproduced below in Para 6.17. 3.19. Date 27.07.2015 : The Hon'ble High Court vide Order dated 27.07.2015 (Company Appeal No.21 of 2013 in Company Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,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. The appeals were disposed by this Court by a common order dated 16 June 2005. This Court set aside the valuation of PWC on the ground of bias and directed the revaluation as of 31 March 2005. This Court also held that the appellant was entitled to remuneration and perquisites till the date of valuation of shares and payment thereof." 3 Not being satisfied with this Order, both sides preferred Special Leave Petitions before the Supreme Court. When the SLPs came up for hearing before the Supreme Court, learned Counsel for the Appellant submitted before the Court that there had been a complete change in the circumstances after the appeals were filed as the Respondents' group as the Respondents' group, which Was in control of the company, had virtually sold a the movable assets and that therefore, it was now necessary that relief should be appropriately moulded in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 the second Respondent (Ashok Kumar - Respondent No.6 herein.) Whilst the matter was pending before the Supreme Court, the original Respondent died. The legal representatives of Respondent No.6 are now before the CLB in the new company application as Respondent Nos.3, 4 and 5. (They are also Respondent Nos.3 to 5 in the present appeal.) The company application is disposed of by the CLB by the impugned order. In the impugned order ( dated '04.02.2013' = mentioned by this Bench, be permitted), the CLB rejected the following prayers: "a. To declare the Board Resolutions dated 9.5.2006, 27.12.2006, 27.1.2007 and 28.9.2007 and minutes of EOGM dated 24.5.2006 and 28.1.2007 passed by the Respondents No.2 to 5 as null and void and direct the second respondent group for not taking any further action based on aforesaid Board Resolution and EOGM without approval of this Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l payment of arrears of remuneration and perquisites of Rs. 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 main company petition and disposed of the company application in terms of the impugned order. This order is in challenge in the present appeal. 5. In support of the appeal, the only contention advanced by Mr. Damle, learned Senior Counsel, appearing for the Appellant is that the Supreme Court order of 17 September 2008 reopened the entire controversy between the parties, including the original acts of oppression and mismanagement all acts subsequent to the filing of the original petition. It is submitted that all these acts should be considered by the CLB in a correct perspective for grant of relief and that such relief also envisages striking down of the various Board resolutions passed by the Respondents and handing over management of the Respondent company to the Appellant and so also passing of suitable directions regarding attachment of assets of the Respondent company. He submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 correctly construed and applied the order of the Supreme Court passed on 17 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 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 clauses (a), (b) and (c) were clearly irrelevant and could never be allowed. As far as other prayers are concerned, namely, arriving at an appropriate valuation of shares and determination of the remuneration and perquisites payable to the Appellant, the CLB has merely called for information on affidavits from the parties to enable it to apply the mandate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filed by the Petitioner against the order dated 15.10.2015 of the High Court Bombay and pending before the Hon'ble Supreme Court , Respondents placed order dated 15.10.2015 of the High Court before the Hon. NCLT with request to proceed to decide the remuneration and perquisites payable to the Petitioner. The Hon'ble NCLT took the order dated 15.10.2015 of the High Court on its record vide an order dated 08.09.2016. 3.23. Date: 17.11.2016 : As per the Petitioner the Hon'ble High Court passed the order dated 17.11.2016 with direction - No further action is needed in the matter as Company Appeal No. 54 of 2014 as already stands disposed of. Removed from the Board. 3.24. Date : 18.11.2016 : As per the Petitioner the admitted position was that finally by an Order dated 18.11.2016, the Hon'ble High Court directed that the Order dated 27.07.2015 read with the order dated 15.10.2015 disposes of Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 hearing took place for deciding these Miscellaneous Applications, repeated time and again, hence this Bench thought it proper to compile the submissions of the Ld. Petitioner and took pain to put in this Order the relevant dates of several proceedings in above paragraphs. The Petitioner's attempt was to re-hear the entire Petition (C.P. 12/1998) to determine the question of Oppression and Mismanagement, however, on the other hand, the Respondent's vehement objection is that the proceedings are now confined to three issues, as already discussed supra. Prima facie, this Bench is not in agreement with the Prayer of the Ld. Petitioner to re-hear afresh the Main Petition, admittedly stood finally decided (CLB orders already discussed supra), to determine the question of Oppression and Mismanagement that too after the lapse of about 18 years, especially when a lot of water had already flown down under the bridge. At this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y power to interfere in the affairs of the company. The second option is that he could sell his shares to the respondnet's group at price to be determined by an independent valuer. 1 - 27 4. 21/12/1999 Order passed by the CLB recording that the Applicant had exercised the 2nd option i.e. chosen to sell his shares to the Respondent group. Price Waterhouse was appointed to determine the fair price for the shares. 28 - 29 5. 10/5/2002 Order passed by the CLB recording that Price Waterhouse had valued the shares at Rs. 2,044/- per share. The Applicant questions the valuation on various grounds and the Respondent group generally accepts the valuation but raises one issue. The CLB directs Price Waterhouse to look into the issues raised by the parties. 30 - 35 6. 5/5/2003 Order passed by the CLB upholding the valuation of Rs. 2,044/- per share submitted by M/s Price Waterhouse. The CLB further holds that as long as the Applicant continues to be a shareholder of the company he would continue as a director with remuneration. 33 - 40 7. The Petitioner as well as the Respondents file Appeal under Section 10F of the Companies Act, 1956 challenging the order dated 5/5/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by bring to the notice of the Board to consider the same to arrive at a fair valuation. Parties are directed to file affidavits and agree on a valuer. 90-103 23. 29/4/2013 The Applicant files 10F Appeal against the order dated 4/2/2013 - (Appeal No.21 of 2013) 24. 1/5/2013 CLB passes order appointing valuer. 104-106 25. 2/7/2013 The Applicant files 10F Appeal against the order dated 1/5/2013 - (Appeal No.43 of 2013) 26. 3/10/2013 Order is passed by the Bombay High Court in the aforesaid appeals that the revaluation of the shares will not proceed. 107 27. 11/12/2013 Order is passed by the Bombay High Court adjourning the appeals to 15/1/2014 as part heard. The Bombay High Court states that it will be open to the CLB to proceed to decide the issue of the remuneration and perks stated to payable to the Applicant. 108-109 28. 26/3/2014 Hon'ble CLB passes an order directing the Respondent to pay the salary with effect from 1/10/1999 @ Rs. 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 Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Petitioner exercised the 2nd option and agreed to sell his shares to the Respondent group. Vide a Letter dated 29.09.1999 the Petitioner allegedly accepted the 2nd option. The same has been recorded by the Principal Bench, New Delhi in Order dated 21.12.1999, relevant portion is as under :- "This Bench had passed an order on 20.8.1999 disposing of the petition by giving two options to the Petitioner, one was to continue with the company with 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner was entitled to remuneration and perquisites till the shares of the Company are re-evaluated. 5.6. The Petitioner as well as the Respondents preferred Special Leave Petition before the Hon'ble Supreme Court against the above Orders dated 16.06.2005 and 25.08.2005 of the Bombay High Court. The Hon'ble Supreme Court set aside the Order dated 05.05.2003 of the CLB and the Order dated 16.06.2005 of the Hon'ble Bombay High Court, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 5.13. By Order dated 26.03.2014, the Hon'ble CLB directed the Respondent Group to pay salary to the Petitioner at the rate of 2,40,000/- per annum with effect from 1st October 1999 and perquisites subject to proof of actual payment of such perquisites 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceed to decide the issue of valuation of the shares and salary and perquisites payable to the Petitioner. 5.16. M/s. Natu & Phatak, Valuers submitted to the Bombay High Court its valuation report dated 27.06.2016 valuing the shares of the Company at Rs.8,794/- per share. Hon'ble Bombay High Court has taken the report on record vide its Order dated 15.07.2016. It is also submitted by the Respondents 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 Rs.8,794/- per share. Accordingly, the 40% shareholding of the Petitioner (7420 shares) is valued at Rs.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents further pleaded that the Petitioner after having opted to exit the company and sell his shares, cannot indefinitely delay the valuation of his shares by challenging every order passed by this Hon'ble Tribunal with intent to delay the valuation and then claim to continue to be a director and shareholder of the company indefinitely. If the 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and management of the 1st Respondent Company, as pleaded before the Hon'ble Bombay High Court, placed on record an ANNEXURE "2". The Respondents further pleaded that the whole intention of the order dated 20th August 1999 of the Hon'ble CLB was that the interest of the Company is paramount. Even in equity, the Petitioner is not entitled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner. Facts have further revealed that the Petitioner exercised the 2nd Option granted by the said Order dated 20th August 1999 - i.e. to sell his shares to the Respondent Group at a price to be determined by an independent valuer. In a way, a conclusion can be drawn that the Petitioner had thus opted to exit from the Company. 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation was going on but not availed. In true sense, the cooperation was not extended by the Petitioner and kept on making allegations or delayed the process of valuation, instead of submitting cogent evidence in support of his claim. Rather, the valuation could not be prepared within the time granted, so a condonation of 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uer. The CLB has made it clear that this is to be done in due compliance of the directions of the Hon'ble Supreme Court. Thus, the understanding and the interpretation of the CLB was also that "leaving open all contentions" was only revolving around on the issue of Valuation of Shares. It is necessary to reproduce 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched to the Hon'ble Company Judge of Bombay High Court." 6.4. Against the aforesaid Order of CLB dated 01.05.2013, the Petitioner Mr. Vinod Kumar had gone in Appeal before the Hon'ble High Court at Bombay (Company Appeal No.21/2013 in Company Application No.39/2009 in Company Petition No.12/1998 with Company Appeal No.88 of 2013 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Court to consider. 6.8. Keeping in view the several Orders as discussed above, while dealing with this Prayer, this Bench is of the opinion that the valuation report of M/s Natu and Phatak dated 27.06.2016 is required to be adopted for the purpose of calculation of valuation of the shares of the Company held by the Petitioner. 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 Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orld 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Petition No.12 of 1998, the Petitioner 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 Rs.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". At the cost of repetition, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to react on the draft report in 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 repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company as stated and 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' Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 Rs. 2,40,000/- p.a. as his salary prior to 1/10/1999. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 paragraphs, totality of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 20th August 1999 permits the legal heirs of original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 the applicant from 1/01/2014 with interest thereupon from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Tribunal or on an Application by any of the Parties. A correction of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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