9911796707
TMI Blog2020 (8) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31st March, 2012 shows that the business was running in a manner, which was prejudicial to the interest of the Company. The Tribunal noticed the Accounts Book results and the Financial position of the Company and observed that for the rest of the Accounting period, apart from the year 2009 to 2012, no Statutory Books of Accounts were maintained. It was also brought to the notice that no Register was maintained for recording the Meetings of the Members of the Board. The Tribunal came to definite conclusion that the 1st Respondent cannot be blamed for losses and for maintenance of the records etc., which the Appellant failed to do while holding the post of Director and was required to maintain the records - The dispute had reached at a stage of deadlock of business activity. The Company was non-functional, it had already given its premises on rent and it was the only income of the Company. Therefore, we find that the Tribunal came to a definite conclusion of oppression and mismanagement of the Company and oppression of the Member, i.e., the 1st Respondent- Mr. Asher E. Melamed. In the aforesaid circumstances, if the Tribunal has ordered for winding-up of the Company, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he business for which it was incorporated. The two parties under litigation in this Petition have almost equal shareholding i.e. 51% with the Petitioner and 49% holding with the Respondents. There is no possibility to resolve the differences. Reconciliation attempts have failed. Parties have not agreed to work together. A vertical split is the only remedy left to direct the parties to be separated from each other by ordering for winding up of the Company. b) In this critical situation when winding up is the only answer to put an end to the controversy the disposal of the Immovable Property of the Company is a must. To implement the process of winding up' it is hereby directed to dispose of the immovable Property and the consideration be divided among the shareholders/directors as per their percentage of shareholding. c) The steps to be taken for sale of the Immovable Property should transparent by first obtaining a Valuation Report of the Independent Valuer to be informed to both the sides and on their approval the Property in question is to be sold at the best fair market value. Both the parties shall cooperate with each other m the documentation of transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf or through his agent), which was remitted to his foreign bank accounts and was never deposited to the Respondent Company s bank account. It later came to the knowledge of Appellant No.1 that all these years the Respondent No.1 was cheating the company of its share of revenues by over invoicing and charging commission beyond the 5% as agreed between the parties. In addition, the Respondent No.1 and his associates were communicating directly with the Indian suppliers thereby by-passing the Appellants and the company entirely. 8. It was submitted that the modus operandi of the Respondent No.1 was that while the Appellants/Company was charging commission at a lower FOB Rate (eg. USD 8), the actual transaction was done by the Iranian buyer at a higher rate (eg. USD 9.2), and the difference and commission was going to the Respondent directly to his European Bank accounts. An illustration of this is explained as under: - Invoice No. Customer Name Invoice Rate shown to Company (FOB) Actual Invoice Rate Taken by Respondent (FOB) Difference: Unjust Enrichment of Respondent (per kg) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no interest in its affairs. There was no complaint of oppression and mismanagement at the relevant time. 11. It was submitted that in 29th November, 2008, the Appellants wrote to the Respondent, stating that it was not fair to say that he had not earned anything from his association, whereas hefty commissions were being paid to him. Thereafter from 2008 till 2011 the Respondent did not raise any issue or grievance regarding management of the company by the Appellants. Instead, the Respondent all of a sudden stopped placing orders through the Company by the Iranian buyers from the year 2010-11, thereby depriving the company of its business. Without any other means of livelihood, the Appellants were forced to lease out the office premises on rent from 15th February, 2012 to keep the Company running and maintain the property. 12. It was submitted that on 5th May, 2011, the Respondent wrote to the Appellants seeking a share of profits of the company. The Appellants responded vide emails and reminders dated 13th May, 2011, 24th May, 2011 and 6th June, 2011 and 14th June, 2011 wherein the Appellants demanded to be compensated for their efforts in generating business for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest of the Company. The Tribunal noticed the Accounts Book results and the Financial position of the Company and observed that for the rest of the Accounting period, apart from the year 2009 to 2012, no Statutory Books of Accounts were maintained. It was also brought to the notice that no Register was maintained for recording the Meetings of the Members of the Board. 15. Relying upon the surrounding circumstances, the Tribunal came to definite conclusion that the 1st Respondent cannot be blamed for losses and for maintenance of the records etc., which the Appellant failed to do while holding the post of Director and was required to maintain the records. 16. The dispute had reached at a stage of deadlock of business activity. The Company was non-functional, it had already given its premises on rent and it was the only income of the Company. Therefore, we find that the Tribunal came to a definite conclusion of oppression and mismanagement of the Company and oppression of the Member, i.e., the 1st Respondent- Mr. Asher E. Melamed. In the aforesaid circumstances, if the Tribunal has ordered for winding-up of the Company, no interference is called for. 17. The Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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