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TMI Blog2020 (10) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ings given and recorded in paragraph nos. 32 to 54 of the order. The same for the sake of convenience being are re-produced herein below : "32. By following the above stated judicial precedents of the Hon'ble Supreme Court & Others, we find that there are serious differences as well as clash of interest among the directors of the company which resulted in deadlock in function of company and the production in the manufacturing unit. 34. Further, we already held that the above stated MoU dated 21.06.2010 is not acceptable by the R-2 on behalf of R-1 Company, hence, become frustrated and it cannot be enforced against the R1 Company. Moreover, the Respondent No. 2 even in his individual capacity did not perform fully his part of the contract/agreement by making full payment to Petitioners number 3 and 4 so as to take over the full control of the manufacturing unit as well as management of the Company. 35. Hence, in our humble view, no change could have been made in the management of the company on the strength of such MoU for transferring share holdings of Petitioner No. 1 or removing from the directorship of the company as it is not legally justified action and it is void be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares of petitioners to the respondent or a third party pursuant to such MoU is also declared illegal, null and void. 41. Therefore, shareholding pattern existing prior to the AGM dated 27.05.2011 and General Meeting dated 05.09.20115 is directed to be restored until a proper General Body Meeting is convened by the company subject to the directions of this Tribunal. 42. The Petitioner No. 1 and other Petitioners are entitled to buy back their shares in by the Respondent No. 1 Company from Respondents which were allegedly sold by the R1 to other Respondents or to a third party by making payment of amount of consideration to the extent of the fair value of such share as on the date of its alleged transfer. 43. As, it is an undisputed position that the management of manufacturing units of the R1 Company was being done by the Petitioner No. 1 and is/was in control of the management and was instrumental for making repayment of the loan installment on behalf of the Respondent No. 1 Company that apart settling the worker's due because of some unrest in the workers and litigation in Labour Court for payments of wages and dues. Hence, the Petitioner No. 1 is entitled to be continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settlement is not workable then there can be two divisions in the assets of the company between the rival directors/shareholders of the R1 Company. So as to prevent the company from being wound-up, which is a theme and spirit of the Section 397-398 of the Companies Act, 1956 and Section 241-242 of the Companies Act, 2013. 49. Therefore, this Tribunal hereby directs the Bank of Baroda, i.e. being a Secure Creditor of the Company to nominate its officer, not below the rank of the Assistant General Manager (AGM) to become an Independent Director of the Respondent Company. Such independent Director is also authorized to suggest a name of Independent/Statutory Auditor as well as Independent Valuer for the company. 50. We further nominate Advocate Mr. Harmish Shah (Mob. No. 9426050887), Ahmedabad, subject to his willingness as an Observer and Facilitator in the Board of Directors of the company to ensure smooth function for managing the affairs of the company. The Observer as well as Facilitator shall submit an independent report to this Tribunal within thirty (30) days from the date of AGM/EGM and also expected to submit their quarterly report. 51. The independent director as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /returns ITR, before the ROC and other statutory authorities." 4. By reading our modified order dated 10.10.2019, it is evident that this Court has already given necessary clarification on our order by suitably modifying it, so as to remove procedural difficulties. The Petitioner and the Officers of the ROC may face to convene and conduct the AGM/EGM of the Respondent Company. Subsequent thereto, the Registry of this bench received a communication dated 20.09.2019 from the Office of the ROC seeking for further direction from this Court and by contending that certain forms/document(s) as have been filed on behalf of the Company before the ROC are the Forms/document(s) and stated to be filed after the alleged MoU dated 21.06.2010. Hence filing thereof can be treated as proper and valid filing. Further, these document(s)/Forms/Statement no longer remains valid and proper as per our dated 27.06.2019 the MoU/Agreement dated 21.06.2010 has already been declared and invalid and inoperative, hence, it can be acted upon. Hence, any further filing of document(s) or Statuary Forms on the basis of such MoU dated 21.06.2010 cannot be found to be in order. Hence the Status Quo position needs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 10.10.2019 that ROC is not required to convene such AGM/EGM, but only to facilitate the same and such meetings is required to be convened by the Respondent Company through the Petitioner and the Advocate Observer appointed by this Court. In such proposed AGM/EGM the ROC shall depute its "OBSERVER" who may be an Officer of the Office of the ROC or may be an Independent Professional. The Observer shall produce their independent report and to be submitted to the Office of the ROC and/or if necessary to this Court for further course of action to be taken in the matter. 9. It is further held that in such proposed AGM/EGM the Independent "Observer" appointed by this Court (vide our order dated 27.06.2019 ) i.e. Mr. Harmish Shah, Advocate alongwith Independent Director through Bank of Baroda and Facilitator(s)/Chartered Accountant(s) appointed by this Court shall also remain present and participate in the discussion of meeting but without having right of voting. A report in this respect to be prepared and to be submitted by the Advocate Observer to this Court as well as to the Office of the ROC. 10. With the aforesaid observation IA No. 728 of 2019 is allowed in terms of its prayer c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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