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TMI Blog2021 (1) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... such meetings. The Special Officer was asked to submit his report on all the claims and current state of the affairs of the Respondent No. 1 Company within 60 days from the date of assumption of charge as Special Officer. 2. The NCLT, Kolkata while passing the impugned order have made the following observations in para 44, 45 and 46 of the impugned order dated 01.10.2019. "44. From the facts narrated above, it is apparent that the management/ owners are divided and have got grievances against each other. It is also observed that there are allegations of the formation of independent companies by petitioners as well as respondents no. 5 & 6 which is aimed at enriching themselves by diverting the business of respondent no. 1 company. There have been allegations of other acts by petitioners as well as respondent no. 5 & 6 regarding preferential/ undervalued transections being prejudicial to the cause and the interest of the respondent no. 1 company. The erstwhile company law board and this Tribunal have taken note of these facts and passed aforesaid interim orders which also to have been alleged as non-compliant partially or fully. 45. Further, there have been adduced various do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iefs sought by respective parties. Copy of the interim orders dated 3/5/2016 and 18.8.2016 shall also be provided.........." Brief facts of the case. 3. The Respondent No. 1 Company was incorporated in March 1974 by the family members and the connected persons for carrying on the business of transportation. As per the Annual Return filed for the Financial Year 2013-14, the shareholding of the Respondent No. 1 Company was as under: S. No. Name of the Shareholder Percentage of Shareholding 1. Yogendra Pal Jain (Respondent No. 2) 3.51% 2. Usha Kiran Jain (Respondent No. 3) 16.49% 3. Ravinder Kumar Gupta (Respondent No. 5) 11.52% 4. Tanmay Gupta (Respondent No. 6) 4.99% 5. Veena Gupta (Respondent No. 7) 23.50% 6. Arun Gupta (Appellant no. 1 ) 2.14% 7. Savita Gupta (Appellant No. 2) 31.79% 4. That the Appellant No. 1 and Respondent No. 5 are the real brothers. The Respondent No. 2 is the brother in law of the Appellant No. 1 and the Respondent No. 5. 5. That the Company Petition i.e. C.P. No. 42 of 2016 was filed before the NCLT, Kolkata by the Respondent No. 2 and Respondent No. 4. The said Company petition was filed under section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 397 and 398 of the Companies Act, 1956 before the Company Law Board (CLB) against Respondent No. 5 and 6. However, due to the settlement arrived between the Appellants and the Respondent No. 5 and 6, the said petition was withdrawn by filling CA No. 227 of 2016, vide order dated 11.04.2016 passed by NCLT. 10. It is further submitted by the learned counsel on behalf of the Appellants that in the said Company Petition the Respondent No. 1 has taken the plea that the correct shareholding pattern of the Respondent No. 1 Company is that Ravinder Kumar Gupta Group (Respondent No. 5 and Respondent No. 6) hold 40%; Appellants (Appellant No. 1 and Appellant No. 2) holds 40% and Yogendra Pal Jain Group (YPG) (Respondent No. 2 and Respondent No. 3) holds 20%. It has been stated that initially R K Gupta and Family had 80% shareholding and Yogendra Pal Jain Group had 20% shares. After the death of R K Gupta, three Groups were formed, but there had never been any understanding or intention that all three groups would have 33% shareholding in the company. 11. It is also submitted by the learned counsel for the Appellants that the Respondent No. 2 to 4, who are running the separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed the Special Officer Sh. D.C. Aggarwal, Advocate for carrying out the certain functions to preside over the meetings of the Board of Directors of the Respondent No. 1 Company. The Special Officer has been asked to produce his report within 60 days from the date of assumption of charges as Special Officer. The NCLT has failed to consider that by doing such exercise, it is defeating the purpose of section 422 of the Companies Act, 2013, which mandates the requirement of disposal of the petition within the prescribed period of 3 months. The entire time will be spent on carrying out such exercise by the Special Officer when the said Company Petition would be disposed of by NCLT. It is matter of record that the said Company Petition being CP No. 42 of 2016 is pending consideration before NCLT since the year 2016. Even CA No. 739 of 2019 filed by the Respondent No. 2 was seeking the relief that the said Company Petition may be disposed of by seeking the early date of hearing of the main petition and for its final disposal. Whereas NCLT has passed contradictory order, thereby appointing the Special Officer in the interregnum and keep pendency of the said Company Petition which will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s circumstances the Respondent No. 1 Company issued notice for holding an Extraordinary General Meeting (EGM) for removing the Appellant No. 1 as Director. However the Appellants filled an application under section 397/398 of Companies Act, 1956 before the CLB for staying the proceedings of EGM. 18. It was further submitted by the learned counsel for Respondent No. 2 that the Appellants and Respondent No. 5 group entered into amicable arrangements by virtue of which appellants withdrew their petition. Thereafter, Appellant No. 1 group alongwith Respondent No. 5 group issued a notice holding an EGM for removing Respondent No. 2 and Respondent No. 3 from the Directorship of Respondent No. 1 Company, which prompted the Respondent No. 2 to immediately file an application under section 397/398 of the Companies Act, 1956 against the Appellant and other Respondents in NCLT, Kolkata. 19. The Learned Counsel on behalf of the Respondent No. 2 further stated that some of the salient causes of Oppression and Mis-management are enumerated below: (a) The Appellants along with their son have formed a new company being Respondent No. 9 with the same line of business as Respondent No. 1 and hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company to Respondent No. 9 by the Appellants. 22. It was also stated by the learned counsel for the Respondent No. 2 that the Appellant No. 1 and his son broke away the cabins of Respondent No. 1 Company which were under the possession of Respondent No. 2 & 3 for which necessary FIR was filed against Appellant No. 1 & his son on 21.06.2017 bearing FIR number 0531 at police station at Civil Lines, Gurgaon. 23. It was also stated on behalf of Respondent No. 2 that Appellant No. 1 by misusing his powers as Director and trustee of Gratuity fund maintained by Life Insurance Corporation fraudulently withdrew the Gratuity amounts of Respondent No. 2 &3 amounting to approx. 66 lacs. An FIR against the Appellant No. 1 was filed on 20.07.2019 vide FIR No. 0237 at DLF II Police Station, Gurgaon. It was also mentioned that as per order of CLB dated 03.05.2016, the High Court of Punjab & Haryana upheld the Directorship of Respondent No. 2 & 3 and further directed the Appellant No. 1 to deposit back the Gratuity amount withdrawn by him to the concerned fund at Life Insurance Corporation with interest. 24. It was also stated by the learned counsel for the Respondent No. 2 that the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2 so far as the shareholding of Respondent No. 1 is concerned it was clear that the shareholding pattern shall be equal within the three groups as stated above. The financial mismanagement is evident from its financial statements. The Company Secretary of Respondent No. 1 has also blamed the Appellant No. 1 for conducting mismanagement of Respondent No. 1. 28. The learned counsel for the Respondent No. 2 further contended that in the interest of the answering Respondent that the prayers of the main petition as stated above should be considered in order to stop the Appellants from further carrying out any form of Oppression and Mismanagement and in the process of developing the value of assets of Respondent No. 1. The is also mentioned by the learned counsel that the parties hereto had tries to enter into mediation through senior industry leaders and the close family members, but unfortunately such disputes could not be resolved by way of mediation. Therefore, it is in the interest of the Appellants and the Respondents hereto either to liquidate the Respondent No. 1 and divide the valuable assets amongst the Appellants and Respondents through the Special Officer as duly appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egations and grievances are examined completely. 32. The Special Officer being an officer appointed by the Tribunal was given the power under the impugned order to supervise, conduct and preside over the Board meetings and ensuring the implementation of the resolutions passed in the said Board meetings. The Special Officer was ordered to ensure that such resolutions shall not be prejudicial to the interest of Respondent No. 1 Company so that frivolous litigations may be avoided and for this Special Officer was asked to make the complete Minutes of the meetings and get it signed by all the participants mandatorily. The Special officer was asked to submit its report within 60 days from the date of taking the charge. Therefore, the contention on behalf of the Appellant that the report of Special Officer will further escalate the issues among the parties is a matter of speculation and cannot be given due consideration. In fact, the report will give a true and fair picture of the state of affairs of the Respondent No. 1 Company. 33. The Contention of the Appellants that the petition under section 422 of the Companies Act are required to be disposed of within a specified time frame and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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