9911796707
TMI Blog2021 (2) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as "company") is a private limited company bearing CIN : U37200KA2007PTC044306 incorporated on November 6, 2007. Its authorised share capital is Rs. 5,00,000 (rupees five lakhs only) and the paid-up equity share capital is Rs. 5,00,000 (rupees five lakhs). (2) Mrs. Shylaja Iyer (hereinafter referred to as applicant/petitioner) is a shareholder of respondent No. 1-company by holding 4,500 shares equivalent to 45 per cent. total shareholding of the company, prior to April, 2016. However, her shareholding has been reduced to mere 9 per cent. by virtue of rights issue, which is impugned in the main company petition. Pawan Kumar Jain (hereinafter referred to as respondent No. 2) is the managing director of the company. Prior to April, 2016, he held 5,500 (55 per cent.) shares in the company. Therefore, prior to April 2016, the applicant/petitioner as well as respondent No. 2 are only two shareholders. Presently, respondent No. 2 holds 40,500 equity shares, i. e., 81 per cent. of the total equity share capital of the company. The applicant was inducted as a director on the board of directors on July 22, 2008. The applicant continued to remain in charge of the dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g approval to issue further shares in respondent No. 1-company with a hefty premium of Rs. 240 (rupees two hundred forty only) on the share price of Rs. 10 (rupees ten only). In the said notice respondent No. 2 contended that the rights shares were being issued to fund respondent No. 1-company's expansion and growth. The applicant/petitioner knew that this was a false statement as there was, in fact, no such requirement. Further, in the light of respondent No. 2's illegal actions against her, the applicant was, at that time, not in any frame of mind to invest lakhs of rupees in respondent No. 1-company. Hence, the applicant did not subscribe for the further shares being issued by respondent No. 1-company. On the other hand, respondent No. 2 subscribed to and allotted to himself and to his wife, respondent No. 3, the further shares, thereby proportionately increasing their combined shareholding in respondent No. 1-company from 55 per cent. to 91 per cent. and reducing the proportionate shareholding of the applicant/petitioner in her company from 45 per cent. to 9 per cent. The illegal activities of the respondent came to light only in January, 2018 while adducing evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue shares, defendant No. 1-company has issued notice to the plaintiff, the same has been served upon the plaintiff, but plaintiff failed to purchase the same. Subsequently, she cannot question the issuance of shares or raising the funds". (3) It is alleged that the present petition also suffers from severe delay and laches and is liable to be dismissed in limine as it has been filed on April 4, 2019 nearly 3 years from the date of her removal from the board of directors of respondent No. 1-company on April 13, 2016 and the rights issue notified to the petitioner vide letter dated April 25, 2016. (4) It is alleged that the instant case is nothing but forum shopping and cannot be sustained on any court. There are no exceptional circumstances made out to justify granting waiver and the request made to grant waiver does not demonstrate any bona fides or justification. Therefore, they sought to dismiss the instant application. 4. Heard Shri Dhananjay Joshi, learned counsel for the applicant/petitioner and Shri Dhyan Chinnappa, learned senior counsel for the respondents, through video conference. We have carefully perused the pleadings of the parties along with extant provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the suit before the civil court. The applicant has falsely contended that the suit was limited to the question of her removal from the board of directors of respondent No. 1-company. However, a perusal of paragraph 42 of the judgment, will disprove this argument with out any iota of doubt. The applicant had advanced the exact same argument before the civil court and it has also answered this point in the judgment. The petition is barred by laches and limitation. (2) It is contended that no liberty has been reserved by the civil court for the petitioner to raise any such issue before this Tribunal. All that the civil court has stated is that a person is entitled to raise an issue in terms of Chapter 16 of the Companies Act, 2013. However, once the court has already answered the question with respect to allotment, answer it again don't arise as it is barred by the principles of constructive res judicata. In addition, the civil court is not a Superior Court to grant liberty to any party to go to any other forum. This is the power vested only in the High Court and the apex court. In any event, the civil court has only noticed the existence of a right to challenge a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance or any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal." There cannot be any doubt that the issues raised in the suit mentioned supra, and in the instant main company petition, fell under the jurisdiction of this Tribunal, as those issues are admittedly affairs of the company. Therefore, undoubtedly, the Tribunal is empowered to deal with the issue raised in the main company petition, as same is filed under sections 241 and 242 of the Companies Act, 2013 by alleging various acts of oppression and mismanagement. Moreover, the issue raised in the said suit is only relating to acceptance of the resignation. It is nothing to do with the acts of oppression and mismanagement, which is subject-matter of the main company petition. 9. So far as eligibility to maintain an application/petition, under section 241 of Companies Act, 2013, section 244 deals with the eligibility of the persons, who can apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in the main case or it is filed on mere baseless or frivolous grounds or on assumptions/presumptions, in order to abuse the judicial process. As stated supra, the main company petition is filed by the petitioner by questioning various acts of oppression and mismanagement, which are found to be prima facie meritorious so as to consider those allegations at the time of final hearing of the case, after waiving the requisite condition as sought for. A meritorious/disputed litigation cannot be thrown at threshold without looking into merits of the case by the Tribunal/court by depriving aggrieved party remediless. The contention of the respondent that civil court has already decided the issues and thus the present application and main company petition are not maintainable, are baseless on facts and on law, as detailed supra. Moreover, the civil court has decided only in respect of the alleged acceptance of resignation, and civil court do not have any jurisdiction to decide the acts of oppression and mismanagement of the Companies Act, 2013. 11. The above facts and circumstance of the case clearly established that the applicant/petitioner has made out a prima facie case to entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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