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TMI Blog2021 (8) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial) And Hon ble Mr. Raghu Nayyar, Member (Technical) For the Petitioner : Mr. Sandeep Bajaj, Advocate, Mr. Pradeep Nauharia, Advocate, Mr. Soayib Quereshi, Advocate. For the Respondent No. 1 M/s Authentic Restaurants Pvt. Ltd. Ltd. : Mr. Vaibhav Sharma, Advocate. For the Respondent No. 2 Mr. Amit Arora : Mr. Anand Chhibbar, Senior Advocate, Mr. Vaibhav Sahni, Advocate. JUDGMENT Per: Ajay Kumar Vatsavayi, Member (Judicial) Present through Video Conferencing:- 1. M/s Buddy (Mumbai) Duty Free Services Pvt. Ltd. filed the instant CP under Section 241(1) and 242 of the Companies Act, 2013 against M/s Authentic Restaurants Pvt. Ltd. four others seeking the following reliefs:- (i) Pass an order directing the Respondents herein to supply to the Petitioner herein forthwith all the records of the Respondent No. 1 Company including but not limited to: the minutes of all meetings held since after 4.6.2015 and all resolutions passed by the Board or by shareholders meetings since that date; the members register; the balance sheets and profit and loss accounts of the Company prepared since 4.6.2015; copies of all contracts entered into by Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for 33,333 equity shares in respondent No.1. On 04.06.2015, resolutions were passed in the EGM of respondent No. 1 wherein the transfer of 33,333 equity shares to the petitioner was approved and respondent No. 5 was appointed as a Director in respondent No. 1 and an appointment letter to this effect was also issued to respondent No. 5. Since Buddy (T2) Duty Free Services Private Limited (BT2) failed to perform its part of the obligations under the Joint Share Purchase Agreement dated 27.05.2015, on 06.07.2015, an MOU was executed between the petitioner and respondent No. 2 for further sale of 16,667 equity shares in respondent No. 1 to petitioner for ₹2,50,00,000/- in order to hold equal shareholding. Petitioner also issued a cheque dated 05.01.2016 for a sum of ₹1,00,00,000/- in favour of respondent No. 2 towards first instalment. At this stage, respondent No. 2 requested the petitioner to keep the transaction with respect to 16,667 equity shares in abeyance. On 26.12.2015, it has come to the knowledge of the petitioner that respondent No. 3 was appointed as a Director in respondent No. 1. On 01.04.2016, respondent No. 2 unilaterally terminated the SPA and MOU b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to fulfil the conditions precedent under the SPA and MOU, the respondent No. 2 exercised its right to terminate the same vide letter dated 01.04.2016 and till date the petitioner has not challenged the said termination of SPA and thereby admitted the fact of non-holding of any shares in the respondent No. 1 company and hence, the instant CP is not maintainable. It was further submitted on behalf of respondent No. 2 that since the termination of the SPA and MOU on 01.04.2016 was not challenged by the petitioner before any Forum either before filing the instant CP or thereafter, the interim order dated 20.12.2016 granting status quo of the shareholding pattern as on the said date, passed in the instant CP cannot confer any benefit on the petitioner as he was not holding any shares as on the date of the said interim order. The respondent No. 2 further submits that in view of termination of SPA and MOU, the transfer of 33,333 shares in favour of the petitioner and appointing its nominee i.e. respondent No. 5 as Director of the respondent No. 1 has no validity and the petitioner cannot rely on the same for any purpose. 7. It is submitted that the disputes raised by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irports Authority of India ( Authority ) owns and operates Foods Beverage Outlets at Chennai and Kolkata Airport under the banner of Travel Food Services Chennai Private Limited (TFS Chennai) and Travel Food Services Kolkata Private Limited (TFS Kolkata) respectively; xx xx (k) The Seller as the beneficial and registered owner of the said shares in the capital of the Company have agreed with the Purchasers for the sale / transfer of 33333 equity shares to the Ist purchaser and of 33333 equity shares to the 2nd purchaser fully paid up of ₹ 10/- each at the total price and consideration as mentioned in Appendix I and II to the present Agreement. That the Seller convenants and states that leaving apart the business of TFS Chennai and TFS Kolkata, the shares are free from any encumbrances, pledge, claim, charge or lien whatsoever. The purchasers of the third part have to their entire satisfaction got the due diligence regarding the business of TFS Chennai and TFS Kolkata carried out, thus any such subsequent discovery of any charge, lien, encumbrance, liability, pledge or claim shall in no way effect this agreement in any manner and Seller shall entai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttested immediately after once Purchaser (or its nominee) pays the Purchase Price, by way of wire transfer or demand drafts (at Buyer s discretion), to the Seller Designated Account the receipt of which shall be duly acknowledged in writing by the Seller and satisfies all other condition precedent as mentioned in the present Agreement. It is further pointed out that the Post dated cheques as mentioned in Appendix I that shall be provided to the Seller shall be irrevocable and shall not be disputed anytime by the purchasers as the realization of the same shall amount to consideration in lieu of the transfer of shares in terms of the present Agreement. xx xx APPENDIX II Payment of consideration by the 2nd Purchaser Buddy (Mumbai) Duty Free Services Pvt Ltd 1. The amount of ₹ 5,00,000,00/- out of the total consideration shall be paid at the time of signing of the present agreement to the Sellers by the Purchaser No.2 herein and shall be non refundable. 2. This payment shall operate as a condition precedent for the performance of the terms and conditions of the present agreement. xx xx APPENDIX III The pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x xx 3. The Transferee have entered into this Agreement to acquire from the Transferor, the said shares on the same terms and conditions thereof at the consideration to be paid in the manner as prescribed in the manner as prescribed in Appendix I. The payment as described in Appendix I is a condition precedent for this MOU, delay in payment terms will lead to termination. xx xx Appendix I Payment of the consideration by the Transferee in the following manner: 1. The amount of ₹ 1,00,00,000/- ( one crore only) to be paid on or before 5th January, 2016 2. Balance payment of ₹ 1,50,00,000/- (one crore fifty lacs only) to be paid on or before 29th February, 2016. 11. It is the admitted case of the petitioner that though it has belatedly paid the part sale consideration of ₹5 Crores for the purchase of 33,333 equity shares in respondent No. 1 company but it failed to reduce the value of the Buddy Retail Corporate Guarantee of ₹9 Crores. However, the petitioner submits that the reduction of the value of the corporate guarantee of ₹9 Crores was not a condition precedent as per Annexure P-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.1 company from the date of its issue to till date, cannot be accepted as the respondent No. 2 after termination of the Annexure P-5 SPA dated 27.05.2015, has filed the Civil Suit No. 60 seeking a mandatory injunction against the petitioner to return the original share certificate No. 5 representing 33,333 equity shares of respondent No. 1 company and the same is pending as on date. (Since though the said suit was originally decreed, ex parte, but later on in an appeal filed by petitioner, the decree was set aside and suit was restored and the revision filed by respondent No. 2 is pending). On the other hand, the petitioner, admittedly has not challenged the termination letter dated 01.04.2016 till date. In view of our finding, as observed above, that the petitioner failed to fulfil the conditions precedent of the SPA, even in the absence of the termination letter dated 01.04.2016; all actions, taken place, including issuance of the share certificate, between the parties, in pursuance to the SPA dated 27.05.2015 are invalid and non est in the eye of law. Therefore, the petitioner cannot be treated as a shareholder of the respondent No. 1 company as on the date of filing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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