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TMI Blog2019 (8) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... s servants, agents, etc., from altering the share capital of respondent No. 1-company ; to grant mandatory injunction restraining the respondents to transfer business, sales, contracts, company resources and funds to the newly incorporated respondent No. 4-company, Suraj Mani Eco-Air P. Ltd., in which respondents Nos. 2, 3 and 5 have direct vested interest, etc. 2. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, are as follows : (1) Ms. Vidhya Achu Roy (hereinafter referred to as the "petitioner") is a shareholder and director of respondent No. 1-company holding 5,000 equity shares of Rs. 10 each fully paid-up, constituting 50 per cent. of the paid-up share capital of respondent No. 1-company. (2) M/s. Suraj Mani Engineers P. Ltd. (hereinafter referred to as "respondent No. 1") is a private limited company incorporated on December 30, 2005 under the Companies Act, 1956 with CIN : U74210KA2005PTC038103 and having its registered office at Raj Arcade, No. 906, 1st Floor, 5A Cross, 1st Block, HRBR Layout, Bangalore-560 043. The authorised share capital of the company is Rs. 1,00,000 (rupees one lakh only) divided into 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner incorporated respondent No. 1-company in Bangalore with both of them being 50 per cent. shareholders and the first directors of the said company investing a sum of Rs. 50,000 each. Subsequently out of the remaining amount respondent No. 2, purchased a property at Plot No. 57, Rayasandra Village, Kasaba Hobli, Devanahalli Taluk, Bangalore vide sale deed dated July 6, 2017. The petitioner's earnings from the Ambient Systems Co., were appropriated for the setting up of the new company and other needs of respondent No. 1-company by her husband (respondent No. 2). Both the petitioner and respondent No. 2 were working actively in respondent No. 1-company. The petitioner, as a director, last received Rs. 63,500 as sal ary every month. Respondent No. 2 on the other hand is receiving a much larger salary close to Rs. 2,00,000 (rupees two lakhs only). Respondent No. 3 who is the other director is also receiving a much larger salary than the petitioner. (8) During 2007-08, after the birth of the second child, the petitioner engaged in some real estate work. All her earnings from her real estate commissions, amounting to Rs. 5.5 lakhs were also taken by respondent No. 2 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled by respondent No. 2. A sum of Rs. 2 crores was withdrawn from the company as remuneration of KMP in 2015-16 without the petitioner's approval while depriving the petitioner her share in the profits of the company. The petitioner was not aware of these large sums of money being transferred out of respondent No. 1-company's account and this was not informed to her, nor was her approval taken for the same. Similarly, an amount of Rs. 80,50,000 (rupees eighty lakhs fifty thousand only) was transferred to the personal DBS account of respondent No. 2 on February 13, 2017 from the account of respondent No. 1-company without any resolutions or approvals obtained in this regard. (11) It is further alleged that respondent No. 2 then started harassing and pressurizing the petitioner to sell him her 5,000 shares in respondent No. 1-company for a paltry amount of Rs. 50,000 which was the initial face value of the investment in 2005 and exit respondent No. 1-company which is highly unfair and unreasonable. He was also pressurising her for a divorce and was simultaneously threatening to throw her out of the premises where they were residing, which was rented by respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved no response. She then attended the board meeting on March 29, 2018 in which none of her concerns or views were taken into account, and all decisions were taken by respondents Nos. 2 and 3 in collusion solely in their personal interests. In this meeting, the draft minutes of the previous board meeting dated March 7, 2018 were approved by respondents Nos. 2 and 3, despite the non-approval and non-inclusion of key points given by the petitioner and discussed there, stating that they are under no obligation to report the petitioner's comments and points of dissent to be noted in the minutes of the previous board meeting even though they were specifically asked to be shown on record, and then it was also decided that the lease for the residence would be terminated and not renewed. Respondent No. 2 was doing this only to pressurize the petitioner into agreeing for a divorce and to leave respondent No. 1-company. Even though the petitioner did not agree to any of this, respondents Nos. 2 and 3 being in majority in the board went ahead with these decisions. A resolution was passed where respondent No. 2 would get Rs. 1.2 crores and respondent No. 3 would get Rs. 60 lakhs payout imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets and properties. 3. The company petition is opposed by respondents Nos. 1, 2, 3, 4 and 5 by filing the Statement of Objections dated June 18, 2018 by, inter alia, contending as follows : (1) It is alleged that the petitioner in an attempt to harass her husband, respondent No. 2, has deliberately suppressed material facts relating to the present case and it has been filed with mala fide intention of misleading the Tribunal in order to foist a false case against the respondents. (2) The nature of dispute between the petitioner and respondent No. 2 is a domestic one, which can be effectively redressed by a family court. The petitioner has distorted facts so as to present the discord in her marital life as a false case of oppression and mismanagement, wasting the time of this Tribunal. (3) It is stated that respondent No. 2 is a highly respected professional in heating, ventilation and air conditioning (HVAC) industry, with over 24 years of experience in the field. He has been successfully running a business in the said sector for over two decades. A mechanical engineer by profession, respondent No. 2 started his career in the HVAC industry as a Design and Sales Engineer in T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stament to this ideology and shared vision which was valued by all employees and staff of respondent No. 1-company. The petitioner, in her attempt to maliciously foist a false case against the respondents, has shown utter disregard for these values that all parties associated with respondent No. 1-company hold dear. The petitioner, on the strength of being the wife of the managing director of respondent No. 1-company, has always been granted perks without her making any contributions whatsoever to the business of the company. As such, the petitioner has overlooked the fact that by filing the present, frivolous petition, her actions are bound to affect the employees, staff, directors, and other parties closely associated with respondent No. 1-company. Her spiteful actions have put at risk all that the respondents and the employees and staff of respondent No. 1-company have so painstakingly achieved over the years. (7) Respondent No. 1-company's financial soundness is evident from the Income-tax returns filed by it for the three financial years from 2014-15 to 2016-17 and its balance-sheets and statements of profit and loss for the said period. The financial performance of resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has also relied upon the judgment of the then Company Law Board, Principal Bench in C. P. No. 10 of 2002 in Ms. Heena Dutt v. Chavi Designs P. Ltd. [2008] 141 Comp Cas 172 (CLB). He has also filed I. A. No. 328 of 2019, under section 242 of the Companies Act, 2013, read with rule 11 of the National Company Law Tribunal Rules, 2016, by, inter alia, seeking to direct respondents Nos. 1 and 2 to maintain status quo in respect of the shareholding in respondent No. 1- company pending disposal of the company petition. 6. Shri A. Murali, learned counsel for the respondent, while reiterating various averments made in the statement of objections, as briefly stated supra, has further submitted that the company petition itself is not at all maintainable, and it is out of the vengeance, the petitioner has filed the instant petition in order to spoil the going concern and unnecessarily jeo- pardising the livelihood and well-being of all such employees. 7. The primary condition to be fulfilled in order to pass necessary order(s) by the Tribunal under section 242 of the Companies Act, 2013 is firstly the party has to fulfil the requisite percentage and then it is has to prove/establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the majority of directors as per law. 9. So far as the contention of learned counsel for the petitioner that during 8th meeting of the board of directors of respondent No. 1-company held on March 19, 2019 has enhanced salary of the member-director and others approximately 85 employees is illegal and violation of the extant provisions of the law is concerned, it is to be noted that impugned minutes clearly shows that the petitioner meeting, wherein, the petitioner also requested for the list of beneficial employees and details of payment of variable pay and board also agreed to provide the same once finalized. Therefore, after due deliberations, the resolution in question was passed for payment of variable pay of not exceeding Rs. 1.20 crore (rupees one crore twenty lakhs only) approximately 85 employees. The Tribunal cannot interfere in day- to-day affairs of the company unless it is notice that there is a serious illegality in taking decisions. Moreover, it is routine/normal affairs of the company that the salary will be fixed to respective directors/employees as per their performance and since the company is earning sufficient profits, it is entitled to take a decision. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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