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TMI Blog2021 (12) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates for R-3. Mr. Arun Kathpalia, Sr. Advocate with Mr. V.P. Singh, Mr. Aditya Jalan, Mr. Atul N., Ms. Simran Bhat, Mr. Arnab Ray, Mr. Anant Narayan Misra, Ms. Ninaee Deshmukh, Advocates for R 5 & 6. JUDGMENT Jarat Kumar Jain: J. The Appeal is filed against the order dated 09.02.2021 passed by National Company Law Tribunal, Mumbai (the Tribunal). Whereby the Tribunal has allowed CA No. 1054/MB/2020 in CP No. 1069/MB/2020 filed by R-1 to R-3 and issued an order of injunction against the Appellant and R-4 to R-16 not to implement the notice dated 30.07.2020 and interfere the R-1 (K C Nuwal) from acting as Director and Vice Chairman of the Appellant Company. 2. Brief and relevant facts of this case are that Solar Industries India Ltd. (SIIL) (Appellant) was co-founded by Late Mr. Nandlal Nuwal and his two sons i.e. K C Nuwal and S N Nuwal on 24.02.1995 under the Companies Act, 1956. Late Mr. Nandlal Nuwal and Mrs. Sohan Devi Nuwal (spouse of Nandlal Nuwal) and Kailash Chandra Nuwal his wife Indra, Satyanarayan and his son Manish were initial subscribers to the memorandum of association of Company each family member holding 400 shares. Economic Explosive Ltd. (EEL) (Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hical practices, non-compliance, frauds and action against the interest of Appellant Company and its stakeholders. It is also stated that the efforts are being made to dismantle the present trade division, of which K C Nuwal is in charge, operating from Bhilwara, Rajasthan by raising frivolous allegations. It is also stated that Khushboo Pasari who is the Company Secretary has to ensure that the Company compiles with the applicable secretarial standards and assist the board of Directors in adhering to requisite standards of corporate governance. However, she completely abdicated, at the behest and to the undue favour of S N Nuwal Group. 7. The controversy arose when Khushboo Pasari/CS (Respondent No. 16) sent an email on 31.07.2020 to K C Nuwal enclosing a letter dated 30.07.2020 addressed to K C Nuwal stating that he has automatically vacated the office w.e.f. 07.11.2019 as he failed to disclosed his interest in AGT in proper format and at the board meeting of Appellant Company held on 07.11.2019. Therefore, requested K C Nuwal not to function as Director of Appellant Company or hold down to others that he continued to be a Director of Appellant Company. It was also stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Ld. Sr. Counsel for the Appellant submitted that Ld. Tribunal has granted interim relief which is sought in final reliefs, at the interim stage final relief cannot be granted. The intention of the K C Nuwal Group behind initiating the action under Section 241 and 242 of the Act is to restore K C Nuwal's position as a director of the Appellant Company. The Tribunal failed to appreciate that K C Nuwal Group has not made out a case of oppression of minority shareholders by a majority shareholders in the management of Company's affairs. The grievance raised by K C Nuwal Group as well as the reliefs sought does not affect thier proprietary rights as shareholder of the Appellant Company. Sections 241 and 242 of the Act do not specifically confer the power of reinstatement such a power to reinstate cannot be implied or inferred from any of the powers specifically conferred and that even removal from Directorship can never be held to be an oppressive or prejudicial conduct as held by Hon'ble Supreme court in the case of Tata Consultancy Services Limited VS. Cyrus Investments Pvt. Ltd. & Ors. 2021 SCC Online SC 272. 15. Ld. Sr. Counsel for the Appellant further submitted that the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour and interim order necessary to prevent irreparable or serious injury which could not be compensated in terms of money. In such circumstances, the impugned order is in clear contradiction of the settled position of law and has been passed without even arriving at a prima facie finding as regards the issue of whether the Appellant is a quasi partnership and K C Nuwal's breach of Section 184 of the Act, is liable to be set aside. 18. Per contra, Ld. Sr. Counsel for the Respondent No. 1 (K C Nuwal) submitted that the Appellant has failed to challenge or rebut any of the findings of the Ld. Tribunal that Respondent No. 16/Company Secretary (CS) had informed about the shareholding of Respondent No. 1 (K C Nuwal) in AGT. The Company Secretary was required to ensure due compliance under Section 184 of the Act and for the purpose help and guide K C Nuwal in filing the proper form. A prima facie case is made out by K C Nuwal Group and balance of convenience rests in their favour. In the absence of any challenge to these crucial findings of the Tribunal there is a deemed admission of the same by the Appellant and Respondent No. 5 to Respondent No. 16. 19. Ld. Sr. Counsel for the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that disclosure was made even before K C Nuwal acquired interest in AGT. For this, referred email dated 17.01.2019 wherein K C Nuwal informed S N Nuwal and Manish Nuwal regarding his intention to acquire IT Company and they offered to provide funds from the family account itself. It is also submitted that on 22.06.2020, S N Nuwal wrote to K C Nuwal acknowledging that in May, 2019 K C Nuwal Group acquired AGT, in which K C Nuwal Group are majority shareholders and on the same day S N Nuwal wrote to all directors of the Appellant that in May, 2019 K C Nuwal Group acquired AGT. It clearly establishes the concealment of the fact in respect of knowledge of K C Nuwal's interest in AGT. The Appellant and the R-5 to R-16 have not refuted to being aware of K C Nuwal's disclosure prior to 29.07.2020 in their rejoinder arguments or refuting existence of email dated 22.06.2020. Ld. Sr. Counsel for the Respondent No. 1 cited the Judgment of Delhi High Court in the case of Ravi Raj Gupta & Ors. Vs. Hans Raj Gupta & Co. Pvt. Ltd. & Ors. (2009) SCC Online Del 381 Para 6, 8 and Suryakant Gupta Vs. Raja Ram Com Products (Punjab) Ltd. (2001) SCC Online CLB 5 Para 23. In these Judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has an interest. The disclosure can be oral and/or in writing. The word prescribed has not been included in Section 184 (2) of the Act. Accordingly, the Section 184(2) to stands substantially complied with. Section 184 (1) has no link with Section 167 (1) (c) and (d), as the disclosure of terms of any contract or arrangement is only stipulated under Section 184 (2). Section 184 (1) is general obligation on the directors to disclose their interest in the prescribed format annually. Therefore, a non disclosure of interest under Section 184(1) in the prescribed format would not lead to the automatic vacation enshrined under Section 167. 26. Ld. Sr. Counsel for the Respondent No. 1 submitted that the Respondent No. 1 raised several issues of operation and mismanagement, illegalities fraud non-compliance with the board of directors and the majority shareholders of the Appellant. Therefore, it is not a directorial dispute. Thus, there is no substance in this Appeal. Therefore, the Appeal be dismissed. 27. Ld. Sr. Counsel appearing on behalf of the Respondent No. 2 & 3 supports the argument advanced by the Ld. Sr. Counsel for the Respondent No. 1. 28. Ld. Sr. Counsel for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative of R-1) sent an email to the Respondent No. 16/CS informing "Respected Sir/Madam, Shri K C Ji Nuwal and Rahul Ji Nuwal is Director in AGT. From 02nd May, 2019. Which please note. Informed to RoC and Ors if required" 424-425 06.05.2019 The R-16/CS informed about acquisition of AGT the annual maintenance service contact between AGT and the Appellant Company was terminated by the Appellant. 426 28.06.2019 On the request of R-16/CS a letter sent to CS with details of Respondent No. 1/ K C Nuwal shareholding in AGT. 428-429 10.05.2019, 06.06.2019, 09.07.2019 and 06.08.2019 To the Appellant intimating purchase of shares of AGT by R-1/K C Nuwal and his family. 09.04.2020 Monish Agarwal, Finance Controller of the Appellant to R-3 /Rahul Nuwal to R- 6/ Manish Nuwal, MD of the Appellant admitted that AGT is a related party of the Appellant and therefore, rent paid must be refunded. 10.04.2020 Email sent by R-16/CS stating that draft disclosure of directorships and confirmation status for non-disqualification to act as director in terms of section 165 () of the Companies Act, 2013 of Shri K C Nuwal and Shri Rahul Nuwal Ji for Solar Industrial India Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and to purchase office space at Mumbai. Therefore, Manish Nuwal directed Rathi to transfer 40 Crores in two tranche to K C Nuwal's account. It means from very inception aforesaid facts were in the knowledge of S N Nuwal Chairman of Appellant and Manish Nuwal MD of Appellant, not only this, they have arranged funds also for the same. 36. In Para 63 of the impugned order, the Ld. Tribunal gave following findings which are not challenged. Otherwise, also proved from the aforesaid correspondence. "63................. (vi) It is not the case of the Respondents that A1 has not disclosed his interest in AGT. The interest in AGT was informed to the Company Secretary in writing, though A1 has not filed the required Form MBP 1 at the initial point of reporting. ............ ............ (xiv) R14, the Company Secretary of R1 has received the information as to the shareholding of the Applicants in AGT and in view of this as a professional, R14, was expected to guide and advise the Director in filing proper form in consonance with the Rules and Regulations." 37. Now, we have considered whether K C Nuwal has contravened the provisions of Section 184(1) of the Act. Section 184(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly, concerned or interested in a contract or arrangement or proposed contract or arrangement entered into or to be entered into- (a) with a body corporate in which such director or such director in association with any other director, holds more than two per cent. shareholding of that body corporate, or is a promoter, manager, Chief Executive Officer of that body corporate; or (b) with a firm or other entity in which, such director is a partner, owner or member, as the case may be, shall disclose the nature of his concern or interest at the meeting of the Board in which the contract or arrangement is discussed and shall not participate in such meeting: Provided that where any director who is not so concerned or interested at the time of entering into such contract or arrangement, he shall, if he becomes concerned or interested after the contract or arrangement is entered into, disclose his concern or interest forthwith when he becomes concerned or interested or at the first meeting of the Board held after he becomes so concerned or interested." 42. It is an admitted fact that on 07.11.2019 in the board meeting after discussion it was resolved to take the premises of AG ..... X X X X Extracts X X X X X X X X Extracts X X X X
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