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TMI Blog2021 (12) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... up quoting lower price. Applicants/ Respondents- K.J Paul, Bindu Paul and K. A. Mathaiare are directed to purchase 60,000 shares of Respondents/ Petitioners- P. M. Johny and K. P. Augustine at the rate of ₹ 1941/- each within a period of one month and file a compliance memo to that effect, before this Tribunal - Application disposed off. - CA No.86/KOB/2021 in TCP/14/KOB/2019 - - - Dated:- 1-12-2021 - Hon ble Mr. Ashok Kumar Borah, Member (Judicial) And Hon'ble Mr. Anil Kumar B, Member (Technical) ORDER Per: Ashok Kumar Borah, Member ( Judicial ) The brief facts of the case are that the petitioners filed this Company Petition No.24/2011 before the Company Law Board, Chennai Bench, Chennai under the provisions of Sections 397, 398, 402, 111,237, 220, 260, 291 and 292 and other relevant provisions of the Companies Act, 1956. After the establishment of the NCLT in 2016, the company petition No. 24/2011 was transferred to NCLT Chennai Bench and renumbered as TCP No.67/2016.Further, on constitution of NCLT, Kochi Bench, the case was again transferred to Kochi Bench, and the same was renumbered as TCP No. 14 of 2020. 2. The 1st Respondent Company Viz. M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuance of Respondent No.3 and appointment of Respondent No.4 are declared as illegal, null and void, and hence, set aside. The 1st Petitioner is appointed as Managing Director of 1st Respondent Company and Mr. K. J. Paul is removed from the position of Managing Director, but he shall perform the duties as Director of the 1st Respondent Company. Consequently, the said Board of Directors is directed to rectify the Register of Members by restoring the shareholding pattern as on 30.09.2005 as shown under para 6(a) of the Petition. Keeping in view the totality of circumstances and the intention of the parties, it is proposed to appoint an independent Auditor within three weeks of passing this Order, with the consensus of the Board of Directors comprising of 1st Petitioner and the 2nd Respondent, failing which, this Bench on mention by any of the Directors, shall appoint the independent Auditor out of the names, if suggested, by the parties, who (Independent Auditor) shall determine the true and fair value of the shares of 1st Respondent Company by taking into consideration three Financial Years w.e.f. 2011 onwards. Based on the said value, and keeping in view the sharehol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the appellants have been in the management of the company who have been found by the Tribunal to have oppressed the respondent (petitioners), therefore, valuation of shares to be done on the date of decision of the company petition. 42. In view of the above observations and discussions we direct that: - In last un-numbered paragraph of the operative order in para 34 of the impugned order dated 7.12.2017 for words: - shall determine true and fair value of the shares of 1st respondent company by taking into consideration three financial years w.e.f. 2011 onwards shall be deleted and in their place the following words are substituted: - shall determine the true and fair value of the shares of 1st respondent company, as on the date of this decision, i.e. 7.12.2017 . Except for modifications as above in the impugned order, the impugned order is maintained. The appeal is disposed accordingly. Interim order passed, if any, shall stand vacated. No order as to costs. After hearing the learned counsel for the petitioners and the learned Senior counsel for the respondents and also after perusing the whole case records in IA/36/KOB/2020 in MA/31/KOB/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to the 60,000 shares held in the 1st Respondent Company. (c) to direct that in the event of the 2nd and 3rd Respondents/Petitioners buying out the shareholding of the Applicant/Respondents group, outstanding loans of the Applicants/Respondents group in 1st Respondent Company as per Annexures A1, A2 and A3 statements annexed hereto be also paid with appropriate future interest from 31.07.2021. (d) in the event the Applicants/Respondents group exiting the company, direct the 2nd and 3rd Respondents/Petitioners to forthwith furnish personal guarantee to secure the outstanding amount of ₹ 4,26,97,780/- with LIC HFL and release the personal guarantees furnished by the 1st Applicant Sri. K.J. Paul and 2nd Applicant Smt. Bindhu Paul. 6. The Chartered Accountant Sri. Suresh T. N, the, Auditor suggested by the Applicants herein filed a Valuation Report dated 19.05.2021 valuing the share of the 1st Respondent Company at ₹ 1,941/- per share as on 07.12.2017. The Applicants/Respondents 1 to 3 hereby unconditionally accept the above valuation of ₹ 1,941/- per share and recorded their willingness to buy 60,000 shares of the 2nd and 3rd Respondents/Petitioners in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhu Paul - ₹ 61,10,578/- and Sri. K. A. Mathai- ₹ 1,50,000 as on 07.12.2017). 10. In addition to above, the learned senior counsel stated that after 07.12.2017, 1st Applicant has advanced a further sum of ₹ 1,56,68,929.55 principally towards clearance of loans availed by the Company and EMI payments due thereon and rents. The total loan amount of the 1st Applicant as on 31.07.2021 with interest at 6% per annum comes to ₹ 10,23,31,372/-. 11. It is further stated that with respect to the loans availed by the 1st Respondent Company from LIC HFL of ₹ 4,70,00,000/-of which ₹ 4,26,97,780/- is outstanding against the 1st Respondent Company,1st and 2nd Applicants have also furnished personal guarantees as security. In the interests of justice in the event of the Applicants/Respondents Group is exiting the Company, the Respondents/Petitioners group be directed to ensure that the Respondents/Petitioners group furnish fresh personal guarantees with respect to the said loan with LICC HFL and accordingly release personal guarantees of the 1st and 2nd Applicants. 12. In the counter the 2nd Respondent/ 1st Petitioner in main Company Petition stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l capacity with a view to making personal profit. 15. The learned counsel further contended that the applicants have placed all imaginable claims unconnected with the real state of affairs. The total claim is ₹ 10,99,64,152/- including interest as evident from Annexures A1, A2 and A3. It is also stated that there are grave mistakes in arriving at the figure of ₹ 10,99,64,152. As per the balance confirmation letters issued by the applicants, total loan amount claimed by the applicants even as on 13.03.2020 is only ₹ 7,51,63,334/-. It is the contention of the respondents/ Petitioners that the amounts now claimed in the application are incorrect and inflated. As per the valuation report of auditor T.N Suresh, the total balance is only ₹ 5,00,45,974/- as on 3I.12.2020. 16. The learned counsel for the Respondent concluded by stating that the intention of the applicants in filing the above company application is only an attempt to extort further sums from the respondents by raising an inflated valuation of the assets of the Company. The valuation report submitted by auditor T. N. Suresh deserves to be rejected it being unrealistic and influenced by the 1 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain that in order to safeguard the interest of the Company, this loan until it is fully repaid, would continue for which the guarantee of the Applicants would also continue. As this is a long pending case, in order to cordially dispose the matter, this Tribunal, after having duly considered the decision of Hon ble NCLAT upholding NCLT Chennai Bench decision and taking into consideration the submissions of both the Parties, particularly the interest of the company to continue the Loan from LIC HFL, is of the opinion that the group quoting higher price shall purchase the shares of the other group quoting lower price. Therefore, Applicants/ Respondents- K.J Paul, Bindu Paul and K. A. Mathaiare are directed to purchase 60,000 shares of Respondents/ Petitioners- P. M. Johny and K. P. Augustine at the rate of ₹ 1941/- each within a period of one month and file a compliance memo to that effect, before this Tribunal. With the above directions, C.A No. 86/KOB/2021 stands disposed of. In view of the order dated 07.12.2017 of NCLT, Chennai Bench, no further orders in TCP No. 14/KOB/2020 is necessary. Dated this the 1st day of December, 2021. - - TaxTMI - TMITax - Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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