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TMI Blog2022 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... icants have come forward for their impleadment, that too in a petition filed under Section 241 242 of the Companies Act,2013. Such petitions are maintainable only when an eligible person files the same in terms of Section 244 of the Companies Act. Instead of filing a Company Petition (for which these applicants are not eligible), they are trying to intervene in this Company Petition. Considering this application on merit, on-going through the documents annexed and the arguments advanced by the learned Counsel for the parties, it is held that an application for impleading a party should carry all the relevant facts and circumstances, which show/prove that the person making such application for impleadment is a necessary/proper party. On the basis of the documents produced and submissions of the applicants, it is opined that the applicants have to establish how their rights as a shareholder will get affected by any order that may be passed by the Tribunal. The applicants failed to prove that they are necessary and proper parties as per Section 241 of the Companies Act, 2013, who is in the management of the affairs of the Company against whom any acts of oppression and misman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily, but presently the 1st respondent company is a public limited company having 59 shareholders. The dispute in the above Company Petition necessarily relates to the conduct of the resort of the company at Thekkady under the name and style Elephant Court'. 4. The 1st applicant is having 28,000 equity shares and the 2nd applicant is having 22,000 equity shares in the 1st respondent company. The 3rd respondent is the present Chairman and Managing Director of the 1 respondent company. The 3rd respondent is having 52.86% of equity shares in the 1st respondent company. It stated that the 3rd respondent got majority shareholding in the company by virtue of the order passed by the NCLT, Chennai Bench in C.P No 68 of 2015 on 18.04.2017 whereby the NCLT, Chennai Bench directed the 1st respondent company to issue preferential shares by way of the private placement to the 3rd Respondent as against the amount infused by him to discharge the liability towards Federal Bank at that time. The 3rd respondent brought Rs 11 crore to the company as share capital pursuant to the aforesaid order of NCLT, Chennai Bench. The Tribunal appointed M/s.Sundaram and Srinivasan, Chartered Accountants to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares was cancelled by this Tribunal as per order dated 10.03.2021. Thus, the 3rd respondent is having 5,61,550 equity shares in the 1st respondent company. The effect of the order passed by this Tribunal on 10.03.2021 was not brought to the notice of this Tribunal by any of the contesting parties. 8. The 3rd respondent was allotted with 1,10,00,000 equity shares at a face value of Rs 10/- per share. This was done under the guise that the said allotment was a right issue. The Form PAS-3 which was filed on 14.07.2017shows the allotment as a right issue and it is stated as pari passu with the existing equity shares. The said procedure was adopted by the 3rd respondent to defraud the members of the company and to gain control over the management of the company and that too with a view to siphon funds from the 1st respondent company. Defrauding the shareholders and adopting illegal means to gain control over the company is an instance of mismanagement which can be proved beyond doubt in the present case. As per the Annual Report of the financial year 2018-19 the value of total assets of the 1st respondent company is Rs. 10,73,640,489/- and that too based on a valuation conducted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t too in a petition filed under Section 241 242 of the Companies Act,2013. Such petitions are maintainable only when an eligible person files the same in terms of Section 244 of the Companies Act. Instead of filing a Company Petition (for which these applicants are not eligible), they are trying to intervene in this Company Petition. 13. Considering this application on merit, on-going through the documents annexed and the arguments advanced by the learned Counsel for the parties, we are of the view that an application for impleading a party should carry all the relevant facts and circumstances, which show/prove that the person making such application for impleadment is a necessary/proper party. 14. The Tribunal is to determine whether the presence of the prospective Applicants is just and necessary with a view to enabling this Tribunal to completely and comprehensively decide and settle the controversies in the proceeding pending before this Tribunal. Bearing in mind that some parties are omitted to be added or arrayed in the main company petition (at the time of its filing) and later, when they were sought to be arrayed through an application in a bonafide manner, for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed party when the irrelevant matters are allowed to be considered by courts by adding a new party whose interest has no nexus to the subject matter of the suit. 17. This Tribunal also refers to the judgement of the Hon'ble Supreme Court in Mumbai International Airport V Regency Convention Centre (vide civil appeal No. 4900/2010) wherein it is held that exercising its judicial discretion under Order 1 Rule 10(2) of the Code of Civil Procedure, the court will of course act according to reason and fair play and not according to whims and caprice. The Hon ble NCLAT, Chennai Bench in Ramji Dayawala Sons (P) Ltd. v. In vet Import - MANU/SC/0502/1980: 1981 (1) SCC 80, reiterated the classic definition of 'discretion' by Lord Mansfield in R. v. Wilkies - 1770 (98) ER 327, that 'discretion' when applied to courts of justice, means should discretion guided by law. It must be governed by rule, not by humor, it must not be arbitrary vague, and fanciful, but legal and regular. 18. From a reading of the eye of the contents of IA (C/ACT)/04/KOB/2022 in TCP/34/KOB/2019, we are of the considered opinion that the applicants failed to prove that they are necessary and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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