9911796707
TMI Blog2022 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... above is higher than that of the Respondent No. 7, an order be passed to rectify the Register of Members of the Respondent No. 1, Company by cancellation of the shares acquired, if any, by the Respondent No. 3 in terms of the purported Exit Offer as floated by the said Respondent at an unfair price. iv. In the event such Fair Price as determined by the Independent Valuer in terms of prayer (i) above is higher than that of the Respondent No. 7, necessary orders be passed against the Respondent Nos. 1 to 6 under Section 447 and 448 of the Companies Act, 2013. v. That an Order be passed disqualifying the Respondent Nos. 2 to 6 from being a Director in any Unlisted Public Company in the event they are held liable for fraud in terms of Section 447 and 448 of the Companies Act, 2013. vi. That an Order be passed disqualifying the Respondent No. 9 from being appointed as an Auditor of any company and be held liable for fraud in terms of Section 447 of the Companies Act, 2013. vii. That such orders as to costs be passed as in the premises the Ld. National Company Law Tribunal may deem fit and proper. viii. That such further order or orders be passed or other directions be given af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be brought within the purview of Section 59(1) of Companies Act and cannot be subject matter of Petition under Section 59(1). v. It is further submitted that the ultimate remedy under Section 59(2) of the Act is "rectification" of register of members. The word "rectification" means that there is something in the register which should not be there or something omitted from the register which should rightly be there and the register is accordingly ordered to be rectified. In the present the same has not been averred or established. Therefore, the Tribunal in exercise of its powers under Section 59(2) may dismiss the petition. 4. The Petitioner has filed its written submissions with respect to maintainability of the application stating the following: i. The Respondent No. 1, failed to take any action on its own (since 2016), and it is only after multiple requests by the Petitioner that it acted on the SEBI Circular No. SEBI/HO/MRD/DSA/CIR/P/2016/110 dated 10.10.2016 ("the Circular") and gave an exit offer dated 18.08.2018 to minority public shareholders, at price of Rs. 18.42 per equity share. Even as per the Respondent No. 1, no public shareholder availed the same. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is maintainable. The judgments relied upon have been duly considered by this Tribunal. The same are not re-iterated for brevity. 6. The Respondent No. 1 to 4 has filed their supplementary written submissions stating the following: i. That before or after the Exit Offer period any public share holder can make share sale-purchase transactions and nothing in the law or SEBI rules and guidelines prohibits the same. Applicable SEBI circulars (Circular dated 10 October 2016 and 01 August 2017) dealing with providing exit rights to public shareholders of the exclusively listed companies do not envisage any restrictions on public shareholders from transferring their shares. Such restrictions (from accessing capital markets, transferring shares, etc.) were placed on the promoter/promoter entities and directors of those exclusively listed companies who had failed to provide an exit to their public shareholders, and not on the public shareholders. ii. That the submissions made by the Petitioner regarding Rule 54 of the NCLT Rules, 2016 ("NCLT Rules") being redundant has been again made for the first time by way of its Written Submissions. The Petitioner cannot raise contentions in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by this Tribunal. The same are not re-iterated for brevity. 8. For the sake of brevity and to achieve clarity on the main issue of maintainability, the submissions filed by the parties have not been reproduced in entirety. This Tribunal has carefully considered all the submissions. 9. The action taken and role played by the Petitioner and the Respondent in this matter clearly shows that the Petitioner is aggrieved by the low valuation of shares in the exit offer by the Respondent and he tried to approach in a genuine and bona fide manner all the concerned authorities from whom he felt his grievance could be redressed. On the other hand, the actions taken by the Respondent Company in this matter do not present to be equitable, fair and bona fide. The Respondent No. 1 Company in the first instance failed to act as per the obligatory requirement in terms of the SEBI Circular and it was only after repeated request by the Petitioner that the Respondent No. 1 Company provided its shareholders with an Exit Offer. Reluctance on the part of the Respondent company to provide copies of the annual returns and balance-sheet for the years 2014-17 to the Petitioner creates doubts about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their shares and must perforce have to be content with value of shares in the Exit Offer. Further, the Petitioner vide its letter dated 25.02.2019, had filed a complaint against the Respondent No. 1 company with the Registrar of Companies, New Delhi (being Respondent No. 10 of this instant Petition) bringing to its knowledge the discrepancies with respect to the Valuation Report as prepared by the Respondent No. 7 and requested for appropriate action in this regard. Thereafter, the Authorized representative of the Petitioner via Application under Right to Information Act, 2005 was informed by the Respondent No. 10 vide its letter dated 30.08.2019 that necessary Notices have been issued by it to the Respondent No. 1 company and its Directors; however it also informed the authorized representative of the Petitioner to approach this Tribunal for appropriate action in the matter. 13. The Respondents have also contended that valuation cannot be ordered under Section 247 of the Companies Act, 2013 since valuation under Section 247 would be limited to valuation required to be done under the provisions of the Companies Act and the valuation prayed for by the Petitioner is a valuation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. Here it would be appropriate to cite the following orders of the Hon'ble Supreme Court: The Hon'ble Supreme Court in the case of J. Kumaradasan Nair and Ors. Vs. IRIC Sohan and Ors. reported at (2009) 12 SCC 175, has had the occasion to observe that it is a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. Further, in the case of N. Mani Vs. Sangeetha Theatre and Ors. reported at (2004) 12 SCC 278 a three judge bench of the Hon'ble Supreme court has held that "It is well-settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." In the light of the above cited orders of the Hon'ble Supreme Court it is clear that the power of the Tribunal to appoint an independent valuer is not vitiated so long as it exists and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
