Andre De Menezes vs Menezes Remedies Ltd. & Ors

Andre De Menezes ...Appellant

Versus

Menezes Remedies Ltd. & Ors. ...Respondents

Present: For Appellant : Mr. Yashraj Singh Deora and Ms. Sanjana Saddy, Advocates

For Respondents : Mr. Joseph Kodianthara, Senior Advocate assisted by Mr.. M.P. Vinod and Mr. Atul Shankar Vinod, Advocates

ORDER

23.05.2018 This appeal has been preferred by the appellant (petitioner

before the Tribunal) against the order dated 1st February, 2018 passed by the

National Company Law Tribunal, Mumbai Bench (hereinafter referred to as the

'Tribunal') in C.P. No.278/241-242/NCLT/MB/Mah/2017 & CP

372/14(1)/NCLT/MB/MAH/2017. By the impugned order, the Tribunal

allowed the amendment as prayed for by the petitioner in the Miscellaneous

Application in C.P. No. 278/241-242/NCLT/MB/Mah/2017 barring paragraph

15 of the Schedule 'A' wherein Clause (7A) related to declaration that the

petitioner is entitled to act and appoint himself or his nominee to the extent of

25.25% of the strength of the Board of Directors of the 1st0 Respondent Company 2

at any point of time and to direct 1st to 6th Respondent to amend, alter the Articles

of Association in order to effectuate the same and other prayer at Clause (7B) -

wherein a prayer was made to pass order for re-instating the petitioner in the

Board of Directors of the 1st Respondent.

2. The Company petition has been preferred by the petitioner under Sections

241 and 242 of the Companies Act wherein the prayer has been made to declare

the Resolution passed in EOGM of 20th May, 2018 as illegal. The main petition

is pending for consideration before the Tribunal and in the meantime, the

amendment petition has been filed by the petitioner, part of which has been

allowed as noticed and discussed above.

3. Learned counsel for appellant submitted that the Tribunal has failed to

appreciate the grievance by disallowing part of the prayer for amendment.

According to him, in regard to the relief sought for in the amendment petition

with respect to Clause (7A) and (7B) the Tribunal has effectively denied the

applicant to those reliefs. It is also alleged that the impugned order is a result

of complete non-application of the mind by the Tribunal.

4. Learned counsel appearing on behalf of the 2nd Respondent opposed the

prayer and submitted that the main petition is pending for consideration before

the Tribunal and the allegation of oppression cannot be decided at this stage.

Further, according to him, the main relief sought for by the appellant in the

company petition is not covered by law.

5. Section 242 of the Companies Act, 2013 empowers the Tribunal to pass

order on an application under Section 241. If the Tribunal is of the opinion that

Company Appeal (AT) No. 165 of 2018 3

the company affairs have been or are being conducted in a manner prejudicial

or oppressive to any member or members or prejudicial to public interest or in a

manner prejudicial to the interests of the company and winding up the company

will unfairly prejudice such member or members, but that otherwise the facts

would justify the making of a winding up order on the ground that it was just

and equitable that the company should be winding up, the Tribunal is

empowered to "make such order as it thinks fit" to bring to an end the matters

complained of. The Tribunal having empowered to pass 'any order as it thinks

fit' the impugned order, in any manner, will not prejudice the parties.

6. For the reasons aforesaid, we are not inclined to interfere in the impugned

order. The appeal is disposed of. No order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc

Company Appeal (AT) No. 165 of 2018