Mts Logistics Pvt. Ltd vs Brijesh Uppal

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 402 of 2018 IN THE MATTER OF M/s. MTS Logistics Pvt. Ltd. Through its authorized signatory Having its registered office at:- L-126 A, Ground Floor, Street No. 5, Mahipalpur Extension, Delhi-110037 ...Appellant

Versus 1.Shri Brijesh Uppal S/o. Late Shri. K.L. Uppal R/o. V-11, Green Park, New Delhi,110016 ....Respondent

2.Shri Parvesh Kumar Jain S/o. Sh. Ved Parkash Jain R/o. 124 A, Street No. 4, Friends Enclave, S.P. Road, Delhi-110086 ... Proforma Respondent Present:- For Appellant:- Mr. Nittin Mittal, Advocate. For Respondent:- Mr. P. Nagesh, Mr. Harshal Kumar, Advocates for R5. WITH Company Appeal (AT) No. 407 of 2018 IN THE MATTER OF Shri Parvesh Kumar Jain S/o. Sh. Ved Parkash Jain R/o. 124 A, Street No. 4, Friends Enclave, S.P. Road, Delhi-110086 ...Appellant

Versus 1.Shri Brijesh Uppal -2-

S/o. Late Shri. K.L. Uppal R/o. V-11, Green Park, New Delhi,110016 ....Respondent 2. M/s. MTS Logistics Pvt. Ltd. Through its authorized signatory Having its registered office at:- L-126 A, Ground Floor, Street No. 5, Mahipalpur Extension, Delhi-110037 ... Proforma Respondent Present:- For Appellant:- Mr. P. Nagesh, Mr. Harshal Kumar, Advocates for Appellant. For Respondent:- Mr. Nitin Mittal, Advocate for R2.

[21st July, 2020]

JARAT KUMAR JAIN, J.

The Appellant M/s MTS Logistics Pvt. Ltd. and Appellant Parvesh Kumar

Jain filed Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) No.

407 of 2018 respectively, against the impugned order dated 31.08.2018 passed

by National Company Law Tribunal, New Delhi, Bench. (In brief Tribunal) both

the Appeals are heard together and disposed of by this common Judgment.

2. Brief facts of these Appeals are that on 01.05.2016 Appellant Parvesh

Kumar Jain and Respondent No. 1 Brijesh Uppal have incorporated a Company

named as Tryambakam Logistics Pvt. Ltd. (In Short TL Company) under the

Companies Act, 2013 having its Registered Office at L-126 A, Street No. 5,

Mahipalpur Extension, New Delhi. The Company was incorporated to carry on

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -3-

the business of Transportation. The Appellant Parvesh and Respondent Brijesh

being shareholder/director of the Company each one contributed Rs. 5 Lakhs

towards the paid up share capital. The Appellant MTS Logistics Pvt. Ltd.

Company (in short "MTS Company") was incorporated under the Companies Act,

1956 on 16.03.2011 having its Registered Office at L-126 A, G.F Street No. 5,

Mahipalpur Extension, New Delhi. The MTS Company is also engaged in the

Logistics Business and the same was incorporated with its promotor/directors

Viresh Kumar Jain and Dinesh Kumar Jain and subsequently, Appellant

Parvesh Kumar Jain was inducted as director in the MTS Company on or about

15.10.2012. The Respondent No. 1 TL Company started its business with

purchase of five trucks worth Rs. 63 Lakhs and had also spend huge amount on

building the body of those trucks. The Company has taken a huge amount of

loan from the Bank to buy those trucks.

3. The TL Company started its operations and trucks started running for MTS

Company. That initially for few days the MTS Company made regular payments

and the business was running smooth till 15.08.2016. Thereafter, Appellant

Parvesh started raising problems. He was unhappy with the drivers engaged by

Brijesh. Therefore, he replaced them. This was done with a specific and oblique

purpose to ensure that the drivers would not report to Brijesh. So that Brijesh

should not know where the trucks were plying. First month potential income of

the business was generated but in subsequent months the revenue declined

sharply. It was alleged that the trucks of TL Company have been used for the

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -4-

business of MTS Company without remittance to the TL Company which has

resulted in causing financial loss to the TL Company and Brijesh.

4. The affairs of the TL Company were totally in control of Parvesh and he

mismanaged the TL Company. After 20.08.2016 he did not deposit the business

proceeds in the bank account of the TL Company. Lack of funds resulted in

defaults in payment of EMIs towards financial assistance availed from Bank. The

trucks were finally surrendered to the banks by Parvesh and sold without

consulting Brijesh, and no resolution was passed by TL Company in this regard.

This unilateral action of Parvesh caused a huge loss to the TL Company. It is

also alleged that TL Company earned huge revenue till 20th August, 2016 but all

its revenue was siphoned off by Parvesh. Therefore, the TL company was not able

to pay the monthly EMIs of the loans. The Malafide intention of the Parvesh and

his fraudulent acts has resulted into huge loss to the TL Company and its

shareholder Brijesh. On these allegations Brijesh filed a Company Petition under

Section 241 and 242 of the Companies Act, 2013 against the TL Company,

Parvesh and MTS Company claiming following reliefs:-

a. To Order Parvesh to deposit all the revenue that he has earned since 20th August, 2016 till date into the account of the TL Company.

b. To order Parvesh to render the true accounts of the transactions after 20th August, 2016. c. To give the possession of the all the five trucks to the TL Company and Brijesh.

d. To order Parvesh not to use the trucks for benefit of his own Company i.e. MTS Logistics Pvt. Ltd.

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -5-

e. Impose huge costs on Parvesh for misappropriating the funds of the TL Company and causing huge loss to the TL Company and Brijesh.

f. Pass order to Parvesh for removing Logo of MTS Company from the trucks of the TL Company. g. Pass order to give Brijesh his due amount of dividend received from Parvesh.

h. Remove Parvesh as the Director of the TL Company. i Pass order to impose huge cost on Parvesh. j. Any other order the Tribunal thinks fit and proper under the circumstances of the case.

5. In reply, Parvesh denied all the allegations and stated that the Petition is

filed as a counter blast to the Civil Suit for perpetual, mandatory injunction and

for rendition of accounts filed by Parvesh against Brijesh and the same is

pending in the Court of Civil Judge, Saket Court, New Delhi. The Petition under

Section 241 and 242 of the Companies Act, 2013 is not maintainable as there is

no act of oppression or mismanagement of Parvesh had been shown in the

Petition and the Petition is malafidee. It is also stated that the Petition is liable

to be dismissed as infructuous as already the relief so claimed in the Petition

does not survive. The trucks through which revenue to be generated has already

been taken over by the financier i.e. ICICI Bank and has been auctioned. Brijesh

concealed the material facts from this Tribunal. The five trucks were purchased

after getting financed from ICICI Bank on the personal guarantee of MTS

Company and its director Viresh Kumar Jain. The trucks so purchased were

converted into closed body containers for which expenses were made from the

account of Parvesh and the advance of Rs. 2 lakhs, so taken from MTS Company

against the Vehicle Hiring Agreement with TL Company. Parvesh made counter

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -6-

allegations that Brijesh handled the operation of the Company and has

mismanaged by paying to drivers without submitting any account and therefore,

Brijesh is liable to account for a sum of Rs. 3,71,500 withdrawn from the bank

on the ground of disbursing salary and expenses of the drivers. In the absence

of any vouchers produced, the said amount withdrawn could not be reconciled

and hence, it amounted to illegal withdrawals. Parvesh alleged that illegal and

unjustified withdrawals led to shortage of funds in the bank Account therefore

EMIs could not be paid to the bank. It is stated that it was due to non-

cooperation of Brijesh that the business came to a complete halt. The bank

therefore, exercised its lien under the loan agreement and repossessed the

hypothecated trucks and auctioned them.

6. Learned Tribunal after hearing the parties found that on behalf of TL

Company Parvesh entered into an agreement with MTS Company. As per the

agreement five trucks of TL Company were handed over for the exclusive use of

MTS Company in which Parvesh was the beneficiary. Parvesh has however, not

been able to produce any resolution which authorized him to enter into a

business arrangement on behalf of TL Company. He has also failed to provide

details of the accounts before the Tribunal. The Tribunal found that

mismanagement of the business is at large and there is no cogent explanation

why sufficient income was not generated to meet the business expenses and

payment of EMIs to the Bank. The Tribunal found that Parvesh categorically

admitted that the trucks were used for the business of MTS Company. But the

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -7-

revenue generated from the business operation were not paid to the TL Company.

Therefore, Parvesh and MTS Company are jointly and severally liable to

compensate Rs. 20 lakhs to Brijesh. The Tribunal also directed the RoC to initiate

action against Parvesh for the deliberate violation for the statutory provisions of

Section 188 of the Companies Act, 2013. Being aggrieved with this order MTS

Company and Parvesh have filed these Appeals.

7. Learned Counsel for the Appellant MTS Company submitted that the

Respondent Brijesh had never claimed any relief against the Appellant MTS

Company however, without any basis the MTS Company has been held liable to

pay damages to the tune of Rs. 20 Lakhs to Brijesh. Such order is affecting the

rights of shareholders of the MTS Company and before passing such an order

against the Company no show cause notice has been served by the Learned

Tribunal. Even otherwise the Tribunal had no jurisdiction to inflict any damages

against the alien Company while deciding the inter-se dispute between two

directors of a TL Company. There is no evidence against the MTS Company. It is

also submitted that the impugned order is harsh and against the natural Justice.

8. Learned Counsel for the Appellant Parvesh submitted that Learned

Tribunal had ignored the fact that TL Company had accepted Rs. 2 lakhs as an

advance from MTS Company for entering into Vehicle Hiring Agreement. The

Tribunal erroneously came to a conclusion that Parvesh hold 80% equity and his

brother hold 20% equity in the MTS Company. In support, there is no material

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -8-

on record before the Tribunal hence, such finding is based on surmises and

conjectures. Therefore, liable to be set aside.

9. Learned counsel for the Appellant Parvesh submitted that Learned

Tribunal in the impugned order held that the leasing of the trucks to MTS

Company was without proper authorization and resolution passed by the TL

Company, such finding is illegal. The Appellant Parvesh categorically asserted

that the minute book is in possession and custody of Brijesh which contains all

resolution so passed with regard to the business. The entering into vehicle hiring

agreement with MTS Company by TL Company was within the knowledge of

Brijesh. Therefore, he never objected.

10. Learned Counsel for the Appellant Parvesh submitted that Tribunal had

ignored the Bank statements filed by Appellant Parvesh which shows the entire

transactions of the TL Company during the entire period of its operation. The

Tribunal while passing the impugned order had ignored that Parvesh and Brijesh

were managing the affairs of the TL Company. Therefore, they both are equally

responsible.

11. It is further submitted that Tribunal had failed to consider that the

involvement of Parvesh in a grave Criminal Case by Brijesh owing to business

dispute and due to non-assistance of Brijesh, the Company could not generate

sufficient income to meet the business expenses and to pay EMIs of the Bank.

12. Learned Counsel for the Appellant Parvesh submitted that Learned

Tribunal had observed that Brijesh is seeking compensation of Rs. 50 Lakhs but

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -9-

the same is not founded on any cogent and calculable evidence and on the other

hand, Learned Tribunal awarded the compensation of Rs. 20 lakhs without any

evidence. The Tribunal while awarding compensation Rs. 20 Lakhs to Brijesh

had ignored that Brijesh invested only 5 Lakhs and kept 3.71 Lakhs

unaccounted funds of the Company. It is further submitted by Learned Counsel

for the Appellant that in case the TL Company or that the MTS Company could

earn profits from hiring of the said trucks then Parvesh would never allowed the

trucks to be repossessed by the financier due to non-payment of EMIs. Parvesh

is put to more loss than Brijesh as Parvesh had invested complete capital Rs. 10

Lakhs. Hence, such an order is a non-speaking order and is liable to be set aside.

13. Learned Counsel for the Appellant Parvesh submitted that negligence or

inefficiency do not amount to mismanagement or oppression under Sections 397

and 398 of the Companies Act 1956. For this purpose he cited the Judgement of

the Hon'ble Delhi High Court in the case of Suresh Kumar Sanghi Vs. Supreme

Motors Limited and Ors. (1981 SCC Online Del 199). Learned Counsel for the

Appellant Parvesh also submits that the burden to prove oppression or

mismanagement is upon the Petitioner (Brijesh). For this purpose, he cited the

judgment of the Hon'ble Supreme Court in the case of Sangram Singh Vs. Santa

Devi. P Gaekwad (2005) 11 SCC 314. He submits that in such a situation, Brijesh

has failed to make out a case of oppression or mismanagement against Parvesh.

Therefore, the impugned order be set aside.

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -10-

14. Learned Counsel for the Respondent Brijesh supports the impugned order

and submitted that Learned Tribunal has rightly, held that Parvesh was incharge

of the operation of hiring trucks. However, he has not explained as to why

earnings not deposited in the bank account of TL Company and the trucks were

not hired to the other parties when sufficient business could not be generated

through MTS Company. The TL Company's business was in control of Parvesh

and he has without sharing the details and without maintaining record,

conveniently pocketed the money. Thus, the Appellant Parvesh cheated and

defrauded Brijesh. It is also submitted that Parvesh has deliberately not

produced statement of accounts before the Tribunal. There is no substance in

these Appeals. Therefore, the Appeals are liable to be dismissed.

15. Learned Counsel for the Respondent submitted that Appellants have not

raised any question of law arising out of the impugned order and the Appeals are

based on factual matrix, disputed facts and issues arising out of those disputed

facts. These issues have been judicially tested determined and adjudicated by

the Tribunal by way of a self-speaking and a reasoned Judgment. Hence, the

Appeals are devoid of merit and thus, liable to be dismissed.

16. After hearing Learned Counsel for the parties we have perused the record.

17. In the Appeal of MTS Company the contention of the Appellant is that

before passing an order against the Company, no show cause notice has been

served and the Tribunal had no jurisdiction to inflict any damages against the

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -11-

alien Company, while deciding the inter-se dispute between two directors of a TL

Company.

18. It is seen that the MTS Company was Respondent No. 3 before the

Tribunal. However, it choose not to file reply of the Petition. Therefore, it can't be

said that before passing of the order against the MTS Company, no opportunity

of hearing was given by the Tribunal.

19. Now, we have considered, whether the Tribunal had Jurisdiction to inflict

damages against the MTS Company. It is admitted fact that Parvesh is a director

in the MTS Company since 15.10.2012 and he is also a promotor director of TL

Company since incorporation of the TL Company i.e. 01.05.2016. Parvesh being

a director entered into a vehicle hiring agreement with MTS Company on 25th

June, 2016. As per this Agreement all five trucks of TL Company were under the

exclusive hiring contract with MTS Company and the same were run by them till

their possession was taken over by the financier, ICICI Bank Ltd on 05.01.2017.

Under the said Agreement Rs. 2 Lakhs as an advance has been paid to TL

Company (See Para 13 of Reply of Petition filed by Parvesh before NCLT).

20. The Appellant Parvesh and TL Company as co-borrower purchased five

trucks after getting them financed from ICICI Bank on the personal guarantee of

MTS Company and its director Viresh Kumar Jain (See Para 4(b) of Reply of

Petition filed by Parvesh before the NCLT).

21. With the above facts, it is clear that both the Companies have close

business relations and Appellant Parvesh is a Director in both the Companies.

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -12-

Hence, it cannot be said that the Tribunal had no Jurisdiction to inflict any

damages against the MTS Company. Therefore the Tribunal held that Parvesh

and MTS Company are jointly and severally liable to pay compensation to

Brijesh.

22. Thus, we find no substance in the objection raised in Company Appeal

(AT) No. 402 of 2018.

23. Now we have examined the finding of the Tribunal that Parvesh, without

consent of Brijesh and without any resolution of the TL Company, entered into

hiring agreement with MTS Company.

24. We have considered arguments of the parties, It is true that on 25th June

2016 Parvesh being a director of the TL Company entered into Vehicle Hiring

and Transportation Agreement with MTS Company. Parvesh in his Affidavit

dated 23.11.2017 affrirmed that TL Company authorized him for entering into

agreement with MTS Company and such minute book of the Company is in

possession of Brijesh. Brijsh has not controvert this fact. On 12.09.2016 Brijesh

sent a notice to Parvesh. Para 10, 11 and 12 of the notice are reproduced as

under:-

"10. That contrary to my suggestion of running the trucks with Om logistic private company a renowned company in logistic solutions you insisted on running the trucks for your own company i.e MTS Logistic.

11. That the trucks started running for your own company from your Mahipalpur office to your pune office it is irrelevant to mention that you have offices at both Mahipal Pur, Delhi and Pune, Maharashtra.

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -13-

12. That initially for few days your company namely MTS logistics paid regular payments and the business was running smooth however soon you started raising one problem or the other."

25. With the above statement it is clear that Parvesh entered into hiring

agreement with the consent of Brijesh and under the authority of the TL

Company. It is pertinent to note that in the Petition there is no allegation that

Parvesh entered into hiring agreement with the MTS Company without the

authority of the TL Company. Hence the finding of the Tribunal that Parvesh

entered into above referred agreement without resolution of TL Company and

without consent of Brijesh is erroneous.

26. It is alleged in the petition that all five trucks were in possession of the

MTS Company and Pravesh has not given any statement of account since 20th

August 2016 onwards. It is also alleged that without the consent of Brijesh,

Parvesh has surrendered all five trucks to ICICI Bank.

27. Parvesh in reply to the Petition specifically admitted that the trucks were

under exclusive hiring contract with MTS Company and the same were run by

them till their possession was taken over by the financier, ICICI Bank on

05.01.2017. Parvesh stated that the earnings of the trucks have already been

deposited in the bank account of TL Company.

28. We have considered the submissions. The TL Company was incorporated

on 01.05.2016. The Company has purchased five trucks between 17.06.2016 to

30.06.2016 after getting financed from, ICICI Bank. Vehicle Hiring Agreement

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -14-

was executed between TL Company and MTS Company on 25.06.2016. The

operation of the TL Company commenced on 08.07.2016 onwards and as per the

Vehicle Hiring Agreement Trucks were operated under the Vehicle Hiring

Agreement with MTS Company. The business of the Company ran smoothly for

one month i.e. up to 15th August, 2016. Thereafter, differences started between

Brijesh and Parvesh. On 12.09.2016 Brijesh served a notice to Parvesh and in

the notice it is alleged that Brijesh misappropriate the funds by not showing the

true accounts since 20th August, 2016 and perhaps he has been keeping the

entire earnings of trucks himself. Parvesh stated that the earnings of the trucks

have been deposited in the bank account however he has not filed any bank

statement since 20.8.2016 to 7.1.2017. Therefore the learned Tribunal has

rightly held that Parvesh has not account for the earnings for the above referred

period. Parvesh has not produced any evidence that the trucks were surrendered

to ICICI Bank with the consent of Brijesh. Hence the findings of Tribunal is

correct.

29. Learned Tribunal directed Parvesh and MTS Company to compensate

Rs.20 Lakhs jointly and severally to Brijesh. This finding is seriously challenged

in these appeals.

30. We have considered the submission of the parties. Learned Tribunal in

Para 8 of the impugned order held that in the Petition, Brijesh claimed on average

basis Rs. 50 lakhs for 5 months. Such a prayer is unsustainable as it is not

found on cogent and calculable evidence. Thereafter, Learned Tribunal without

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -15-

any evidence on record awarded damages to Brijesh to the tune of Rs. 20 lakhs

for not accounting for the use of revenue generated from the five trucks of TL

Company.

31. We are of the view that while awarding the compensation of Rs.20 Lakhs

the Tribunal has not taken into consideration following circumstances:

(i) Admittedly Parvesh deposited the revenue earned since 8.7.2016 to

15.8.2016 in the bank account of the TL Company. However, Brijesh has

not produced such statement. If that statement has been produced, then

on that basis average earnings for the period of 20.08.2016 to 05.01.2017

can be calculated.

(ii) Under the hiring agreement, the MTS Company has given Rs.2 lakhs

as advance to the TL Company.

(iii) There is a counter allegation of Parvesh that Brijesh has withdrawn

Rs.371500/- from the bank account of TL Company however Brijesh has

not produced any voucher or accounts for this amount.

(iv) In case the MTS Company could earn profit from hiring of the said

trucks then Parvesh had never allowed the trucks to be repossessed by the

Bank due to non- payment of EMIs.

(v) Brijesh invested Rs.5 lakhs, the business commenced since

8.7.2016. Parvesh has not account for the earnings of trucks from

20.8.2016 to 5.1.2017 i.e. for about four and half months. In such a short

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -16-

span the capital of Rs.5 Lakhs will multiply four times i.e. 20 Lakhs does

not seems to be feasible.

32. We are of the view that it is proved that Parvesh has not account for the

earnings of the trucks from 20.8.2016 to 5.1.2017. However, Learned Tribunal

without considering the above referred circumstances ordered Parvesh and MTS

Company to pay Rs. 20 Lakhs is not justifiable.

33. Brijesh has not produced any voucher for the amount Rs. 3,71,5000/- and

has not satisfied how the advance amount of Rs. 2 Lakhs received under

agreement from MTS Company was adjusted. For the sake of arguments we

presume that Brijesh has accounted for above amount. Apart from this we have

assumed the earnings for four and half months on the capital of Rs. 5 Lakhs to

be 10% per month of the amount invested i.e. which comes to Rs. 2.25 Lakhs.

After having been considered the above mentioned facts and circumstances we

are of the view that the capital of Rs. 5 Lakhs in four and half months would

earn Rs. 2.25 Lakhs. Hence, Brijesh is entitled for capital Rs. 5 lakhs plus 2.25

lakhs total Rs. 7.25 lakhs which is just and proper compensation. It shall be

paid by Parvesh and MTS Company jointly and severally within a month from

today and in default, they have to pay interest on Rs. 7.25 Lakhs at the rate of

8% p.a from the date of the order of the NCLT till realization.

34. As we discussed above, Parvesh entered into an agreement with the

consent of Brijesh therefore, he is not guilty u/s 188 of the Companies Act, 2013.

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018 -17-

Hence, the direction of the Tribunal for initiation of action against Parvesh is

quashed.

With the aforesaid the appeals are allowed with the above modification. No

cost.

(Justice Jarat Kumar Jain) Member (Judicial)

(Mr. Balvinder Singh) Member (Technical)

NEW DELHI SC

Company Appeal (AT) No. 402 of 2018 and Company Appeal (AT) no. 407 of 2018