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Surgi Aid Lifecare Private Limited vs Shri Rahuldev Vyas

National Company Law Appellate Tribunal13 December 2017

Ratio decidendi

The rule this decision rests on

A party who seeks equitable relief under Sections 241 and 242 of the Companies Act, 2013 must come with clean hands; where the petitioner has himself abandoned the company's affairs for a prolonged period, failed to discharge his statutory duties as director, failed to keep his address on the company's records, and diverted company funds to his own account, the Tribunal may not grant equitable relief in his favour. Where the Tribunal has not recorded any finding of oppression or mismanagement, it is not open to it to set aside the appointment of a director, to cancel a subsequent allotment of shares, or to direct the petitioner to sell his shares to the other shareholders. Acquiescence by conduct bars a challenge to a director's appointment: where a shareholder-director, with knowledge of the appointment, remains silent for years, takes no objection to filed returns and balance sheets, and signs minutes recording the appointee's participation without protest, he cannot later impugn that appointment, and the Tribunal's finding of its invalidity cannot stand. Decisions of the board taken in the ordinary course of company affairs, after notice to all directors, consideration of the petitioner's comments, and a documented rationale, are matters of internal management and are not to be set aside as undue haste merely because the Tribunal disagrees with them, particularly where the petitioner declined to attend the meetings in which they were taken.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHI

Company Appeal (AT) No. 231 of 2017 [Arising out of Order dated 30th May, 2017 passed by the National Company Law Tribunal, Ahmedabad Bench, Ahmedabad in C.P. No. 29/241- 242/NCLT/AHM/2016]

IN THE MATTER OF :

1. Surgi Aid Lifecare Private Limited, B-44/3, Hoziwala Industrial Estate, Sachin, Palsana Road, At Post Vanz, Sachin - 394230, Gujarat (Original Respondent No. 1)

2. Chetan Nemlawala, 60/2, 72-73, Manusmurti Society, ParvatPatia, Dumbhal, Surat - 395010. (Original Respondent No. 2)

3. Shammi Nemlawala, Plot No. -74/75, Manu Smruti Society, Parvat Road, Dumbhal, Surat - 395010, (Original Respondent No. 3)

... Appellants 1 to 3 - Versus -

Shri Rahuldev Vyas, 4-A, Anupam Banglows, New City Light Road, Surat - 395007. ... Respondentz (Original Petitioner)

Present: For Appellants : Shri Suryanarayan and Ms. Garima Bajaj, Advocates and Shri Swaminathan Iyer, Company Secretary.

For Respondent : Shri Vivek Chib, Ms. Amrita Narayan and Shri Akshay Gupta, Advocates

Company Appeal (AT) No. 231 of 2017 2

JUDGEMENT

A.I.S. Cheema, J :

This appeal has been filed by Original Respondents Nos. 1 to 3

against impugned order dated 30th May, 2017 passed by the National

Company Law Tribunal, Ahmedabad Bench, Ahmedabad ('NCLT' in brief)

in C.P. No. 29/241-242/NCLT/AHM/2016, whereby in the petition

brought by the Respondent - Original Petitioner under Sections 241 and

242 of the Companies Act, 2013 ('Act' in brief), the same has been allowed

setting aside the appointment of Original Respondent No. 3 as Director and

setting aside allotment of shares as per Resolution passed on 26 th

December, 2016 and further directing the Respondent- Petitioner to sell

his shares in the company to Respondents Nos. 2 and 3. The Appellants

(Original Respondents Nos. 1 to 3), being aggrieved, have moved this

Appellate Tribunal.

2. We would be referring to the parties in the manner in which they

have been arrayed before the learned NCLT.

3. It would be appropriate to refer to a few facts. The Petitioner-

Respondent filed the company petition on 15th November, 2016 claiming

that he is one of the Directors of Respondent Company having 5000 equity

shares. The Petitioner and Respondents Nos. 2 and 3 came to an

understanding to set-up the company and the Petitioner was to provide his

medical expertise and Respondents Nos. 2 and 3 were to manage business Company Appeal (AT) No. 231 of 2017 3

of the company. It was registered as Private Limited Company on 26th

April, 2010 with the object of dealing in medical devices, instruments etc.

The authorised share-capital as on 19th August, 2016 was Rs. 25 Lakhs,

divided into 2.50 Lakhs equity shares divided into 10,000 equity shares of

Rs. 10/- each. The issued and paid-up share capital was Rs. 1,00,000/-.

The Petitioner is one of the Directors. Respondent No. 2 is also having

5000 Equity Shares of Rs.10/- each. Disputes arose between Petitioner

and Respondents regarding managing the affairs of the company and the

efforts to reconcile failed. The Petitioner chose not to over-see the affairs

of the company and let Respondents Nos. 2 and 3 carry on the business.

Since January, 2012, he has not been informed about the activities of the

company and did not get any notice of Board meetings or shareholders'

meetings since 2012.

The Petitioner put up further case before the NCLT claiming that he

came to know about suspicious activities in the company from a client in

April, 2016 and then he verified the activities of the company on the web-

portal of the Ministry of Corporate Affairs and came to know of Resolution

dated 8th October, 2013 appointing Respondent No. 3 as Director and the

Resolution that anyone of the existing Directors could sign Form - 32 to

give effect to the appointment of Respondent No.3 as Director.

The Petitioner claimed that he did not get any notice for the meeting

dated 8th October, 2013. The Petitioner further claimed that there was

another Board of Directors' meeting held on 23rd January, 2014 regarding

Company Appeal (AT) No. 231 of 2017 4

which also he was not given any notice. In this meeting, the decision to

permit any Director to file requisite e-forms was taken. There was yet

another meeting dated 27th September, 2014 without giving notice to the

Petitioner in which Balance-Sheet, Statement of Profit and Loss, Cash-

Flow Statements and Directors' Report for year ending 31st March, 2014

was approved and Mitul P. Shah & Associates were appointed as 'Auditors'.

The Petitioner claimed that the Petitioner and Respondents Nos. 2 and 3

were shown as Directors and Petitioner and Respondents Nos. 2 and 3 are

having 5000 shares each as per the Form MGT-7 for the Financial Year

2013-14. The Petitioner claimed that although he did not attend, he was

shown as present in the meetings.

The Petitioner further claimed that he wrote letter dated 19.08.2016

to IDBI Bank Ltd. and Surat People's Cooperative Bank Ltd. claiming that

there was dispute between him and the Respondents regarding conducting

of the affairs of the Company. While IDBI Bank Ltd. asked him to get

Board Resolution, the Manager of Surat People's Cooperative Bank Ltd.

accepted his letter. After this, Respondents Nos. 2 and 3 approached

Petitioner for settlement and meetings took place on 24th August, 2016 and

11th September, 2016 but no solution was found. The Petitioner had gone

out of city on 7th December, 2016 and when he returned he found an

envelope at his door regarding notice for next Annual General Meeting

(AGM) of the Company on 30th September, 2016. The notice was received

after the date of meeting.

Company Appeal (AT) No. 231 of 2017 5

Raising such grievances, the Petitioner claimed that an independent

Committee needs to be appointed; Central Government should appoint

Inspector to investigate and Board of Directors should be removed.

4. In response, Respondents Nos. 1 to 3 put up their case before the

NCLT claiming that relying on the Petitioner, Respondent No. 2 had asked

his cousin brother, Respondent No. 3 to join his business and after

negotiations, a Memorandum of Understanding was entered between the

parties and it was agreed that proprietorship 'Surgi Aid Medical

Equipments' would be taken over by newly promoted company, namely,

'Surgi Aid Medical Equipments Private Limited' - the 1st Respondent. All

the parties were to have 1/3rd share each. The assets and liabilities were

taken over on incorporation. The parties decided to have work-division

based on individual expertise. At the time of take-over of 'Surgi Aid Medical

Equipments', which was earlier proprietary concern, its cash credit

account with 'Surat People's Cooperative Bank Ltd.' having cash credit

limit of Rs. 40 Lakhs, was also taken over. At the time of incorporation,

2nd Respondent was appointed Director and Shareholder along with

Petitioner. It was agreed that after incorporation, Respondent No. 3 also

would be inducted as Director and shareholder. Respondents Nos. 2 and

3 invested their money in the bank. The assets and liabilities, which were

taken over as per Balance Sheet made available by the Petitioner, later on

showed that there was no physical stock with the firm as per the Balance

Sheet and the Petitioner has cheated the respondents to the extent of

having stock of Rs. 66.67 Lakhs.

Company Appeal (AT) No. 231 of 2017 6

The respondents gave particulars as to how there was negative value

of the proprietary concern which affected the business of the company

also. It was claimed that there were fictitious stocks and big debts. The

respondents and other shareholders pumped funds by way of unsecured

loans between 2010-11 and 2015-16. The Company released personal

property of Petitioner from the bank in September, 2012 - November, 2012

by mortgaging personal property of Respondents Nos. 2 and 3.

Respondent No. 3 was appointed Director on 8th October, 2013.

Respondents claimed that the Petitioner himself chose not to attend

the day-to-day management of the affairs of the Company. They have given

details of the meetings of Board of Directors held between 2012 and 2016.

Respondents claimed that in August, 2016, the Petitioner wrote letters to

IDBI Bank Ltd. and Surat People's Cooperative Bank Ltd. informing that

there are disputes. The Respondents claimed that on 20th October, 2016,

the Petitioner was served with notice of the Board Meeting fixed on 12th

November, 2016. The Agenda was against the Petitioner and although the

Petitioner attended this Board meeting, he suppressed facts about the

same while he filed this petition on 15th November, 2016.

The Respondents further claimed that when they had analysed the

account of proprietary firm 'Surgi Aid Medical Equipments', they came to

know that debts of Rs. 11.34 Lakhs due from B. Hasamal and Cie, which

was due to proprietary concern was recovered by the Petitioner and he

siphoned off the funds to his personal accounts although the proprietary

Company Appeal (AT) No. 231 of 2017 7

concern was already taken over by the 1st Respondent Company along with

its debtors. The respondents gave further details of withdrawals made by

the Petitioner behind their back.

Respondents further claimed that the Petitioner was Director in M/s.

Zest Orthocare Private Ltd. and M/s. Zyro Woundcare Pvt. Ltd. and his

wife was shareholder in these companies. They came to know of this when

they made search in this regard. Thus, those Companies took credit from

1st Respondent Company without disclosing to these Respondents that the

Petitioner and his wife have got interest in those companies which was in

violation of Section 185 of the Act. The Respondents also claimed that the

Petitioner was doing competitive business against Respondent No. 1

Company and it was resolved to issue show cause notice in the Board

meeting dated 12th November, 2016. The notice of this meeting was served

on 28th October, 2016. Non-participation of the Petitioner was with full

knowledge and express consent of the Petitioner himself and thus he was

estopped from raising issues. There was provision in the settlement of

2012 itself which provided that Respondent No. 3 would be appointed

Director of the Company and, accordingly, he was appointed Director on

8th October, 2013. Respondents have given particulars as to how the

Petitioner was changing his addresses because of which service of notice

of Board Meetings on him became difficult. The Petitioner did not question

appointment of 3rd Respondent in earlier correspondences of 2016. In fact,

he signed the Balance-Sheets of 2014 and 2015. According to the

Respondents, the Petitioner as a Director was himself also bound to take Company Appeal (AT) No. 231 of 2017 8

steps to conduct meeting of the Board as per the requirement of the Act

but he took no steps after 2012. On 30th September, 2014, it was an

Annual General Meeting which was held and not Extra-Ordinary General

Meeting. Respondents claimed that notice of the AGM dated 30th

September, 2016 was posted to the Petitioner and as Petitioner was

complaining that he had not received notices, Respondent No. 2 visited the

given residential address of the Petitioner but came to know that the

Petitioner was not staying there. Respondent No. 2 then went to the clinic

of the Petitioner and dropped the notice of the meeting at the premises

which Petitioner is claiming to have later on received on 7th October, 2016.

Even SMS was sent to the Petitioner and replies were sent via e-mail ID of

the Petitioner.

Pending the Company Petition, to arrange finance, Board Meeting

was held on 7th December, 2016 and it was decided that the Petitioner

should contribute to the shortfalls of unsecured loans to tide-over the

financial crunch. The notice of the Board Meeting was circulated in

advance which meeting was scheduled on 7th December, 2016. One day

before the meeting, the Petitioner sought adjournment of the meeting on

the ground of ill-health. The Respondents were willing to postpone the

meeting if the Petitioner deposits his share of unsecured loans as

mentioned in the agenda papers but the Petitioner did not remit nor

replied. On 7th December, 2016, Board's Resolution was passed offering

50000 Rights Shares of Rs. 10/- each at par to the existing shareholders.

Company Appeal (AT) No. 231 of 2017 9

On 17th December, 2016, notice was issued for Board Meeting to be

held on 26th December, 2016 to allot Rights Shares. Petitioner did not

apply in response to the Rights Shares offered. Respondents have given

particulars of the shares thereafter allotted to the other respondents.

Before the meeting dated 26th December, 2016, Petitioner moved the NCLT

vide I.A. No. 38 of 2016 and the advocate of the Respondents gave an

undertaking to the NCLT that the Company would not give effect to the

Resolution as may be passed on 26th December, 2016 till next date. On

2nd March, 2017, as the Petitioner sought adjournment in the NCLT,

counsel for the Respondents withdrew the undertaking and thus the

Company acted upon the Resolution dated 26th December, 2016.

5. The learned NCLT heard the parties and recorded its reasons. It held

that the Petitioner was not served with the notice of Board Meeting dated

8th October, 2013 appointing Respondent No. 3 as Director. NCLT found

that oppression of the Petitioner had not been proved but proceeded to

pass orders to set aside allotment of shares dated 26th December, 2016. It

also directed the Petitioner to sell his shares to the Company and directed

Respondents Nos. 2 and 3 to purchase the shares at fair market value fixed

by independent Valuer to be confirmed by the Tribunal.

6. We have heard learned counsel for both the sides.

7. Learned counsel for the Appellants criticised the impugned

judgement of the NCLT and stated that the finding that Resolution dated

8th October, 2013 is invalid is wrong. The counsel submitted that the

Company Appeal (AT) No. 231 of 2017 10

record itself showed that the Original Petitioner was changing addresses

and was not being found on the recorded address and it was an admitted

fact that the Petitioner himself had chosen not to take part in the day to

day affairs of the Company since 2012. The impugned order itself

mentioned that the Petitioner had himself kept away from the affairs of the

Company from 2012 and that he was changing his residence which was

recorded with the Registrar of Companies. Reference was made to

Paragraph 15 of the impugned order. The NCLT itself recorded in

Paragraph 16 of its judgement, that it was the duty of the Petitioner to

inform about change of his address and it was not for the company or other

shareholders to find out the change in residential address of the Petitioner.

According to the Counsel for the appellants/Respondents, the NCLT with

regard to delay and laches on the part of the Petitioner observed in

paragraph 17 of the impugned order as under :

"Delay and latches on the part of the petitioner:

17. It is a fact that the petitioner himself kept away

from the affairs of the company from 2012. Again

in the year 2016, petitioner started inquiring about

affairs of the company. Thereafter, he filed this

petition in November, 2016. Petitioner being 50%

shareholder and being director kept quiet for more

than four years without bothering what is

happening in the company. Petitioner did not even

Company Appeal (AT) No. 231 of 2017 11

chose to inform change in his address. Petitioner

did not chose to find out whether statutory

obligations which are required to be complied by

the company have been complied or not. Such a

petitioner, after lapse of four years is not entitled

to ask for any equitable relief other than

appointment of respondent 3 as Director was not

valid. Therefore, it is on the ground of delay and

latches, Petitioner is not entitled to any equitable

relief in this case even though the appointment of

respondent No. 3 is not valid."

8. It is further pointed out by the appellants that the NCLT found in

Paragraph 18 of the impugned order that admittedly the Petitioner had

floated two companies without informing the Respondents and the

material on record showed that the Respondents were made to sell the

products of the Respondent Company to the companies floated by the

Petitioner.

9. In paragraph 18 of the impugned order, it was observed :

"18. Petitioner having kept quiet without bothering

about affairs of the company for four years, chose

to write to the bankers to freeze accounts of the

company. Moreover, petitioner, admittedly floated

Company Appeal (AT) No. 231 of 2017 12

two companies viz. M/s. Zest Orthocare P. Ltd.

and M/s. Zyro Woundcare P. Ltd. without

informing the respondents. Material on record also

show that respondents were made to sell the

products of 1st respondent company to

the Companies floated by the petitioner. A perusal

of annexure R-10 and annexure R-11 give support

to the aforesaid facts. Further, perusal of

annexure R-9 to reply show that petitioner after

having sold 1St respondent company all the

debtors including debtor B. Hasamal and Cie from

whom Rs. 11.34 lacs were recoverable, recovered

the said amount and siphoned off the said amount

to his personal account without knowledge and

consent of other Directors. In the bank statement

issued by State Bank of India it is mentioned that

Rs. 4,93,007 was credited in May 2010 in the

bank account of Surgi Medical Equipments

towards export proceeds and an amount of Rs.

6,17,820 was credited in October, 2010. Both

these amounts were not shown in the accounts of

the 1st respondent company."

10. From the above, it is clear that the learned NCLT could see from the

record that the original Petitioner was not with clean hands. Rather, the Company Appeal (AT) No. 231 of 2017 13

last paragraph of the impugned order shows that the NCLT was not in a

position to give a finding on 'oppression and mismanagement' but strained

itself to pass orders for setting aside appointment of Respondent No. 3 and

cancelled the allotment of shares on 26th December, 2016 (which

development had occurred pending the Company Petition). When it is on

record that Petitioner himself opted not to oversee affairs of the Company

since 2012 to 2016 and failed to discharge statutory duties, equity should

hardly stand in his favour. It is also on record that he was changing

addresses without bringing the same on record. It is also held against him

that he illegally diverted money due to the Company to his account. It is

surprising that NCLT should still have given any relief to such Petitioner.

11. Learned counsel for the Appellants - Original Respondents referred

to Annual Return for financial year 2014-15 (copy of which is at Page 189

of the Paper Book) to show (from Page 198) that three Directors were shown

including Respondent No. 3. It has been argued that although such return

had been filed, the Petitioner did not object for long. The counsel referred

to the Memorandum of Understanding dated 9th January, 2010

subsequent to which the Company was incorporated (the document is at

Page 313 of Volume -II of the Paper-Book). It has been submitted that this

document bore signatures of the Petitioner as well as Respondents Nos. 2

and 3. It is argued that initially when the Company was incorporated, the

Petitioner had expressed that if there are more than two Directors shown,

it would be more time-consuming to form the Company and thus initially

Respondent No. 3 was not shown as Director but it was agreed between Company Appeal (AT) No. 231 of 2017 14

the parties since beginning that Respondent No. 3 would also be made

Director. Reference has been made to Paragraph 4 of the affidavit in reply

filed by Respondents Nos. 1 to 3 in the company Petition (Page 244 of

Volume-II of Paper-Book). The counsel then referred to the minutes of the

meeting dated 12th November, 2016 where without raising objections to

Respondent No. 3 signing as Director, the Petitioner also had signed the

minutes. No doubt, the minutes are dated 12th November, 2016 and the

petition came to be filed on 15th November, 2016 but the submissions are

that if the Petitioner had objections, he would not have signed the minutes

without protest. We find substance in these arguments. The learned

counsel for the Respondent - Petitioner was asked at the time of hearing

as to why there was delay in questioning the appointment of Respondent

No. 3 which was made on 8th October, 2013 till the petition came to be filed

in 2016. However, the learned counsel for the Respondents made

submissions with reference to subsequent issue of further shares and

when again asked regarding the appointment of Respondent No. 3, the

counsel stated that he was not pressing the matter as regards the

appointment of Respondent No. 3 as Director.

12. Looking to the submissions as well as the record, for above reasons

recorded, we find that the conclusions drawn by the NCLT that the

appointment of Respondent No. 3 as Director was not valid, deserves to be

set aside.

Company Appeal (AT) No. 231 of 2017 15

13. The other question which arises for decision in this matter is the act

of the original Respondents calling for a meeting on 7th December, 2016

and resolving that the Petitioner should contribute Rs. 14.54 Lakhs to tide-

over the financial crunch, failing which, Rights Shares of Rs. 5 Lakhs

should be issued. These developments are pending mater before NCLT.

Counsel for the Appellants referred to notice dated 7th December, 2016

which was sent to the Original Petitioner (Copy at Page 816 in Volume -IV

of Paper-Book). It is submitted that the Petitioner was given notice

regarding the meeting to be held on 7th December, 2016 and after the

meeting of 7th December, 2016, this offer was sent to the Original Petitioner

offering him 25000 Equity Shares of Rs. 10/- each at par to subscribe to

the additional share capital of the company. The offer was kept open for

15 days but the Petitioner did not avail the same. In this regard, learned

NCLT observed in Paragraph 20 of the impugned order as under :

"20. Subsequent to filing of this petition, 1st

respondent company called for a meeting on

07.12.2016 and resolved that petitioner should

contribute Rs. 14.54 lacs to tide over the

financial crunch failing which right shares of Rs.

5.00 lacs should be issued. According to the

respondent, notice of the meeting scheduled on

07.12.2016 was sent to the petitioner on

29.11.2016. Petitioner did not attend the

meeting but one day prior to the meeting he Company Appeal (AT) No. 231 of 2017 16

sought for postponement of the meeting on the

ground of his sickness. Company agreed to

postpone the meeting in case petitioner pay Rs.

14.50 Lacs towards shortfall of his deposit.

Since the petitioner neither remitted the money

nor replied to the notice dated 29.11.2016,

Board of Directors on 07.12.2016 passed

resolution for issuance of 50000 right shares of

Rs. 10/- each at par to all the shareholders. All

the shareholders except petitioner applied for

right shares. Respondent 2 applied for 43000

equity shares against his eligibility of 22000

shares and respondent 3 applied for 5000 equity

shares against his eligibility of 500 shares.

Necessary cheques were deposited with bank

account of the 1st respondent company."

14. The learned NCLT found fault with such decision of the respondents

calling upon the Petitioner to deposit Rs. 14.54 Lakhs to tide over the

financial crunch and on failure to proceed to issue Rights Shares to other

shareholders. It can be seen that the Petitioner had before the meeting

moved I.A. No. 38 of 2016 to restrain the Respondents from holding the

meeting dated 26th December, 2016. At the time of hearing on 23rd

December, 2016, counsel for the Respondents gave an undertaking that

the Resolutions as may be passed in the Board Meeting scheduled to be Company Appeal (AT) No. 231 of 2017 17

held on 26th December, 2016 will not be given effect to till the next date of

hearing.

15. On the next date, as the Original Petitioner sought adjournment, the

undertaking was withdrawn. It appears that the Petitioner had sought

adjournments of the meeting from Respondents but for reasons recorded

in the Minutes that was not acceded to. The NCLT interfered with the issue

of the Rights Shares on the basis that there was no justification for the

Respondents to demand Rs. 14.54 Lakhs or else they will issue Right

Shares. It held that there was undue haste and against interest of

Petitioner and contra to the Articles of Association.

16. We find that these were developments pending the company petition.

The learned counsel of the Respondents was asked at the time of

arguments as to why the Petition was not amended to claim setting aside

such shares issued. Learned counsel accepted that the petition was not

amended but submitted referring to the Minutes dated 7th December, 2016

(Page 844 in Volume -V of Paper-Book) to show that there were no bonafide

in the decisions taken by the Respondents. He claimed that there was

urgency to the extent of Rs. 5 Lakhs but still 50000 shares were issued

although the funds were available with the company as can be seen from

the Statement of Accounts from Surat People's Cooperative Bank Ltd.,

which have been filed (Page 881 in Volume-V of Paper-Book). Thus,

according to the counsel, the NCLT rightly held that the Respondents had

Company Appeal (AT) No. 231 of 2017 18

proceeded with undue haste. The Counsel however agreed that he cannot

show how the issue of Right Shares was contra to Articles of Association.

17. After going through the material on record and the Minutes dated 7th

December, 2016, we find that notice had been issued to the Petitioner

regarding the meeting to be held on 7th December, 2016 and he submitted

detailed comments which the Board of Directors considered and discarded.

There was then further meeting on 26th December, 2016, Petitioner filed

the I.A. No. 38 of 2016 in the NCLT, but he did not participate in the

meetings. The Board of Directors took decision considering the affairs of

the company to tide over their financial difficulties and if that was done,

the same could not have been set aside merely by observing that there was

no justification for the acts of the Respondents or that there was undue

haste. The justification is borne out from the Minutes of these meetings.

Minutes dated 7th December, 2016 took account of the contributions and

shortcomings of all the other Directors and concluded that Petitioner

should be asked to contribute Rs.14.54 Lakhs by way of deficit unsecured

loan to equalize funds pumped in by Nemlawala family and Vyas family

failing which Rights Shares will have to be issued. If facts and figures of

contributions of other Directors was put on record and Petitioner was

asked to match it or accept issue of further Right Shares under Section 62

of the Companies Act, 2013, it was internal decision. When procedure is

followed and steps taken, the acts could not have been questioned

branding them as undue haste. Such considerations of the Board cannot

be found fault with being matters of company affairs. If the Petitioner had Company Appeal (AT) No. 231 of 2017 19

difficulty, he should have participated in the meetings to say whatever he

wanted. In the facts of present matter, we find ourselves unable to agree

with the learned NCLT.

18. We find that when the NCLT could not record finding of oppression

or mismanagement and there was material to show that the Petitioner had

not come with clean hands, it was not open for the learned NCLT to still go

on to set-aside the appointment of Respondent No. 3 and set aside shares

issued as per the Resolution passed on 26th December, 2016 or give

direction that the Respondents will purchase the shares of the Petitioner.

19. For the above reasons, the appeal is allowed. The impugned order

of the NCLT is quashed and set aside. The Company Petition filed by the

Respondents (Petitioner) before NCLT is dismissed. The Respondent

(Original Petitioner) shall pay costs of Rs. 1 Lakh to the account of

Appellant No. 1 Company.

[Justice A.I.S. Cheema] Member (Judicial)

[Justice Bansi Lal Bhat] [Balvinder- Singh] Member (Judicial) Member (Technical)

New Delhi

13th December, 2017. /ng/nn

Company Appeal (AT) No. 231 of 2017

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