Surgi Aid Lifecare Private Limited vs Shri Rahuldev Vyas
- CitationCompany Appeal (AT) No. 231 of 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
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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