INTRODUCTION

These two Company appeals arise from the common order passed by the Company Law Board, Mumbai bench, Mumbai dated 14 December 2012. The parties and the issues raised in these two appeals are interlinked. The appeals were argued and heard together and are being disposed of by this common judgment.

2. Both the Company Appeals are filed by Enercon GmbH. In Company Appeal No.42 of 2013 – Enercon GmbH has challenged the order passed by the Company Law Board in Company Petition No.83 of 2011 (originally numbered as Company Petition No.74 of 2008) filed by Mr.Yogesh Mehra and others. In Company Appeal No.43 of 2013 - Enercon GmbH has challenged the order passed by the Company Law Board in Company Petition No.82 of 2011 (originally numbered as Company Petition No.121 of 2007) filed by Enercon GmbH.

3. The Company in respect of which the proceedings have arisen is M/s Enercon (India) Limited, now named Wind World (India) Ltd. Enercon GmbH holds 56% equity shares in Enercon India Ltd and 44% share-holding is by the Mehra family. Yogesh Mehra is the Managing director of Enercon India Limited. His brother Ajay Mehra is a whole time director. The other directors on the board of Enercon India are Dr.Aloys Wobben who is also the chairman, and Mr.Hans-Dieter Kettwig. Dr.Aloys Wobben is 100% share-holder of Enercon GmbH, the 56 percent share-holder in Enercon (India) Ltd.

4. The Company Petition No.82 of 2011 was filed by Enercon GmbH (referred to as EG) against Enercon (India) Ltd. (referred to as EIL) and the Mehra family (the Mehras) and certain other subsidiaries on 11 August 2007. The Company petition No.83 of 2011 was filed by the Mehras against EG, Dr. Aloys Wobben and Mr.Hans-Dieter Kettwig on 3 November 2008. By the impugned order dated 14 December 2012, the Company Law Board - (the Board) has dismissed the Company petition No.82 of 2011 filed by EG and has allowed the Company Petition No.83 of 2011 filed by the Mehras. The Board has directed EG to sell it's share-holding to Mehras, laying down certain modalities as regarding appointment of facilitator and for valuation. The Board has held that a case of oppression made out by the Mehras against EG is proved and as per provisions of Section 397, 402 and 403 of the Companies Act, 1956 (the Act), buyout by Mehras of the share-holding of EG is necessary.

FACTS

5. EG and Mehras incorporated the Company in question i.e. Enercon India Ltd.(EIL) for manufacturing and marketing wind turbine generators and energy converters in India. EG is a Company registered under the laws of Germany. EG is one of the pioneers in the field of wind energy. Dr.Alloys Wobben holds many patents in the field of wind turbine generators. He is the 100% share-holder of EG. Yogesh, Ajay, Sudarshan, Minakshi, Radhika, Sitakshi, Siddharth Mehra are members of the Mehra family. EG holds 56% shares of EIL and Mehras hold 44%.

6. The Mehras and EG entered into a Share-holders Agreement in respect of EIL on 12 January 1994. A Technical Know-How Agreement was also entered into between the parties. The Share-holders Agreement executed on 12 January 1994 was between Enercon Gesellschaft fur Energieanlagen mbH & Co. i.e. EG and Mr.Yogesh Mehra, acting for himself and his family members. The Agreement stated that the Mehras have incorporated a Company, “Enercon India Limited”, having its registered office at Mumbai, Maharashtra and the Mehras have requested EG and the EG has agreed to supply technical Know-How and assistance for manufacturing, marketing of Wind Turbine Generators and components excluding Wind Turbine Controllers and parts. The authorised share capital of the EIL was to be 22.500.000 Rupees (twenty two million five hundred thousand Rupees), divided into 2,250,000 Equity shares of 10 Rupees (ten Rupees) each. It was provided that the EG will take over 1,020,000 equity shares in EIL being 51% paid up capital at par and the Mehras would take 980,000 Equity Shares being 49% of the paidup capital EIL. T