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2023 Supreme(Online)(NCLAT) 1889
NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI IN THE MATTER OF: Shri Yogendra Pal Jain Office at: SCO – 44, Old Judicial Complex, Civil Lines, Gurgaon-110001. … Appellant No. 1 Ms. Usha Kiran Jain, R/o P-6/3, DLF Phase-2, Gurgaon(Haryana) 122002. … Appellant No. 2 Versus South Eastern Carriers Pvt. Ltd. Regd. Office at: 2nd Floor, 10 Phears Lane, Kolkata-700012. … Respondent No. 1 Shri Ravindra Kumar Gupta (formal party) R/o 4D, Gee Gee Towers, 11, Herders Road, First Street, Chennai, Tamil Nadu-600006. … Respondent No. 2 Shri Tanmay Gupta, For Self & as Karta of Tanmay Gupta & Sons (HUF), R/o 4D, Gee Gee Towers, 11, Herders Road, First Street, Chennai, Tamil Nadu-600006. … Respondent No. 3 Ms. Veena Gupta, R/o 4D, Gee Gee Towers, 11, Herders Road, First Street, Chennai, Tamil Nadu-600006. … Respondent No. 4 Shri Arun Gupta, For Self & as Karta of Arun Kr. Gupta & Sons (HUF) R/o A-115, Sushant Lok, Phase I, Gurgaon, Haryana-122002. … Respondent No. 5 Ms. Savita Gupta, R/o A-115, Sushant Lok, Phase I, Gurgaon, Haryana-122002. … Respondent No. 6 Ms. Manisha Mehta, R/o Panch Complex, Fatehpur Bedla Road, Udaypur-313004. … Respondent No. 7 M/s. Care Go Logistics Pvt. Ltd., Regd. Off. At: Flat No. 402, Baroda House Apartment, Group Housing Society, Sector-10, Dwarka, New Delhi. … Respondent No. 8 Shri Siddharth Jain, Working for gain at: SCO-44, Old Judicial Complex, Civil Lines, Gurgaon-110001. … Respondent No. 9 ROC, Kolkata, ROC, Nizam Palace, 2nd MSO Building, 2nd Floor, 234/4, AJCB Road, Kolkata-700020. West Bengal. … Respondent No. 10 Present: For Appellants: Mr. P. Nagesh, Sr. Advocate, Mr. Abhay K. Das, Advocate For Respondents: Mr. Pawan Prakash Pathak, Mr. D.K. Singh, Advocate for R-1,5,6. Mr. Siddhartha Jain for R-9 (in-person)
JUDGEMENT
(15.5.2023) [Dr. Alok Srivastava, Member (Technical)]
1. This appeal has been filed under section 421 of the Companies Act, 2013 (in short “Companies Act”) by the Appellants, who are aggrieved by the order dated 1.4.2022 (in short “Impugned Order”) passed by the NCLT, Kolkata Bench in CP No. 42/2016.
2. Briefly, the facts of the case, as stated by the Appellants, are that Appellant No. 1’s (in short “A-1”) father-in-law Shri R.K. Gupta founded the Respondent No. 1 Company (in short “R-1”) and after his demise, his wife Smt. Uttama Gupta made a Registered Will by which the shares held by her and the shares transferred to her by virtue of the Will of her husband Shri R.K. Gupta were to be equally divided among their two sons, namely Shri Ravindra Kumar Gupta (“R-2”) and Shri Arun Gupta (“R-5”) and the daughter Smt. Usha Kiran Jain, who is Appellant No. 2 (in short “A-2”). Thereafter, A-1 became Managing Director of R-1 Company and started running the affairs of the Company in a smooth manner. The Appellant has further stated that the shareholding of Smt.
Uttama Gupta was surreptitiously transferred to the wives of R-2 and R-5 respectively, and when A-1, through an e-mail dated 10.11.2011, demanded explanation/ clarification regarding the transfer of shareholding done in favour of wives of R-2 and R-5 respectively, he did not receive any reply.
3. The Appellants have further stated that due to differences between R-2 and R-5, both sons of the Company’s founder, R-5 preferred company petition viz. CP No. 176/2015 before Company Law Board, Kolkata (in short ‘CLB”), but later withdrew the said company petition after the signing of an MoU dated 23.3.2016 with the group of R-2 and R-3, with the ostensible intention to divide the Company into two parts through a scheme of demerger to distribute the proceeds between themselves leaving out the daughter from the sharing. He has further stated that in pursuance of this nefarious intention, R-2 and R-5 started indulging in acts of oppression and mismanagement of the Company, which became quite intense leading to their design to push out A-1 and his son Siddharth Jain (R-9) from the company, and for achievement of this evil design they fixed a board meeting on 24.5.2016 for fixing the date of Extra-Ordinary General Meeting (“EOGM”) in which they wanted to decide about removing A-1 and R-9 from the post of Managing Director and Director respectively.
The Appellants, smelling such a design, approached the NCLT through C.P. No.
42/KB/2016 alleging oppression and mismanagement in the affairs of the company, and obtained a ‘status quo’ order on 3.5.2016 to stop the company from removing A-1 and R-9 from the posts of Managing Director and Director and also allow them to continue performing their official duties.
4. The Appellants have further stated that the Respondents put hurdles and obstructions in the way of A-1 and R-9 in the peaceful performance of their official duties, and hence in view of the above situation, they approached NCLT, Kolkata through CA No.
453/2016 seeking clarification of the ‘status quo’ order dated 3.5.2016, in which upon hearing, the NCLT vide order dated 18.8.2016 provided clarifications in continuation of the CLB’s order dated 3.5.2016, directing the Respondents to issue swipe cards to A-1 and R-9 for accessing the corporate office and also to provide access to the official e-mail of the Company and pay them salary as is payable to the other directors of the Company. When the Respondents disobeyed these orders of CLB/NCLT, the Appellants filed contempt application, viz. CA No. 487/KB/2017 but disregarding it, the respondents continued to place hurdles in the attempts by A-1 and R-9 to attend the board meetings and through a devious design, they surreptitiously engineered a fraudulent case against A-1 and R-9 regarding their absence from four board meetings of past one year which led to their cessation/vacation of office under section 167(1)(b) of the
