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2024 Supreme(Online)(NCLT) 5475
NATIONAL COMPANY LAW TRIBUNAL
D. Arvind, Member (Technical), Bidisha Banerjee, Member (Judicial)
Goldair Handling S.A. – Appellant
Versus
LAS Goldair Handling (Bagdogra) Pvt. Ltd. – Respondent
Company Petition: C.P. No. 278 of 2023
For the Appellants/Petitioners: Mr. Joy Saha, Sr. Adv., Mr. Jishnu Saha, Sr. Adv., Mrs. Sonal Shah, Adv., Mr. Kushagra Shah, Adv., Ms. Monali Dutta, Adv., Mr. Aniket Chaudhury, Adv., Mr. Ratnanko Banerji, Sr. Adv.
For the Respondents:Mr. Jishnu Chowdhury, Adv., Mr. Shaunak Mitra, Adv., Mr. Sohan Sen, Adv., Mr. Siddharth Sharma, Adv., Mr. Rishav Dutt, Adv., Mr. Arjun Asthana, Adv., Ms. Pratiksha Roy, Adv., Ms. Shalini Deb, Adv., Mr. Rajib Ray, Advocate
The court emphasized adherence to governance protocols in Shareholders Agreements and recognized the need for independent audits in matters concerning allegations of oppression and mismanagement.
Headnote:(A) Companies Act, 2013 - Sections 213, 241, 242, and 244 - Allegations of Oppression and Mismanagement - Application challenging board meeting and appointment of directors - Shareholders Agreement entitles Applicant to nominate directors - Appointment of directors void due to absences of quorum - Court upholds need for independent audit and restrains publication of audit report. (Paras 1, 10, 27, 49)
(B) Shareholders Agreement - Rights to nominate directors - Quorum stipulated in agreement is pivotal for valid board meetings - Validity of appointments challenged due to alleged breaches of agreement by either party. (Paras 6.5, 28, 33)
Facts of the case:
Dispute revolves around the appointment of directors in LAS Goldair Handling (Bagdogra) Pvt. Ltd., a Special Purpose Vehicle formed under a Shareholders Agreement. The Applicant alleges oppression in the rejection of its nominee. The Respondent counters that the Applicant breached exclusivity clauses.
Findings of Court:
The court finds that the board meeting held lacked quorum, and the alleged conflict of interest raised by the Respondent did not warrant the rejection of the Applicant's nominee without justification. The need for an independent forensic audit is recognized.
Issues: Whether the board meeting's decisions are valid due to lack of quorum and whether actions taken were oppressive against the minority shareholder.
Ratio Decidendi: The court determined that significant decisions involving director appointments must comply with agreed protocols outlined in the Shareholders Agreement, and issues of oppression must be thoroughly examined, emphasizing the importance of independent oversight.
Result: Interlocutory Applications disposed of with orders to ensure compliance with governance conditions stated in the Shareholders Agreement.
| Table of Content |
|---|
| 1. challenging board meeting decisions and appointments. (Para 3 , 10 , 11) |
| 2. establishment and management of the spv. (Para 4 , 5 , 6 , 7 , 8) |
| 3. debate around qualifications for directors and conflicts of interest. (Para 19 , 20 , 21 , 22 , 23) |
| 4. legal standards for board meeting validity. (Para 26 , 27 , 30 , 31) |
| 5. court's decision on audit necessity and restraint. (Para 41 , 50) |
COMMON ORDER
Per: D. Arvind, Member (Technical):
1. The Court congregated through hybrid mode.
I.A. No. 21/KB/2024
2. Heard Ld. Counsels for the parties.
3. This interlocutory application has been preferred by Goldair Handling SA (hereinafter referred as “Applicant/Goldair”) against LAS Goldair Handling (Bagdogra) Pvt. Ltd. and Another (hereinafter referred as “Respondent/LAS”). This application prays for following reliefs:
“a) Pending the hearing and final disposal of the Petition, and in order to aid this Hon'ble Tribunal to adjudicate the allegations of Oppression and Mismanagement, this Hon'ble Tribunal may be pleased to set aside the minutes of the board meeting of the Original Respondent No.1 SPV, held on 8th January 2024, wherein additional directors nominated by the Original Respondent No.2 were appointed to the board of the Original Respondent No.1 SPV and direct the removal of Mrs. Humin Burzin Daver, Mr. Aslam Rangwala and Mr. Shivanand Naik from the post of additional directors of the Original Respondent No.1 SPV;
b) Pending the hearing and final disposal of the Petition, in order to aid this Hon'ble Tribunal to adjudicate the allegations of Oppression and Mismanagement, this Hon'ble Tribunal may be pleased to restrain the Original Respondent No.1 SPV from re- appointing Mrs. Humin Daver and Mr. Aslam Rangwala as a director of the Original Respondent No.1 SPV, in light of the malicious acts perpetrated against the Petitioner;
c) Pending the hearing and final disposal of the Petition, in order to aid this Hon'ble Tribunal to adjudicate the allegations of Oppression and Mismanagement, this Hon'ble Tribunal may be pleased to set aside and declare null and void any actions taken by the Respondents, in furtherance of the Minutes of the Board Meeting of the Original Respondent No.1 SPV dated 08th January 2024.
d) Pending the hearing and final disposal of the Petition, in order to aid this Hon'ble Tribunal to adjudicate the allegations of Oppression and Mismanagement, this Hon'ble Tribunal may be pleased to direct the Original Respondent No.1 to forthwith and on an immediate basis to complete the appointment of the nominees as proposed by the Petitioner in order to ensure valid quorum as enshrined under Article 73 of the AOA;”
Factual Matrix:
4. The Applicant is a company registered under Greek Laws. The Applicant and the Respondent No. 2 Las Ground Force Private Limited are shareholders of the Respondent No. 1 company, Las Goldair Handling (Bagdogra) Pvt. Ltd. The shareholding of the Respondent No. 1 company is as under:
I. LAS Ground Force Pvt. Ltd. (Respondent No. 2): 65%.
II. Goldair Handling SA (Applicant): 35%.
5. The Respondent No. 1 (i.e.) LAS Goldair Handling (Bagdogra) Pvt. Ltd. is a Special Purpose Vehicle (SPV) established by the Applicant and the Respondent No. 2 for the purpose of managing ground handling services, passenger handling, ramp handling, cargo handling and aircraft cleaning services for domestic and international flights at Bagdogra airport.
6. Special Purpose Vehicle (SPV) was incorporated on 14.05.2021 and in June 2021, the Applicant and the Respondent No. 2 entered into a Shareholders Agreement (SHA). Additionally, an addendum to SHA was also entered into between the parties on 04.01.2022. Copy of the SHA along with the addendum has been annexed to the Company Petition as Exhibit – “C”.
7. As per SHA, the Applicant herein is entitled to nominate three directors in the board of Respondent No. 1 company and six directors by Respondent 2 (i.e.) Las Ground Force Ltd. Further Clause 6.5 of SHA provides for quorum for the
