GAYATRI MOHAN Vs. MOBISOFT TELESOLUTIONS (P.) LTD.

JUDGEMENT

(1.) IN this order I am considering Company Petition No. 80(ND)/2009 filed by Ms. Gayatri Mohan, the petitioner against Mobisoft Telesolutions (P.) Ltd. and another, the respondents under sections 397, 398 and 399 read with section 402 of the Companies Act, 1956 ('the Act') alleging oppression and mismanagement. The petitioner has prayed for restraining R1 and 2, its servants, agent, employee from selling, alienating and/or parting with the possession of the immovable assets of the R1 -company; restraining R1 and 2 from allotting any further shares to anyone, appointing any additional directors on the Board of R1 -company and from removing the petitioner as director of the R1 -company; appointing an independent auditor to investigate into the affairs of the R1 -company and to find out various illegal and unlawful acts of respondent No. 2 and unearthing the acts of diversion of funds, siphoning and other serious and grave acts of mismanagement; appointing a local commissioner to seize, inspect, sign and authenticate the minutes book of the Board meeting, minutes book of general meetings and all books of account and other records of the R1 -company; restraining R2 in any manner giving any consents or making any commitments or executing any authorisations for or on behalf of R1 company; removing R2 from the Board of directors of the R1 -company; directing R2 to hand over the affairs of the R1 -company after ensuring clearance of all liabilities towards outsiders; directing the R1 to keep paying on month -to -month basis the salary and other allowances to the petitioner. The respondent -company Mobisoft Telesolutions (P.) Ltd. having its registered office at E -46/8, Okhla Industrial Area, Phase -II, New Delhi -110020 was incorporated on 4th October, 1994 as ITIDA CAD Services (P.) Ltd. ('ITIDA') for undertaking business of Thick Turret Punch Press Machines Software and Tools. The authorised share capital of the R1 -company is Rs. 25,00,000 divided into 2,50,000 equity shares of Rs. 10 each and issued/ subscribed/paid -up capital is Rs. 15,20,000 divided into 1,52,000 equity shares of Rs. 10 each. In the Initial 6 years, respondent -company traded and dealt in imported Software and Tooling. With country economy and business environment getting opened up, growth potential of the respondent -company products not looking encouraging in its business and started exploring new stream of businesses. Promoter of the respondent -company had also ventured into the field of value added services ('VAS') for Mobile Industry in the early stages by promoting a proprietary concern under the name Phoneytunes.com ('PT') in the year 2000, Brand name Phoneytunes.com a registered name in VAS services became a well -known brand. In the year 2003, VAS services proprietary concern phoneytunes.com was taken over by ITIDA. At the time of takeover Phoneytunes.com was known name in VAS Industry with huge potential of growth. ITIDA was well known and identified as Phoneytunes.com and concentrated only on mobile industry VAS services along with providing IT support services to TELCOS and mobile manufacturers. Over the years, ITIDA took VAS business to new levels. Respondent -company also diversified into Kiosks Assembly to meet changing trends in the Mobile Industry and Mobile manufactures. Since 2005, VAS and other IT Support services for Telcos become the main business of the respondent -company under brand name of Phoneytunes.com. Keeping in view its changed business profile, the respondent -company rechristened itself as "Mobisoft Telesolutions (P.) Ltd." on 24th February, 2009. Presently, respondent -company is focused on VAS and other IT support services for various Telcos and Mobiles manufacturers with the main objects providing computer aided designing services, know -how and consulting computer services and to undertake contract execution including programming, designing, work scheduling, operators, project study, commissioning, initial operation and maintenance services as required by the customers either in India or Abroad.

(2.) THIS order is in continuation of Company Law Board ('CLB's') order dated 13th December, 2011 which reads as under;

(3.) RESPONDENTS ' composite objections to the valuation dated 24th August, 2010 as well as the revaluation as on 15th November, 2010 are that : In the report dated 24th August, 2010, the submissions made by respondent No. 1 -company have not been considered and dealt with by the valuer, as per the submissions made by respondent No. 1, the value of company's share would be in the range of Rs. 205 to Rs. 255 instead of Rs. 700 as determined by the valuer, while arriving at his conclusions in the report dated 24th August, 2010, the valuer has erred in - (i) applying the correct basis, method of valuation; (ii) not applying the correct principles of the method of valuation adopted, i.e., average maintainable profits; (iii) ignoring bad debts written off; (iv) ignoring the accounts for the period ending 30th July, 2009, which is also contrary to the order dated 17th March, 2010 passed by the CLB; (v) ignoring the results of the year ending 31st March, 2010; (vi) calculation of average EBDTA; (vii) taking growth rate at 15 per cent keeping the base of the year ending 31st March, 2010 (even though there is loss in the year ending 31st March, 2010 and in spite of having ignored the said results); (viii) taking capitalisation rate at 11 per cent without any basis or explanation.