SUNIL AMBWANI, J. - (1.) THIS is an appeal by Smt. Neelu Kohli, (the applicant before the Company Law Board) under Section 10F of the Companies Act, 1956 against the orders of the Company Law Board (CLB), Principal Bench, New Delhi dated 02.6.2006 and 15. 11.2006 in Company Petition No. 27 of 1997 under Section 397/398 of the Companies Act, 1956. The Company Law Board recorded a memorandum on 02.6.2006, of the alleged agreement between the panics to settle the matter, and that by order dated 09.10.2006 the application of Smt. Neelu Kohli, the appellant filed on 06.6.2006, to either modify or recall her consent to the order was dismissed.
(2.) SMT . Neelu Kohli, the appellant is the divorced wife of Shri Naveen Kohli, respondent No. 2. There were matrimonial differences between them for a long period of time. Shri Naveen Kohli, respondent No. 2 filed a petition under Section 13 of the Hindu Marriage Act, 1956 for divorce. The family Court ordered dissolution of marriage, which was solemnized on 20.11.1975 and directed Shri Naveen Kohli to pay Rs. 5 lacs as her livelihood allowance. He deposited the amount. The High Court allowed the first appeal setting aside the divorce and the annulment of marriage, The Supreme Court by its judgment dated 21st March, 2006 in Naveen Kohli v. Neelu Kohli : AIR2006SC1675 , allowed the Civil Appeal with the findings that parties have been living separately for more than 10 years with large number of criminal and civil proceedings initiated by Smt. Neelu Kohli against Shri Naveen Kohli and some by Shri Naveen Kohli against her resulting into damaging the matrimonial bond beyond repair. The marriage between the parties was only in name and was wrecked beyond the hope of salvage. The public interest and interest of all concerned lies in the recognition of the fact to declare the marriage defunct dejure, which is defunct defacto. The Supreme Court found that to keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of marriage bond, While setting aside the judgment of the High Court, the Supreme Court in the extraordinary facts and circumstances directed Shri Naveen Kohli to pay Rs. 25 lacs towards permanent maintenance including Rs. 5 lacs with interest deposited by him under the direction of the trial Court. The respondent was given liberty to withdraw the amount with interest. Since Smt. Neelu Kohli had withdrawn the amount awarded by the trial Court, she was made entitled to receive Rs. 20 lacs and in case the appellant did not pay the amount, the directions were to be of no avail. Learned Counsel for Shri Naveen Kohli informs the Court that the amount has been deposited by him but the same has not been withdrawn by Smt. Neelu Kohli. The Supreme Court in the judgment noticed the litigation pending between the parties under Section 397/398 of the Companies Act, 1956 before the Company Law Board.
(3.) SMT . Neelu Kohli held 90% shares and Shri Naveen Kohli 10% share in M/s Nikhil Rubbers Pvt. Ltd. Smt. Neelu Kohli and her son Nimit Kohli filed a petition in the Company Law Board alleging acts of oppression and mismanagement by Shri Naveen Kohli. The Company Law Board decided by an order dated 25.9.2000, directing that Smt. Neelu Kohli and the respondent be declared as 50% shareholder each, considering the fact that one had contributed to the capital and other to the expertise as rubber technologist, and further directed the appellant to sell her 50% interest in the company to the respondents at a value to be determined by an independent valuer. Shri Vinod Jain, a Chartered Accountant was appointed as valuer for valuing the shares of the company. The parties were at liberty to submit written submissions to the valuer to take into account while preparing a draft valuation report. Shri Naveen Kohli challenged the appointment of valuer on which CLB changed the valuer from Shri Vinod Jain to M/s INMACS Management Services, vide its order dated 05.8.2002. A valuation report was submitted on 14.7.2003. Shri Naveen Kohli challenged the valuation report and prayed that a fresh arrangement be made for valuation of the assets of the company. Shri Naveen Kohli then filed another application on 14.11.2003 for adjournment pending decision in Civil Suit No. 1016 of 1997 filed by him restraining Smt. Neelu Kohli from entering the factory premises. The CLB dismissed the application on 21.3.2005 and fixed a date for hearing on which Shri Naveen Kohli filed a Company Appeal No. 2 of 2006 under Section 10F in this Court. By an order dated 03.3.2006, quoted as below, the company appeal was dismissed: This appeal under Section 10F of the Companies Act, 1956, has been filed against the order of Company Law Board ( In short the Board) dated 10.2.2006; by which the application CA 251 of 2003 to adjourn the proceedings pending decision of Civil Suit No. 1016 of 1977 filed by second respondent in Civil Court, Kanpur has been rejected. Learned counsel for the appellant has made submissions, which in fact challenge the order dated 25.9.2000 passed more than 5 years ago, holding that the petitioner and the second respondent would be deemed to hold 50% interest each in the company and the second respondent will purchase 50% interest of the petitioners on the value of the shares to be determined by an independent valuer. The Company Law Board while deciding the recall application held that the order dated 25.9.2000 was passed after long deliberations and visit of the members of the Board to Kanpur. It has become final and that the application was only by way of after thought, to delay the final valuation. It is a matter of serious concern that the appellant husband,( second respondent before the Board) who was allowed to run the company, on the ground that he was an active Director of the Company and that he should also have a business of his own, is running the company for the last five years. He has thereafter taken all steps to delay the process of valuation, Para 2 of the order of the Board shorts that firstly the appellant did not deposit the remuneration of the Chartered Accountant for about 2 years and thereafter he filed an application to adjourn the proceedings on the ground that a original suit No. 1016 of 1999 filed by second respondent for such declaration at Kanpur Civil Court is pending. The Suits were filed in the year 1996 and 1997, and were pending at the time when the Board passed orders on 25.9.2000, after taking notice of the civil litigation. Learned counsel for the appellant has relied upon the Apex Court judgment in Amonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Ors.. : AIR1998SC3153 , which it was held that where a claim is based on some seriously disputed civil right or title, the denial of any translation or any other basic fact which may be the foundation to claim a right to be a member and if the Court feels such claim does not constitute to be a rectification but instead seeks adjudication of basic rights some such facts falling outside the rectification of share register the Board has discretion to send a party to seek his relief before Civil Court first for the adjudication of such rights. It cannot be said that such a right was taken away merely on account of the deletion of the proviso to Section 38 of the Companies Act, 1956. Otherwise under the garb of rectification one may lay claim of many such contentious -issues for adjudication not falling under it. In my opinion, the appellant has wrongly placed reliance upon the observations of the Supreme Court. These observations relate to a dispute of rectification of register of members, and not where the minority alleges oppression against majority. In the present case, the order dated 25.9.2000 has became final long ago. It is admitted that the appellant has not challenged the order. Instead Smt. Neelu Kohli, the respondent No. 2 filed a Company Appeal No, 5 of 2000, which was dismissed on 10.11.2005 on the statement given by her counsel that he is not getting instructions from her. The challenge to the order dated 25.9.2000 is thus barred on the principles of acquiescence. A person who had accepted the position to allow him to run the company and to pay the valuation of 50% share to his wife, cannot be heard to say, after he has resisted the valuation to be made for five years, that the shares were actually purchased by her benami from his income. The Company Appeal has no merit and is dismissed.;