B.S.V. Prakash Kumar, Member - (1.) The applicant/petitioner mentioned this CA praying as follows: "(a) Pending the hearing and final disposal of the Company Petition No-74(MB)2015 the respondents through their officers, agents and servants be restrained in any manner from alienating the suit property being situated at LBS Marg, besides Sward near Mangatram Petrol Pump, CTS No. 350, 350/1 to 11 area equal to 21,750 sq. mtrs, Village Kanjur, Tal Kurla, Mumbai as more particularly described in Exhibit ']'. (b) Pending the hearing and final disposal of this petition this hon'ble Board be pleased to issue such further order or other orders to be made and/or direction or directions be given as this hon'ble Board may deem fit and proper." The applicant submits that R1 is a family company comprising of two brothers and father, the applicant is one among the brothers with 33.5 percent shareholding. Another brother and the father of him are other shareholders managing the affairs of the company. When the applicant had fall out with his brother and his father, he filed this CP in the year 2015 alleging that the conduct of the answering respondents is oppressive against the interest of him thereby sought restraint orders against the answering respondents from dealing with two major properties of R1-company, one is Khandelwal Herman Property and other is National Industrial Corporation Property ('NIC Property'). Since Company Law Board ('CLB') had already restrained the respondents from alienating Khandelwal Herman Property, he has now sought restraint orders against NIC Property alleging that the answering respondents trying to create third party rights over the said property under the garb of arriving at a settlement with one Ackruti City Ltd. ('Ackruti') in suits bearing numbers 1985/2009 and 2392/2009 pending before hon'ble High Court of Bombay. He says that the proposed action of settlement in the said suits is detrimental to the interest of this applicant because he already challenged the acts of the respondents in relation to the affairs of R1-company as prejudicial to the interest of him.
(2.) The applicant submits that Ackruti filed a suit bearing number 1985/2009 against R1-company, NIC, Mumbai Municipal Corporation, respondents 2 and.3 and the applicant/petitioner for declaration that the title of NIC Property is vested with Ackruti, whereas R1-company moved another cross suit 2392/2009 against NIC, one Smt. Ram Murli Lal Chand Goyal, one Mr. Rajeev Goyal and Ackruti for declaration that R1-company has 100 percent development rights over the same property. When these suits had gone before Division Bench of hon'ble High Court of Bombay in an appeal, it has passed an order on 15th April, 2010 holding that R1-company shall maintain status quo over the aforesaid asset. Since status quo has been continuing over NIC Property in the above suits, the applicant says he had not sought any interim restraint order against NIC Property at the time CLB passed interim restraint order in this CP over the other asset of R1-company believing status quo order passed in the suits would continue and the respondents would not be in a position to deal with that asset. But the applicant says, now having seen that the answering respondents colluded with Ackruti to ensure a consent decree is passed by the hon'ble High Court of Bombay in the aforesaid two suits altering 100 percent development rights vested with R1-company, he apprehends that any alteration of interest in development rights in NIC Property would directly have bearing on the Interest of him in the family company solely developed on the foundation of earlier partnership firm run by the family. The applicant counsel says that the respondents' side, fortifying the apprehension of him, has filed consent terms reflecting 50 percent development rights of NIC Property would go to Ackruti without consideration and remaining 50 percent development rights would remain with R1-company. Out of remaining 50 percent left with R1-company, the consent terms set out another clause to alienate 10 percent of R1's 50 percent rights to Ackruti on consideration and to have joint venture agreement with Ackruti to develop the entire property. Applicant counsel further says it was not mentioned in the consent terms what is the consideration payable to R1 by transfer of 10 percent development rights to Ackruti. 2.1 The counsel of the applicant further submits that in case the consent terms are being allowed for transfer of 50 percent development rights, for transfer of further 10 percent development rights from 50 percent development rights retained with R1-company, these transactions would obviously dissipate the interest of the company, so is the interest of the petitioner having 33.5 percent shareholding in R1-company, henceforth, the applicant counsel prays this Bench to pass an order not to create any third party rights over NIC Property of R1-company pending disposal of this case.
(3.) He further submits that passing restraint order over the asset of R1 by this Bench especially when the dispute over the affairs of R1-company is in the seizin of this Bench, will not hit the concept of amity and comity of courts or conflict with the orders of the other court, because dissipation of an asset will tantamount to dissipation of the interest of 33.5 percent shareholder in R1-company. Therefore, the counsel of the applicant says that 100 percent interest over development rights of R1 over NIC Property shall not be altered pending disposal of this case, because R1 has admittedly held 100 percent development rights over NIC Property ever since National Industrial Corporation transferred development rights to R1.;