TRAFALGAR INVESTMENT MAURITIUS LIMITED Vs. EDEN REALITY VENTURES PRIVATE LIMITED AND ORS
LAWS(NCLT)-2016-9-12
NATIONAL COMPANY LAW TRIBUNAL
Decided on September 15,2016

TRAFALGAR INVESTMENT MAURITIUS LIMITED Appellant
VERSUS
EDEN REALITY VENTURES PRIVATE LIMITED AND ORS Respondents


Referred Judgements :-

RAMESHKUMAR AGARWAL VS. RAJMALA EXPORTS PVT LTD [REFERRED TO]


JUDGEMENT

- (1.)This application is for amendment of the C.P. No. 25/2015 between Trafalgar Investment Mauritius Limited -versus- Eden Realty Ventures Private Limited which has been moved on behalf of the petitioner-applicant praying that M/s. Eden Infrastructure Private Limited and Shri Indrajit De be added as respondent Nos. 5 and 6 in the Company Petition No. 25/2015.
1.1 Brief facts of the case are that petitioner has filed this petition under Sections 284, 397, 398, 399, 402, 403 and 406 of the Companies Act alleging that issued, subscribed and paid-up share capital of M/s. Eden Infrastructure Private Limited is Rs. 44,599,410/- comprising of 9,99,971 equity shares of Rs. 10/- each and 3,45,997 cumulative convertible preference shares of Rs. 100/- each and the petitioner's holding in M/s. Eden Infrastructure Private Limited is 66.67%. The respondent No. 1's holding is 30.08% and one Michael John Ezra holding is 3.25%. The respondent No. 1 company is a company incorporated under the Companies Act, 1956 which had entered into a Joint Venture Agreement with the petitioner for a housing project known as 'Bonhooghly Housing Project'. The respondent Nos. 2 and 3 have colluded with respondent No. 4, to wrongfully and illegally change the constitution of the Board of Directors of M/s. Eden Infrastructure Private Limited. The respondent No. 4 is the practising Chartered Accountant.

1.2 The petitioner had entered into a joint venture agreement with respondent No. 1 herein. Eden Infrastructure Private Limited ("EIPL") was the special purpose vehicle which was formed to execute the Bonhooghly Project. EIPL is a joint venture company between Eden Realty Ventures Private Limited (ERVPL) and the petitioner herein, Trafalgar Investment Mauritius Limited (TIML). The FDI partner Michael John Ezra is holding 3.25% equity shares in EIPL. The petitioner is the majority partner holding 66.67% equity shares and all the funds required to be brought in for the said Bonhooghly Housing Project (BHP) were brought by the petitioner.

1.3 As per averments of the applicant, M/s. Trafalgar Investments Mauritius Limited, has filed an application against the respondents alleging oppression and mismanagement of the Company, namely, Eden Infrastructure Private Ltd. and for wrongful and illegal removal of company's Director, Indrajit De and for wrongful and illegal appointment of the respondent Nos. 2 and 3 as Directors of the said Company. There are only three shareholders of the company, namely, the petitioner holding 66.67% equity shares, respondent No. 1 holding 30.08% equity shares and one Michael John Ezra holding 3.25% equity shares. The legally constituted Board of Directors of EIPL consists of only three directors, viz., (1) David Cohen, (2) Michael John Ezra and (3) Indrajit De. In view of the illegality committed by the respondents in appointing the respondent No. 2 and 3 as directors of EIPL and wrongfully and illegally removing Indrajit De as Director from the Board of Directors of the said EIPL and fabrication of Form DIR 12 by the respondents by using digital signature of Indrajit Dean application has been filed in the Learned Company Law Board alleging oppression and mismanagement of the said EIPL by the respondents.

1.4 In the C.P. No. 25/2015 it has been specifically stated that the instant Company Petition relates to M/s. Eden Infrastructure Private Ltd. (EIPL). However, in arrays of the respondents the name of EIPL and the nominee director of the company (EIPL) Indrajit De has been omitted due to inadvertence and/or oversight. The applicant has stated that in the Company Petition the cause of action has been made out by the petitioner against the respondent for the wrongful and fraudulent and illegal removal of the nominee director, Indrajit De from the Board of Director of the Company. The said company (EIPL) and the said Indrajit De has not been added as respondents in the Company Petition due to oversight or mistake. M/s. EIPL arid Shri Indrajit De are necessary party in the Company Petition and therefore an application has been filed for impleadment of EIPL and Indrajit De as respondent Nos. 5 and 6 in the Company Petition No. 25/2015.

1.5 The applicant petitioner has further submitted that no effective order can be passed in the absence of proposed respondent M/s. EIPL and Indrajit De; therefore impleadment as respondents are necessary for proper and effective adjudication of the Company Petition.

(2.)1 In reply to the above mentioned application respondents have submitted that by the purported amendment the petitioner/applicant seeks to take away valuable right which has already accrued in favour of them; even if the amendment as prayed for is allowed the same will still not remove a patent defects and error in the Company Petition which are of fatal nature. The Company petition has been filed for its personal benefit and not for the benefit of the Company.
2.2 Respondents has further alleged the petition has been filed with the allegation of oppression and mismanagement of the Company, viz., Eden Infrastructure Private Limited or can seek any relief for the alleged wrongful and illegal removal of company's director Shri Indrajit De and the appointment of the respondent Nos. 2 and 3 as Directors of the Company. In the petition El PL was not a party in the Company Petition and this inherent defect goes to the very root of the matter and the company petition cannot be proceeded any further. In the absence of EIPL as a party in the company petition, the pleadings in the main petition are defective and cannot be cured by the purported amendment. The company petition discloses no cause of action against the respondent Nos. 1, 2 and 3 herein.

2.3 Respondents had also denied and disputed that the petitioner-applicant company holds 66.67% shareholding in the respondent No. 1 company. Respondents has also alleged that no relief can be prayed in the Company Petition by Indrajit De who is not a party in the Company Petition and even if the purported amendment is allowed, will not be arrayed as one of the petitioner but is proposed to be impleaded as respondent No. 6.

2.4 Respondents have further alleged that it is incorrect to say that name of EIPL and nominee director of the Company Shri Indrajit De have been omitted due to inadvertence and oversight. The respondents have further alleged that the petitioner has not disclosed the purported authority of Indrajit De to represent him in the present proceedings and that the amendment as prayed for by the petitioner is formal in nature or will not change the nature and character of the petition.

(3.)The petitioner has filed a rejoinder in support of his application.
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