Sudhansu Jyoti Mukhopadhaya, J. - (1.) The appellant has challenged the order dated December 8, 2016-- (Sanjay Parlikar v. Apt Scanning and Diagnostic Centre P. Ltd.,2017 202 CompCas 80 (NCLT)) passed by the National Company Law Tribunal (hereinafter referred to as the "Tribunal"), Mumbai Bench in T.C.P. No. 80/397-398/CLB/MAH/2015 whereby and where under the Tribunal while held that there is no "oppression and mismanagement" but restored the appellant as director of the company. The company petition was filed by the appellants/petitioners (2 per cent shareholders) under sections 397 and 398 of the Companies Act, 1956, alleging "oppression and mismanagement". It was alleged that the first respondent-company was not holding any board or extraordinary general meeting and the first appellant has been removed as director of the first respondent-company without notice to them. It was further alleged that the second and third respondents intended to create third party interest in the property of the first respondent-company and there were mismanagement due to non-payment of dues.
(2.) The relevant facts as noticed by the Tribunal are as follows: The company petition revolving around three players, mother and two sons, in relation to the affairs of respondent No. 1-company, namely, M/s. Ajit Scanning and Diagnostic Centre P. Ltd., which is wholly owned by the mother, two sons and their wives, wherein, mother having more than 98 per cent shareholding. Wife being natural ally of husband, petitioner No. 2 (shortly called "Vishakha") being the wife of petitioner No. 1 (shortly called "Sanjay") and by holding some fraction of shareholding in her name, they together filed this company petition against Sanjay's mother (respondent No. 2 shortly called "Savita" or "mother") and his brother (respondent No. 3 shortly called "Rajiv"). The company started by their father deceased Shrikant Parlikar (shortly called "Shrikant") in the year 1993 taking Sanjay and his two other sons, namely, Mr. Satish Parlikar (shortly called as "Satish") and Mr. Ajit Parlikar (shortly called Ajit) as permanent directors on the board in the year 1993 to running diagnostic centre business in one of the prospering suburbs of Mumbai, i.e., Kalyan, obviously the company also prospering well. In the meanwhile, their father Mr. Shrikant died intestate in the year 2010. By the time, the majority shareholding was lying in the name of their father late Shrikant, the other two brothers Satish and Ajit, after the demise of their father, left the company and their directorship as well by transferring their shareholding in the name of their mother. Because of some internal understanding and rearrangement in the family, father's shareholding has been transmitted to the mother resulting her to hold more than 98 per cent shareholding of the company. Here, it is also pertinent to mention that a family partition deed was executed on March 22, 2012 dealing with the entire assets of the family and their distribution among themselves agreeing in clauses 2 and 3 of the deed that the mother (respondent No. 2), Sanjay and Rajiv would manage respondent No. 1-company excluding other brothers and the mother would ultimately transfer some percentage of shareholding (in clause 3, however, it has been left blank as to how much shareholding out of her shareholding is contemplated to be transferred to Sanjay and Rajiv) to Sanjay and Rajiv. By virtue of their arrangement in between them, it appears that this company has been left to be managed by Sanjay and Rajiv under the supervision of their mother. It is apparent on record that above 98 per cent shareholding is presently held by the mother, perhaps, to continue this business jointly without any differences between the brothers. Somehow things went wrong in the last one/two years, thereby Sanjay and Rajiv started fighting, henceforth the company landed up in this litigation.
(3.) After going through the relevant facts and records the Tribunal held that there was no "oppression and mismanagement". The Tribunal also held that non-payment to statutory dues by the company cannot be treated to be cause of "oppression" to the appellants or any member or the company. The Tribunal further held that even the proposal for removal of the first appellant from the family company cannot be treated to be offensive act.;