- (1.) The petitioners, called as Gangars, filed this CP u/s. 397, 398, 402, 403 and 406 of the Companies Act 1956 against Triveni Bialetti Industries Private Limited as R1 and other Respondents namely Giuseppe Servidori (R2), Roberto Serra (R3), Venkataraman Rajagopalan (R4) - R2-R4 are nominee directors of R5 in R1 Company, Biallette Industries S.P.A. (R5 - a company incorporated and situated in Italy) and Girmi S.P.A. (R6 - a company incorporated and situated in Italy) alleging that the acts of R2-6 in relation to the affairs of R1 Company are prejudicial and oppressive against Gangars, who closed their earlier business similar to the business of R1 solely to become joint venture partners with R5 in incorporating R1 Company, the major allegations against the answering Respondents are; - that having the petitioners on 12.7.2010 unconditionally accepted to purchase the shares of Bialetti made on 2.7.2010, it has to be construed that the petitioners exercised the right of pre-emption, therefore Bialetti transferring the kitchenware undertaking of R1 to TTK Prestige is null and void, and - that since the EGM held on February 24, 2011 was on short notice flouting the provisions of company law, the meeting and resolutions for removal of the petitioners as directors, alteration of articles and shifting of Registered office to Tamil Nadu from Maharashtra shall be declared null and void with consequential directions, and - that since dilution of Gangars shareholding was with the consent of the Respondents and there being no objection from the Respondents in respect to dilution of the petitioners' shareholding, now the respondents could not have resorted to terminate the JVA on the footing the petitioners shareholding has gone below 10% without consent of Bailetti, therefore Termination of JVA shall be declared null and void.
(2.) The case of the petitioners in brief: The petitioners (Gangars) submit that they were initially in the business of manufacturing and selling aluminium cookware, through a partnership firm called Tuffware Industries, while doing so, Bialetti Industries S.P.A. (Bialetti) a corporation duly incorporated and existing under the Laws of Italy having its registered office at Coccaglio, Italy, desired to set up a manufacturing base for their business in India as well as to export out of India, in pursuance of it, the representative of R5, viz. Mr. Sergio lore, Mr. Gianluigi Mazzotti and Mr. Paolo Colombo in the month of March 2006, visited India and had discussions with the Petitioners for setting up Joint Venture business in India. Based on the discussions and deliberations, on May 8, 2007, the petitioners had incorporated R1 Company for the purposes of Joint Venture with R5. In furtherance of it, Gangars, Bialetti and R1 entered into a Joint Venture agreement dated September 20, 2007 (JV Agreement to maintain all along ratio of 70% shareholding by Bialetti and Gangars 30% shareholding) to manufacture, distribute and sell steel and non-sticking aluminium cookware and other items. According to the agreement, R6, an affiliate of R5, acquired 70% of equity stake in R1 Company. The business has been set up as quasi-partnership between the petitioners, R5 and R6 with pre-emptive rights against each other for purchase of the shares of the person interested in exiting R1 Company as envisaged in Article 7.4 of the JVA and Articles 17.4 of the Articles of Association. It has also been said that this pre-emption right would remain in force despite the JVA is terminated, apart from the pre-emption right, Article 34 provides the number of directors to be nominated by each partner to secure their representation on the board of directors, and Article 36 gives an affirmative vote to both the parties with respect to all important decisions of the company.
(3.) The petitioners set up a factory of the company at Thane by conversion of agriculture land into non-agricultural land. Soon after factory has been set up, it has commenced operations in the month of October 2008. Though R5 assured that orders would come from Europe and USA, for R5 was unable to procure any such orders, the sale of the products had remained slow, ultimately the company was making losses. As the company hardly made any business, it was closed in the year ending of 2009 due to the failure and inability on the part of R5 to comply with its obligations under JVA.;